This measure would declare that the American flag represents the values of freedom and liberty, would call upon the state and local government to prohibit any government entity in the state from banning the American flag from public property, and would recognize June 14, 2018, as Flag Day.

This measure would declare that the American flag represents the values of freedom and liberty, would call upon the state and local government to prohibit any government entity in the state from banning the American flag from public property, and would recognize June 14, 2018, as Flag Day.

This measure would declare that the American flag represents the values of freedom and liberty, and would call upon the state and local government to prohibit any government entity in the state from banning the American flag from public property. property, and would recognize June 14, 2018, as Flag Day.

This measure would declare that the American flag represents the values of freedom and liberty, and would call upon the state and local government to prohibit any government entity in the state from banning the American flag from public property.

WHEREAS, On June 14, 1777, in the midst of the American Revolutionary War, the Continental Congress adopted a resolution stating that the flag of the United States be thirteen alternate stripes red and white and that the Union be thirteen stars, white in a blue field, representing a new Constellation; and

WHEREAS, On September 14, 1814, American soldiers under siege at Fort McHenry in Baltimore, Maryland raised a huge American flag to celebrate a crucial victory over British forces during the War of 1812, inspiring Francis Scott Key to write a poem that eventually became the words of the United States National Anthem; and

WHEREAS, On June 6, 1944, more than 160,000 American and Allied troops carrying the Stars and Stripes landed along a 50-mile stretch of heavily fortified French coastline in Normandy to liberate Europe from the forces of Nazi Germany. More than 9,000 Allied soldiers were killed or wounded on D-Day to free Europe from fascist occupation; and

WHEREAS, On February 23, 1945, five Marines and a Navy Corpsman raised the American flag atop Mount Suribachi during the Battle of Iwo Jima. It was a hard-fought victory over imperialism at the cost of 5,900 United States service members killed and 17,400 wounded against 23,000 Japanese army and naval forces fighting from an entrenched network of caves, dugouts, tunnels, and underground installations; and

WHEREAS, On July 20, 1969, astronauts Neil Armstrong and Buzz Aldrin became the first human beings to set foot on the surface of the moon, where they placed the American flag. There, the flag has stood a decades-long vigil upon the Sea of Tranquility as a gesture of peace for all humankind; and

WHEREAS, On September 11, 2001, in the aftermath of the terrorist attack which destroyed the World Trade Center, three New York City firefighters, George Johnson of Rockaway Beach, Ladder 157, Dan McWilliams of Long Island, Ladder 157, and Billy Eisengrein of Staten Island, Rescue 2, raised the American flag over the smoldering ruins of Ground Zero where the Twin Towers once stood. It was an act of defiance against those who sought to break the unconquerable values of freedom and liberty which the American flag represents; now, therefore, be it

Resolved by the Senate of the State of California, the Assembly thereof concurring, That the Legislature declares that the American flag represents the values of freedom and liberty; and be it further

Resolved, That the Legislature calls upon the state and local governments to prohibit any government entity in the state from banning the American flag from public property, including, but not limited to, public schools, public colleges, public universities, state beaches, public parks, public monuments, museums, and government offices; and be it further

Resolved, That the Legislature recognizes National Flag Day on June 14, 2018, and encourages all Californians to celebrate the occasion with appropriate activities; and be it further

Resolved, That the Secretary of the Senate transmit copies of this resolution to the author for appropriate distribution.

WHEREAS, On June 14, 1777, in the midst of the American Revolutionary War, the Continental Congress adopted a resolution stating that the flag of the United States be thirteen alternate stripes red and white and that the Union be thirteen stars, white in a blue field, representing a new Constellation; and

WHEREAS, On September 14, 1814, American soldiers under siege at Fort McHenry in Baltimore, Maryland raised a huge American flag to celebrate a crucial victory over British forces during the War of 1812, inspiring Francis Scott Key to write a poem that eventually became the words of the United States National Anthem; and

WHEREAS, On June 6, 1944, more than 160,000 American and Allied troops carrying the Stars and Stripes landed along a 50-mile stretch of heavily fortified French coastline in Normandy to liberate Europe from the forces of Nazi Germany. More than 9,000 Allied soldiers were killed or wounded on D-Day to free Europe from fascist occupation; and

WHEREAS, On February 23, 1945, five Marines and a Navy Corpsman raised the American flag atop Mount Suribachi during the Battle of Iwo Jima. It was a hard-fought victory over imperialism at the cost of 5,900 United States service members killed and 17,400 wounded against 23,000 Japanese army and naval forces fighting from an entrenched network of caves, dugouts, tunnels, and underground installations; and

WHEREAS, On July 20, 1969, astronauts Neil Armstrong and Buzz Aldrin became the first human beings to set foot on the surface of the moon, where they placed the American flag. There, the flag has stood a decades-long vigil upon the Sea of Tranquility as a gesture of peace for all humankind; and

WHEREAS, On September 11, 2001, in the aftermath of the terrorist attack which destroyed the World Trade Center, three New York City firefighters, George Johnson of Rockaway Beach, Ladder 157, Dan McWilliams of Long Island, Ladder 157, and Billy Eisengrein of Staten Island, Rescue 2, raised the American flag over the smoldering ruins of Ground Zero where the Twin Towers once stood. It was an act of defiance against those who sought to break the unconquerable values of freedom and liberty which the American flag represents; now, therefore, be it

Resolved by the Senate of the State of California, the Assembly thereof concurring, That the Legislature declares that the American flag represents the values of freedom and liberty; and be it further

Resolved, That the Legislature calls upon the state and local governments to prohibit any government entity in the state from banning the American flag from public property, including, but not limited to, public schools, public colleges, public universities, state beaches, public parks, public monuments, museums, and government offices; and be it further

Resolved, That the Legislature recognizes National Flag Day on June 14, 2018, and encourages all Californians to celebrate the occasion with appropriate activities; and be it further

Resolved, That the Secretary of the Senate transmit copies of this resolution to the author for appropriate distribution.

WHEREAS, On June 14th, 14, 1777, in the midst of the American Revolutionary War, the Continental Congress adopted a resolution stating that the flag of the United States be thirteen alternate stripes red and white and that the Union be thirteen stars, white in a blue field, representing a new Constellation; and

WHEREAS, On September 14th, 14, 1814, American soldiers under siege at Fort McHenry in Baltimore, Maryland raised a huge American flag to celebrate a crucial victory over British forces during the War of 1812, inspiring Francis Scott Key to write a poem that eventually became the words of the United States National Anthem; and

WHEREAS, On June 6th, 6, 1944, more than 160,000 American and Allied troops carrying the Stars and Stripes landed along a 50-mile stretch of heavily fortified French coastline in Normandy to liberate Europe from the forces of Nazi Germany. More than 9,000 Allied soldiers were killed or wounded on D-Day to free Europe from fascist occupation; and

WHEREAS, On February 23, 1945, five Marines and a Navy Corpsman raised the American flag atop Mount Suribachi during the Battle of Iwo Jima. It was a hard-fought victory over imperialism at the cost of 5,900 United States service members killed and 17,400 wounded against 23,000 Japanese army and naval forces fighting from an entrenched network of caves, dugouts, tunnels, and underground installations; and

WHEREAS, On July 20, 1969, astronauts Neil Armstrong and Buzz Aldrin became the first human beings to set foot on the surface of the moon, where they placed the American flag. There, the flag has stood a decades-long vigil upon the Sea of Tranquility as a gesture of peace for all mankind; humankind; and

WHEREAS, On September 11th, 11, 2001, in the aftermath of the terrorist attack which destroyed the World Trade Center, three New York City firefighters, George Johnson of Rockaway Beach, Ladder 157, Dan McWilliams of Long Island, Ladder 157, and Billy Eisengrein of Staten Island, Rescue 2, raised the American flag over the smoldering ruins of Ground Zero where the Twin Towers once stood. It was an act of defiance against those who sought to break the unconquerable values of freedom and liberty which the American flag represents; now, therefore, be it

Resolved by the Senate of the State of California, the Assembly thereof concurring, That the Legislature declares that the American flag represents the values of freedom and liberty; and be it further

Resolved, That the Legislature calls upon the state and local governments to prohibit any government entity in the state from banning the American flag from public property, including, but not limited to, public schools, public colleges, public universities, state beaches, public parks, public monuments, museums, and government offices; and be it further

Resolved, That the Legislature recognizes National Flag Day on June 14, 2018, and encourages all Californians to celebrate the occasion with appropriate activities; and be it further

Resolved, That the Secretary of the Senate transmit copies of this resolution to the author for appropriate distribution.

