California Law Stops City from Flying World Flag Above U.S. and California Flag

And the U.S. Constitution doesn't preclude this result.

From City of Arcata v. Citizens in Support of Measure M, decided Friday by the California Court of Appeal (Justice Charles Smiley, joined by Justices Jim Humes and Monique Langhorne Wilson); seems quite right to me:

In November 2022, the City's voters passed Measure M, an initiative to enact an ordinance requiring the City to "fly the Earth Flag at the top of all city-owned flagpoles, above the flag of the United States of America and the California flag, and any other flags that the city may choose to display." Measure M passed with 3,051 votes in favor of the measure and 2,781 votes against it. The City subsequently adopted Measure M as an ordinance (the Ordinance), as required by Elections Code section 9217….

Under article XI, section 7 of the California Constitution, "[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." (Italics added.) Put another way, "[o]ur state's Constitution grants state laws enacted by our Legislature supremacy over nearly all ordinances adopted by the more local government entities such as counties and cities." …

[California Government Code] section 436 … provides, "Where the National and State Flags are used, they shall be of the same size. If only one flagpole is used, the National Flag shall be above the State Flag and the State Flag shall be hung in such manner as not to interfere with any part of the National Flag. At all times the National Flag shall be placed in the position of first honor." This mandate is absolute, barring a small carveout the Legislature provided in section 434.5, which states that entities such as cities and counties can impose "reasonable restrictions" on the time, placement, and manner of display of the National Flag, but only when "necessary for the preservation of the public's health, safety, or order." …

Against this scheme, the Ordinance seeks to regulate placement of the National Flag in a manner that directly contradicts state law on this same issue…. Applied here, we observe that section 436's reference to the National Flag occupying a "position of first honor" is preceded by the directive that where both the National Flag and State Flag are flown on one flagpole, "the National Flag shall be above the State Flag and the State Flag shall be hung in such manner as not to interfere with any part of the National Flag." We therefore conclude that, at the very least, to be in a "position of first honor" means that where more than one flag is flown on one flagpole, the National Flag must be placed above other flags and hung in such a way that other flags do not interfere with any part of it….

Citizens argue there has been an impingement on the voters' freedom of speech and right to express themselves through the manner in which the City flies its flags…. "The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech." By requiring that the Earth Flag be flown at the top of all City-owned flagpoles, the Ordinance straightforwardly aims to control government speech.

And while the goal of the Ordinance may have been to cause the government to speak for and convey the values of the City's residents, private expression is not implicated because the flags affected by the Ordinance are on public property. A First Amendment analysis does not apply….

Comments

[Malika the Maiz]

There’s a world flag? Like the Federation?

[Mr. Bumble]

Ask Stacy Abrams.

[Frank Drackman]

It’s Stacy Abraham’s and I hear she cleans a mean Hotel room

[Krayt]

I would vote for any politician who wanted to fly the Untied Federation of Planets flag.

[Frank Drackman]

As a fan of Star Trek TOS (in 70s reruns) I’m ashamed to say I not sure what the UFOP Flag looks like

[Variant]

It looks like the UN flag but with the galaxy.

[Dr. Ed 2]

There is a UN flag and it flies on the Amherst (MA) Town Common.

It's Pan Am blue with a white logo in the middle.

[minus the clever name]

It's really an anti-US flag truth be told

[Bwaaah]

And what of the universe? Meh?

Oh...and the "Earth Flag" was created by an American who relied on an image created by the U.S. Government. (He was probably a Democrat too.) Really captures that spirit of the earth.

[arch1]

Though they lost in court, it’s touching that Arcata is at least trying to speak for Earth.

That said, our most enduring big-picture context will be the Local Group, the largest entity of which we’re a part that will stay gravitationally bound despite the universal expansion. Anything more distant will eventually disappear over the cosmic horizon, but the matter in the Local Group will hang around for a long, long time.

This is also the largest scale to which our unaided senses extend: In a dark-sky location, the Andromeda Galaxy, which contains over half of LG’s mass, is the remotest object most people can see without binocs. See it, and you are seeing photons *right now* that left the surface of a distant star 2.5M years ago, well before humans walked the earth..

All hail the Local Group, our one abiding home.

