Friday, March 14, 2003
Caltrans Policy on Flags Violates Freedom of Speech—Ninth Circuit
From Staff and Wire Service Reports
A California Transportation Department practice of allowing U.S. flags on freeway overpasses but forbidding banners containing political messages is unconstitutional, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The policy violates the First Amendment because it distinguishes among different types of speech in a manner that is irrational and denies reasonable alternative means of communication, Judge Kim M. Wardlaw wrote for the court.
The decision affirms a ruling by U.S. District Judge Ronald M. Whyte of the Northern District of California in favor of two women who had their war protest signs removed from Santa Cruz County overpasses in 2001, after the United States invaded Afghanistan.
The women sued on free speech grounds, arguing it was unconstitutional to remove their speech but not speech in the form of the flag.
Caltrans, in response to a rash of signs and banners placed along California’s highways following the terror attacks, removed political banners but left American flags. The banners, the agency insisted, were placed in violation of department policy requiring an “encroachment permit” and limiting the granting of such permits to signs designating turnoffs for special events.
Caltrans said the American flags were not encroachments and did not require permits.
“In the wake of terror, the message expressed by the flags flying on California’s highways has never held more meaning. America, shielded by her very freedom, can stand strong against regimes that dictate their citizenry’s expression only by embracing her own sustaining liberty,” Wardlaw wrote.
To comport with the ruling, Caltrans said it would bar all banners, including the U.S. flag, from being posted on highway overpasses and along roadsides.
“Due to safety, we determined that everything would come down,” said Caltrans spokesman Dennis Trujillo.
He said the department had been leaving American flags and taking other banners because a California highway code allowed the flag to be posted along roadways.
“Our primary concern all along has been safety,” Trujillo added. “The department had made an effort to allow the flags to be displayed.”
Amy Courtney, 28, and Cassandra Brown, 33, draped banners on state Highway 17 overpasses in Scotts Valley. One asked “Are you buying this war?” The other, a mile away, asked “At what cost?”
Their signs were removed, but an American flag somebody else posted was left.
Courtney said the lawsuit was solely about free speech and not meant to belittle Old Glory. “As our rights are being whittled, it’s crucial we defend the ones that remain on the books,” she said.
Wardlaw rejected the safety justification, noting Caltrans’ concession that flags, like protest banners, are distracting. There was no credible evidence that flags were less distracting as the state contended, the judge said.
She also rejected the statutory argument, saying the code made it clear that the display of flags alongside highways is discretionary.
Rejected as well was the contention that the display fell within the U.S. Supreme Court’s guidelines for government expression of its own views, which the department asserted based on the 1991 ruling that allows the government to bar doctors from discussing abortion with participants in a federally funded health services program.
The state, she noted, did not place the flags at issue; it merely allowed private citizens to express their views, while barring similar expressions of other viewpoints. Besides, she wrote, the “ad hoc” decision of Caltrans bureaucrats to allow the flags differed from the abortion-related law because the latter involved a policy “implemented via elected policy-makers who are accountable to the public.”
Senior Judge Dorothy W. Nelson concurred in the opinion. Senior Judge Robert Beezer concurred in the result but did not join Wardlaw’s opinion.
The case is Brown v. Caltrans, 02-1538.
Copyright 2003, Metropolitan News Company