WHEREAS, On June 14th, 1777, in the midst of the American Revolutionary War, the Continental Congress adopted a resolution stating that the flag of the United States be thirteen alternate stripes red and white and that the Union be thirteen stars, white in a blue field, representing a new Constellation; and

WHEREAS, On September 14th, 1814, American soldiers under siege at Fort McHenry in Baltimore, Maryland raised a huge American flag to celebrate a crucial victory over British forces during the War of 1812, inspiring Francis Scott Key to write a poem that eventually became the words of the United States National Anthem; and

WHEREAS, On June 6th, 1944, more than 160,000 American and Allied troops carrying the Stars and Stripes landed along a 50-mile stretch of heavily fortified French coastline in Normandy to liberate Europe from the forces of Nazi Germany. More than 9,000 Allied soldiers were killed or wounded on D-Day to free Europe from fascist occupation; and

WHEREAS, On February 23, 1945, five Marines and a Navy Corpsman raised the American flag atop Mount Suribachi during the Battle of Iwo Jima. It was a hard-fought victory over imperialism at the cost of 5,900 United States service members killed and 17,400 wounded against 23,000 Japanese army and naval forces fighting from an entrenched network of caves, dugouts, tunnels, and underground installations; and

WHEREAS, On July 20, 1969, astronauts Neil Armstrong and Buzz Aldrin became the first human beings to set foot on the surface of the moon, where they placed the American flag. There, the flag has stood a decades-long vigil upon the Sea of Tranquility as a gesture of peace for all mankind; and

WHEREAS, On September 11th, 2001, in the aftermath of the terrorist attack which destroyed the World Trade Center, three New York City firefighters, George Johnson of Rockaway Beach, Ladder 157, Dan McWilliams of Long Island, Ladder 157, and Billy Eisengrein of Staten Island, Rescue 2, raised the American flag over the smoldering ruins of Ground Zero where the Twin Towers once stood. It was an act of defiance against those who sought to break the unconquerable values of freedom and liberty which the American flag represents; now, therefore, be it

Resolved by the Senate of the State of California, the Assembly thereof concurring, That the Legislature declares that the American flag represents the values of freedom and liberty; and be it further

Resolved, That the Legislature calls upon the state and local governments to prohibit any government entity in the state from banning the American flag from public property, including, but not limited to, public schools, public colleges, public universities, state beaches, public parks, public monuments, museums, and government offices; and be it further

Resolved, That the Secretary of the Senate transmit copies of the resolution to the author for appropriate distribution.

 UNFINISHED BUSINESS  

Bill No: SCR 128

Author:

:

Vote: 21

SENATE JUDICIARY COMMITTEE: 7-0, 5/8/18

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

SENATE FLOOR: 38-0, 5/17/18 (Consent)

AYES: Allen, Anderson, Atkins, Bates, Beall, Bradford, Cannella, De León, Dodd, Fuller, Gaines, Galgiani, Glazer, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leyva, McGuire, Mitchell, Monning, Moorlach, Morrell, Newman, Nguyen, Nielsen, Pan, Portantino, Roth, Skinner, Stern, Stone, Vidak, Wieckowski, Wiener, Wilk

NO VOTE RECORDED: Berryhill

ASSEMBLY FLOOR: 78-0, 6/14/18 (Consent) - See last page for vote

SUBJECT: American flag

SOURCE: Author

DIGEST:

This resolution makes a series of legislative findings about the presence of the American flag at moments of great significance in U.S. history. This resolution then calls upon state and local governments to prohibit banning the American flag from public property.

Assembly Amendments recognize National Flag Day on June 14, 2018, and encourage all Californians to celebrate the occasion with appropriate activities.

ANALYSIS:

Existing law:

1. Prohibits Congress from enacting any law abridging the freedom of speech. (U.S. Const., amend. I.)
2. Provides that the flag should be displayed daily on or near the main administration building of every public institution and also provides that the flag should be displayed during school days in or near every schoolhouse. (4 U.S.C. Sec. 6(e), (g).)
3. Requires the American and California state flags be prominently displayed during business hours upon or in front of the buildings or grounds of, or at specified places, including: at the entrance or upon the grounds of each campus of the University of California and at the entrance or upon the grounds or upon the administration building of every university, college, high school, and elementary school, both public and private, within the state. (Gov. Code Sec. 431(c) and (d).)
4. Provides that no person, private entity, or governmental agency shall adopt any rule, regulation, or ordinance, or enter into any agreement or covenant, that prevents any person or private entity that would otherwise have the legal right to display a U.S. flag on private property from exercising that right, unless it is used as, or in conjunction with, an advertising display. Existing law further provides, however, that this shall not be construed to prevent a city, county, or city and county from imposing reasonable restrictions as to the time, place, and manner of placement or display of a Flag of the United States when necessary for the preservation of the public’s health, safety, or order. (Gov. Code Sec. 434.5(b).)
5. Prohibits a local government agency from adopting any policy or regulation that prohibits or restricts an employee of that agency from displaying a U.S. flag, or a pin of that flag, on his or her person, in his or her workplace, or on a local government agency vehicle operated by that employee. Existing law further provides, however, that this shall not be construed to prevent a local government agency from imposing reasonable restrictions as to the time, place, and manner of placement or display of a U.S. flag when necessary for the preservation of the order or discipline of the workplace. (Gov. Code Sec. 434.5(c).)

This resolution:

1. Makes a series of legislative findings about the origins of the American flag and its presence at a number of key historic moments in U.S. history.
2. Declares that the American flag represents the values of freedom and liberty.
3. Calls upon the state and local governments to prohibit banning the American flag from public property.
4. Recognizes National Flag Day on June 14, 2018, and encourages all Californians to celebrate the occasion with appropriate activities.
5. Directs the Secretary of the Senate to transmit copies of the resolution to the author for appropriate distribution.

Background

The American flag is one of the key symbols of our nation. It means a great many things to different people in different circumstances. To the U.S. soldier or veteran, the flag is often an emblem of intense devotion to a common cause and the willingness to fight and to die on behalf of the country. To those who fervently believe that the United States is ever and always an infallible beacon of righteousness, the flag is a rallying point for nationalist fervor. To those who view the United States as a set of values – freedom, equality, and democracy – the American flag is a symbol of those ideals against which we must always measure ourselves and to which we must always aspire. To those who recognize that the United States has also been a participant in genocide and slavery, the American flag can also be a symbol of that oppression.

