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For Immediate Release - January 29, 2002
For more information contact: Sev Williams, First Amendment
Center - 415/387-7789
San Jose, California -- A federal judge today ruled unconstitutional
the California Department of Transportation's policy allowing
American flags, but no other banners, to be displayed on highway
overpasses. Judge Ronald Whyte found that although fences on overpasses
are not public forums for expression, CalTrans's policy was both
impermissibly viewpoint-based and not reasonably related to the
safety concerns the Department put forth to justify the policy.
"In view of the outpouring of patriotism and the spontaneous
appearance of American flags, CalTrans' reluctance to remove such
a potent symbol from highway overpasses is understandable. Yet
ironically, it is the very potency of the symbol that causes CalTrans'
practice to run afoul of the Constitution. Allowing the display
of the American flag is acquiescing in expressive conduct, but
acquiescing in expressive conduct of only one particular viewpoint,"
Judge Whyte wrote. In terms of the public safety argument, Judge
Whyte held that CalTrans had failed to put forward any public
safety concern that was not also raised by the hanging and display
of flags.
CalTrans's policy was challenged by Santa Cruz residents Courtney
and Cassandra Brown who twice had hung a banner reading "At What
Cost?" on a fence on an overpass over State Highway 17. An American
flag hung from the same fence. The banner was removed both times,
but the flag was not. Although CalTrans denied removing the banner,
the Department made clear that its policy was to remove all banners
except for American flags During the court's hearing, CalTrans
also admitted that it would have removed flags hung disrespectfully
such as upside down or X-ed out. Courtney and Brown sued CalTrans
for violating their First Amendment rights.
"Today's findings show that governmental agencies such as CalTrans
cannot endorse one form of political speech while suppressing
others," said Courtney.
By his order today, Judge Whyte issued a preliminary injunction
barring CalTrans' from enforcing its policy until a full trial
on the merits of the case can be held. In the meantime, CalTrans
must adopt a reasonable and viewpoint-neutral policy for the display
of all banners on highway overpasses.
"Some express their love for our democracy by flying flags; we
do so by exercising our rights to free speech to question our
government," said Brown. "We're pleased the court has recognized
that CalTrans must allow both of these voices to be heard if it
allows any at all."
Brown and Courtney were represented by Nathan C. Benjamin of
Comstock, Thompson, Kontz & Brenner of Santa Cruz (831-427-2727),
Jim Wheaton and David Greene of the First Amendment Project of
Oakland (510-208-7744) and G. Dana Scruggs III of Santa Cruz (831-457-3700).
CalTrans was represented by Daniel P. Weingarten (415-904-5700).
To request a copy of the judge's order call 415-387-7789 or request
a copy via email. A copy
will also be available online here.
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The First Amendment
Project is a nonprofit, human and civil rights organization
dedicated to protecting and promoting freedom of information,
expression, and petition. FAP provides advice, educational materials,
and legal representation to its core constituency of activists,
journalists, and artists in service of these fundamental liberties.
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