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Flag display blocked

Last month the U.S. Court of Appeals issued a ruling that will not be well received by most Americans, just as the decision prohibiting the use of “under God” in our Pledge of Allegiance was disliked.

After 9/11, there was a spontaneous display of patriotism from the citizens with the U.S. flag appearing everywhere.

Truckee-Tahoe Lumber’s trucks had huge flags flying. I thought it was pretty cool. Individuals hung flags from all sorts of highway overpasses. As I recall there were several along Interstate 80.



One of the places where flags were hung was on an overpass on Highway 17 in Santa Cruz.

Two young women, concerned over the public’s apparent failure to question the prospect of going to war, hung a responsive banner adjacent to a flag, which read, “At what cost?”




That banner mysteriously disappeared.

They kept hanging the same message up and another one reading, “Are you buying this war?” These anti-war banners were also immediately removed.

No one knew exactly who removed the banners, but CalTrans made it clear that it would have removed the banners pursuant to its own policies if someone else had not.

CalTrans stated encroachment permit policy is that citizens who wish to display a sign on a California highway overpass must obtain a permit to do so. Permits are often available for signs designating turnoffs for special events. Signs displayed without permits are prohibited, although CalTrans does not prohibit the display of American flags, nor does it impose a permitting process for their display. (I smell a lawsuit)

I was right. These two young women sued for deprivation of their First Amendment rights of free speech, in my mind the most abused amendment we have.

The Federal Court heard the case and determined that highway overpasses are non-public forums so freedom of expression is allowed only if “reasonable” and “viewpoint neutral.”

CalTrans contended the posting of signs and banners created a variety of safety risks including the potential of falling signs and distracted motorists.

CalTrans also contended that flags, while still distracting, are less distracting than banners. The court found that not to be true and also found that there is no evidence that flags present a lesser risk of falling than other signs and banners. The court found the CalTrans policy unreasonable.

The court also found that a flag is not “viewpoint neutral.” The very purpose of a national flag is to serve as a symbol of our country, it is… “the one visible manifestation of 200 years of nationhood.”

So the American flag lost the right to be flown on freeway overpasses.

The court’s conclusion was predictable. Here it is:

“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 their own sustaining liberty.”

Jim Porter is an attorney with Porter-Simon, with offices in Truckee, South Lake Tahoe and Reno. Jim Porter wishes to remind readers that he is in Mexico on vacation, and you’re not.


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