California: No, You Can't Show That Civil War Painting At A State Fair. It Has a Confederate Flag In It.

You may have seen something about this already: a California state legislator's mother was offended when she saw novelty Confederate money bearing the Confederate flag in the gift shop at the State Capitol. Naturally her son proposed a new law, now in effect, banning the State of California from displaying or selling the Confederate Flag or items bearing its image.

This raises some questions right off the bat. Why is the gift shop in the State Capitol of California selling novelty Confederate money? Why do legislators think that personal annoyances are grounds for legislation?

But the worst was yet to come: California officials, including both Department of Agriculture bureaucrats and counsel from the Attorney General's Office, decided that the law means that an artist could not show his civil war painting at the Big Fresno Fair, which allows hundreds of artists to display their work at its cultural fine arts pavilion. Why? Because the Civil War painting — like many such paintings — included an image of the Confederate flag, and so allowing an artist to display it with all the other work at the state fair would mean the state was displaying it in violation of the law.

No, really.

The artist has sued, and I wrote a column for the Los Angeles Daily Journal explaining why he should win, which you can read here (it's an authorized reprint; the web article is behind a paywall).

In a world choked with really stupid bureaucratic decisions, this one is notable for its idiocy.

Last 5 posts by Ken White

Comments

  1. says

    Reminds me of how "Wolfenstein 3D" had to be censored to remove all swastikas when it was exported to Germany, never mind that the whole point of the game is to kill as many Nazis as possible.

  2. ChrisO says

    Guessing "decided that the law means that artist" should be "decided that the law means that an artist"

  3. says

    We are a symbol-driven culture, and flags are some of the most powerful symbols we have. To me, the context which a symbol is used absolutely makes a difference. For example, flying the confederate flag on a government building in a state which lost the war says to me that theC Civil War isn't over. Where showing the flag in a historical painting is … just history.

    Trying to disappear powerful symbols isn't the answer and obviously doesn't work very well, and symbols mean different things to different people. If you're flying the flag as a statement to question authority, then I'm with you. But if you're flying it because you think blacks and Hispanics are lesser people than whites, then kindly fuck off and maybe join us all here in the year 2016.

    So for me, it all comes down to context, and the intent behind it. The symbols themselves are just artificial constructs. A confederate flag doesn't feel pain. It can't be reasoned with.

  4. Quiet Lurcker says

    The implications of this are terrifying.

    If we erase the symbols of our historical errors, we may well erase our knowledge of what those errors were. And in doing so we automatically doom ourselves to repeat history. (George Santayana. _The Life of Reason_ 1905.)

    More to the point. it was not the state of California – in the person or entity of the state fair – which was selling or displaying the painting. It was an individual. That law does not and cannot apply, never mind the First Amendment implications.

    Admittedly, the state provided the forum, and as such has an inherent right to allow or disallow certain content or forms of display. But, I suspect the artist might still have a case, if he wasn't told about any limitations on what he could or could not display beforehand.

  5. Cactus says

    Yet again someone in California manages to spray shit all over a situation that was largely cleaned up.

    I support removing the confederate flag from public offices, courthouses etc, for all the reasons that have been said countless times before, yet support private freedom for all the reasons that have been said countless times before.

    Someone got greedy and a little power drunk, but then that's basically how it's always worked.

    Actual legal question, when it says:

    … unless the image appears in a book, digital
    medium, or state museum that serves an educational or historical
    purpose.

    Are those formats actually specific? So a painting by itself wouldn't qualify at all (unless in a museum, or book about paintings)? And does "digital medium" mean anything specific in legal terms beyond "a file"?

    And presumably it means the book or museum must serve a historical purpose, (even if the image doesn't)?

  6. Brian Z says

    @Cactus

    … unless the image appears in a book, digital medium, or state museum that serves an educational or historical purpose.

    I don't think the artist's work falls under this exception. It's not a book, nor in a state museum, nor a digital creation.

    The core of the argument must be whether or not California is displaying the work, as discussed in Ken's Daily Journal article. The answer: no, California is not.

