Case Status: Victory

Desmond v. Harris: Why the First Amendment Protects Desmond’s Speech

History of California Code Section 8195

A bill was introduced in the California Assembly in February of 2014. The bill’s author explained that he had discovered that a gift shop in the State Capitol Building sold Confederate currency which contained an image of the Confederate flag. The assemblyman equated the Capitol gift shop’s sale of this currency with “promoting hate toward others.”

The original bill as introduced, would have prohibited all persons, not just the state, from selling or displaying a Confederate flag on state property. However, both the Assembly and Senate Judiciary Committees recognized that a restriction on the speech of private persons would undoubtedly violate the First Amendment.

The final text of the bill prohibited the State of California from selling or displaying the Confederate Battle Flag. The Bill offered some limited exceptions for cases where the image appears in a “book, digital medium, or state museum that serves an educational or historical purpose.”

The bill was signed into law by Governor Jerry Brown in September of 2014.

State vs. Private Speech

Even though the California legislature refined the bill so as to restrict only state speech, state officials interpret the statute to cover private speech. If the bill only meant that the government of California could not “display” the Confederate flag by,  e.g., flying it at the state Capitol, then the statute would be constitutional. A state government may decide what speech it adopts as its own. However, if “display” means that the state will refuse to show the work of a private citizen at a local art fair on county property, then the statute violates the First Amendment.

At an event like the Big Fresno Fair, where the government invites submissions for a local art contest, the government has created a public forum. Here, the forum is open to the public for a specific use: the display of local art.  The government may restrict submissions to further that use (such as stipulating that the show is for painting rather than musical compositions), but it may not place restrictions on the content of the speech (in this case, the art) of the individuals it has invited into the forum.  Just as a county government cannot hold a public meeting to debate raising the pay of county commissioners, but then only allow citizens who are in favor of the pay increase to speak, neither can it hold an art contest and then exclude art that expresses a certain point of view.

Forums preserve the distinction between government speech and citizen speech. No one wandering through a gallery of local artists at the Big Fresno Fair imagines that the works of art express the view point of the state. It is readily apparent that each artwork represents the speech of the individual artist.

The Consequences of an Over-broad Statute

Tim Desmond’s case is just one example of speech inadvertently and unconstitutionally suppressed by the California statute.  The California statute also bans college professors, historians, and other societies and lecturers who hold events on state property from any use of the Confederate flag that is not in a book or a video:

  • A professor at a state university could be challenged for showing films or non-digital photos about the Civil War, reconstruction, or the civil rights struggle, which sometimes contain images of the Confederate flag;
  • A historian could not incorporate a historical photograph showing the Confederate flag as part of a public lecture in a community room on County property;
  • An expert on the history of political campaigns could not physically display campaign paraphernalia that included the Confederate flag as part of a lecture open to the public on state property.
  • An elementary school could not display student reports or artwork having to do with the Civil War if they contained an illustration of the Confederate Flag.

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