The Volokh Conspiracy

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California AG agrees: California law does not preclude private citizens from displaying Confederate battle flag at county fairs


"The Attack," by Timothy Desmond, as filed in court.

Last year, California banned a painting of a Civil War battle from a county fair art show, because the painting included a Confederate battle flag. This was a misreading of California law (which, properly read, just limited what material the California government could itself sell and display), and the Center for Individual Rights sued on the artist's behalf, arguing that this violated the First Amendment. This month, the artist and California settled the case, providing that "the parties agree that [the California statute] did not provide a valid justification for precluding The Attack from being shown at the 2015 Fresno Fair." Indeed, the California Attorney General's office stated:

California Government Code section 8195 applies only to the State of California and not to private individuals. See Cal. Gov't Code § 8195(a). This conclusion derives from the plain language and the legislative history of the statute. 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."

Section 8195 neither affects the rights of private individuals to carry, display, or sell a Confederate Flag or any similar image either on private or government property nor authorizes the government to restrict the display or sale of a Confederate Flag or any similar images, by private individuals in a government forum.

Plaintiff had "submitted The Attack to the 2016 Big Fresno Fair," which happened about a month after the lawsuit was filed, "and is was displayed and judged therein."

Note that I'm on the Center for Individual Rights legal advisory board, though I wasn't closely involved with this case.