  7. says

    Admittedly, the state provided the forum, and as such has an inherent right to allow or disallow certain content or forms of display.

    Well, no. That's not a correct statement of the law.

  8. Richard says

    I think I support, in general principle, the initial idea that the State of California should not be endorsing the Confederate Flag, as it is a symbol of hatred. Note that distinction: endorsing. Selling novelty conferderate flags is pretty clearly an endorsement, given the known cultural use of said novelty flags.

    But yeah, it is the paramount of silliness to ban all depictions of the flag in all contexts. This is stupid.

    A better solution would have been to, instead of writing a LAW banning the flag, to simply stop selling novelty confederate flags. No law required.

  9. Ed says

    Selling the image is an endorsement I suppose but simply having it on state property is no more an endorsement than our Satanic display here in Florida signifies the endorsement of our state.

    http://www.orlandosentinel.com/news/politics/os-satanic-temple-display-florida-capitol-20141204-story.html

    Seems to me if the state allows the symbols of the Union allowing symbols of the Confederacy is simply equal time.

    And I think that there is certainly a cultural component to the flag that is not necessarily racist but, then again, so what? Isn't that exactly the sort of speech that should be protected?

  10. Brian Z says

    @Richard

    I don't think California should endorse the Confederate flag. I don't think they should sell the flag or merchandise prominently featuring the flag's image. I disagree that selling something equals endorsement.

    California didn't ban all depictions of the flag in all contexts. I agree that would be stupid, but that's not what they did. From the link:

    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.

    This is a stupid law, but it's neither a ban nor does it apply in all contexts. It's stupid because it's an attempt to legislate good taste. It doesn't really achieve anything–California didn't need a new law in order to not sell Confederate memorabilia. But because they did create this law, they have directly impacted an artist who wasn't allowed to participate in the show, indirectly impacted all artists who now experience a chilling effect because the state has implied they have interest and power in controlling content, and burdened the taxpayers with the cost of litigating t:he inevitable case arising from this bad law.

    So yes, we are in agreement on the broad strokes: "no law required."

  11. Brian Z says

    @Ken White

    Well, no. That's not a correct statement of the law.

    I find it interesting that whoever drafted the rules (almost certainly a non-lawyer) also thinks the state has "an inherent right to allow or disallow." From the contest rules:

    The Big Fresno Fair reserves the right to exclude any entry that is deemed not to be in the best interest of the Fair for exhibition.

    But yeah, I read your article with the references to Arkansas Educ. Television Comm'n v. Forbes, etc.

  12. En Passant says

    Your LA Daily Journal article concludes:

    In a world choked with really stupid bureaucratic decisions, this one is notable for its idiocy.

    To which I can only add "Amen!"

    What surprises me is not that the Big State Fair officials decided that they were either required or permitted by the statute to ban the painting. Those officials may not all be lawyers, and they can hardly be expected to know even rudimentary constitutional law principles.

    What I find shocking is that the State AG's office agreed. They are all lawyers.

    How could they not recognize from the beginning that they are not defending a statute here? They are defending some state fair officials' bizarre interpretation of a poorly drafted statute.

    It's a cheap shot to say that they're all Democrats, so of course their first choice is to play the race card. But that's the card they played first, and it's a remarkably stupid card to play.

    You can bet your bottom dollar that if a painter portrayed the 442nd Regimental Combat Team taking heavy casualties battling nazis on Hill 140, the same state officials wouldn't be objecting because the nazi's swastika emblems insulted Jews, or a depiction of the 442nd's casualties somehow insulted Japanese-Americans.

    The objection to this painting is not a complaint based on actual perception and objection to historical or current racial prejudice. It is a contrived ploy to gain political correctness points among a perceived political constituency on the part of all the officials involved in banning the painting. They should lose not only the legal case, but also their next elections.

