California Law Stops City from Flying World Flag Above U.S. and California Flag

From City of Arcata v. Citizens in Support of Measure M, decided Friday by the California Court of Appeal (Justice Charles Smiley, joined by Justices Jim Humes and Monique Langhorne Wilson); seems quite right to me:

In November 2022, the City’s voters passed Measure M, an initiative to enact an ordinance requiring the City to “fly the Earth Flag at the top of all city-owned flagpoles, above the flag of the United States of America and the California flag, and any other flags that the city may choose to display.” Measure M passed with 3,051 votes in favor of the measure and 2,781 votes against it. The City subsequently adopted Measure M as an ordinance (the Ordinance), as required by Elections Code section 9217….

Under article XI, section 7 of the California Constitution, “[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” (Italics added.) Put another way, “[o]ur state’s Constitution grants state laws enacted by our Legislature supremacy over nearly all ordinances adopted by the more local government entities such as counties and cities.” …

[California Government Code] section 436 … provides, “Where the National and State Flags are used, they shall be of the same size. If only one flagpole is used, the National Flag shall be above the State Flag and the State Flag shall be hung in such manner as not to interfere with any part of the National Flag. At all times the National Flag shall be placed in the position of first honor.” This mandate is absolute, barring a small carveout the Legislature provided in section 434.5, which states that entities such as cities and counties can impose “reasonable restrictions” on the time, placement, and manner of display of the National Flag, but only when “necessary for the preservation of the public’s health, safety, or order.” …

Against this scheme, the Ordinance seeks to regulate placement of the National Flag in a manner that directly contradicts state law on this same issue…. Applied here, we observe that section 436′s reference to the National Flag occupying a “position of first honor” is preceded by the directive that where both the National Flag and State Flag are flown on one flagpole, “the National Flag shall be above the State Flag and the State Flag shall be hung in such manner as not to interfere with any part of the National Flag.” We therefore conclude that, at the very least, to be in a “position of first honor” means that where more than one flag is flown on one flagpole, the National Flag must be placed above other flags and hung in such a way that other flags do not interfere with any part of it….

Citizens argue there has been an impingement on the voters’ freedom of speech and right to express themselves through the manner in which the City flies its flags…. “The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.” By requiring that the Earth Flag be flown at the top of all City-owned flagpoles, the Ordinance straightforwardly aims to control government speech.

And while the goal of the Ordinance may have been to cause the government to speak for and convey the values of the City’s residents, private expression is not implicated because the flags affected by the Ordinance are on public property. A First Amendment analysis does not apply….

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