Given the wide variety of meaning that the American flag embodies and the depth of passion that it invokes, it is not surprising that the flag is also a source of some controversy. Even the U.S. Supreme Court has struggled to determine the proper place for the American flag in constitutional doctrine. In recent decades, however, it has come to hold that the flag is a form of symbolic expression. As such, government cannot compel devotion to the flag (West Va. State Bd. of Educ. v. Barnette (1943) 319 U.S. 624.)), nor can it punish desecration of the flag. (Texas v. Johnson (1989) 491 U.S. 397; United States v. Eichman (1990) 486 U.S. 310.) By the same token, government cannot generally prohibit people from displaying the flag if they wish, except to the same limited degree that government may restrict any form of expression: in the context of commercial speech (Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (1980) 447 U.S. 557), in the form of reasonable, content and viewpoint neutral restrictions on time, place, and manner (Perry Education Association v. Perry Local Educators’ Association (1983) 460 U.S. 37), and in the context of public school education when the expression disrupts the educational process (Tinker v. Des Moines Independent Community School District (1969) 393 U.S. 503).

This resolution focuses on the very positive history of the American flag. It makes findings about the origin of that flag and trace its presence at a number of key moments through the history of this county. With these findings in mind, this resolution declares that the American flag represents the values of freedom and liberty. Although there is no evidence that this is currently a problem anywhere, this resolution calls upon state and local governments to prohibit any government entity from banning the American flag on public property.

Comments

1. Apocryphal incidents in which the American flag was “banned” from public property

This resolution calls upon state and local government to prohibit any government entity in the state from banning the American flag from public property. It does not appear that anything has taken place which might give rise to the need to call for such a prohibition. Senate Committee on Judiciary staff is not aware of any reported incidents in which a “government entity” banned the American flag from public property. There have been incidents involving some restrictions on the display of the American flag and coverage of these incidents has sometimes mischaracterized them as examples of government entities “banning” the American flag. A summary of two of the more prominent of these incidents follows, together with an explanation of why this resolution does not appear to be relevant to the situations described.

UC Irvine Incident

In 2015, a University of California, Irvine campus student group narrowly passed a resolution that resolved to make the Associated Students of the University of California, Irvine (ASUCI) main lobby space as inclusive as possible and, as a result, to ban the flags of any nation from the lobby area of student government offices. Like resolutions passed by this body, the student group’s resolution made various statements supporting the action. The statements included the following:

• Flags are a symbol of a nation, are used as decorations and have a wide range of cultural significance;
• Flags are typically viewed as patriotic symbols of a single nation, are often associated with government and military due to their history and have a wide variety of interpretations;
• Flags not only serve as symbols of patriotism or weapons for nationalism, but also construct cultural mythologies and narratives that in turn charge nationalistic sentiments;
• Flags function specifically for a nation and people are assimilated into national ideologies by deployment of this cultural artifact;
• Flags construct paradigms of conformity and sets homogenized standards for others to obtain which in this country typically are idolized as freedom, equality, and democracy;
• Symbolism is interpreted differently by different groups or persons based on individual unique experiences;
• A common ideological understanding of the United [S]tates includes American exceptionalism and superiority;
• The American flag has been flown in instances of colonialism and imperialism;
• Symbolism has negative and positive aspects that are interpreted differently by individuals;
• Displaying a flag does not express only selective aspects of its symbolism but the entire spectrum of its interpretation;
• Designing a culturally inclusive space is taken seriously by ASUCI;
• Designing a culturally inclusive space aims to remove barriers that create undue effort and separation by planning and designing spaces that enable everyone to participate equally and confidently;
• Designers should be careful about using cultural symbols as the symbols will inherently remain open for interpretation;
• A high-quality culturally inclusive space is essential in any society that embodies a dynamic and multifaceted culture;
• Freedom of speech is a valued right that ASUCI supports; and
• Freedom of speech, in a space that aims to be as inclusive as possible can be interpreted as hate speech.

The ASUCI resolution triggered enormous controversy and widespread news coverage, and even resulted in security concerns for the students involved, prompting the cancellation of the school’s legislative council meeting in the immediate aftermath. According to reports, by the next day, it had formed a trending topic on Twitter and many students and faculty members across the campus denounced the idea. The resolution has never taken effect as the Executive Cabinet of the student government promptly vetoed the ban on the display of flags within two days of its passage.

While the UC Irvine incident took place at a public university campus and was about flags, the connection to the content of this resolution and that incident ends there. The ASUCI is a non-profit organization, not a “government entity,” and the space in question was a small fraction of the broader campus. It does not appear, therefore, that the content of this resolution has any direct relevance to that incident.

Morgan Hill High School Incident

On May 5, 2009, at Live Oak High School in Morgan Hill, California, there was an altercation involving an exchange of profanities and threats between students displaying the Mexican and American flags, respectively, during a campus celebration of Cinco de Mayo. (Dariano v. Morgan Hill Unified Sch. Dist. (9th Cir. 2014) 745 F.3d 354, 357.) One year later, a group of students came to campus wearing shirts that prominently displayed the American flag. Aware of threats made against these students, campus administrators asked them to take the shirts off or turn them inside out. (Ibid.) At least two of the students refused, but two later accepted an offer to leave campus for the day as an excused absence. (Id. at 358.) The students then sued the school, alleging, among other things, violation of their right to free expression.

The Ninth Circuit upheld the school’s actions, ruling that, under the First Amendment doctrines applicable in public educational settings, the school administrators had not violated the students’ rights. Under those doctrines, the Ninth Circuit concluded:

Schools may prohibit speech that might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities or that constitute an actual or nascent interference with the schools’ work or collision with the rights of other students to be secure and to be let alone. (Dariano, supra, 745 F.3d 354, 359, citing Tinker v. Des Moine Independent Community School District, 393 U.S. 503. Internal quotations omitted.)

Of particular relevance to this resolution, there is no indication from the court record that the request for students not to wear shirts prominently displaying the American flag shirts lasted for more than a day. Students whose clothing displayed the American flag, but less prominently, were not asked to change. (Dariano, supra, 745 F.3d 354, 357-8 and fn. 3.) Moreover, although the opinion does not mention it, there is no indication that the American flag was not displayed prominently at the campus in accordance with Government Code Section 431(d) throughout the day in question. Thus, the incident cannot accurately be characterized as a governmental entity banning the American flag on public school grounds.

1. Omission of reference to U.S. foreign aid

This resolution takes its pedigree from a prior resolution, ACR 95 (Mathis, Resolution Chapter 115, Statutes of 2016), which was identical to this resolution in almost every respect except one. The principal difference is that ACR 95 touted U.S. spending on foreign aid. Specifically, ACR 95 stated that:

In 2015, the United States of America will provide $35.4 billion in foreign assistance programs to more than 100 countries around the world through the efforts of over 20 different government agencies. These investments will further America’s foreign policy interests on issues ranging from expanding free markets, combating extremism, and ensuring stable democracies, to addressing the root causes of poverty, while simultaneously establishing the American flag as the undisputed image of global good will.

In contrast to that message, the Trump administration has proposed significant cuts to U.S. diplomatic and foreign aid budgets both of its years in office. This resolution omits any reference to U.S. foreign aid budgets.

Related/Prior Legislation

ACR 95 (Mathis, Resolution Chapter 115, Statutes of 2016) was nearly identical to this resolution except that it also included a finding regarding the amount of foreign aid distributed by the United States in the prior year.

SCA 2 (Nguyen, 2015) would have put a constitutional amendment on the ballot which, if passed by the voters, would have made it unconstitutional to prohibit display of the U.S. flag on the grounds of a UC, California State University, or California Community College campus. SCA 2 was under consideration before the Senate Committee on Judiciary when it was withdrawn by the author.

