Despite the will of a narrow majority of Arcata voters, the city can’t legally fly an Earth flag above the stars and bars stripes on its municipal flagpole.

This according to a ruling issued Tuesday by Humboldt County Superior Court Judge Timothy Canning. 

Canning’s decision, first reported by the North Coast Journal, says that since both California government code and Military and Veterans Code employ the word “shall” in describing the U.S. flag’s designated position of supremacy, the City of Arcata’s hands are tied.

“The Court finds that the plain language of both statutes does not allow the City to exercise any discretion as to the placement of flags,” the ruling states, adding that federal Flag Code, in contrast, uses the discretionary term “should.”

As a general law city created by the state, Arcata must comply with such mandatory provisions of state law, even if voters say otherwise, according to Canning. The public certainly has the right to change or modify laws by initiative, referendum or proposition, he notes, but such reforms must be accomplished at a statewide level, not within individual cities.

Otherwise, he reasons, voters in general law cities could decide to exempt their jurisdictions from other statewide rules, like those in the Brown Open Meetings Act or the Public Records Act.

Proponents of Measure M, including former Arcata City Councilmember Dave Meserve, argued that its passage represents a lawful expression of Arcata citizens’ free speech rights, but Canning finds that the measure actually “compels speech by the City,” and government speech falls outside the purview of the First Amendment.

Meserve and his fellow backers of Measure M have argued that the initiative was meant to express a message of global unity and communal responsibility for the planet’s wellbeing, rather than signaling any disrespect to veterans or the nation. 

Meserve told the Journal that he’s disappointed by the ruling and has asked the city council to keep the Earth flag flying atop the pole while he and his fellow Measure M backers consider whether or not to appeal.