Arcata Lowers Earth Flag as Initiative Proponents Promise Appeal 

Proponents of a successful Arcata ballot initiative to fly the Earth flag atop the city's flagpoles say they plan to appeal a judge's ruling that it was unlawful for the city to raise the flag above that of the United States.

The Arcata City Council voted unanimously last week, with one member absent, to adhere to Humboldt County Superior Court Judge Timothy Canning's recent ruling that voters "do not have the power to exempt" the city from state laws mandating the U.S. flag fly above all others, directing staff to lower the so called "Blue Marble" to fly beneath the U.S. and California flags. Dave Meserve, the former councilmember and longtime local activist who championed Measure M to "put the Earth flag on top," said he'd hoped the council would opt to leave the flags in the order dictated by voters pending appeal.

"I was disappointed that the council didn't decide to leave the flag on top during the appeal, but that was their decision under, I guess, their legal advice," he said.

Meserve said he and other proponents of Measure M, which passed with 52 percent of the vote in the November 2022 election, will appeal Canning's ruling within the 60-day deadline. He said they are working with local attorney Eric Kirk, who has agreed to represent the cause pro bono through at least this stage of the appellate proceedings.

In his ruling, Canning said the principle question in the case was whether voters could impose the change through the local ballot initiative process.

"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 in the April 2 ruling. "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."

Believed to be the only initiative of its kind in the United States, Measure M sought to usurp established protocol by enacting a local law as a symbolic gesture, expressing the opinion that the well-being of the Earth should be prioritized. Canning's ruling also points to the fact that Arcata is a general law city, bound to adhere to state law.

Meserve said he, Kirk and other proponents believe Canning's ruling erred in balancing competing legal obligations.

First of all, Meserve said they believe the First Amendment should trump state flag law on multiple levels.

"Flying the flag on top is an exercise of First Amendment Rights, and then the ballot initiative itself is also an exercise of those rights," he said. "But our main dispute is the judge ruled that because Arcata is a general law city, then it can't pass any laws that are opposed to state law. But the city didn't pass any laws, only certified the ballot initiative. It was the voice of the people, which is a power of the people. That's our main argument. ... We think it's worth a try in another court."

Canning's ruling addresses the First Amendment question but interprets it differently, finding that because the initiative compelled the city to "speak" through positioning of the Earth flag, it constituted government speech, which is not protected by the First Amendment, as municipalities don't have the same rights as individuals.

After voters passed the measure in 2022, the city reported it received inquiries from local and out-of-area individuals and groups who indicated they were looking into legal challenges to nullify the measure and restore the U.S. flag to the tops of the city's flagpoles. Hoping to minimize the costs associated with a legal challenge, the city then took the initiative to bring the matter to a judge and petitioned for a legal review.

Meserve said he was disappointed by this choice, noting that proponents have repeatedly looked for ways to minimize any expense the city would incur in legal proceedings. He said if the city had stood by the measure, its proponents could have taken the lead on defending it from any challenges in court, free of charge to the city.

"I really wish they'd taken the other point of view from the very beginning," he said, adding that he hopes an appeal won't be expensive for the city and noting that it shouldn't be, as both sides of the issue have already been briefed and there aren't any facts in dispute.

"We think the people of Arcata appreciated having the Earth flag on top and it made a good statement of the importance of the Earth over the importance of any country," he said. "The main thing it intended to do in the big picture is start a conversation and emphasize to people the importance of the Earth. I think we've done that to some extent, and I'd love to see that flag flying there again."

First raised in 1969 by activist John McConnell, who later organized the first Earth Day, the current version of the Earth Flag was designed in 1973 with a photograph of Earth taken Dec. 7, 1972, by the crew of Apollo 17 on its way to the moon.

Legal scholars previously interviewed by the Journal have said Measure M raises complex and unprecedented legal and constitutional questions. The U.S. Supreme Court in 1989 found that burning an American flag in protest was a "symbolic gesture" and therefore a First Amendment protected exercise of free speech.

"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," Los Angeles-based public interest attorney and law professor Tracy Westen, who founded the nonprofit, nonpartisan Center for Governmental Studies, told the Journal previously. "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 flab 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."

Asked if this appeal proves unsuccessful proponents would seek to appeal the case to the California Supreme Court, Meserve said they are just taking things one step at a time.

Meserve has repeatedly stressed that the Measure M in no way sought to disrespect the United States flag but was meant to propel conversations about the growing threats of the climate crisis and nationalism. The appeal, though he'd hoped one wouldn't be necessary, will continue to elevate those conversations.

"We are moving ahead," he said.

Thadeus Greenson (he/him) is the Journal's news editor. Reach him at (707) 442-1400, extension 321, or [email protected].