  13. Adrian says

    As a non-lawyer, I am even more amused by the things this new state law would seem to explicitly ban. Things like lost/abandoned, seized, and estate property which are already required to be sold off by the state (public auction or private sale). Curios and relics like Confederate currency and war memorability frequently show up in state personal property auctions. The "good ol' boys" truck with the flag painted on the side, seized transporting drugs, could no longer be sold off. Excess historical items housed at state offices and public universities, such as flags/uniforms/paintings (excepting books), could no longer be sold off when no longer deemed necessary for collections. Or am I interpreting it wrong?

  14. william the stout says

    @ Richard

    I think I support, in general principle, the initial idea that the State of California should not be endorsing the Confederate Flag, as it is a symbol of hatred.

    No. No it isn't. Symbols by their nature can mean different things to different people.

    To Colin Kaepernick, the US flag is apparently a symbol of oppression. To a newly naturalized immigrant taking the oath it's a symbol of opportunity and freedom. And so on.

    Likewise, the Confederate Flag means different things to different people.

  15. Tom Scharf says

    I've never seen the confederate flag as a "symbol of hatred". It's a legitimate historical flag used by the confederacy and it seems that only recently have the thought police decided it represents something else. The fact that some fringe white supremacist groups started using it doesn't bother me in the least. They also drive around in big pickup trucks and listen to country music but I don't find these as symbols of hate.

    This tyranny of the majority deciding what constitutes a hate symbol is a path I believe needs to be avoided at all costs. Are there any symbols of hate that left extremist groups use that need to be banned? Many would believe this question is ludicrous or have never even considered the question at all. Hate is in the eye of the beholder. If militant BLM groups began using a flag should this be banned? I may be wrong here, but I don't even think the Islamic State flag is banned in California.

    Blacklisting symbols doesn't eliminate the underlying ideology. It drives it underground and makes it harder to identify which can be counter productive. Erasing all symbols of racism has curiously resulted in the thought police constructing ever finer and obscure tests on what is racist and what is not. With zero transparency on the ever changing social rules of compliance most simply punt and never talk about this subject at all. Millions of "deplorables" are now swept up into the racist net while showing no identifying characteristics of racism at all. Is this progress?

  16. Pettifogger says

    Re the symbolism of the Confederate battle flag. I grew up in Texas. I viewed displays of the flag as a sort of up-yours statement of defiance and resistance to oppression. You may argue, as my Ohio-born wife does, that such a view is ahistorical. I don't disagree, but that doesn't make the view less real.

    I have come to understand that others, especially black people, see the flag as an endorsement of racial oppression. That's a more historical view than the one I grew up with, and I accept it as reasonable. Accordingly, I will no longer display the flag.

    Not all displayers of the flag are racists. But I think they are insensitive to the reasonable perceptions of others.

  17. william the stout says

    Your wife probably has it right historically but she's thinking about the wrong time in history. Remember, in the 1860s the vast majority of the people that fought under that flag had nothing to do with slavery. History and the people that lived it are a lot more complicated than our current social justice world cares to appreciate.

    Shelby Foote, the southern author and historian, says (correctly IMO) that the flag became a symbol of racism in the 1950s and 1960s when it was appropriated by the segregationists to fight against school integration, voting rights, etc. Before that, it was just a flag of an army that existed for a few years and tended to stand more for independence and rebellion and honor in battle than anything to do with race. Foote believed that the segregationists made a huge mistake as to what they did with the flag.

  18. TRN says

    Re the symbolism of the Confederate battle flag. I grew up in Texas. I viewed displays of the flag as a sort of up-yours statement of defiance and resistance to oppression. You may argue, as my Ohio-born wife does, that such a view is ahistorical. I don't disagree, but that doesn't make the view less real.

    I have come to understand that others, especially black people, see the flag as an endorsement of racial oppression. That's a more historical view than the one I grew up with, and I accept it as reasonable. Accordingly, I will no longer display the flag.

    Not all displayers of the flag are racists. But I think they are insensitive to the reasonable perceptions of others.

