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California Ban on Confederate Flag: The End of Free Speech?


California Governor, Jerry Brown, has an important document to sign this week after the state’s Legislature passed a bill that bans the sale and display of the Confederate flag. If Gov. Brown signs off on the bill, California state agencies would be prohibited from selling or donning the flag on state property, though the bill does not include the display of the flag in an educational setting. Many people welcome the recent legislation as long overdue, however some object to the bill on the grounds that it impedes First Amendment rights of free speech or that it misunderstands the symbology of the flag.

Last week the bill passed the Assembly almost unanimously in a 66-1 bipartisan vote. The single nay vote came from Republican Tim Donnelly (Twin Peaks), former GOP gubernatorial candidate and current representative of the 33rd Assembly district. Donnelly explained his objection to the bill quite simply, stating, “I’m a strict Constitutionalist.” The assemblyman continued by saying that he does not defend or condone the symbol. Rather, his concern is that the First Amendment should not apply unilaterally; it should extend to all state buildings.

The bill, AB-2444, was introduced by Assemblyman Isadore Hall (D-Compton), and filed after Hall’s mother saw a replica of the Confederate flag being sold at the state capitol in Sacramento. Hall described the flag as emblematic of fear and oppression, stating, “Even today its public display is designed to instill fear, intimidation and a direct threat of violence toward others.”

The bill that sits, awaiting signature, upon the desk of Gov. Jerry Brown has sparked a conversation that has been no stranger to First Amendment dialogue. In particular, AB-2444 can be interpreted as a form of government expression that conflicts with the rights and beliefs of some of its people.

35-Star American Flag

According to Peter Scheer, executive director of the San Rafael, CA First Amendment Coalition, it is possible that some people might consider the protection of government expression in this case to be a violation of their First Amendment rights. Scheer explained that this view is based on “the theory that citizens are associated, against their will, with an official point of view with which they strongly disagree.”

Confederate “Stars and Bars” flag circa 1861-1863

AB-2444 bans the sale and display of the Confederate Battle Flag, which is to be distinguished from the flag of the Confederacy or national flag. The original Confederate flag of the 1860s, the “Stars and Bars,” bore a striking resemblance to the U.S. flag, and as such caused much confusion on the battlefield. The first flag of the Confederacy was thereon replaced on the battlefield by the Battle Flag, while the Stars and Bars remained the national symbol of the Confederacy.

Today, however, the Battle Flag has become the archetype of the Confederacy, the south and a loosely or ambiguously defined southern culture. Constructively, it represents a heritage. Destructively, the flag has been co-opted by many organizations that have since recast its meaning. Most notable co-opts have been by the Klu Klux Klan and the anti-integration group, the Dixiecrats. Regardless of what some argue as a reverse reappropriation of the meaning of the Confederate flag, its image in the present context has been bound to a racist and oppressive ideology.

Confederate Battle Flag circa 1861

The swastika is a similar symbol that has taken on different meanings over time. In Hinduism and Buddhism the equilateral cross was a symbol of well-being and good luck. Later co-opting of the swastika came to recast it as symbol of the Aryan race. After a horrific chapter of history, the swastika has had a difficult time disassociating from oppression and racial warfare. That said, there is an important difference in the case of the Confederate flag: it is not a cross-cultural phenomenon and as such, questions of “original meaning” are much more difficult to detach from the flag’s subsequent co-opting in recent collective memory.

What began as a discussion by California legislators may find its justification among anthropologists, however the ultimate fate of the bill rests with California Gov. Jerry Brown. In light of the near-unanimous passing of the bill in the Assembly, many are confident that the Governor will sign off on it. Regardless, the issue itself is liable to spark interesting discussions regarding free speech and the symbolic nature of the Confederate flag.

Opinion by Courtney Anderson

LA Times 1
LA Times 2
California Legislative Information
The Elm

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