FRESNO, Calif. (CN) — California’s ban on state agencies selling or displaying items showing the Confederate flag is unconstitutional, says an artist who was not allowed to show his Civil War painting at the Fresno County Fair.
Gov. Jerry Brown in September 2014 signed a bill into law prohibiting the state from selling or displaying items with an image of the Confederate flag. The only exceptions permitted are images that appear in a book, digital medium, or state museum that serve an educational or historical purpose.
Timothy Desmond sued the state on Monday, claiming the law prevents him from displaying his artwork at the Big Fresno Fair, operated by the 21st District Agricultural Association on land owned by Fresno County.
Artists display their work at the Fresno Fair every October.
Desmond says the law violates the First Amendment.
His painting, “The Attack,” depicts a scene from the 1864 siege of Atlanta and includes several people carrying flags. He submitted it for display at last year’s fair, but it was rejected because it includes a Confederate flag, he says in the lawsuit.
Desmond, who calls himself a “Civil War buff,” wants to submit “The Attack” and other paintings depicting Civil War scenes for this year’s Fresno Fair.
He also has written a novel, “The Doc,” about Civil War re-enactors. The cover of the book features the Stars and Bars.
“Plaintiff wishes to have his book sold, or offered free of charge, in souvenir shops operated by the State of California, in museums, parks and other venues, but cannot do so,” he says in the complaint.
“In many applications, Section 8195 prohibits or censors, or threatens to prohibit or censor, the constitutionally protected speech of private individuals. For example, Section 8105 would bar the state from keeping in place certain flags that private individuals may wish to place on the gravesites of Confederate veterans buried in state cemeteries, and it would bar a state school from displaying a history project by a student about the civil war that included depictions of flags associated with the Confederacy,” Desmond says in the complaint.
He asks the Federal Court to declare the law unconstitutionally overbroad.
The bill was introduced in February 2014 by Assemblyman Isadore Hall, D-Compton, after his mother saw a replica of Confederate money for sale in the Capitol gift shop in Sacramento. The money featured an image of the flag.
The Assembly approved the bill on Aug. 21, 2014 by a vote of 66-1. The lone member to vote against the bill was Tim Donnelly, R-Twin Peaks.
Gov. Brown signed the bill into law on Sept. 25, 2014, and it took effect on Jan. 1, 2015.
The law does not prevent residents of California from displaying the flag if they wish to do so as an application of their freedom of speech. It does not apply to those protesting state property.
Desmond is represented by Bruce Berger with Stammer, McKnight, Barnum & Bailey.
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