Description of State Flag; Militia to Carry Flag; Defacing Public Monuments; Obstruction and Relocation of Monuments

  1. Law
  2. Georgia Code
  3. State Government
  4. State Flag, Seal, and Other Symbols
  5. State and Other Flags
  6. Description of State Flag; Militia to Carry Flag; Defacing Public Monuments; Obstruction and Relocation of Monuments

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  1. The flag of the State of Georgia shall consist of a square canton on a field of three horizontal bands of equal width. The top and bottom bands shall be scarlet and the center band white. The bottom band shall extend the entire length of the flag, while the center and top bands shall extend from the canton to the fly end of the flag. The canton of the flag shall consist of a square of blue the width of two of the bands, in the upper left of the hoist of the flag. In the center of the canton shall be placed a representation in gold of the coat of arms of Georgia as shown in the center of the obverse of the Great Seal of the State of Georgia adopted in 1799 and amended in 1914. Centered immediately beneath the coat of arms shall be the words "IN GOD WE TRUST" in capital letters. The coat of arms and wording "IN GOD WE TRUST" shall be encircled by 13 white five-pointed stars, representing Georgia and the 12 other original states that formed the United States of America. Official specifications of the flag, including color identification system, type sizes and fonts, and overall dimensions, shall be established by the Secretary of State, who pursuant to Code Section 50-3-4 serves as custodian of the state flag.Every force of the organized militia shall carry this flag while on parade or review.
    1. As used in this subsection, the term:
      1. "Agency" means any state or local government entity, including any department, agency, bureau, authority, board, educational institution, commission, or instrumentality or subdivision thereof, and specifically including a local board of education, the Board of Regents of the University System of Georgia, and any institution of the University System of Georgia.
      2. "Monument" means a monument, plaque, statue, marker, flag, banner, structure name, display, or memorial constructed and located with the intent of being permanently displayed and perpetually maintained that is:
        1. Dedicated to a historical entity or historically significant military, religious, civil, civil rights, political, social, or cultural events or series of events; or
        2. Dedicated to, honors, or recounts the military service of any past or present military personnel of this state; the United States of America or the several states thereof; or the Confederate States of America or the several states thereof.
      3. "Officer" means an officer, official, body, employee, contractor, representative, or agent of any agency, whether appointed or elected.
    2. It shall be unlawful for any person, firm, corporation, or other entity to mutilate, deface, defile, or abuse contemptuously any publicly owned monument located, erected, constructed, created, or maintained on real property owned by an agency or the State of Georgia. No officer or agency shall remove or conceal from display any such monument for the purpose of preventing the visible display of the same. A violation of this paragraph shall constitute a misdemeanor.
    3. No publicly owned monument erected, constructed, created, or maintained on the public property of this state or its agencies, departments, authorities, or instrumentalities or on real property owned by an agency or the State of Georgia shall be relocated, removed, concealed, obscured, or altered in any fashion by any officer or agency; provided, however, that appropriate measures for the preservation, protection, and interpretation of such monument or memorial shall not be prohibited.
    4. Any person or entity that damages, destroys, or loses a monument or that takes or removes a monument without replacing it shall be liable for treble the amount of the full cost of repair or replacement of such monument and may be subject to exemplary damages unless such person or entity was authorized to take such action by the public entity owning such monument. In addition to treble the cost of repair or replacement and possible exemplary damages, the person or entity shall also be liable for the attorney's fees and court costs expended by the public entity owner of the monument or person, group, or legal entity in any action or proceeding required to establish liability and collect amounts owed. Should a public entity owner of the monument or person, group, or other legal entity prevail in any action under this Code section, such prevailing party shall timely pay for the cost of or repair or placement of the monument upon moneys being collected from the party damaging, destroying, or losing such monument.
    5. A public entity owning a monument or any person, group, or legal entity shall have a right to bring a cause of action for any conduct prohibited by this Code section for damages as permitted by this Code section. Such action shall be brought in the superior court of the county in which the monument was located.
    6. Except as provided in this paragraph, it shall be unlawful for any person, firm, corporation, or other entity acting without authority to mutilate, deface, defile, abuse contemptuously, relocate, remove, conceal, or obscure any privately owned monument located on privately owned property. Any person or entity that suffers injury or damages as a result of a violation of this paragraph may bring an action individually or in a representative capacity against the person or persons committing such violations to seek to recover general and exemplary damages sustained as a result of such person's or persons' unlawful actions. This paragraph shall not apply to an owner of real property storing privately owned monuments.
    7. Nothing in this Code section shall prevent an agency from relocating a monument when relocation is necessary for the construction, expansion, or alteration of edifices, buildings, roads, streets, highways, or other transportation construction projects. Any monument relocated for such purposes shall be relocated to a site of similar prominence, honor, visibility, and access within the same county or municipality in which the monument was originally located. A monument shall not be relocated to a museum, cemetery, or mausoleum unless it was originally placed at such location.
  3. Any other provision of law notwithstanding, the memorial to the heroes of the Confederate States of America graven upon the face of Stone Mountain shall never be altered, removed, concealed, or obscured in any fashion and shall be preserved and protected for all time as a tribute to the bravery and heroism of the citizens of this state who suffered and died in their cause.

