This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0901a.CRG
DATE: 1/17/2024
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 901 Display of Flags by Governmental Entities
SPONSOR(S): Borrero and others
TIED BILLS: IDEN./SIM. BILLS: SB 1120
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Constitutional Rights, Rule of Law &
Government Operations Subcommittee
9 Y, 5 N Poreda Miller
2) State Affairs Committee
SUMMARY ANALYSIS
Current law regulates the display of certain flags at specified locations in the state. The United States flag, the
Florida state flag, and the POW-MIA flag must be displayed at certain venues on specified days. In addition,
the Firefighter Memorial Flag and the Honor and Remember Flag may be displayed at certain locations and
events at specified times.
The bill specifies that governmental entities, as defined in the bill, are prohibited from erecting or displaying a
flag that represents a political viewpoint, including, but not limited to, a politically partisan, racial, sexual
orientation and gender, or political ideology viewpoint. Governmental entities must remain neutral when
representing political viewpoints in displaying or erecting flags, but they are allowed to display any flag required
by general law. The bill expressly does not limit a private individual’s ability to exercise their rights protected by
the First Amendment to the United States Constitution.
The bill requires that any governmental entity displaying the flag of the United States must display the flag in a
prominent position superior to any other flag displayed at the same time.
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DATE: 1/17/2024
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
United States Flag Code
The United States Flag Code (Code) establishes advisory rules for display and care of the national flag
of the United States of America (U.S.).
1
In addition to the Code, Congress has designated the national
anthem and set out the proper conduct when it is played with the flag present.
2
The Code is designed
as a guide for use by all citizens and citizen groups that may not be associated directly with the federal
government.
3
As a result, the Code does not prescribe any penalties for non-compliance nor does it
include enforcement provisions. The Code does not purport to cover all possible situations, although it
does empower the President of the United States to alter, modify, repeal, or prescribe additional rules
regarding the flag.
4
Display of Flags in Florida
Flags of the United States and the State of Florida
Current Florida law requires the U. S. flag and Florida state flag be displayed in certain venues. The
U.S. flag must be displayed daily, when the weather permits, at the state capitol, at every county
courthouse,
5
at every publicly supported and controlled auditorium,
6
and on the grounds and in the
classrooms of public K-20 educational institutions.
7
The U.S. flag also must be displayed at each
polling station on election days.
8
The state flag must be displayed daily, when the weather permits, on the grounds of every public K-20
educational institution in the state, except when the institution or school is closed for vacation.
9
The
Governor is required to adopt a protocol on state flag display.
10
The protocol must provide guidelines
for the proper display of the flag and for the lowering of the flag to half-staff on appropriate occasions,
such as on holidays and upon the death of high-ranking state officials, uniformed law enforcement and
fire service personnel, and prominent citizens.
11
POW-MIA Flag
A POW-MIA flag must be displayed at each state-owned building at which the U.S. flag is displayed if
the POW-MIA flag is available free of charge to the agency that occupies the building and if such
display is in accordance with federal laws and regulations.
12
The Department of Transportation also
must display the flag year round at each rest area along an interstate highway in the state.
13
In addition,
the Department of Environmental Protection must display the POW-MIA flag year round at each state
park where the U.S. flag is displayed.
14
Firefighter Memorial Flag
1
4 U.S.C. § 4-10.
2
36 U.S.C. § 301.
3
4 U.S.C. § 5.
4
4 U.S.C. § 10.
5
S. 256.01, F.S.
6
S. 256.11, F.S.
7
S. 1000.06(1), F.S.
8
S. 256.011(1), F.S.
9
Ss. 256.032 and 1000.06(1), F.S.
10
S. 256.015(1), F.S.
11
Id.
12
S. 256.12, F.S.
13
S. 256.13, F.S.
14
S. 256.14, F.S. STORAGE NAME: h0901a.CRG PAGE: 3
DATE: 1/17/2024
The Division of State Fire Marshal in the Department of Financial Services is directed by law to design,
produce, and implement the creation and distribution of an official state Firefighter Memorial Flag to
honor firefighters who have died in the line of duty.