SB 1359 (Haynes, Chapter 73, Statutes of 2002) prohibited a local government agency from adopting any policy or regulation that prohibits or restricts an employee of that agency from displaying any emblem or depiction of the American flag on his or her person, in the workplace, or an agency vehicle. The bill included a time, place, and manner exception, specifically stating that nothing in this provision shall be construed to prevent a local government agency from imposing reasonable restrictions as to the time, place, and manner of placement or display of a U.S. flag when necessary for the preservation of the order or discipline of the workplace.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Local: No

SUPPORT: (Verified 6/19/18)

American GI Forum of California

American Legion-Department of California

AMVETS-Department of California

California Association of County Veterans Service Officers

California State Commanders Veterans Council

Military Officers Association of America-California Council of Chapters

National Guard Association of California

Vietnam Veterans of America-California State Council

OPPOSITION: (Verified 6/19/18)

None received

ARGUMENTS IN SUPPORT: According to the author, “The American flag is an inseparable part of California’s rich history, tradition, and culture and it represents our core values. I would like to recognize June 14th as Flag Day and encourage local governments to prohibit the banning of the American Flag in public spaces.”

ASSEMBLY FLOOR: 78-0, 6/14/18

AYES: Acosta, Aguiar-Curry, Travis Allen, Arambula, Baker, Berman, Bigelow, Bloom, Bonta, Brough, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chávez, Chiu, Choi, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Harper, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Quirk, Quirk-Silva, Reyes, Rivas, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Voepel, Waldron, Weber, Wood, Rendon

NO VOTE RECORDED: Chen, Chu

Prepared by:

6/20/18 15:06:04

**** END ****

Date of Hearing:

ASSEMBLY COMMITTEE ON

, Chair

SBPCA Bill Id:

Author:() – As Amended Ver:

PROPOSED CONSENT

SENATE VOTE:

SUBJECT:

KEY ISSUE: should the legislature declare that the American flag represents the values of freedom and liberty, urge state and local governments to prohibit any government entity from banning the American flag on public property, and recognize June 14 as National Flag Day?

SYNOPSIS

This resolution makes a number of findings relating to the importance of the American flag as a symbol of American ideals and achievements, declares that the flag represents the values of liberty and freedom, calls upon state and local governments to prohibit government entities from banning the American flag from public property, and recognizes June 14 as National Flag Day. The provision in the resolution calling upon state and local governments to prohibit any government entity from banning the flag of the United States is largely redundant, given that the First Amendment would already prohibit any government entity from banning the flag on public property. Moreover, the Committee is not aware of any government entity that has attempted to ban the display of the flag or intends to do so. The resolution is supported by several veteran organizations. There is no registered opposition to the measure and it did not receive any negative floor or committee votes in the Senate.

SUMMARY: Declares that the American flag represents the values of freedom and liberty, urges state and local governments to prohibit any government entity from banning the American flag from public property, and recognizes June 14 as National Flag Day. Specifically, this measure:

1. Declares that whereas:
   1. On June 14, 1777, the Continental Congress adopted a resolution setting forth the design of the flag of the United States.
   2. On September 14, 1814, American soldiers raised the American flag to celebrate a victory over British forces during the War of 1812, inspiring Francis Scott Key to write a poem that eventually became the words of the U.S. National Anthem.
   3. On June 6, 1944, more than 160,000 American and Allied troops carried the American flag onto the beaches of Normandy, where more than 9,000 Allied troops were killed or wounded on D-Day to free Europe from fascist occupation.
   4. On February 23, 1945, five Marines and a Navy Corpsman raised the American flag at Iwo Jima after a battle that killed or wounded over 23,000 U.S. service members.
   5. On July 20, 1969, astronauts Neil Armstrong and Buzz Aldrin became the first human beings to set foot on the surface of the moon, where they placed an American flag as a gesture of peace for all mankind.
   6. On September 11, 2001, in the aftermath of the terrorist attack on the World Trade Center, three New York City firefighters raised the American flag as an act of defiance against those who sought to break the unconquerable values of freedom and liberty that the American flag represents.
2. Resolves that the Legislature shall do the following:
   1. Declare that the American flag represents the values of freedom and liberty.
   2. Call upon the state and local governments to prohibit any government entity in the state from banning the American flag from public property, including, but not limited to, public schools, public colleges, public universities, state beaches, public parks, public monuments, museums, and government offices.
   3. Recognize June 14, 2018, as National Flag Day and encourage all Californians to celebrate the occasion with appropriate activities.

EXISTING LAW:

1. Provides, under federal law, the manner in which the flag of the United States of America should be displayed, stored, and retired from use and display. Provides further that no disrespect should be shown to the flag of the United States of America, including by doing any of the following:
2. Displaying the flag with the union down, except as a signal of dire distress in instances of extreme danger to life or property.
3. Allowing the flag to touch anything beneath it, such as the ground, the floor, water, or merchandise.
4. Carrying the flag flat or horizontally, rather than aloft and free.
5. Wearing the flag as apparel, bedding, or drapery. Specifies that the flag should never be festooned, drawn back, nor up, in folds, but always allowed to fall free. Specifies that bunting of blue, white, and red should always be arranged with the blue above, white in the middle, and red below, and should be used for covering a speaker’s desk, draping the front of the platform.
6. Fastening, displaying, using, or storing the flag in such a manner as to permit it to be easily torn, soiled, or damaged in any way.
7. Using the flag as a covering for a ceiling.
8. Placing on the flag, or any part of it, any mark, insignia, letter, word, figure, design, picture, or drawing of any nature.
9. Using the flag as a receptacle for receiving, holding, carrying, or delivering anything.
10. Using the flag for advertising purposes in any manner whatsoever. Specifies that the flag should not be embroidered on such articles as cushions or handkerchiefs and the like, printed or otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discarded. Specifies that advertising signs should not be fastened to a staff or halyard from which the flag is flown.
11. Using the flag as a costume or athletic uniform. However, a flag patch may be affixed to the uniform of military personnel, firemen, policemen, and members of patriotic organizations. Specifies that a lapel flag pin, being a replica, should be worn on the left lapel near the heart. (4 U.S.C. Sections 1-8.)
12. Requests the President of the United States to issue each year a proclamation calling on United States Government officials to display the flag of the United States on all Government buildings on Flag Day and urges the people of the United States to observe Flag Day as the anniversary of the adoption on June 14, 1777, by the Continental Congress of the Stars and Stripes as the official flag of the United States. (36 U.S.C. Section 110.)
13. Establishes, under California law, rules regarding the proper display of the flag of the United States and the flag of the State of California. (Military and Veterans Code Sections 611-617.)
14. Purports to make it a misdemeanor to knowingly cast contempt upon any Flag of the United States or of this state by publicly mutilating, defacing, defiling, burning, or trampling upon it. However, this provision is seemingly unconstitutional and unenforceable in light of the United States Supreme Court ruling in Texas v. Johnson, which held that the act of burning or otherwise desecrating the flag of the United States is protected speech under the First Amendment. (Military and Veterans Code Section 614; cf. Texas v. Johnson (1989) 491 U.S. 397.)
15. Prohibits, except as required for the protection of the public health or safety, the governing document of a community interest development from limiting or prohibiting the display of the flag of the United States by a member on or in the member’s separate interest or within the member’s exclusive use common area. (Civil Code Section 6702.)

FISCAL EFFECT: As currently in print this resolution is keyed non-fiscal.