(Ga. L. 1916, p. 158, § 3; Code 1933, § 86-1004; Ga. L. 1951, p. 311, § 43; Ga. L. 1955, p. 10, § 90; Ga. L. 1956, p. 38, § 1; Ga. L. 2001, p. 1, § 1; Ga. L. 2003, p. 26, § 1; Ga. L. 2004, p. 731, § 1; Ga. L. 2019, p. 268, § 1/SB 77.)

The 2019 amendment, effective April 26, 2019, rewrote subsection (b), which read: "(b)(1) It shall be unlawful for any person, firm, corporation, or other entity to mutilate, deface, defile, or abuse contemptuously any publicly owned monument, plaque, marker, or memorial which is dedicated to, honors, or recounts the military service of any past or present military personnel of this state, the United States of America or the several states thereof, or the Confederate States of America or the several states thereof, and no officer, body, or representative of state or local government or any department, agency, authority, or instrumentality thereof shall remove or conceal from display any such monument, plaque, marker, or memorial for the purpose of preventing the visible display of the same. A violation of this paragraph shall constitute a misdemeanor.

"(2) No publicly owned monument or memorial erected, constructed, created, or maintained on the public property of this state or its agencies, departments, authorities, or instrumentalities in honor of the military service of any past or present military personnel of this state, the United States of America or the several states thereof, or the Confederate States of America or the several states thereof shall be relocated, removed, concealed, obscured, or altered in any fashion; provided, however, that appropriate measures for the preservation, protection, and interpretation of such monuments or memorials shall not be prohibited.

"(3) Conduct prohibited by paragraphs (1) and (2) of this subsection shall be enjoined by the appropriate superior court upon proper application therefor.

"(4) It shall be unlawful for any person, firm, corporation, or other entity acting without authority to mutilate, deface, defile, abuse contemptuously, relocate, remove, conceal, or obscure any privately owned monument, plaque, marker, or memorial which is dedicated to, honors, or recounts the military service of any past or present military personnel of this state, the United States of America or the several states thereof, or the Confederate States of America or the several states thereof. Any person or entity who suffers injury or damages as a result of a violation of this paragraph may bring an action individually or in a representative capacity against the person or persons committing such violations to seek injunctive relief and to recover general and exemplary damages sustained as a result of such person's or persons' unlawful actions."

Cross references.

- Display of state flag by agencies, § 45-12-83.1.

Law reviews.

- For article on the 2019 amendment of this Code section, see 36 Ga. St. U.L. Rev. 219 (2019). For note on the 2001 amendment to this Code section, see 18 Ga. St. U.L. Rev. 305 (2001). For note on the 2003 amendment to this Code section, see 20 Ga. St. U.L. Rev. 256 (2003). For note, "How Devolved is Too Devolved?: A Comparative Analysis Examining the Allocation of Power Between State and Local Government Through the Lens of the Confederate Monument Controversy," see 53 Ga. L. Rev. 371 (2018).

