Court: Court of Appeals for the Ninth Circuit; March 13, 2003; Federal Appellate Court
The Ninth Circuit Court of Appeals considered whether the California Department of Transportation's (CalTrans) policy allowing the display of United States flags, while prohibiting other expressive banners on highway overpasses, constituted unreasonable viewpoint discrimination under the First Amendment. Following the September 11th attacks, a surge of patriotic displays, particularly flags, occurred across the nation, including on California highways. In response, plaintiffs Cassandra Brown and Amy Courtney displayed anti-war banners questioning the cost of war, which were removed by police for safety reasons. CalTrans maintained a policy requiring permits for any signs on highway overpasses, but exempted American flags from this requirement. Brown and Courtney filed a lawsuit under 42 U.S.C. § 1983, arguing that their First Amendment rights were violated. The district court classified the highway as a nonpublic forum and found CalTrans's policy did not meet the necessary criteria for reasonableness or viewpoint neutrality, resulting in a preliminary injunction against the policy.
CalTrans contests the injunction's entry, arguing that Courtney and Brown did not prove a significant risk of irreparable injury since alternative avenues for expressing their anti-war messages exist. It also claims they lacked a strong likelihood of succeeding on their First Amendment claim, asserting that its policy is reasonable and viewpoint neutral. However, the court finds that the policy does not meet these criteria and that no viable alternative means of expression have been shown, leading to the affirmation of the injunction.
To secure a preliminary injunction, Courtney and Brown must establish either (1) probable success on the merits and the possibility of irreparable harm, or (2) serious questions raised with the balance of hardships favoring them. The degree of irreparable harm must increase as the likelihood of success decreases.
The appellate review of the district court's preliminary injunction is based on an abuse of discretion standard, while legal conclusions are reviewed de novo. The court gives special consideration to First Amendment claims, reviewing factual findings for clear error and applying law to facts in free speech cases de novo.
To assess the likelihood of success on the merits of Courtney and Brown's free speech claim, three factors must be analyzed: the classification of the highway under forum analysis, the appropriate scrutiny level, and whether CalTrans's policy withstands that scrutiny. The court determines that the highway overpass fence, where the banners were hung, does not constitute a public forum, as it has not traditionally been available for public expression, affirming the district court's conclusion on this matter.
The district court concluded that the highway overpass is not a designated public forum since the government must intentionally open a forum for public discourse rather than merely permitting limited discourse. Relevant factors in determining governmental intent include policy, practice, property nature, and dedication to expressive activities. Overpass fences are deemed incompatible with expressive activity due to safety concerns, as messages can distract drivers. CalTrans has consistently prohibited expressive banners except for directional signs and American flags, indicating that overpasses are not intended for public discourse and are classified as nonpublic fora.
In nonpublic fora, restrictions on expression must be reasonable and viewpoint neutral. The reasonableness of limitations considers whether they align with the forum's intended purpose. The highway's purpose is transportation, with CalTrans responsible for its safety and maintenance. CalTrans justifies its policy of allowing flags but not other banners by citing safety concerns and compliance with state law, asserting that banners pose significant risks, including distraction and potential falling objects. However, CalTrans's rationale for allowing flags is challenged, as the safety risks associated with flags are similar to those of banners. There is no evidence supporting the claim that flags are less prone to causing distractions or falling. Furthermore, flags can evoke strong emotional responses, potentially distracting drivers even more than banners. CalTrans has not conducted any studies to substantiate its claims. Overall, CalTrans's justification for allowing flags, while prohibiting other expressive materials, is deemed unreasonable given the similar safety risks involved.
CalTrans initially argued that its policy regarding the display of flags was mandated by a 1953 California statute, which permits the display of U.S. and California flags on sidewalks adjacent to state highways, contingent upon compliance with department rules. However, CalTrans later retracted this argument, as the statute's language, "may be displayed," indicates discretion rather than obligation. The flags in question were not displayed in compliance with the statute, as they were affixed to fences with zip ties rather than in designated flag holders on sidewalks. Consequently, the statute does not support CalTrans’s policy, which prohibits banners but allows flags on highway overpasses, leading to the conclusion that the policy is unreasonable since safety concerns apply equally to both.
Additionally, the document examines whether CalTrans's policy constitutes viewpoint discrimination, which occurs when the government favors or targets particular views on a subject. CalTrans contends that the American flag does not represent a specific viewpoint. However, the excerpt argues against this by stating the flag symbolizes national unity and sentiment, particularly following events like September 11th. While the flag's display can evoke solidarity, it does not accommodate dissenting views, which are fundamental to democracy. The passage emphasizes that honoring the principles represented by the flag requires the allowance of dissenting voices rather than suppressing them.
CalTrans contends that if the flag represents a viewpoint, its policy supports that viewpoint as a governmental body. However, it incorrectly cites Rust v. Sullivan to justify this stance. In Rust, the Supreme Court ruled that Congress could restrict physicians in government-funded programs from discussing abortion, recognizing the government's right to promote a policy using public funds without discriminating based on viewpoint. This case, however, does not apply to the current situation because the flags were displayed by private citizens, not as a result of state sponsorship or funding.
CalTrans's claim that it can advocate a patriotic message does not align with its primary objective of ensuring safe and efficient transportation, as it lacks a government-funded initiative to promote national unity. Such advocacy must come from accountable elected officials, not from transportation employees selectively permitting certain displays.
The court declines to broaden the application of government-funding cases to scenarios without appropriated funds, as doing so would threaten First Amendment protections by allowing the government to favor one viewpoint over another without electoral accountability.
To demonstrate irreparable injury under the First Amendment, Courtney and Brown only need to show a plausible claim, which they have established as likely to succeed, thereby indicating potential irreparable harm.
CalTrans argues that Courtney and Brown do not have a valid First Amendment claim as alternate means of expression are available to them, specifically through permit applications for sign displays. This claim is challenged by the assertion that their banners are not eligible for such permits, which are intended for directional information related to special events. Furthermore, even if permits were possible, a discriminatory burden on speech exists since there are no equivalent requirements for displaying an American flag. In nonpublic forums, government restrictions must be viewpoint neutral, and delays caused by permit processes can hinder timely political expression, which is essential for relevance in political discourse.
CalTrans also suggests that billboard advertising could serve as a means for Courtney and Brown to communicate their message, but this too fails as it imposes a financial burden on one viewpoint while allowing others free expression, violating the requirement for viewpoint neutrality. Delays in securing advertising space similarly infringe on First Amendment freedoms, which are considered irreparable injuries even for brief periods. Consequently, Courtney and Brown have established a colorable First Amendment claim and the risk of irreparable harm, countering CalTrans's arguments regarding alternative communication avenues.
The court concludes that the flags' messages on California highways hold significant meaning, especially in the context of national freedom against oppressive regimes. The decision is AFFIRMED and REMANDED for further proceedings. Additionally, the original lawsuit named the Scotts Valley Police Department and its chief, but these were dismissed as there was no evidence of a broader policy infringing on First Amendment rights. The court has jurisdiction under 28 U.S.C. 1292(a)(1) for the appeal of the preliminary injunction.
