The question of whether voters can compel the city of Arcata to fly the Earth flag at the top of the city’s municipal flagpoles as a symbolic gesture, despite a conflict with state laws mandating the United States flag fly above all others, is back in court.
Proponents of the successful citizen-led Measure M — which led to the unprecedented placement for a little more than one year — are asking the state’s First District Court of Appeal to overrule a local judge, who answered the question with a resounding no.
Passed by 52 percent of the vote in November of 2022, the ballot initiative is believed to be the first of its kind in the country, not only in upending the traditional protocol of the American flag flying above all others but in enacting a local law as an expression of community “values and priorities,” in this case that the well-being of the Earth needs to be prioritized.
In an April decision, Humboldt County Superior Court Judge Timothy Canning found Arcata voters “do not have the power to exempt” the city from state laws, noting the potential cascade of legal ramifications from such a precedent.
“There may be very strong policy reason to fly the Earth flag above the national flag, as Measure M sets forth, but these policy reasons are insufficient to excuse the city from complying with mandatory state law on flying the national and state flags,” he wrote. “The court finds and declares that the measure approved by a majority of voters in the city, which requires the city to fly the Earth flag above the national flag on city-owned flag poles on city property, directly conflicts with mandatory state law, and is therefore not enforceable.”
Canning’s ruling also points to the fact that Arcata is a general law city, bound to adhere to state law.
In an opening appellate brief, the proponent’s attorney Eric Kirk argues Canning’s decision erred in narrowly focusing on the “hierarchy of state versus local government” and failed to “jealously guard” the rights of residents under the California initiative process, leaving the voice of voters “lost in the discussion.”
“The question is not whether a local government can override the state government. This approach is backwards as its focus is on government will and excludes the sacrosanct power of the people to override their government under the State Constitution — the initiative power and the right to free speech,” Kirk wrote. “The question is whether there is a compelling state interest in overriding the direct will of the people as to the implementation of a state law that interferes with the voters’ freedom of speech and expression.”
Kirk, who is representing the proponents Citizens in Support of Measure M pro bono, points to the U.S. Supreme Court’s landmark 1989 decision in the Texas vs. Johnson case, which found burning the American flag was “symbolic speech” protected by the First Amendment.
“There can be no doubt that the measure and the physical acts it mandates are expressions of protected speech,” Kirk’s brief states. “It is the whole point of Measure M. There is U.S. Supreme Court recognition of the initiative in general as an expression of ‘core political speech,’ and there is the very content of the initiative which amounts to the expression being suppressed by the decision.”
At the end of the day, he wrote, there is no “compelling state interest in ensuring that every locality fly flags in a certain order which justifies the deprivation of the city of Arcata’s voters to freedom of speech.”
Canning’s ruling addresses the First Amendment question but found that because the initiative compelled the city to “speak” by mandating the Earth flag’s position on city-owned property, it constituted government speech, which is not protected by the First Amendment, as municipalities don’t have the same rights as individuals.
For its part, the city of Arcata is asking the appellate court to uphold Canning’s decision.
While the Arcata City Council approved flying the “Blue Marble” image of the Earth photographed from the Apollo 17 mission in 1972 to the top spot during a December 2022 closed session “to honor the important ballot initiative process and the will of our voters,” the decision was made with the provision that the city would seek a “judicial resolution” on whether Measure M conflicted with state law.
After Canning’s ruling, the council voted in April to return the flags on the city’s three municipal flagpoles to the traditional arrangement, with the U.S. flag on top, followed by the California flag and the Earth flag below them.
A response brief filed by attorneys with the city’s Sacramento-based law firm argues the case is a clear-cut matter of a local ordinance in a general law city conflicting with state law, and despite the proponents’ efforts “to craft a constitutional argument for Measure M’s validity, that is not the call of the question.”
“Appellant claims that this ruling is in error because the people’s power of initiative should override state and federal law and because refusal to enforce the Measure M ordinance adopted by the city violates appellant’s freedom of speech,” the brief states. “The city contends the trial court applied the appropriate legal standard to reach the correct ruling that the Measure M ordinance is preempted by state law and therefore unenforceable.”
Legal scholars previously interviewed by the Journal said Measure M potentially raises complex and unprecedented legal and constitutional questions depending on how it is viewed.
On one hand, Los Angeles-based public interest attorney and law professor Tracy Weston previously told the Journal, there is the “reasonably simple” concept of a “clash between state law and local law” in which cases, he noted, generally “state law wins.”
But things could become more complex with the First Amendment argument, Weston said.
“It might be possible that the citizens that passed the ballot initiative say, ‘Yes, the flag is on public property but it’s imbued with symbolic features, that’s why — for instance — the state government wants or the national government wants the U.S. flag on top,” he said. “Why does [the government] want that? For symbolic purposes: We’re part of a larger nation that’s the most important thing and you’re a subsection of that, so we put the California flag below that. But the fact that they are making laws like that is a concession that flags are imbued with symbolic purpose.
“If that is the case,” Westen continued, “there are free speech issues involved with this case and if the citizens vote that they want the Earth flag on top to show the Earth is the most critical issue these days … [the] ballot measure is imbued with aspects of First Amendment protected speech.”
No hearing date has been set for oral arguments in the appeal.
Kimberly Wear is the Journal’s digital editor. Reach her at (707) 442-1400, extension 323, or kim@northcoastjournal.com.
This article appears in Sanctuary in the Storm.