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Caltrans, banners in court

Caltrans, banners in court


by Bob Egelko, Chronicle Staff Writer
Thursday, October 10, 2002

A federal appeals court seemed inclined Wednesday to side with peace activists challenging a Caltrans policy that lets private citizens drape American flags, but not political banners, on freeway overpasses.
At a hearing in the U.S. Court of Appeals in San Francisco, two members of the three-judge panel
expressed skepticism at a state lawyer’s argument that California has a constitutional right to let people hang the flag on public property, just as the state itself can display the flag.
The flag symbolizes national unity but does not promote any viewpoint because it “means many different things to many different people,” said Daniel Weingarten, a lawyer for the state Department of Transportation.
But Judges Kim Wardlaw and Dorothy Nelson said a flag display after the Sept. 11 terror attacks could indeed be considered political expression. In the same vein, said Wardlaw, anti-war banners displayed on overpasses after the attacks could be considered a “response to the viewpoints expressed by the flag.”
A post-Sept. 11 flag display has several possible meanings, including support for U.S. foreign policy, but “it doesn’t convey dissent,” said James Wheaton, lawyer for the activists whose attempt to hang anti-war banners on two Northern California overpasses last year was thwarted by the Caltrans policy.
Wheaton said the U.S. Supreme Court recognized the political significance of the flag in past decisions allowing schoolchildren to opt out of the Pledge of Allegiance and barring criminal prosecutions for flag-burning.
If the court ultimately rules against Caltrans’ policy, the result will apparently be a ban on banners, star-spangled or otherwise.
The case comes from Santa Cruz, where Amy Courtney and Cassandra Brown draped banners on
state Highway 17 overpasses in Scotts Valley in December, two months into the U.S. military campaign in Afghanistan. The first banner asked, “Are you buying this war?” The second, a mile down the road, asked, “At what cost?”
Police removed the banners but left hanging a U.S. flag that someone else had put up, one of many that appeared on California overpasses after the terror attacks. The women said they put up another banner the next day that was also removed.
In January, U.S. District Judge Ronald Whyte issued an injunction preventing Caltrans from enforcing its flags-only policy and required equal treatment for all banners regardless of their message.
In response, Caltrans agreed last month to allow banners that posed no safety concerns, but the
agency reversed course a week later after seeing dozens of banners on issues ranging from medical marijuana to the secession of the San Fernando Valley from Los Angeles. Rather than permitting banners as well as flags, Caltrans said, it would allow neither.
The state’s appeal seeks to restore its authority to allow flags and exclude banners. While awaiting a ruling, the state is bound by Whyte’s injunction, which bars enforcement of the Caltrans policy pending a trial on its constitutionality. The trial is scheduled before Whyte next month.
E-mail Bob Egelko at begelko (at)

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