Appeals court pulls down ban on banners

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Caltrans can’t bar them from overpasses while permitting flags, Ninth Circuit decides

By Josh Richman , STAFF WRITER
March 16, 2003

Caltrans can’t bar citizens from placing political banners on highway overpasses while permitting the placement of American flags there, a federal appeals court ruled Thursday.
The 9th U.S. Circuit Court of Appeals upheld a lower court’s decision to enjoin the state Transportation Department from enforcing its policy.
“Honoring the principles for which the flag stands extends beyond waving it in tribute. Those principles can survive only by allowing the voice of dissent to be heard,” Circuit Judge Kim McLane Wardlaw wrote. “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.”
Jim Wheaton of Oakland, the co-founder and senior counsel of the First Amendment Project that represented the women who brought the lawsuit, said Thursday, “The wonderful thing about a case like this is it acts as a tremendous national civics lesson in our most important principles. It reminds us how we started and what we’re about.”
Amy Courtney and Cassandra Brown of Santa Cruz in November 2001 twice hung a banner reading “At What Cost?” next to an American flag hanging on an overpass fence above Highway 17. Their banner was removed but the flag remained. Caltrans said citizens who want to display signs on highway overpasses must get permits; even then, such permits are available only for signs indicating turnoffs for special events. But Caltrans put no restriction on placement of American flags on overpasses.
The women sued, and U.S. District Judge Ronald Whyte of San Jose last September rejected Caltrans’ arguments, including the claim that signs distract drivers while flags do not. Caltrans appealed, arguing that Courtney and Brown had other means of expressing themselves and so had not shown any irreparable injury caused by the state’s policy. It also argued the women had failed to show they’d likely win their First Amendment case.
But the appeals court affirmed Whyte’s ruling Thursday, finding Caltrans can’t bar other political speech while permitting the patriotic display of the flag.
After Whyte’s ruling, Caltrans at first had said it would allow any banners and signs to be displayed on overpasses so long as they’re hung safely. Within a few days, however, the department reversed itself and declared it would remove all displayssigns, flags and anything elsefrom overpasses.
Wheaton on Thursday called that policy “regrettable,” but said the appeals court’s ruling at least should force Caltrans to treat all displays equally.
Contact Josh Richman at jrichman (at) angnewspapers.com