Artist sues Fresno Fair for banning his Civil War painting

A Fresno artist is suing California state officials, accusing them of violating his free speech rights by keeping his Civil War painting that shows a soldier holding a Confederate flag from being exhibited at The Big Fresno Fair last year.

Timothy J. Desmond’s lawsuit in U.S. District Court in Fresno is the first legal challenge to a law signed by Gov. Jerry Brown in September 2014 that bans displaying the Confederate flag on state property, said Terry Pell, president of the Center for Individual Rights, a nonprofit public interest law firm in Washington, D.C., that is representing Desmond.

Desmond, 70 and a retired high school science teacher, has sued Attorney General Kamala Harris, Food and Agriculture Secretary Karen Ross, Fairs and Expositions chief John Quiroz and Big Fresno Fair CEO John Alkire for violating his constitutional rights.

The lawsuit says Desmond is a Civil War buff who created a painting called “The Attack,” which depicts Confederate soldiers fighting in the 1864 siege of Atlanta. The Big Fresno Fair banned the painting because a soldier in the painting is carrying a Confederate flag into battle, Pell said.

At issue is California Government Code Section 8195, which says that the Battle Flag of the Confederacy, also referred to as the Stars and Bars, or any similar image cannot be sold or displayed on state property unless the image appears in a book, digital medium or state museum that serves an educational or historical purpose.

State officials and Alkire used the law to ban Desmond’s painting at the state-run Fresno Fair, the lawsuit says.

The California Legislature adopted the law because it disapproved of the views that sometimes are associated with the Confederate flag, the lawsuit says.

But Desmond and his lawyers say in court papers that the law should not apply to privately created artworks displayed at state-run fairs. They said the code section would have a “chilling effect” because it prohibits or threatens to prohibit individuals’ constitutionally protected speech.

For example, the code section would bar people from placing the Stars and Bars flag on a Confederate veteran buried in a state cemetery. The section also would bar a student in a state-funded school from displaying a Confederate flag in a history project.

While state officials have latitude to restrict the state’s own speech, Pell said the First Amendment limits the state’s authority to prohibit private individuals from displaying the Confederate flag in circumstances like an art show, where it is clear that the state is not endorsing the content or message of any of the paintings displayed by individual artists.

“It’s one thing to ban the Confederate flag from flying over the state Capitol,” Pell said. “Applying it to individual artists goes beyond the intent of the code section.”

Desmond wants a federal judge to declare the law unconstitutional “on its face as over broad under the First Amendment of the U.S. Constitution.” He also wants a judge to prohibit the defendants from enforcing the law against other artists.

Because Desmond wants to show his painting at The Big Fresno Fair in October, Pell said his nonprofit plans to file for an injunction soon in federal court.

“We believe it is a strong and important case,” said Pell, adding that his nonprofit is dedicated to the defense of individual liberties “against the increasingly aggressive and unchecked authority of federal and state governments.”

The attorney general’s office declined to comment on whether the lawsuit has merit, other than to say it is reviewing Desmond’s complaint.

Alkire said in an email: “Yes, we are aware of the lawsuit. However, it is the practice of The Big Fresno Fair to not comment on any current or pending litigation.”

Desmond grew up in Madera, studied painting at California College of Arts and Crafts in Oakland and earned a bachelor’s degree in zoology from Fresno State. He taught high school biology, chemistry and physics in Madera and Firebaugh. He also has written many books that revolve around conspiracies and other theories, according to his profile on Amazon.

Every year, The Big Fresno Fair displays artwork, including photographs and paintings from local artists. “In using its property to show paintings, the Big Fresno Fair has created a public forum for such works,” the lawsuit says.

In 1995, Desmond won first place in the developing artist category for a piece called “Don’t Miss It, Don’t Even Be Late.”

Before Desmond submitted “The Attack” for the 2015 Big Fresno Fair, the lawsuit says, Quiroz instructed Alkire to contact the attorney general’s office for a legal determination on whether Section 8195 applied to Desmond’s painting.

The lawsuit says Alkire contacted the attorney general’s office and was told it would be unlawful to display the painting at the fair. “As the Attorney General, defendant Harris made that determination,” the lawsuit says.

This story was originally published August 27, 2016 at 3:00 PM with the headline "Artist sues Fresno Fair for banning his Civil War painting."