Flag flap hits federal court

Daily Planet Wire Service
Thursday October 10, 2002

SAN FRANCISCO – A lawyer for the California Department of Transportation argued to a federal appeals court in San Francisco Wednesday that the agency has a constitutional right to allow private citizens to hang American flags but not other kinds of banners on freeway overpasses. 

Caltrans attorney Daniel Weingarten told the 9th U.S. Circuit Court of Appeals, “It’s a legitimate government practice to display the flag. This is our property.” 

Weingarten continued, “It is legitimate for a third party to display the flag as well.” 

The highway agency is appealing an injunction issued in January by San Jose U.S. District Judge Ronald Whyte in a lawsuit filed by two Santa Cruz women whose banners were torn down from an overpass by police last year. 

Cassandra Brown and Amy Courtney hung the banners saying “At What Cost?” and “Are You Buying This War?” on a chain-link fence on a state Highway 17 overpass in Scotts Valley on Nov. 27 and Dec. 4 last year. The banners were hung in response to American flags placed on the fence by other citizens during the U.S. bombing of Afghanistan. 

Scotts Valley police officers removed their banners but left the flags because Caltrans’ policy was to allow American flags but not other types of displays. 

Whyte’s injunction, granted in a free-speech lawsuit filed by Brown and Courtney in December, requires Caltrans to treat flags and banners equally. 

The two women said outside the courthouse Wednesday that that they considered the flag and banner displays to be a free-speech exchange of views on U.S. actions in the wake of the Sept. 11 terrorist attacks.  

Brown and Courtney, who work on an organic farm in Santa Cruz County, said they have no objection to the flags, but contend the Constitution requires Caltrans either to allow both flags and banners or to ban both. 

Weingarten told a three-judge appeals panel that Caltrans has a longstanding policy of allowing flag displays but not other banners on overpasses. He argued that allowing citizens to place flags on Caltrans property is an extension of the agency’s own free-speech right to display flags on its property.tional feelings about flags,” Wheaton told the court. “The flag is pregnant with meaning.”