Legally Weird - The FindLaw Legal Curiosities Blog

California Man Sues State Over Confederate Flag Ban

Back in 2014, years before avowed racist Dylann Roof slaughtered nine black parishioners in a Charleston church and drew national attention to states still officially incorporating the Confederate Battle Flag into official locations and ceremonies, California passed a law prohibiting the state from displaying or selling merchandise emblazoned with the Confederate flag.

So does that law cover a citizen's Civil War painting depicting the flag displayed at a county fair? One resident and Civil War buff is trying to figure that out, and he's suing the state to do it.

"Attack" Attacked

Timothy Desmond's "The Attack" is probably not going to end up in the San Francisco Museum of Modern Art any time soon. But can he display it at the Fresno County Fair? The painting depicts a line of advancing Confederate soldiers and a flag containing the stars and bars of the Confederacy. Desmond claims he submitted the work for inclusion at this October's Big Fresno Fair, but it was rejected based on California's anti-Confederate Flag law.

Section 8195 of the Golden State's Government Code says specifically:

The State of California may not sell or display the Battle Flag of the Confederacy, also referred to as the Stars and Bars, or any similar image, or tangible personal property, inscribed with such an image unless the image appears in a book, digital medium, or state museum that serves an educational or historical purpose.

The law doesn't ban display of the flag by private individuals, so the question becomes whether the county fair is considered the state and whether the ban applies to any public display of the flag on state property.

Freedom of Stars and Bars

Desmond's lawsuit claims "Section 8195 prohibits or censors, or threatens to prohibit or censor, the constitutionally protected speech of private individuals," and proposes Confederate flags placed on Civil War Veterans' gravesites on state property and Confederate flags used in Civil War history projects in state schools as examples of the law's overreach.

But should a display at a county fair count as the state displaying the Confederate flag? If the statute doesn't bar Desmond's painting, Fresno County might have to find another reason to keep it out.

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