    I wouldn't call it insensitive in all cases, I see it as the symbol of people who fought and died for their ideas, if they were wrong about those ideas it in no way diminishes my respect for the sacrifices they made for that flag. It definitely cannot make me willing to stop remembering that children fought and died for that flag. I see it as a statement that the people who died for it will be remembered, and that people are still free to salute the flag of a defeated group, no matter what ideology they held.

    I hate the idea that any symbol that anyone, no matter who, fought and died for could be banned, censored, of discouraged. To do so is in my opinion, to deny that they lived, struggled, and died. I don't care who you were, that you fought and died for your ideas is enough to earn my grudging respect, at least as long as it was in the face of people aiming for your life of idea. Terrorists don't meet the bar, they kill themselves to cause the deaths of innocent people.

    To kill and die in defense of what you hold dear is important to me, but the defensive portion is important, do not kill to advance what you want, only to defend what you have, and never kill anyone who means you no harm.

  19. nhrpolitic13 says

    @TRN

    Sometimes people choose to fight and die for shitty ideas. Perhaps there is honor in the bare self-sacrifice or struggle of an individual soldier, regardless of the aims of the war as a whole, but frankly, beyond "grudgingly acknowledging" the horrors of war, I don't find myself compelled to spend much time maundering over the symbols of said shitty ideas or paying a great deal of respect to those who sought to uphold them — and the Confederate flag, for better or worse is, imo, a symbol of shitty ideas.

    As for "dying in defense of what you hold dear" or to defend you "idea of life", I'm not much moved by that, if the "ideal" you're defending is a shitty one. The fact that Southerners–misguidedly or no–were supposedly "defending" their ideals — including, I'd point out, their right to own black people as slaves — does not make their cause any more noble or worthy of praise to me than that of an individual Wermacht or Jiahdi who, doubtless, could also expound upon the "ideals" which they believed they were defending.

    Turning to something a little more relevant to initial article and noting some of the other commenters remarks: I live in Fresno, and this isn't a question of the State AG "agreeing with" the interpretation of some state Fair muckity-muck: it IS the interpretation of the State AG. Someone at the Fair apparently had the legislation pointed out to them and asked the State AG what it meant. The AG's office said it meant no displays of the flag, including in artwork. The Fair said "ok" and responded accordingly. I'd like to think that someone at the Fair could have looked at the law and said "it would be patently ridiculous, not to mention unconstitutional, to conclude this law applies in this fashion so I don't need to ask, I'll just put up the painting" — but I get it, the people running the Fair aren't lawyers, so they asked the lawyers, and this is the answer they got. Bottom line, the lawyer who gave them the answer should probably be asked to take some remedial con-law classes, and the state/Fair should lose this case hands down in double time. Given that the Fair isn't for another couple weeks, I'd be sorta surprised if there isn't a preliminary injunction somewhere down the line.

  20. Encinal says

    It seems to me that if the precedent of Pruneyard Shopping Center v. Robins is respected, it would be hard to argue that the state, acting as venue provider, can engage in content of discrimination.

    It's a bit hypocritical for California to take a stand against bigotry, given that they start every school day declaring this to be "one nation under God", which, according the governor, is justified on the basis that democracy works only if we all agree on who we are as Americans.

    @Lizard

    "Reminds me of how "Wolfenstein 3D" had to be censored to remove all swastikas when it was exported to Germany, never mind that the whole point of the game is to kill as many Nazis as possible."

    Were the levels modified to remove the swastika'shaped rooms? Or did that slip past the censors?

    Fun fact: there's a forest in Germany that part of the year is a mostly uniform green, but for part of the year, different trees change different colors to form a swastika shape.

    @Adrian

    There's a movement in California to ban the government from seizing private property through eminent domain, then selling it to a different private buyer. I guess this law provides a tactic of accomplishing that: simply paint a Confederate flag on any property one wants to not be sold to a private party.

    @Matt

    To be pedantic, also wrongly referred to as the Stars and Bars.

    Good thing you're not the State of California, otherwise you couldn't have shown us graphically what the difference is.

