When California legislators passed a law two years ago banning state government from selling or displaying Confederate flags, the measure seemed silly and not particularly meaningful.
The ancient and offensive battle flag of the Confederacy was not flown regularly, if ever, on state property. And why would it have been? But the Capitol gift shop was selling replica Civil War-era money depicting images of the Stars and Bars that was offensive to at least one lawmaker’s mother. More significantly, legislators said a ban would send a powerful message that California has no tolerance for racist images used to perpetuate bigotry and violence.
If the law by Sen. Isadore Hall III (D-Compton) seemed innocuous then, that’s because people didn't foresee all the ways it might be used. And now we have one disturbing example of its unintended consequences, courtesy of the Fresno County fair.
Last year Timothy J. Desmond, a retired schoolteacher and Civil War buff, submitted a painting to the Big Fresno Fair that depicted confederate soldiers just before the 1864 siege of Atlanta. As works of art go, “The Attack” is never going to be mistaken for a lesser-known piece by one of the Old Masters. It’s amateurish and even a bit cartoonish. But quality is not a requirement for the county fair’s fine art competition, which is open to anyone over 18 from Fresno County.
Nevertheless, fair officials barred Desmond’s work from being displayed because one of the soldiers in the picture carries a Confederate flag. Never mind that the image in question is just one element of many in the painting, and is certainly not its focal point. Never mind that it is historically accurate. And never mind that flags are often used in art to give visual cues as to when and where a scene takes place. The flag in that picture, officials decided, meant including the piece in the competition would violate the 2014 law.
This is an absurd application of a law that was not intended — at least not ostensibly — to police artistic expression or speech in a public forum such as the fair’s art show. Worse, it sets a dangerous precedent. How might this be interpreted for school art projects or works displayed in a library? The law specifically exempts books, works in museums and digital documents for historical or educational purposes, but not art in other forums. That’s nuts.
It also defies common sense. The state has every right to decide not to hang up Confederate flags in its own house. But extending that ban to individuals’ creative expressions is an ill-considered — and possibly unconstitutional — leap. Desmond is suing fair and state officials in federal court (the fair is state operated). We hope the state officials decide not to spend time or money to defend this attack on Desmond’s 1st Amendment right to paint Civil War scenes as he sees fit.