Court Rules Against Freeway Protesters

The free-speech rights of anti-abortion protesters were not violated when police shut down rush-hour demonstrations on freeway overpasses in 1997 and 1998 to ease traffic congestion, a divided state appellate court ruled Monday.

All three justices agreed the California Highway Patrol was authorized to remove sign-waving members of the Sacramento-based Sanctity of Human Life Network from freeway overpasses in Sacramento to ensure public safety.

“The government may place restrictions on free speech on streets to permit free flow of traffic,” Associate Justice George W. Nicholas wrote for the majority.

He warned, however, that officers must decide on a case-by-case basis whether protesters pose any threat to commuters. Lacking public-safety concerns, protesters on overpasses might enjoy constitutional protections.

“Many variables, such as traffic congestion, safety and the exercise of the CHP’s statutory authority, may combine to change whether the CHP may appropriately interfere with plaintiffs’ activities in any given situation,” according to the opinion, in which Associate Justice Vance W. Raye concurred.

But Presiding Justice Arthur G. Scotland, in a lengthy dissent, found that freeways and freeway overpasses are not public forums and, as a result, plaintiffs have no constitutional right to demonstrate on overpasses.

Protesters sued the CHP after officers ordered anti-abortion protesters to remove their signs during demonstrations in 1997 and 1998 to mark the Jan. 22 anniversary of the U.S. Supreme Court’s landmark Roe vs. Wade decision.

They sought constitutional protection from interference by law enforcement. “Once the state Legislature makes the decision to open freeways to commercial speech, they forever lose the right to ban political speech,” Elk Grove attorney Scot M. Kendall argued for his clients, the protesters.

He said Monday that he plans to ask the state Supreme Court to review the decision.