  21. Mark Z. says

    Encinal: The State of California could indeed show you what the difference is, by showing you a book or digital image, or displaying the flag in a state museum.

    Question: Does a museum gift shop count as part of the museum? As written, the statute allows the state to display and sell Confederate flag merchandise in a museum.

    Next question: Must the book or digital image serve an educational purpose? The grammar of the sentence is unclear. If Chuck Tingle, while working as a postdoc at Cal, writes a short story titled Southern Cultural Heritage Pounds Me In The Butt–and for the sake of argument, assume that it has zero educational value–can the Cal bookstore sell copies of it? Or would they have to sell it at the Capitol Museum? How about the Folsom Street Fair?

  22. wolfefan says

    Let's not act as if the racist implications of Confederate flags are limited to slavery or things that happened outside of our lifetimes (well, those of us of a certain age.) This flag was an important symbol in the South of the Jim Crow laws and opposition to segregation. It was re-adopted in that time after many, many years of deserved neglect.

  23. Jay says

    @Matt

    To be pedantic, also wrongly referred to as the Stars and Bars.

    I just realized that inaccuracy is codified into California State Law……someone didn't do their homework……

    And technically, the flag depicted in the painting appears to be a version of the national flag of the Confederate States.

    Although, as a high school student in Tennessee in the early 90's I also called the "Confederate Flag" the "stars and bars." Then again, I was a California transplant….

  24. Jeff says

    In a world choked with really stupid bureaucratic decisions, this one is notable for its idiocy.

    I would like to defend bureaucrats. My experience both working for the federal government and later having friends that work in government is that, is that what looks like an idiotic decision is the result of honest employees trying to reconcile conflicting laws.

    After the decision is made the lawmakers with grandstand and berate the bureaucrats and the bureaucrats never respond that the truth that is that if they wanted something different they should have written the law different.

  25. capnkrunch says

    @william the stout

    Before that, it was just a flag of an army that existed for a few years and tended to stand more for independence and rebellion and honor in battle than anything to do with race. Foote believed that the segregationists made a huge mistake as to what they did with the flag.

    Some of Foote's views are questionable to say the least. For the North, slavery wasn't officially an issue until the Emancipation Proclamation made it one. For the South it was always about slavery. You can tell pretty clearly by reading the original succession documents (i.e. Mississippi, South Carolina, Texas).

    The claims that it was about state's rights fail to acknowledge that the rights they were upset about were regarding slavery. Claiming that slavery was not a cause is disingenuous at best. Joe Southerner may have been fighting to protect his home but leadership was fighting to protect the institution of slavery.

  26. Hoyt Clagwell says

    First off, the "Stars and Bars" and the "Battle Flag of the Confederacy" are not the same thing. The "Stars and Bars" was the first national flag of the Confederacy (it was never made the official one by the Confederate Congress). At First Bull Run, that flag was mistaken for the Stars and Stripes and caused at least one friendly fire incident, so the Army of Northern Virginia adopted a design by PGT Beauregard (a square banner with a blue cross with stars) as its battle flag. The Army of Tennessee adopted the same design, but on a rectangular field. Many armies of the Confederacy began flying one or the other of these designs. Some adopted their own battle flags (e.g., the Bonnie Blue Flag). There was never an official "Battle Flag of the Confederacy." Perhaps California legislators should take a history class or read Wikipedia before drafting legislation.

  27. William the Stout says

    @capnkrunch

    I wasn't trying to assert the states' right thing nor was I saying that Foote had done so – as far as I know that wasn't his opinion.

    I was simply saying that for the first 90ish years of its existence the Confederate flag was not seen as a symbol of racism. As you point out directly, Joe Southerner was simply defending his home/state, and as you point out indirectly Joe Northerner in that era was not typically a pillar of racial equality either.

