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Banner day for peace activists

Banner day for peace activists


Court nullifies Caltrans policy on highway protest signs

March 14, 2003
Sentinel staff writer

SANTA CRUZ -- Two peace activists who challenged a Caltrans policy allowing only American flags to be hung on state highway overpasses have won another legal victory.
A federal appellate judge sided Thursday with Amy Courtney and Cassandra Brown, the two Santa Cruz activists whose homemade anti-war banners were removed from a Highway 17 overpass after the Sept. 11, 2001, terrorist attacks.
“Honoring the principles for which the flag stands extends beyond waving it in tribute,” wrote Judge Kim McLane Wardlaw of the Ninth Circuit Court of Appeals. “These principles can survive only by allowing the voice of dissent to be heard.”
Santa Cruz lawyer G. Dana Scruggs, one of four attorneys representing the women, called the decision satisfying.
“These two women are in the vanguard of a movement that is unique in the history of the world,” he said.
Caltrans spokesman Dennis Trujillo said the agency has not decided whether to appeal to the U.S. Supreme Court or accept the ruling.
Courtney and Brown were on the road Thursday and unavailable to comment. Their answering machine urged callers to “Please leave a message and stop the war.” However, Courtney told The Associated Press in San Francisco, “As our rights are being whittled, it’s crucial we defend the ones that remain on the books.”
The two women, who work on a farm that grows organic strawberries, are part of a vocal movement determined to seek peace despite the president’s pledge to wage war on terrorism.
They insisted the First Amendment gave them the right to put their opinion on a bedsheet and hang it on a highway overpass, and that Caltrans violated their rights.
A year ago, U.S. Judge Ronald Whyte agreed and issued a preliminary injunction barring Caltrans from enforcing its policy. Caltrans appealed. The Ninth District’s decision will now be sent to Whyte, who will issue a final ruling.
The appellate judge’s 12-page opinion methodically tossed out all the arguments offered by Caltrans’ four in-house attorneys.
Caltrans contended homemade banners posed more safety risks than flags because they are more distracting.
“Patently unreasonable,” the judge ruled.
“Flags, particularly in a time of war, could evoke extremely distracting thoughts, including feelings of patriotism, remembrance of past wars and lost loved ones, fear or impassioned dissent,” the judge wrote. “On the other hand, depending on its content, a message on a homemade banner could evoke no reaction at all. Caltrans has not even studied the question of whether all flags are less distracting than any sign.”
The judge dismissed the argument Caltrans was following a 1953 state statute, saying , “It simply does not apply.”
Finally, the judge ruled Caltrans policy was not “viewpoint neutral,” and therefore impermissible.
Caltrans had contended the flag encompasses so many different views that it represents no view at all. The judge disagreed, calling the flag a symbol of the nation a symbol in which many Americans sought refuge after the terrorist attacks.
The judge rejected another argument that Caltrans, as an arm of state government, is entitled to endorse a point of view. Flags hung on the overpasses after the attacks were not part of a government-funded project but the result of private citizens expressing their patriotism, the judge wrote.
Caltrans’ idea that the activists could have applied for a state permit or paid for billboard advertising clearly runs afoul of the right to free speech, the judge concluded, because delay is “particularly destructive in the realm of political debate.”
Scruggs, the activists’ attorney, said Caltrans will have to pay “tens of thousands of dollars” in legal fees.
“I charge $300 an hour, and hundreds of hours were spent on this case,” he said. “It’s an unmitigated waste of taxpayer money and public servant time.”
Contact Jondi Gumz at jgumz (at)


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Wonderful News! Yay for Amy and Cassandra! Yay for free speech!

Appeals court pulls down ban on banners

Appeals court pulls down ban on banners


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)


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