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Activists win another legal victory against Caltrans in fight for free speech

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Activists win another legal victory against Caltrans in fight for free speech

by Laurel Chesky
5/01/03

Last Wednesday was a banner day for local activists Cassandra Brown and Amy Courtney. After a 16-month-long legal battle with the California Department of Transportation (Caltrans) the two women won their third—and, they hope, final—victory to protect First Amendment rights on state highways.

On April 23, federal Judge Ronald M. Whyte released a decision ruling that Caltrans cannot pick and choose between political messages flown from California highway overpasses.

In November of 2001, Brown and Courtney hung an anti-war banner bearing a skull and crossbones and the words “At What Cost?? from the Granite Creek Road overpass in Scotts Valley. Ten minutes later, their sign was removed, while an American flag was left hanging from the same overpass. After the incident, a Caltrans spokesman told GT that the department was allowing only American flags to remain on overpasses.

After 9/11, American flags began popping up on overpasses across the state. For safety reasons, Caltrans does not usually allow flags to be hung on highways. But in the post-9/11 gloom, Caltrans relaxed their rules for flags. “We were looking for a way to allow the flag to be displayed on state right-of-way,? says Caltrans spokesman Dennis Trujillo.

Shortly before Christmas, 2001, the women sued Caltrans, claiming that their First Amendment rights to free speech had been violated because Caltrans’ policy is biased against their anti-war statement. Case law disallows governments to discriminate between political messages expressed within a public forum. The suit attempted to force Caltrans to adopt a policy consistent with U.S. Constitution. No monetary damages were sought. “It was just the right thing to do,? Courtney says. “Our constitutional rights were violated.?

In January of last year, Judge Whyte granted the women a temporary injunction while the lawsuit proceeded. The judge ordered Caltrans to either leave up all flags and banners, or to take them all down. Caltrans appealed the injunction to the 9th U.S. Circuit Court of Appeals in San Francisco. In March, the appeals courts upheld the temporary injunction.

Last week’s decision—the result of a trial held last November at the U.S. District Court in San Jose—places a permanent injunction on Caltrans “flags-only? policy.

In light of the appeals court ruling, the women and their lawyers expected last week’s favorable decision. “The only surprise is how vigorously Caltrans has fought free speech,? says Santa Cruz attorney Nathan Benjamin, who took the case pro bono.

Caltrans lawyers argued that leaving banners on overpasses posed a safety risk. They also argued that the American flag does not convey a political message, and therefore, the department was not discriminating by removing other banners. Judge Whyte disagreed and ordered Caltrans to deal with flags and banners “on a content neutral and viewpoint neutral basis.?

While the issue at hand—free speech on highway overpasses—may not seem momentous, at a time when American civil liberties are evaporating, the court order offers some hope to those who fear that the Constitution has taken a detour through the shredder. “This is really a victory for the whole U.S. citizenry,? Brown says. “It was good to hear the news that the real Patriot Act—the Bill of Rights—works.?

Trujillo says that Caltrans is “considering our options? regarding an appeal of the permanent injunction. However, with three court orders and a stack of legal precedents refuting the agency’s position, “There is no sound legal basis for an appeal,? Benjamin says.

Caltrans will enforce the order by removing flags as well as signs and banners posted on overpasses, a practice that the agency enacted after the temporary injunction was issued. “Basically we continue to comply with the court’s ruling by continuing to have all flags and banners removed,? Trujillo says.

However, Trujillo says, don’t expect Caltrans’ 6,000 maintenance workers to rip down flags and banners within minutes of being hung. “With 50,000 lane miles of highway system, and with the complimentary transportation that fills our system, we’re not going to identify everything immediately,? he says. “We don’t have flag and banner police.?

Meanwhile, Brown and Courtney face a bittersweet victory. They say they never intended to rip down American flags; they just wanted to see their banners hanging alongside them. But since Caltrans has opted to remove all banners, the women’s message has also been barred from overpasses.

“I’m bummed out,? Courtney says. “I mean, that just shows the true colors of the political aspect of why Caltrans was fighting this to begin with. We know they had no problem with banners being up … until they started saying things not supportive of U.S. foreign policy, and then it became an issue.?

And, since the day when Brown and Courtney first hung their protest banner, the U.S. has waged two wars, and more may be coming.

“Justice will be served when the answers to the questions we posed in our banner have been sufficiently answered by the government and the media at large,? Courtney says. “And we’re now several thousand of civilians and troops dead.?

“Our question, ‘At what cost?’ has been answered? in terms of deaths and the erosion of civil rights, Brown says. “My question now is, is it worth it??

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