COMMENTS: This resolution declares that the flag represents the values of liberty and freedom, calls upon state and local governments to prohibit government entities from banning the American flag from public property, and recognizes June 14, 2018, as National Flag Day. The provision in the resolution calling upon state and local governments to prohibit any government entity from banning the flag of the United States is largely redundant, given that the First Amendment would already prohibit any government entity from banning the flag on public property. Moreover, the Committee is not aware of any government entity that has attempted to ban the display of the flag or intends to do so.

As introduced this bill was virtually identical to ACR 95 (Res. Chap. 115, Stats. 2015). That measure, according to its author, was introduced after a committee of the Associated Students of the University of California (ASUC) at the Irvine campus voted to exclude all national flags, including the American flag, from the lobby of a complex that housed student government offices. The student committee proposal would not have banned the display of the flag anywhere else on the campus. The student committee apparently reasoned that flying national flags was contrary to its effort to create a more "inclusive" environment at the student government offices. The committee's decision was subsequently overturned by a vote of all members of the ASUC at Irvine. Neither ACR 95, nor the resolution now before the Committee, would have applied to the situation at UC Irvine, however. While the complex that housed student government offices at UC Irvine is public property, ASUC is not a "government entity." Instead, it is organized under federal law as a private, non-profit 501 (c) corporation for the purpose of representing student interests to the university administration and giving students a voice on selected committees. Under the First Amendment, a government entity cannot ban a private corporation from displaying the U.S. flag, just as it could not compel a private entity or individual to display the flag.

National Flag Day: Unlike ACR 95, this resolution would recognize June 14, 2018, as "National Flag Day." As noted in the resolution, during the American Revolution, the Second Continental Congress adopted a flag for the new nation on June 14, 1777. In 1916, President Woodrow Wilson issued a proclamation establishing June 14th as Flag Day. In 1946, Congress created National Flag Day. Flag Day is not a national holiday; rather, the 1946 Act merely "requests" that the President issue a proclamation and urges the people of the United States to observe Flag Day. This resolution does not establish a state version of Flag Day as such; rather, it declares that the Legislature "recognizes" June 14 as National Flag Day.

The Ironies of our Contested Flag: This resolution rightly proclaims that the U.S. flag stands for "the values of freedom and liberty" and illustrates this with mostly military examples and technological achievements. However, the multiple meanings ascribed to the U.S. flag – not to mention the many meanings of "freedom" and "liberty" – have been greatly contested throughout our nation's history. The U.S. flag was not only carried into battles, it was also carried by marching Civil Rights protesters. What it means to honor and respect the flag has changed greatly over time. In the 1960s, for example, some deemed it disrespectful when young people sewed flags into jackets and clothing. Yet today clothing emblazoned with images of the flag is worn to signify patriotism.

In addition to changes over time, even today those who condemn some forms of "disrespect" either deliberately ignore or are ignorant of federal laws that prohibit showing disrespect for the flag. For example, federal law prohibits showing "disrespect" for the flag by, among other things, wearing it as apparel or using it for advertising purposes "in any manner whatsoever." Yet every Memorial Day and Fourth of July these provisions of federal law are routinely violated. As has been much publicized, the National Football League (NFL) recently announced that it will fine teams that allow players to kneel during the national anthem, citing the federal statute which states that persons should stand during the national anthem, face the flag, and place the right hand over the heart. The NFL is apparently not aware, or chooses to ignore, that the same statutory framework also prohibits "carrying the flag flat or horizontally." (4 U.S.C. Section 8 (c).) But anyone who has watched an NFL game in recent years knows that in most, if not all stadiums, a large flag is carried and displayed flat and horizontally on the field during the national anthem. In short, as a society we seem to be highly selective and inconsistent about which forms of "disrespect" we choose to condemn and which we choose to violate, oddly enough, in the name of patriotism.

Although the federal statutory framework commanding respect for the flag is written in terms of prohibitions, it would appear that these are not so much prohibitions as aspirational guidelines. There are no prescribed punishments and any attempt to impose a punishment would almost certainly violate the First Amendment. Although many states, including California, have "anti-desecration" statutes that prohibit burning, mutilating, defacing, defiling, or trampling upon the flag, the United States Supreme Court has held that desecrating the flag is protected speech under the First Amendment so long as it is not done in a manner that poses a threat to public safety. In 1989, the Supreme Court overturned, on First Amendment grounds, the conviction of man who burned the American flag as part of a political demonstration. Indeed, the Court held that respect for the flag includes accepting the rights of others to hold the flag in contempt. As Justice Anthony Kennedy wrote, "Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt." (Texas v. Johnson (1989) 491 U.S. 397, 421 (Kennedy, J., concurring.)

With the state laws negated by Johnson, Congress responded by passing the 1989 Flag Protection Act, which made it a federal crime to "desecrate" the flag. However, the following year this statute was struck down by the Supreme Court case United States v. Eichmann (1990) 496 U.S. 310. The vote was identical to that in the Johnson decision and followed the same reasoning. The First Amendment prohibits both the state and federal law from violating rights of free expression.

In short, in honoring our flag it is important to remember that the "values of freedom and liberty" the flag represents includes, among other things, the right to test those values by honoring, or even dishonoring, the flag in the manner of one’s choosing.

Arguments in Support: According to the author:

The American flag is an inseparable part of California’s rich history, tradition, and culture and it represents our core values. I would like to recognize June 14th as Flag Day and encourage local governments to prohibit the banning of the American Flag in public spaces.

A coalition of veterans groups believe that:

This resolution focuses on the positive history of the American flag [and makes findings] about the origin of that flag and traces its presence at a number of key moments through the history of this country. . . Active military and veterans have a strong connection to the American flag. Many have paid the ultimate sacrifice for the freedoms that the American flag represents. They have draped the American flag over their fallen brothers and sisters. It is given to the family of the soldiers that have passed away. "All gave some, some gave all."

REGISTERED SUPPORT / OPPOSITION:

Support

American G. I. Forum of California

AMVETS- Department of California

American Legion-Department of California

California Association of County Veteran Service Officers

California State Commanders Veterans Council

Military Officers Association of America-California Council of Chapters

National Guard Association of California

Vietnam Veterans of America-California State Council

Opposition

None on file

Analysis Prepared by:

 CONSENT  

Bill No: SCR 128

Author:

:

Vote: 21

SENATE JUDICIARY COMMITTEE: 7-0, 5/8/18

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

SUBJECT:

SOURCE: Author

DIGEST:

This resolution makes a series of legislative findings about the presence of the American flag at moments of great significance in U.S. history. This resolution then calls upon state and local governments to prohibit banning the American flag from public property.

ANALYSIS:

Existing law:

1. Prohibits Congress from enacting any law abridging the freedom of speech. (U.S. Const., amend. I.)
2. Provides that the flag should be displayed daily on or near the main administration building of every public institution and also provides that the flag should be displayed during school days in or near every schoolhouse. (4 U.S.C. Sec. 6(e), (g).)
3. Requires the American and California state flags be prominently displayed during business hours upon or in front of the buildings or grounds of, or at specified places, including: at the entrance or upon the grounds of each campus of the University of California and at the entrance or upon the grounds or upon the administration building of every university, college, high school, and elementary school, both public and private, within the state. (Gov. Code Sec. 431(c) and (d).)
4. Provides that no person, private entity, or governmental agency shall adopt any rule, regulation, or ordinance, or enter into any agreement or covenant, that prevents any person or private entity that would otherwise have the legal right to display a U.S. flag on private property from exercising that right, unless it is used as, or in conjunction with, an advertising display. Existing law further provides, however, that this shall not be construed to prevent a city, county, or city and county from imposing reasonable restrictions as to the time, place, and manner of placement or display of a Flag of the United States when necessary for the preservation of the public’s health, safety, or order. (Gov. Code Sec. 434.5(b).)
5. Prohibits a local government agency from adopting any policy or regulation that prohibits or restricts an employee of that agency from displaying a U.S. flag, or a pin of that flag, on his or her person, in his or her workplace, or on a local government agency vehicle operated by that employee. Existing law further provides, however, that this shall not be construed to prevent a local government agency from imposing reasonable restrictions as to the time, place, and manner of placement or display of a U.S. flag when necessary for the preservation of the order or discipline of the workplace. (Gov. Code Sec. 434.5(c).)

