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Court leans against Caltrans flag policy

Court leans against Caltrans flag policy



Oct. 10, 2002
By Howard Mintz
Mercury News

Caltrans argued again Wednesday that it should be able to take down signs and banners from freeway overpasses while at the same time permitting American flags to stay in place, but its legal position didn’t seem to fly with a federal appeals court.
During an hourlong session in San Francisco, a panel of 9th U.S.
Circuit Court of Appeals judges appeared inclined to support a legal challenge to a California Department of Transportation policy that allows flags on overpasses but bans political signs. Two of the three judges hearing the case made it clear they believe Caltrans’ position violates the First Amendment.
“How can it be justified where only the flag is permitted?” Judge Dorothy Nelson quizzed Caltrans’ lawyer, Daniel Weingarten.
San Jose U.S. District Judge Ronald Whyte earlier this year issued an injunction against the policy, ordering Caltrans to either allow both political signs and flags on overpasses, or ban them both. After several flip-flops, Caltrans recently decided to ban both to comply with the injunction while appealing Whyte’s ruling to the 9th Circuit.
The legal flap stems from a lawsuit filed by two Santa Cruz activists who sought to put up banners after Sept. 11 questioning U.S. war efforts in Afghanistan and elsewhere. The signs were taken down, but Caltrans allowed American flags to remain, and they flourished on highways around the state following last year’s terrorist attacks.
Caltrans has argued in the court case that it bans signs and banners on freeway overpasses because they pose a safety risk for passing motorists. The department argues that American flags do not pose the same risk and send a neutral speech message that separates the symbol from political signs.
But the appeals court judges noted that flags went up en masse after Sept. 11 because they conveyed a message.
“Isn’t that putting a burden on one viewpoint you don’t put on another viewpoint?” Judge Kim Wardlaw said of taking down signs and leaving up nearby flags.
Meanwhile, the two Santa Cruz women who inspired the case were heartened by the court’s questions. They return to federal court in San Jose next month for another round in the case.
“The most important point is that dissenting voices get heard, particularly now,” said Cassandra Brown.
There is no timetable for the appeals court to rule on the injunction. In the meantime, signs and flags are prohibited on freeway overpasses under Caltrans regulations.
Contact Howard Mintz at (408) 286-0236 or hmintz (at)

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