    For virtually everybody alive today, their mental image of the "Confederate flag" (which as most know wasn't actually the flag of the CSA) is of it being waived by people in an angry crowd that is throwing rocks at high school or college kids trying to assert their right to go to school. Or of some cracker waiving it while Bull Connor lets loose his dogs. That's what Foote was saying – the flag became a symbol of racism when it was used by racists in the '50s and '60s.

    Sorry if I wasn't clear in my first post.

  28. Amber says

    The statute in question:
    GOVERNMENT CODE
    SECTION 8195

    8195. (a) 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.
    (b) For purposes of this section, "sell" means to transfer title
    or possession, exchange, or barter, conditional or otherwise, in any
    manner or by any means whatsoever, for consideration. "Transfer
    possession" includes only transactions that would be found by the
    State Board of Equalization, for purposes of the Sales and Use Tax
    Law, to be in lieu of a transfer of title, exchange, or barter.

    Since this is California, quoting the law is probably a copyright violationion, becuase Fair Use is an alien concept to the entertainment lawyers out there.

    How different does something have to be, to not be "any similiar image".
    I'll make it short and ask which of the State Flags of Georgia, since 1879, are exempt from that prohibition?

    The "or any similar image" language almost gets the legislature off the hook, because it is the Naval Jack of the Confederacy, not the Battle Flag of the Confederacy, that is used. OTOH, they did confuse things by adding "Stars and Bars", which refers to yet another flag, unless they are trying to ban all flags of the Confederate States of America.

  29. Encinal says

    @Jeff

    In a world choked with really stupid bureaucratic decisions, this one is notable for its idiocy.

    I would like to defend bureaucrats. My experience both working for the federal government and later having friends that work in government is that, is that what looks like an idiotic decision is the result of honest employees trying to reconcile conflicting laws.

    Yes, that is one of the characteristics of bureaucracies: a bureaucracy can be filled with bureaucrats who are individually acting reasonably, but the bureaucracy as a whole is seriously screwed up.

    kapncrunch

    The claims that it was about state's rights fail to acknowledge that the rights they were upset about were regarding slavery. Claiming that slavery was not a cause is disingenuous at best. Joe Southerner may have been fighting to protect his home but leadership was fighting to protect the institution of slavery.

    I suppose this is leading into dangerous territory, but claiming that it was caused by slavery is simplistic at best. Abolition was hardly an imminent threat; the more immediate cause of friction was the North's use of federal power to exploit the South, and the North was clearly the aggressor in the war, making the South's reasons less relevant than the North's, and the North was not motivated by a desire to free the slaves; Lincoln plainly stated that his primary concern was having the South remain in the union. But one can't criticize the North without being accused of being a slavery apologist. I suppose by that logic, anyone who criticizes the invasion of Iraq must be a Saddam apologist.

    @William the Stout

    For virtually everybody alive today, their mental image of the "Confederate flag" (which as most know wasn't actually the flag of the CSA) is of it being waived by people in an angry crowd that is throwing rocks

    That's a bit presumptuous. My main association is with the Dukes of Hazard.

  30. Brett Powers says

    Dude. Legislators gonna legislate. If they don't add positive law, cognitive dissonance gonna kick in for sucking off the public tit and not giving anything back.

  31. princessartemis says

    @Encinal

    That's a bit presumptuous. My main association is with the Dukes of Hazard.

    Indeed. The General Lee, and sometimes it reminds me of my Tennessee cousin who had one in his room as a teen out of rebelious regional pride.

    When I see it, I don't default to seeing racism. I default to seeing good ol' boys never meaning no harm.

  32. mcinsand says

    In the 1990s, a coworker that was originally from the northeastern US found a confederate flag in his attic. This was in Western NC. He innocently hung it over his front door at work with thoughts that a northerner hanging a confederate flag was funny. He found out quickly that some people did not think it was funny.

  33. Mike Schilling says

    I've never seen the confederate flag as a "symbol of hatred". It's a legitimate historical flag used by the confederacy and it seems that only recently have the thought police decided it represents something else.

    Where "recently" means 1956, when it was added to the state flag of Georgia specifically to signal opposition to Brown vs. Board of Education.

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