Desmond v. Harris et. al.

CIR represented Timothy Desmond, an artist, author, and retired school-teacher from Fresno, California, who was denied the right to display his painting in an art competition at a county fair because his depiction of the civil war featured an image of the confederate flag. State officials rejected Desmond’s painting on the basis of a wildly expansive interpretation of a state law that prohibits the government from displaying confederate flags in public spaces. CIR successfully defended Desmond’s right to free speech.

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.

That’s because Desmond’s painting, The Attack, depicted a scene from the Atlanta Campaign in 1864 in which one of the soldiers is carrying the Second National Flag of the Confederacy: a white flag with a small St. Andrews Cross in one corner. According to Fresno and California state fair officials, a recently enacted California statute barred the display of the Confederate flag on state property.

California Law Used to Silence Private Speech

Section 8195 of the California Code provides that, “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.”

In an op-ed explaining the law, the bill’s sponsor, Isadore Hall III, wrote, “the Confederate Flag is a symbol of hate and should not be promoted or perpetuated by any element of American government.”

Regardless of one’s particular view of what display of the Confederate flag means, the circumstances of the Big Fresno art show make it clear that the views expressed in his painting were Desmond’s — not anyone else’s and certainly not those of the state.  In organizing an art show, the state is creating an opportunity for individuals to express different points of view about the subjects depicted in paintings, even controversial subjects about which people disagree.

Officials did not dispute the fact that, in every other respect, Desmond’s painting qualified for inclusion in the show.  Unfortunately, though, the statute tied their hands: though educational and historical, Desmond’s painting could not be shown to the public.

Desmond’s case illustrates the pitfalls of trying to regulate speech. Very often, a prohibition designed to silence a particular viewpoint will end up banning a broad swath of clearly permissible speech as well. For instance, the California statute would have prohibited California university professors from displaying 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 a include a Confederate flag.

First Amendment Protects Speech by Individuals

On May 22, 2017, the Center for Individual Rights reached a settlement with the Attorney General of California under which the state agreed not to use California Code section 8195 to stifle legitimate First Amendment speech. The settlement made clear that the law does not apply to the speech or acts of private citizens.

The Attorney General conceded that “California Government Code section 8195 applies only to the State of California and not to private individuals… Section 8195 neither affects the rights of private individuals… nor authorizes the government to restrict the sale of a Confederate Flag or any similar images, by private individuals in a government forum.”

The settlement was a victory for the First Amendment rights of California citizens. As a result, several other states that had been considering similar legislation took steps to make sure their efforts complied with the First Amendment.