This resolution:

1. Makes a series of legislative findings about the origins of the American flag and its presence at a number of key historic moments in U.S. history.
2. Declares that the American flag represents the values of freedom and liberty.
3. Calls upon the state and local governments to prohibit banning the American flag from public property.
4. Directs the Secretary of the Senate to transmit copies of the resolution to the author for appropriate distribution.

Background

The American flag is one of the key symbols of our nation. It means a great many things to different people in different circumstances. To the U.S. soldier or veteran, the flag is often an emblem of intense devotion to a common cause and the willingness to fight and to die on behalf of the country. To those who fervently believe that the United States is ever and always an infallible beacon of righteousness, the flag is a rallying point for nationalist fervor. To those who view the United States as a set of values – freedom, equality, and democracy – the American flag is a symbol of those ideals against which we must always measure ourselves and to which we must always aspire. To those who recognize that the United States has also been a participant in genocide and slavery, the American flag can also be a symbol of that oppression.

Given the wide variety of meaning that the American flag embodies and the depth of passion that it invokes, it is not surprising that the flag is also a source of some controversy. Even the U.S. Supreme Court has struggled to determine the proper place for the American flag in constitutional doctrine. In recent decades, however, it has come to hold that the flag is a form of symbolic expression. As such, government cannot compel devotion to the flag (West Va. State Bd. of Educ. v. Barnette (1943) 319 U.S. 624.)), nor can it punish desecration of the flag. (Texas v. Johnson (1989) 491 U.S. 397; United States v. Eichman (1990) 486 U.S. 310.) By the same token, government cannot generally prohibit people from displaying the flag if they wish, except to the same limited degree that government may restrict any form of expression: in the context of commercial speech (Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (1980) 447 U.S. 557), in the form of reasonable, content and viewpoint neutral restrictions on time, place, and manner (Perry Education Association v. Perry Local Educators’ Association (1983) 460 U.S. 37), and in the context of public school education when the expression disrupts the educational process (Tinker v. Des Moines Independent Community School District (1969) 393 U.S. 503).

This resolution focuses on the very positive history of the American flag. It makes findings about the origin of that flag and trace its presence at a number of key moments through the history of this county. With these findings in mind, this resolution declares that the American flag represents the values of freedom and liberty. Although there is no evidence that this is currently a problem anywhere, this resolution calls upon state and local governments to prohibit any government entity from banning the American flag on public property.

Comments

1. Apocryphal incidents in which the American flag was “banned” from public property

This resolution calls upon state and local government to prohibit any government entity in the state from banning the American flag from public property. It does not appear that anything has taken place which might give rise to the need to call for such a prohibition. Senate Committee on Judiciary staff is not aware of any reported incidents in which a “government entity” banned the American flag from public property. There have been incidents involving some restrictions on the display of the American flag and coverage of these incidents has sometimes mischaracterized them as examples of government entities “banning” the American flag. A summary of two of the more prominent of these incidents follows, together with an explanation of why this resolution does not appear to be relevant to the situations described.

UC Irvine Incident

In 2015, a University of California, Irvine campus student group narrowly passed a resolution that resolved to make the Associated Students of the University of California, Irvine (ASUCI) main lobby space as inclusive as possible and, as a result, to ban the flags of any nation from the lobby area of student government offices. Like resolutions passed by this body, the student group’s resolution made various statements supporting the action. The statements included the following:

• Flags are a symbol of a nation, are used as decorations and have a wide range of cultural significance;
• Flags are typically viewed as patriotic symbols of a single nation, are often associated with government and military due to their history and have a wide variety of interpretations;
• Flags not only serve as symbols of patriotism or weapons for nationalism, but also construct cultural mythologies and narratives that in turn charge nationalistic sentiments;
• Flags function specifically for a nation and people are assimilated into national ideologies by deployment of this cultural artifact;
• Flags construct paradigms of conformity and sets homogenized standards for others to obtain which in this country typically are idolized as freedom, equality, and democracy;
• Symbolism is interpreted differently by different groups or persons based on individual unique experiences;
• A common ideological understanding of the United [S]tates includes American exceptionalism and superiority;
• The American flag has been flown in instances of colonialism and imperialism;
• Symbolism has negative and positive aspects that are interpreted differently by individuals;
• Displaying a flag does not express only selective aspects of its symbolism but the entire spectrum of its interpretation;
• Designing a culturally inclusive space is taken seriously by ASUCI;
• Designing a culturally inclusive space aims to remove barriers that create undue effort and separation by planning and designing spaces that enable everyone to participate equally and confidently;
• Designers should be careful about using cultural symbols as the symbols will inherently remain open for interpretation;
• A high-quality culturally inclusive space is essential in any society that embodies a dynamic and multifaceted culture;
• Freedom of speech is a valued right that ASUCI supports; and
• Freedom of speech, in a space that aims to be as inclusive as possible can be interpreted as hate speech.

The ASUCI resolution triggered enormous controversy and widespread news coverage, and even resulted in security concerns for the students involved, prompting the cancellation of the school’s legislative council meeting in the immediate aftermath. According to reports, by the next day, it had formed a trending topic on Twitter and many students and faculty members across the campus denounced the idea. The resolution has never taken effect as the Executive Cabinet of the student government promptly vetoed the ban on the display of flags within two days of its passage.

While the UC Irvine incident took place at a public university campus and was about flags, the connection to the content of this resolution and that incident ends there. The ASUCI is a non-profit organization, not a “government entity,” and the space in question was a small fraction of the broader campus. It does not appear, therefore, that the content of this resolution has any direct relevance to that incident.

Morgan Hill High School Incident

On May 5, 2009, at Live Oak High School in Morgan Hill, California, there was an altercation involving an exchange of profanities and threats between students displaying the Mexican and American flags, respectively, during a campus celebration of Cinco de Mayo. (Dariano v. Morgan Hill Unified Sch. Dist. (9th Cir. 2014) 745 F.3d 354, 357.) One year later, a group of students came to campus wearing shirts that prominently displayed the American flag. Aware of threats made against these students, campus administrators asked them to take the shirts off or turn them inside out. (Ibid.) At least two of the students refused, but two later accepted an offer to leave campus for the day as an excused absence. (Id. at 358.) The students then sued the school, alleging, among other things, violation of their right to free expression.

The Ninth Circuit upheld the school’s actions, ruling that, under the First Amendment doctrines applicable in public educational settings, the school administrators had not violated the students’ rights. Under those doctrines, the Ninth Circuit concluded:

Schools may prohibit speech that might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities or that constitute an actual or nascent interference with the schools’ work or collision with the rights of other students to be secure and to be let alone. (Dariano, supra, 745 F.3d 354, 359, citing Tinker v. Des Moine Independent Community School District, 393 U.S. 503. Internal quotations omitted.)

Of particular relevance to this resolution, there is no indication from the court record that the request for students not to wear shirts prominently displaying the American flag shirts lasted for more than a day. Students whose clothing displayed the American flag, but less prominently, were not asked to change. (Dariano, supra, 745 F.3d 354, 357-8 and fn. 3.) Moreover, although the opinion does not mention it, there is no indication that the American flag was not displayed prominently at the campus in accordance with Government Code Section 431(d) throughout the day in question. Thus, the incident cannot accurately be characterized as a governmental entity banning the American flag on public school grounds.

