Civil War painting to be shown at Big Fresno Fair, averting showdown

Fresno artist Timothy Desmond’s “The Attack,” which depicts Confederate soldiers fighting in the 1864 siege on Atlanta.
Fresno artist Timothy Desmond’s “The Attack,” which depicts Confederate soldiers fighting in the 1864 siege on Atlanta. Center for Individual Rights in Washington, D.C.

A Civil War painting that shows a soldier carrying a Confederate flag into battle will be displayed at the Big Fresno Fair, averting a First Amendment showdown this week in U.S. District Court in Fresno.

In August, Fresno artist Timothy Desmond sued Attorney General Kamala Harris and other state officials after his painting called “The Attack,” which depicts Confederate soldiers fighting in the 1864 siege of Atlanta, was barred from the state-run fair.

Desmond’s lawsuit contended the fair violated his right to free speech, making his claim the first legal challenge to a law signed by Gov. Jerry Brown in September 2014 that bans displaying the Confederate flag on state property.

His lawyers sought an injunction to force fair officials to show the painting, but a hearing scheduled for Tuesday in federal court was canceled after the defendants agreed to let Desmond show his painting at the fair, which begins a 12-day run on Wednesday.

“This is a victory for the First Amendment and a victory for the citizens of California,” said Terry Pell, president of the Center for Individual Rights, a nonprofit public-interest law firm in Washington, D.C., that is representing Desmond.

Pell said Monday that both sides reached an agreement in federal court last month after The Bee wrote a story about Desmond’s legal fight and the Los Angeles Times wrote an editorial about the issue.

“As works of art go, ‘The Attack’ is never going to be mistaken for a lesser-known piece by one of the Old Masters. It’s amateurish and even a bit cartoonish,” the Times editorial says. Nevertheless, Desmond’s art work is historically accurate, the editorial says, so using the law to bar it from the fair sets a dangerous precedent and is absurd: “That’s nuts. It also defies common sense.”

Desmond’s painting will be displayed in the Fine Arts Building. In reaching an agreement in federal court, both sides stipulated that “upon proper entry of ‘The Attack,’ it will be judged and displayed along with, and treated similarly to, all other entries.”

Stacy Rianda, a deputy manager at the fair, said Monday that Desmond’s painting was submitted and judged last year, but was not displayed due to a misinterpretation of state law. “That has now been clarified and the painting was resubmitted, judged and will be on display during the fair,” she said.

Desmond, 70, is a retired high school science teacher. He is a Civil War buff who 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. In 1995, Desmond won first place in the developing artist category for a piece called “Don’t Miss It, Don’t Even Be Late.”

At issue is California Government Code Section 8195, which says 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. The California Legislature adopted the law because it disapproved of the views that sometimes are associated with the Confederate flag, the lawsuit says.

Desmond and his lawyers contend the law should not apply to privately created art works 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.

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 after the lawsuit was filed. “Applying it to individual artists goes beyond the intent of the code section.”

Pablo Lopez: 559-441-6434, @beecourts

The Big Fresno Fair

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Opening ceremonies: 10 a.m. Wednesday, Oct. 5

Last day: Sunday, Oct. 16