Flag Policy Voided

A federal judge in San Jose ordered Caltrans on Tuesday to adopt a consistent policy for removing signs and banners from freeway property, even if it means taking down the hundreds of American flags hung in the wake of the Sept. 11 terrorist attacks.

The preliminary injunction stems from a lawsuit filed by two Scotts Valley women who charge that the state Department of Transportation has a policy of removing banners with politically unpopular messages while allowing flags to fly on overpasses and bridges.

“Government cannot pick and choose among the viewpoints that can be expressed,” said Nathan Benjamin, an attorney for Cassandra Brown and Amy Courtney.

In his ruling, U.S. District Judge Ronald M. Whyte said Caltrans cannot allow the public to hang flags alongside freeways while barring all other displays on bridges and overpasses.

In response, Caltrans must either remove all banners, flags and signs from freeway property or draft a policy that permits all such displays, without regard to the content.

Caltrans spokesman Dennis Trujillo said Caltrans will abide by the ruling and remove all banners and flags. He said it is still undecided whether the state will continue to fight the lawsuit or simply adopt new rules.

A court date for the suit has not been set.

The case began in November when Brown and Courtney hung a banner on a freeway overpass in the Northern California community of Scotts Valley. The freeway overpass was already adorned with a large American flag and a banner that read “SCNY” (Santa Cruz Loves New York) when the women decided to add their 7-by-5-foot banner, which read: “At What Cost?”

Courtney and Brown have since told reporters they hoped the sign would spur public debate over the American bombing missions in Afghanistan.

Soon after they hung the banner, a Scotts Valley police officer, responding to a complaint, removed the banner but left the flag and the “SCNY” sign.

The women hung two more banners on nearby freeway overpasses. Again, both banners were removed, although no one admitted to taking them down.

In challenging the removal of the signs, the women learned that Caltrans prohibits all banners from freeway overpasses and bridges but allows securely fastened flags.

Caltrans officials defended the policy, saying banners and signs are banned because they can come loose and create a safety hazard for speeding traffic. The signs can also be a distraction, causing drivers to slow or veer to view them, they said.

In court, Caltrans officials argued that state law allows properly secured American flags to be hung on those same bridges and overpasses.

But the judge ruled that the law cited by Caltrans attorneys did not apply to freeway overpasses and bridges. State law says if properly secured, the “flag of the United States of America and the flag of the state of California may be displayed on a sidewalk located in or abutting on a state highway.”

Caltrans officials reject charges that the policy is intended to quash dissenting voices. “It was never about content,” said Trujillo. “This was about safety.”

Benjamin said Courtney, a sales associate for a local organic farm and a UC Santa Cruz graduate, and Brown, a Spanish teacher and writer who participated in the World Trade Organization protests in Seattle, are not rabble-rousers.

He said the women decided to pursue the lawsuit because the Caltrans policy was a violation of their constitutional rights of free speech. “The bottom line is that the judge ruled that the policy was not neutral and reasonable,” he said.