1. Omission of reference to U.S. foreign aid

This resolution takes its pedigree from a prior resolution, ACR 95 (Mathis, Resolution Chapter 115, Statutes of 2016), which was identical to this resolution in almost every respect except one. The principal difference is that ACR 95 touted U.S. spending on foreign aid. Specifically, ACR 95 stated that:

In 2015, the United States of America will provide $35.4 billion in foreign assistance programs to more than 100 countries around the world through the efforts of over 20 different government agencies. These investments will further America’s foreign policy interests on issues ranging from expanding free markets, combating extremism, and ensuring stable democracies, to addressing the root causes of poverty, while simultaneously establishing the American flag as the undisputed image of global good will.

In contrast to that message, the Trump administration has proposed significant cuts to U.S. diplomatic and foreign aid budgets both of its years in office. This resolution omits any reference to U.S. foreign aid budgets.

Related/Prior Legislation

ACR 95 (Mathis, Resolution Chapter 115, Statutes of 2016) was nearly identical to this resolution except that it also included a finding regarding the amount of foreign aid distributed by the United States in the prior year.

SCA 2 (Nguyen, 2015) would have put a constitutional amendment on the ballot which, if passed by the voters, would have made it unconstitutional to prohibit display of the U.S. flag on the grounds of a UC, California State University, or California Community College campus. SCA 2 was under consideration before the Senate Committee on Judiciary when it was withdrawn by the author.

SB 1359 (Haynes, Chapter 73, Statutes of 2002) prohibited a local government agency from adopting any policy or regulation that prohibits or restricts an employee of that agency from displaying any emblem or depiction of the American flag on his or her person, in the workplace, or an agency vehicle. The bill included a time, place, and manner exception, specifically stating that nothing in this provision shall be construed to prevent a local government agency from imposing reasonable restrictions as to the time, place, and manner of placement or display of a U.S. flag when necessary for the preservation of the order or discipline of the workplace.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Local: No

SUPPORT: (Verified 5/10/18)

American GI Forum of California

American Legion-Department of California

AMVETS-Department of California

California Association of County Veterans Service Officers

California State Commanders Veterans Council

Military Officers Association of America-California Council of Chapters

National Guard Association of California

Vietnam Veterans of America-California State Council

OPPOSITION: (Verified 5/10/18)

None received

ARGUMENTS IN SUPPORT: According to the author, “The American flag is an inseparable part of California’s rich history, tradition, and culture and it represents our core values. I would like to recognize June 14th as Flag Day and encourage local governments to prohibit the banning of the American Flag in public spaces.”

Prepared by:

5/11/18 9:31:43

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: SCR 128 (Author:Nguyen)

Version: April 4, 2018

Hearing Date: May 8, 2018

Fiscal: No

Urgency: No

Consultant: TSG

SUBJECT

American Flag

DESCRIPTION

This resolution would make a series of legislative findings about the presence of the American flag at moments of great significance in U.S. history. The resolution would then call upon state and local governments to prohibit banning the American flag from public property.

BACKGROUND

The American flag is one of the key symbols of our nation. It means a great many things to different people in different circumstances. To the U.S. soldier or veteran, the flag is often an emblem of intense devotion to a common cause and the willingness to fight and to die on behalf of the country. To those who fervently believe that the United States is ever and always an infallible beacon of righteousness, the flag is a rallying point for nationalist fervor. To those who view the United States as a set of values – freedom, equality, and democracy – the American flag is a symbol of those ideals against which we must always measure ourselves and to which we must always aspire. To those who recognize that the United States has also been a participant in genocide and slavery, the American flag can also be a symbol of that oppression.

Given the wide variety of meaning that the American flag embodies and the depth of passion that it invokes, it is not surprising that the flag is also a source of some controversy. Even the U.S. Supreme Court has struggled to determine the proper place for the American flag in constitutional doctrine.^[1] In recent decades, however, it has come to hold that the flag is a form of symbolic expression. As such, government cannot compel devotion to the flag (West Va. State Bd. of Educ. v. Barnette (1943) 319 U.S. 624.)), nor can it punish desecration of the flag. (Texas v. Johnson (1989) 491 U.S. 397; United States v. Eichman (1990) 486 U.S. 310.) By the same token, government cannot generally prohibit people from displaying the flag if they wish, except to the same limited degree that government may restrict any form of expression: in the context of commercial speech (Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (1980) 447 U.S. 557), in the form of reasonable, content and viewpoint neutral restrictions on time, place, and manner (Perry Education Association v. Perry Local Educators’ Association (1983) 460 U.S. 37), and in the context of public school education when the expression disrupts the educational process (Tinker v. Des Moines Independent Community School District (1969) 393 U.S. 503).

This resolution focuses on the very positive history of the American flag. It would make findings about the origin of that flag and trace its presence at a number of key moments through the history of this county. With these findings in mind, the resolution would declare that the American flag represents the values of freedom and liberty. Although there is no evidence that this is currently a problem anywhere, the resolution would call upon state and local governments to prohibit any government entity from banning the American flag on public property.

CHANGES TO EXISTING LAW

Existing federal law prohibits Congress from enacting any law abridging the freedom of speech. (U.S. Const., amend. I.)

Existing federal law provides that the flag should be displayed daily on or near the main administration building of every public institution and also provides that the flag should be displayed during school days in or near every schoolhouse. (4 U.S.C. Sec. 6(e), (g).)

Existing California law requires the American and California State flags be prominently displayed during business hours upon or in front of the buildings or grounds of, or at specified places, including: at the entrance or upon the grounds of each campus of the University of California and at the entrance or upon the grounds or upon the administration building of every university, college, high school, and elementary school, both public and private, within the State. (Gov. Code Sec. 431(c) and (d).)

Existing California law provides that no person, private entity, or governmental agency shall adopt any rule, regulation, or ordinance, or enter into any agreement or covenant, that prevents any person or private entity that would otherwise have the legal right to display a U.S. flag on private property from exercising that right, unless it is used as, or in conjunction with, an advertising display. Existing law further provides, however, that this shall not be construed to prevent a city, county, or city and county from imposing reasonable restrictions as to the time, place, and manner of placement or display of a Flag of the United States when necessary for the preservation of the public’s health, safety, or order. (Gov. Code Sec. 434.5(b).)

Existing California law prohibits a local government agency from adopting any policy or regulation that prohibits or restricts an employee of that agency from displaying a U.S. flag, or a pin of that flag, on his or her person, in his or her workplace, or on a local government agency vehicle operated by that employee. Existing law further provides, however, that this shall not be construed to prevent a local government agency from imposing reasonable restrictions as to the time, place, and manner of placement or display of a U.S. flag when necessary for the preservation of the order or discipline of the workplace. (Gov. Code Sec. 434.5(c).)

This resolution would make a series of legislative findings about the origins of the American flag and its presence at a number of key historic moments in U.S. history.

This resolution would declare that the American flag represents the values of freedom and liberty.

This resolution would call upon the state and local governments to prohibit banning the American flag from public property.

This resolution would direct the Secretary of the Senate to transmit copies of the resolution to the author for appropriate distribution.

COMMENT

1. Stated need for the resolution

According to the author:

The American flag is an inseparable part of California’s rich history, tradition, and culture and it represents our core values. I would like to recognize June 14th as Flag Day and encourage local governments to prohibit the banning of the American Flag in public spaces.

2. Concerns expressed about the resolution

The Committee received no opposition to this resolution.