[arch1]

One caveat to my earlier comments about Andromeda's 2.5M light years being the  "scale to which our unaided senses extend", and it's a doozy: 

I was talking about long-lived objects.  For transient objects, in one instance only, our senses extended (or could have extended, for it's not known if anyone actually observed it) a tad further.

GRB 080319B was a gamma ray burster which went out in a blaze of glory, as seen from earth, at 2:12AM EDT on March 19, 2008.  And glorious it was:  For 30 seconds on that night, GRB 080319B was naked eye visible (peak apparent magnitude 5.8) despite being 7.5 *billion* light-years from Earth. That's three *thousand* times the distance to Andromeda, and one-fifth of the way to the edge of the observable universe.

GRB 080319B's light was emitted billions of years before Earth formed.  If viewed from the same distance as our Sun, it would have been 21 quadrillion times brighter. "For nearly a minute this single star was as bright as 10 million galaxies" [NASA]. And somewhere I saw that GRB 080319B's intrinsic brightness in the gamma ray portion of the spectrum exceeded that of the rest of the visible universe combined.

[Bwaaah]

Interesting. A helpful sense of scale that transcends the silliness.

[ReaderY]

Municipalities, being pure creatures of states that can be created, regulated, and dissolved at the state’s convenience, have no constitutional rights assertable against the state that created them.

[Drewski]

Eleven states have independent municipal rights in their constitutions. These are called "home rule" states. In California, charter cities have home rule. Here, the city's ordinance violated the state constitution, but if it had been controlled by a statute the city would likely have prevailed.

[Dr. Ed 2]

There is also FEDERAL law (4 USC 5) which specifies that no flag can be flown above the US Flag.

[minus the clever name]

Not true though : its citizens, being Federal citizens besides being citizens of the municipality, DO HAVE RIGHTS THAT CAN BE VIOLATED BY DISSOLUTION OF THE MUNICIPLALITY

[Martinned]

Yes, this falls squarely in the category of "correct, but why does California have a law about flags?"

[Eugene Volokh]

Well, the relevant portion of the law is about flags at state, county, and city buildings. I take it that the state's view is that there should be some uniformity in how flags are displayed in places for which the state is responsible (given that counties and cities are political subdivisions of the state). It's not the only approach: The state could leave it to each city or county, or for that matter to the administrators of each building. But it seems like a sensible approach.

It would be unconstitutional, I think, for the state to set up such rules for display of flags by private organizations; section 432, for instance, might for that reason not be legally binding ("The Flag of the United States and the Flag of the State shall be prominently displayed during any and all games and performances of every kind which take place in a coliseum, stadium, bowl, or other open air sites, and at all race tracks where racing is being conducted.").

[Stupid Government Tricks]

Thanks for that. I was wondering if it was for government flags only, or private flags too.

[Ridgeway]

Just about any statute purporting to regulate how a private citizen flies a flag is going to be unconstitutional under the 1st Amdt.

With respect to municipalities and other governmental entities, the results are different, as evidenced by this case.

[Krenn]

From my perspective, listing the order in which official government flags are to be flown on official government property is just a perfectly normal old-school version of routine identification, branding, tracking, etc. It's what we used to use before we had serial numbers and corporate branding and license plates and stuff like that.

You must fly the flags in that way, in order to correctly identify yourself as a government facility. No different than requiring your building to have its' name and address prominently displayed in a readable font.

The only reason why a local government facility might have a right to fly a different flag in first place would be if they were running some sort of plausible training scenario involving an 'opposing force' of non-american municipal government, and legitimately needed to differentiate the home team from the opforce team.

Like if they needed to practice, I don't know, procedures for mobilizing and temporarily transferring state property to assist in a natural disaster across state or international lines, but actually driving all their stuff the full six hours sounded like a lot of work, so they just designated one of their government marshalling yards the "home team" and another marshalling yard a mile down the road as the "away team", and flew the Canadian Flag, or a simulated imaginary national flag, in first place over the "away team" marshalling yard for a day or two, so you didn't get confused.

[wvattorney13]

It would be an interesting case. One could argue that is a simple police regulation---like having a certificate of occupancy displayed---rather than compelled speech.

[Dr. Ed 2]

The Federal flag law (4 USC 5+) is voluntary, i.e. "should" not "must", and I wonder how this would have turned out without the Cali law.

[Krayt]

Is the rhetorical position of primacy at the top of the pole important? If so, you've answered your own question. It's the exact reason people seek to put their pet project at the top, and are shocked some disagree on the ordinal calculation function.

