According to California Government Code § 8195, “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 law was interpreted very narrowly by officials in Fresno County, which squelched an art exhibition at a county fair.
County fair officials in Fresno forbade the display of a painting by Timothy Desmond entitled “The Attack.” The amateur painting depicts the charge of Confederate troops during the 1864 siege of Atlanta during the Civil War. In the painting, there appears the Second National Flag of the Confederacy: a white flag with a small St. Andrews Cross in one corner.
In a lawsuit filed in California by the Center for Individual Rights, the advocacy law firm contends that the law violates the First Amendment of the Constitution. According to a brief filed by CIR:
“Plaintiff [Timothy Desmond] is a resident of Fresno County …. Plaintiff is both an artist and a civil war buff. In 2015, Plaintiff created a painting called The Attack, which depicts a scene from the 1864 Siege of Atlanta. The painting included several individuals carrying flags, one of which was the Second National Confederate States flag used at times by the Confederacy.
“The Big Fresno Fair … is operated by … under the authority of … the California Department of Food and Agriculture. Among other activities, the Fair displays artwork, including paintings, and the Department of Food and Agriculture prescribes regulations for the Fair, including the judging of exhibits. Any resident of Fresno County may submit a painting for display….
“Plaintiff has submitted artwork in the past for display at the Fair. Plaintiff submitted The Attack to the 2015 Fair for display, and was later told that he should pick up The Attack because it could not be displayed with other artwork at the Fair. Theodore Scribner, the director of the fine arts program for the Fair, told Plaintiff that the painting could not be displayed under a California law that prohibited the state from displaying the Confederate flag.
“When Plaintiff picked up the painting, … the Exhibits and Concessions Manager of the Fair told him that the Fair had received a written notice from the State Fairs and Exposition Branch the previous June stating that the law in question prohibited the display of any artwork that included the Confederate flag, and that she had confirmed that prohibition with the office of the Attorney General. She also told Plaintiff that had the painting been deemed worthy of an award by the judges, he would have received it despite the fact that the Attack was not displayed.
“Plaintiff wants to submit The Attack for display at the 2016 Fair. Plaintiff continues to paint and plans to create more paintings depicting civil war battles, some of which will depict flags associated with the Confederacy. He wants to submit some of these paintings to the Fair in the future for display….
“Defendants’ enforcement of Section 8195 is a viewpoint based restriction on speech in violation of the First Amendment ….
“While Plaintiff will contend in this case that the Fair created a public forum for the display of privately-created artwork, this motion need not address that question. Even if the forum were limited or nonpublic, the government may restrict access only “as long as the restrictions are reasonable and [are] not an effort to suppress expression merely because the public officials oppose the speaker’s view.”
According to a statement, CIR filed a motion on August 30 to enjoin California from enforcing its ban on the display of the Confederate Flag in Desmond’s painting. If granted, the injunction would allow Desmond to enter his painting, The Attack, at the 2016 Big Fresno Fair. State officials told Desmond in the 2015 he could not display his work because the painting – depicting a civil war battle – contained an image of the Confederate flag.
CIR argues that the California statute clearly violates the First Amendment rights of private artists who seek to display works of art at a public art show. The suit argues that his painting should appear in this year’s art show while his case against the statute proceeds in court.
Desmond is an artist, author, and retired school-teacher from Fresno. In September, 2015, he submitted a painting to the annual Big Fresno Fair for display in its competitive art show. Soon after, fair officials telephoned Desmond to tell him that while his painting could be judged in the art competition (and was eligible for a prize), it could not be displayed to the public.
According to a statement from CIR, “Desmond’s case illustrates the pitfalls of trying to draft prohibitions against particular viewpoints that are offensive to many. Tim Desmond’s case isn’t the only instance where the statute seems to forbid even historic or educational depictions of the Confederate flag. For instance, a professor at a California state university could not display the actual Confederate flag, or any physical painting or photograph of it during a lecture about the Civil War. Nor could a California social studies or government professor display the campaign buttons produced in support of presidential candidates, some of which include a Confederate flag.”
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