3. Apocryphal incidents in which the American flag was “banned” from public property

This resolution would call upon state and local government to prohibit any government entity in the state from banning the American flag from public property. It does not appear that anything has taken place which might give rise to the need to call for such a prohibition. Committee staff is not aware of any reported incidents in which a “government entity” banned the American flag from public property. There have been incidents involving some restrictions on the display of the American flag and coverage of these incidents has sometimes mischaracterized them as examples of government entities “banning” the American flag. A summary of two of the more prominent of these incidents follows, together with an explanation of why this resolution does not appear to be relevant to the situations described.

1. UC Irvine incident

In 2015, a University of California, Irvine campus student group narrowly passed a resolution that resolved to make the Associated Students main lobby space as inclusive as possible and, as a result, to ban the flags of any nation from the lobby area of student government offices.^[2] Like resolutions passed by this body, the student group’s resolution made various statements supporting the action. The statements included the following:

• flags are a symbol of a nation, are used as decorations and have a wide

range of cultural significance;

• flags are typically viewed as patriotic symbols of a single nation, are

often associated with government and military due to their history and

have a wide variety of interpretations;

• flags not only serve as symbols of patriotism or weapons for

nationalism, but also construct cultural mythologies and narratives

that in turn charge nationalistic sentiments;

• flags function specifically for a nation and people are assimilated into

national ideologies by deployment of this cultural artifact;

• flags construct paradigms of conformity and sets homogenized

standards for others to obtain which in this country typically are

idolized as freedom, equality, and democracy;

• symbolism is interpreted differently by different groups or persons

based on individual unique experiences;

• a common ideological understanding of the United [S]tates includes

American exceptionalism and superiority;

• the American flag has been flown in instances of colonialism and

imperialism;

• symbolism has negative and positive aspects that are interpreted

differently by individuals;

• displaying a flag does not express only selective aspects of its

symbolism but the entire spectrum of its interpretation;

• designing a culturally inclusive space is taken seriously by ASUCI;

• designing a culturally inclusive space aims to remove barriers that

create undue effort and separation by planning and designing spaces

that enable everyone to participate equally and confidently;

• designers should be careful about using cultural symbols as the

symbols will inherently remain open for interpretation;

• a high-quality culturally inclusive space is essential in any society that

embodies a dynamic and multifaceted culture;

• freedom of speech is a valued right that ASUCI supports; and

• freedom of speech, in a space that aims to be as inclusive as possible

can be interpreted as hate speech. (Id.)

The ASUCI resolution triggered enormous controversy and widespread news coverage, and even resulted in security concerns for the students involved, prompting the cancellation of the school’s legislative council meeting in the immediate aftermath. According to reports, by the next day, it had formed a trending topic on Twitter and many students and faculty members across the campus denounced the idea. The resolution has never taken effect as the Executive Cabinet of the student government promptly vetoed the ban on the display of flags within two days of its passage.^[3]

While the UC Irvine incident took place at a public university campus and was about flags, the connection to the content of this resolution and that incident ends there. The ASUCI is a non-profit organization, not a “government entity,” and the space in question was a small fraction of the broader campus. It does not appear, therefore, that the content of this resolution has any direct relevance to that incident.

1. Morgan Hill high school incident

On May 5, 2009, at Live Oak High School in Morgan Hill, California, there was an altercation involving an exchange of profanities and threats between students displaying the Mexican and American flags, respectively, during a campus celebration of Cinco de Mayo. (Dariano v. Morgan Hill Unified Sch. Dist. (9th Cir. 2014) 745 F.3d 354, 357.) One year later, a group of students came to campus wearing shirts that prominently displayed the American flag. Aware of threats made against these students, campus administrators asked them to take the shirts off or turn them inside out. (Ibid.) At least two of the students refused, but two later accepted an offer to leave campus for the day as an excused absence. (Id. at 358.) The students then sued the school, alleging, among other things, violation of their right to free expression.

The Ninth Circuit upheld the school’s actions, ruling that, under the First Amendment doctrines applicable in public educational settings, the school administrators had not violated the students’ rights. Under those doctrines, the Ninth Circuit concluded:

schools may prohibit speech that might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities or that constitute an actual or nascent interference with the schools’ work or collision with the rights of other students to be secure and to be let alone. (Dariano, supra, 745 F.3d 354, 359, citing Tinker v. Des Moine Independent Community School District, 393 U.S. 503. Internal quotations omitted.)

Of particular relevance to this resolution, there is no indication from the court record that the request for students not to wear shirts prominently displaying the American flag shirts lasted for more than a day. Students whose clothing displayed the American flag, but less prominently, were not asked to change. (Dariano, supra, 745 F.3d 354, 357-8 and fn. 3.) Moreover, although the opinion does not mention it, there is no indication that the American flag was not displayed prominently at the campus in accordance with Government Code Section 431(d) throughout the day in question. Thus, the incident cannot accurately be characterized as a governmental entity banning the American flag on public school grounds.

4. Omission of reference to U.S. foreign aid

This resolution takes its pedigree from a prior resolution, ACR 95 (Mathis, Ch. 115. Res. Stats. 2016), which was identical to this resolution in almost every respect except one. The principal difference is that ACR 95 touted U.S. spending on foreign aid. Specifically, ACR 95 stated that:

In 2015, the United States of America will provide $35.4 billion in foreign assistance programs to more than 100 countries around the world through the efforts of over 20 different government agencies. These investments will further America’s foreign policy interests on issues ranging from expanding free markets, combating extremism, and ensuring stable democracies, to addressing the root causes of poverty, while simultaneously establishing the American flag as the undisputed image of global good will.

In contrast to that message, the Trump administration has proposed significant cuts to U.S. diplomatic and foreign aid budgets both of its years in office. This resolution would omit any reference to U.S. foreign aid budgets.

Support: None known

Opposition: None known

HISTORY

Source: Author

Related Pending Legislation: None known

Prior Legislation:

ACR 95 (Mathis, Res. Ch. 115., Stats. 2016) was nearly identical to this resolution except that it also included a finding regarding the amount of foreign aid distributed by the United States in the prior year.

SCA 2 (Nguyen, 2015) would have put a constitutional amendment on the ballot which, if passed by the voters, would have made it unconstitutional to prohibit display of the U.S. flag on the grounds of a UC, California State University, or California Community College campus. SCA 2 was under consideration before the Senate Committee on the Judiciary when it was withdrawn by the author.

SB 1359 (Haynes, Ch. 73, Stats. 2002) prohibited a local government agency from adopting any policy or regulation that prohibits or restricts an employee of that agency from displaying any emblem or depiction of the American flag on his or her person, in the workplace, or an agency vehicle. This bill included a time, place, and manner exception, specifically stating that nothing in this provision shall be construed to prevent a local government agency from imposing reasonable restrictions as to the time, place, and manner of placement or display of a U.S. flag when necessary for the preservation of the order or discipline of the workplace.

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1. See Chemerinsky, Constitutional Law: Principles and Policy, Fifth Edition (2015) Wolters Kluwer, pgs. 1120-1022. ↑

2. Associated Students of UC Irvine (ASUCI) R50-70 <http://www.asuci.uci.edu/legislative/legislations/R50-70.html> (as of Apr. 27, 2018.) ↑

3. Shine and McGreevy, Does UC Irvine Hate the American Flag? Not Exactly (Mar. 10, 2015) Los Angeles Times <http://www.latimes.com/local/lanow/la-me-ln-does-uc-irvine-hate-the-american-flag-not-exactly-20150310-story.html> (as of Apr. 27, 2018). ↑