California agency ordered to enforce banner policy uniformly

By The Associated Press

02.04.02

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SAN FRANCISCO — A federal judge ordered the California Department of Transportation last week to enforce its policy on hanging banners and flags from highway overpasses uniformly.

The decision came after two Santa Cruz women accused Caltrans of violating their right to free speech after they said their anti-war banners were taken down by public officials because of their content, but the American flag was left up.

Judge Ronald Whyte in U.S. District Court in San Jose wrote Jan. 29 that Caltrans' practice of leaving up American flags while removing other signs and banners "does not withstand scrutiny under either the reasonableness or viewpoint-neutrality prongs," two criteria for being considered constitutional.

The order requires Caltrans to enforce its sign-permitting rules on a content- and viewpoint-neutral basis, and it cannot grant permit exemptions for the display of American flags on highway overpasses.

"We're disappointed," Caltrans spokesman Dennis Trujillo told the San Francisco Chronicle. "We thought the state statutes allowed for the flag to be displayed, but the judge has ruled otherwise. We will comply."

The issue began when Cassandra Brown and Amy Courtney put up a banner in November reading "At What Cost?" next to an American flag on an overpass crossing heavily trafficked Highway 17 in the Santa Cruz mountains.

That sign was taken down by a police officer, and a second sign put up in December was also removed. According to the order, Caltrans denied taking the second sign down, but said its policy was to leave the flags up and take other signs and banners down.

"We don't want to see the flags come down, we merely want to see our banner up with the same terms and conditions as the flags," said Nathan Benjamin, attorney for the two women.

The order said that the first banner was taken down because it was believed to pose a safety hazard. It also said that a crew was dispatched to remove the second banner, but that had been removed by the time the crew arrived.

"We are pleased with the decision," Courtney said. "We feel like the judge took the First Amendment issue seriously."

The order was a preliminary injunction, and the issue could still go to trial.

Update

California agency complies with order to treat all highway banners alike
Caltrans agrees to leave up signs — including two women's protest banners — while pursuing appeal.  09.20.02

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