Bill Aims to Clear the Air on Flag-Burning

VENTURA — A bill that would exempt the ritual torching of worn-out American flags from air pollution laws is making its way through the state Legislature at an unusually torrid pace.

The legislation is on a fast track in Sacramento less than a month after the Ventura County Air Pollution Control District aroused the ire of patriots by warning Ventura’s American Legion Post that regulations prohibited its smoky ceremony.

The issue was ignited after a neighbor complained of noxious smoke from more than 100 flags burned June 18 in a barbecue pit outside the legion’s downtown Ventura headquarters.

The legionnaires, who say this is the proper way to retire a faded Old Glory, were upset by the warning and California Lt. Gov. Gray Davis, who is running for governor, caught wind of the controversy.

Air pollution regulators quickly backed down, saying that a loophole in state law that exempts beach barbecues covers flag-burning too.

But Davis, a fellow legionnaire, decided to champion the cause in Sacramento.

“The flag shouldn’t have to piggyback on an outdoor barbecue,” Davis said. He noted that the law protects people who burn the flag in protest as a form of free speech, but not those who do so out of reverence.

“The flag deserves its own exemption,” he said. “I want the American Legion to be able to continue with this time-honored tradition, and we believe we’ve drafted the bill to accomplish that purpose.”

The bill’s speedy track is prompted by the approaching end of the legislative session on Sept. 12.

Although the deadline for submitting new bills was Feb. 28, state Sen. Jack O’Connell (D-San Luis Obispo) worked around that restriction by gutting an unrelated bill on electrical restructuring in San Luis Obispo County and substituting new language to cover flag burning.

“The idea was to respond to a local concern and this was the bill we had available,” said O’Connell top aide Gavin Payne. “The speed is of necessity because we only have that many days to get it done.”

Senate Bill 638 allows “the burning, in a respectful and dignified manner, of an unserviceable American flag that is no longer fit for display.”

But a Sacramento law professor said that as written, the proposed exemption may run afoul of the Constitution, similar to a federal law that sought to outlaw flag burning in 1989 but was struck down by the U.S. Supreme Court.

“It’s saying there would be environmental penalties for people who burn the flag in a disrespectful manner and not in a respectful manner,” said Brian Landsberg, who teaches constitutional law at McGeorge School of Law. “It sounds like it’s not a practical issue. It sounds like it’s a symbolic issue. . . . I don’t know why burning [flags] inside with emission controls is any less respectful than outdoors on a barbecue grill.”