John Severance Sep. 6, 2016, 9:35am


FRESNO, Calif. (Legal Newsline) -- A Fresno man created a Civil War painting and exhibited it at his county fair this year, but the painting prompted fair officials to contact the office of California Attorney General Kamala Harris because of concerns about it containing a Confederate flag.

 

The painting depicted a scene from the 1864 battle in Atlanta and included soldiers carrying various flags like the Confederate flag. Fair officials were concerned that the painting violated a state statute, and California officials confirmed that it did.

Fresno artist Timothy J. Desmond has since filed a lawsuit against state officials, alleging that they violated his freedom of speech by not displaying his Civil War painting.

‘’Our client is challenging a California law that says the state cannot display the Confederate flag,’’ Center for Individual Rights Terry Pell told Legal Newsline. "Our view of the statute is that the state is fine if it is limited to the state’s own view of displaying the Confederate flag.

"The state is within its rights to decide if it wants to display the Confederate flag, but the state can not hinder an individual’s right to display the flag where it is clear the message of the painting is the view of the artist and not the state.’’

Desmond filed the lawsuit Aug. 15 in U.S. District Court for the Eastern District of California against Harris, food and agriculture secretary Karen Ross, fairs and expositions official John Quiroz and event organizer John Alkire, alleging violation of the First and Fourteenth amendments of the U.S. Constitution.

Desmond claims he lost money because the defendants prevented him from showing his work at the 2016 Fresno Fair because several flags in the painting were associated with the Confederacy.

A statement from Harris' office said, "We are looking into the complaint." The office also shared a copy of the statute (Government Code 8165) in question, which states:

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; and

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.

 

Desmond said he is seeking a declaration that section 8195 is unconstitutional. 

‘’We are challenging the statute saying it’s an overbroad statute,’’ Pell said. ‘’It crosses the line in what the First Amendment permits. We think California is free to choose whether it wants to display the flag but an artist should be allowed to depict it in an artist’s view.’’

Pell said the statute is the only one in the country that prohibits the display of the Confederate flag by individuals.

‘’The California AG office is a named defendant,’’ Pell said. ‘’Fair officials called the AG office for advice about this and they told the official that the display of Mr. Desmond’s artwork violated the statute.” 

Organizations in this Story

State of California
1315 10th St
Sacramento, CA 95814-4905

California Attorney General's Office
1515 Clay St
Oakland, CA 94612

California Department of Food & Agriculture
1220 N Street
Sacramento, CA 95814

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