Smog-Law Exemption on Flag Burning Denied

First Amendment concerns snuffed out a bill Tuesday that would have exempted Ventura’s American Legion Post and other veterans groups from running afoul of state pollution control laws during flag-burning ceremonies.

Sponsored by Sen. Jack O’Connell (D-Santa Barbara), the bill fell one vote short of passage in the Assembly Natural Resources Committee.

“Common sense should have prevailed, but others were there to obfuscate the issue and that’s what led to the failed passage of the bill,” O’Connell said.

The bill would have allowed “the burning, in a respectful and dignified manner, of an unserviceable American flag that is no longer fit for display.”

Veterans groups can legally burn worn-out Old Glorys in a ritual permitted under the same loophole in state law that allows beach barbecues. However, that interpretation came about only after the county’s air pollution control district warned Ventura’s American Legion Post that its flag-burning ceremonies may violate air pollution laws. Supporters of the practice wanted a bill to specifically address the issue.

But during Tuesday’s 1 1/2-hour debate, constitutional scholars, as well as opponents that included the American Civil Liberties Union, said the bill could create two classes of burning, affording one more legal protection than the other.

An analysis of the bill noted that people who may be exercising their constitutional right to free speech by burning the flag could be cited for air pollution because their action did not meet the bill’s criteria.

Dick Baldwin, Ventura County’s air pollution control officer, attended the meeting in Sacramento, and said he will attempt to have state lawyers put their verbal interpretation of the loophole that allows the burning in writing.

“It would have been nice to clarify the law, but if the Legislature doesn’t want to do that, we’ll move forward under a less clear version of the law to allow this activity to occur,” he said.

Paul Rodriguez, Ventura post commander, said he was disappointed, but would go on with a Tuesday night meeting anyway to plan its next flag-burning ceremony.

“We’re going to go with the loophole we have,” he said.

Unless other groups in the state get into trouble during ceremonial burning of flags, O’Connell said, he didn’t expect to try to get the bill passed in next year’s legislative session.

“This may be one of those vague areas that will be left unaddressed,” he said.