If any flag were to go above the US flag, it would be a general flag for freedom itself, which exists independent of, and before the creation of, any government of The People, to secure those rights.

But the US flag already represents that, so it would be redundant. Not that it doesn't need redundant hammering every generation, as self-serving political weasels, like Joe Bob's Last Drive In, never die.

[Drewski]

"If any flag were to go above the US flag, it would be a general flag for freedom itself, which exists independent of, and before the creation of, any government of The People"

You know what else existed independently from, and before the creation of, any government at all? Why, the world. You're just expressing a preference phrased as a principle.

[Kleppe]

"why does California have a law about flags?"

Because dumbasses in California keep trying to fly flags above the American flag.

[David Nieporent]

The case was decided on state law grounds, but I see from the opinion that federal law was raised:

The City subsequently filed an action in the trial court to clarify the legality of implementing the Ordinance given state and federal laws that require the flag of the United States (National Flag) to be flown above all other flags on public property

(Emphasis added.) I presume that no such federal law could be constitutional. Sounds like commandeering to me!

[Krenn]

Seems just as valid as requiring state driver's licenses and license plates to conform to certain requirements about the order, type, and quality of information they contain.

If we didn't enforce a uniform flag code on public buildings, how would we know which country we were standing in, or where the foreign embassies were? Very important function of flags, it's why we invented them. They're not just random fanart people like to put on sticks sometimes, flags actually MEAN something useful and official.

[Josh R]

I doubt it. As I read Murphy v. NCAA, the anti-commandeering principle applies when the federal government either requires states to enact legislation or forbids them enacting new legislation. Assuming for the sake of argument the federal law forbids enactment of state legislation that contradicts the federal law, the Murphy court said that's OK when "The law [...] did not regulate the States’ sovereign authority to “regulate their own citizens.”" (distinguishing Reno v. Condon from Murphy).

[Dr. Ed 2]

4 US 7 (c): No person shall display the flag of the United Nations or any other national or international flag equal, above, or in a position of superior prominence or honor to, or in place of, the flag of the United States at any place within the United States or any Territory or possession thereof [emphasis added]

That's a "shall", not "should" -- and hence with "no person" becomes a prohibition...

[John F. Carr]

The city sued backers of the ordinance. The process seems odd to me. The city should refuse to follow the ordinance and let anybody with standing sue to enforce it.

In Massachusetts the state Attorney General can veto a local measure passed by voters.

[Estragon]

I’ve seen state of Jefferson flags flown above the Stars and Stripes on municipally owned buildings in Northern California.

[minus the clever name]

Does anyone here realize that when Afghanistan fell Biden's embassies were flying Pride flags that infuriated to red hot hate the Afghans. How stupid can one man be ?

Numerous examples show that Pride flags have been flown outside U.S. embassies in Muslim-majority countries during the Biden administration.

Why did Biden poke Muslims in the eyes like that, repeatedly
Jun 2, 2022 — Two rainbow flag posts for Pride month were condemned by Kuwait officials for "supporting homosexuality".

Obama went to Africa and infuriated the entire continent with his disgusting homosexual remarks

[santamonica811]

Yes, and...? Trump has infuriated most of Western Europe with his history of raping and sexually assaulting multiple women. So fucking what?!? What does the reaction of a country to what a particular US President's words or actions have to do with the price of tea in China?????

I mean; thanks for your observations, but again . . . so what?

[Stupid Government Tricks]

Gee, and Bill Clinton's rapes and Hillary's abetting didn't outrage Europeans. Suddenly I give a shit, is that their motto?

[wvattorney13]

Cite that "most" of Western Europe is "infuriated" by Trump. Do people in France, for example, walk around with gritted teeth all day just angry as hell about Trump?

[Frank Drackman]

It was the 90’s and I’m not sure what their problem was with Clinton, but yes

[NvEric]

The flag in question is the "Blue Marble" - a picture of the Earth taken during the Apollo 17 mission. No reason to make it an issue, but some will, however, it matters little as Arcadia is way out of the main flow on Hwy 101.

[Variant]

The most amusing thing is that opponents of this measure were concerned about the costs inevitable litigation would bring. The city council agreed but decided to uphold the measure and then sued themselves over it.

Just California things.