In a controversial decision, a federal court says that if California allows Old Glory to hang from overpasses, it must allow political banners, too.
Shortly after George W. Bush announced his war on terrorism in 2001, Cassandra Brown and Amy Courtney painted the words “At What Cost?” on an old white bedsheet. They took their homemade poster to an overpass on Highway 17 just outside Santa Cruz, Calif., and they hung it there alongside a giant American flag and an “SCNY” banner that others had unfurled on the overpass in the days after Sept. 11.
Their protest poster lasted about 10 minutes — just long enough for a local cop to tear it down and throw it away. It was a safety hazard, the chief of police said later. What about the American flag and all of the other 9/11 imagery the cop left untouched? Well, the police chief told a local weekly, those things were “nice to see,” and they were expressions of solidarity, not political statements about U.S. foreign policy.
These weren’t the opinions of a random cop — it was California state policy. The state Department of Transportation allows private parties to post only two things on highway overpasses: preapproved directional signs for special events — “Festival Parking Next Exit” — and the American flag. Put up anything else, and CalTrans will take it down.
But not anymore. Courtney and Brown sued CalTrans over its flag-only policy, and on Thursday, the U.S. Court of Appeals for the Ninth Circuit ruled in their favor, entering an order that prohibits CalTrans from allowing the American flag while barring other forms of expressive speech on California overpasses. The American flag sends a message, the court explained, and the First Amendment prohibits government from supporting that message while suppressing others.
“The reason the events of September 11th evoked such a spontaneous proliferation of flags is precisely because of its message,” the court explained. “Americans sought solace in the symbol of a nation joined in the effort to combat terror in the face of tragedy … [But] after the events of September 11th, what the flag’s powerful message does not encompass, for many, is exactly what Courtney and Brown voice: dissent.”
Coming amid the run-up to war, the CalTrans decision is likely to evoke strong reactions from the flag-waving masses. As war approaches, tolerance for dissent in America has been visibly frayed. The president equates massive antiwar protests with focus groups, the police arrest a man for wearing an antiwar T-shirt at the mall, and the Great American Country cable channel fires an employee for responding to a pro-war e-mail with an antiwar message of her own. When Republicans in the House are so up in arms about the opposition that they’ve banned the word “French” from fries and toast on their cafeteria menus, it’s hard not to think that the new decision will send them even further over the edge.
This is particularly true because the decision comes from the Ninth Circuit. The court, which hears appeals from federal courts in the Western United States, is widely considered to be the most liberal — and most often reversed — in the land. It is the same court that held that the words “under God” transformed the recitation of the Pledge of Allegiance in public schools into an impermissible endorsement of religion.
The Fox TV crowd will have a field day, and they’re likely to focus their wrath on the makeup of the three-judge panel. A Clinton appointee wrote the decision and a Carter appointee joined in it. And while the sole Republican appointee on the panel agreed with the result it reached, he wrote separately to exclude himself from some of the more colorful language in the court’s decision.
CalTrans spokesman Dennis Trujillo said the agency is “considering its options” — which include asking the Ninth Circuit to rehear the case en banc or petitioning for reviews by the U.S. Supreme Court. For now, Trujillo expressed disappointment that CalTrans will not have “the opportunity to defend and support the display of the flag.”
At the same time, however, Trujillo was careful to describe the CalTrans policy as a “viewpoint-neutral” regulation designed solely to ensure the safety of California’s highways. Signs and banners — whatever they may say — jeopardize public safety, Trujillo said, but the American flag does not. And therefore, he said, CalTrans wants people to have the right to hang the flag from overpasses.
“This has always been a safety issue,” Trujillo said. “The flag, the Stars and Stripes, Old Glory — it’s probably the most recognized symbol in the world, and it doesn’t take time away from a driver to interpret it or to react to what it’s saying.”
The Ninth Circuit rejected this safety-based argument as “patently unreasonable.” Particularly in a time of war, the court said, a flag “could evoke extremely distracting thoughts, including feelings of patriotism, remembrance of past wars and lost loved ones, fear, or impassioned dissent. On the other hand, depending on its content, a message on a homemade banner could evoke no reaction at all.”
The Ninth Circuit decision affirms a January 2002 order in which the U.S. District Court held that CalTrans had to treat American flags and all other signs and banners equally — that is, leave them all up or take them all down. According to Trujillo, CalTrans initially attempted to comply with that order by leaving all signs and banners up. But soon, he said, there were so many signs and banners on some overpasses that CalTrans decided to take them all down until the Ninth Circuit could rule on its appeal. That policy will likely continue while CalTrans considers its options.
For Amy Courtney, that makes the Ninth Circuit’s ruling something of a mixed blessing. On the one hand, she is gratified that the court agreed that CalTrans cannot choose the flag over other forms of speech. On the other hand, she is frustrated that the effective result of the decision will mean that there will be no speech at all on overpasses.
“Our intention has never been to get the flags down,” said Courtney. “We never took issue with the flags being up.” While an anti-war protester was arrested in Southern California this week for her role in an altercation that followed the partial dismantling of a September 11th memorial, Courtney said that she and her compatriots did not take that route. “In lieu of us taking down American flags, we chose to add a separate voice.”
The issue, Courtney said, is about preserving the right to ask questions and dissent in a country that was then — and is now again — headed to war. Courtney, a 28-year-old organic farmer, said she and Brown first made their “At What Cost?” sign as a reaction to the sea of red, white and blue they saw everywhere around them in the weeks after Sept. 11.
“What was happening with the nation in November 2001 was that our country was launching itself into an unprecedented war on an impoverished nation that had not made any sort of attack, as a nation, on our country,” she said. “The flag was a sign of solidarity, and it was often coupled with God, with ‘God bless our troops,’ or ‘God bless America,’ these kinds of things that were representations of nationalism or patriotism.”
Courtney said she was frustrated by the appearance of unanimous support for U.S. foreign policy at a time when she knew that many people in her community held contrary views. “We were seeing our community spaces being used as a forum for expressing views in support of the U.S. and U.S. military action,” she said. “We wanted to be able to use that same space to ask the questions, ‘Who’s buying this war?’ ‘Are you buying this war?’ ‘And what is the cost?’”
The American flag doesn’t address those questions, Courtney said. “The flag doesn’t ask any questions, and it doesn’t say, ‘Hey, some of us aren’t unified in this very simple three-colored symbol. It’s not that easy. We’ve got some 10-colored questions.’”
Courtney has more of those questions now as the nation girds for war on Iraq, and the Ninth Circuit, too, alluded to the coming war in its decision. In what may have been a preemptive strike against the backlash to come, the Ninth Circuit said that “honoring the principles for which the flag stands extends beyond waving it in tribute.” America, the court said, “can stand strong against regimes that dictate their citizenry’s expression only by embracing her own sustaining liberty.”