JUDICIAL DECISIONS

Constitutionality of flag.

- Georgia state flag, which incorporated the stars and bars of the Confederate flag, did not violate an African-American citizen's equal protection rights, even though a discriminatory purpose was a motivating factor in the passage of O.C.G.A. § 50-3-1 since the evidence failed to show a sufficiently concrete, present-day discriminatory impact on African-Americans. Coleman v. Miller, 885 F. Supp. 1561 (N.D. Ga. 1995), aff'd, 117 F.3d 527 (11th Cir. 1997), cert. denied, 523 U.S. 1011, 118 S. Ct. 1199, 140 L. Ed. 2d 328 (1998); Coleman v. Miller, 912 F. Supp. 522 (N.D. Ga. 1996), aff'd, 117 F.3d 527 (11th Cir. 1997), cert. denied, 523 U.S. 1011, 118 S. Ct. 1199, 140 L. Ed. 2d 328 (1998).

State flag, incorporating the stars and bars of the Confederate flag, did not violate the due process clause by depriving an African-American citizen of any fundamental privacy interest in associating with white people free from unwarranted government intrusion since the record did not support the claim. Moreover, the plaintiff's right to associate with white people in general is not the type of intimate relationship garnering constitutional protection under this theory. Coleman v. Miller, 885 F. Supp. 1561 (N.D. Ga. 1995), aff'd, 117 F.3d 527 (11th Cir. 1997), cert. denied, 523 U.S. 1011, 118 S. Ct. 1199, 140 L. Ed. 2d 328 (1998); Coleman v. Miller, 912 F. Supp. 522 (N.D. Ga. 1996), aff'd, 117 F.3d 527 (11th Cir. 1997), cert. denied, 523 U.S. 1011, 118 S. Ct. 1199, 140 L. Ed. 2d 328 (1998).

African-American citizen's argument that the state flag, incorporating the stars and bars of the Confederate flag, compelled the African-American citizen to be the courier of a morally objectionable ideological message failed because the flag on the flag's face does not promulgate a sufficiently clear message of discrimination and because the record contained no evidence that the citizen was forced to acknowledge the flag in any way. Coleman v. Miller, 885 F. Supp. 1561 (N.D. Ga. 1995), aff'd, 117 F.3d 527 (11th Cir. 1997), cert. denied, 523 U.S. 1011, 118 S. Ct. 1199, 140 L. Ed. 2d 328 (1998); Coleman v. Miller, 912 F. Supp. 522 (N.D. Ga. 1996), aff'd, 117 F.3d 527 (11th Cir. 1997), cert. denied, 523 U.S. 1011, 118 S. Ct. 1199, 140 L. Ed. 2d 328 (1998).

Display of the Georgia state flag did not violate an African-American citizen's constitutional rights to equal protection and freedom of expression. Coleman v. Miller, 117 F.3d 527 (11th Cir. 1997), cert. denied, 523 U.S. 1011, 118 S. Ct. 1199, 140 L. Ed. 2d 328 (1998).

Validity under federal law.

- For discussion of the state flag in relation to the federal Smith Act, 18 U.S.C. § 2385, Title II of the Civil Rights Act, 42 U.S.C. § 2000a, and the Voting Rights Act, 42 U.S.C. § 1971(b), see Coleman v. Miller, 885 F. Supp. 1561 (N.D. Ga. 1995), aff'd, 117 F.3d 527 (11th Cir. 1997), cert. denied, 523 U.S. 1011, 118 S. Ct. 1199, 140 L. Ed. 2d 328 (1998); Coleman v. Miller, 912 F. Supp. 522 (N.D. Ga. 1996), aff'd, 117 F.3d 527 (11th Cir. 1997), cert. denied, 523 U.S. 1011, 118 S. Ct. 1199, 140 L. Ed. 2d 328 (1998).

Cited in Gay v. Owens, 292 Ga. 480, 738 S.E.2d 614 (2013).

RESEARCH REFERENCES

Am. Jur. 2d.

- 35A Am. Jur. 2d, Flag, §§ 1, 2.

C.J.S.

- 36A C.J.S., Flags, § 1 et seq.


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