15
The flag may be displayed at memorial or funeral
services of firefighters who have died in the line of duty, at firefighter memorials, at fire stations, at the
Fallen Firefighter Memorial located at the Florida State Fire College in Ocala, by the families of fallen
firefighters, and at any other location designated by the State Fire Marshal.
16
Honor and Remember Flag
The Honor and Remember Flag is designated as the state’s emblem of the service and sacrifice of
those personnel of the U. S. Armed Forces who have given their lives in the line of duty.
17
The flag may
be displayed at state-owned buildings, state owned military memorials, or any other state-owned
location on Veterans Day (November 11), Gold Star Mother’s Day (last Sunday in September), or when
a member of the armed forces who is a resident of the State of Florida is killed in the line of duty.
18
The
flag must be manufactured in the U.S. if it is displayed.
19
Freedom of Speech and Expression
The First Amendment to the United States Constitution
20
was adopted on December 15, 1791, as one
of the first ten amendments constituting the Bill of Rights. It prevents the Federal government from
making laws prohibiting the free exercise of religion or restricting the freedom of speech, freedom of the
press, freedom of assembly, or the right to petition the government.
The U.S. Supreme Court (Court) characterized the rights of free speech and free press as fundamental
personal rights and that the exercise of these rights lies at the foundation of a free government.
21
The
Court further explained erroneous statements, as well as statements criticizing public policy and the
implementation of those policies, must similarly be protected.
22
However, while the Court continues to
emphasize the “First Amendment means that government has no power to restrict expression because of
its message, its ideas, its subject matter, or its content”,
23
it also has stated that the protection of free
speech and free press given by the First Amendment is not limitless and does not guarantee “the right
to express any thought, free from government censorship.”
24
Freedom of speech and freedom of the press is further protected by the Florida Constitution.
25
Effect of the Bill
The bill specifies that governmental entities are prohibited from erecting or displaying a flag that
represents a political viewpoint, including, but not limited to, a politically partisan, racial, sexual
orientation and gender, or political ideology viewpoint. Governmental entities must remain neutral when
representing political viewpoints in displaying flags. Governmental entities also are allowed to display
any flag required by general law. The bill expressly does not limit a private individual’s ability to
exercise their rights protected by the First Amendment to the United States Constitution.
15
S. 256.15, F.S.
16
S. 256.15(1), F.S.
17
S. 256.16(1), F.S.
18
S. 256.16(2)(a) and (b), F.S.
19
S. 256.16(3), F.S.
20
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of
grievances.” Amend. I, U.S. CONST.
21
Schneider v. State, 308 U.S. 147 (1939).
22
Bond v. Floyd, 385 U.S. 116 (1966).
23
Chicago Police Dept. v. Mosley, 408 U.S. 92 (1972).
24
Id.
25
“Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law
shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation
the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be
acquitted or exonerated.” Art. I, s. 4, FLA. CONST. STORAGE NAME: h0901a.CRG PAGE: 4
DATE: 1/17/2024
The bill requires that any governmental entity displaying the flag of the United States must display the
flag in a prominent position superior to any other flag displayed at the same time.
B. SECTION DIRECTORY:
Section 1. Creates s. 256.045, F.S., relating to display of flags, governmental agencies, local
governments, or other units of local government.
Section 2. Provides an effective date of July 1, 2024.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
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DATE: 1/17/2024
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill neither authorizes nor requires executive branch rulemaking.
C. DRAFTING ISSUES OR OTHER COMMENTS:
The term "governmental entity" is defined in the bill to mean a governmental agency, a local
government, or another unit of local government and includes public schools, public colleges, and
public universities. However, the bill does not clarify whether “governmental agency” pertains to state
government. The bill is unclear as to whether “local government” or “unit of local government” includes
counties, municipalities, special districts, or school districts, or whether the reference to “public schools”
includes each school district. The terms “political viewpoint” and “political ideology viewpoint” are
undefined and the bill is unclear as to whether those terms include flags of other countries, military
flags, or flags of a historic nature. Finally, the bill is unclear whether the phrase “displaying a flag”
includes other type of displays such as pictures or posters of flags or worn items such as flag lapel pins.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES