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Does the 1st Amendment Protect People Hanging Signs on Freeway Overpass(es)?

freedom of speech with many people

Freeway overpass signs with controversial political statements - are they protected or can the state force them to remove the signs.  

Freeway overpasses are increasingly popular as places to hang signs and voice political views.  These offend MANY people.  MAGA signs offend Biden supporters.  Pro hamas or "river to the sea" proponents hang American flags sideways and covered in "blood" (red); Memorial Day flags fly and offend those who believe America is an imperial nation and on and on and on.

What are the First Amendment rules regarding these highly political, highly charged displays?

Recently I was contacted by MAGA supports and a group that displays signs reminding people of the plight of the October 7 terror victims and hostages.   The city of Lafayette California has attempted to shut down these protests as it appears that at least some members of city government have views contrary to MAGA / Trump supports and those who are concerned about the hostages.   Rather than express their own views, they have attempted to get the State of California to run these groups off the bridge.

Using vague rules and often ignored laws they use the "hecklers'" veto and attempt to apply laws to groups whose views they opposed.  This is a First Amendment violation.

I don't care if you are pro hamas, Pro hostages pro - Biden, Trump or Ramiswami, you have right to annoy the heck out of me and everyone else.

So if you are on an overpass and they try to force you away, here is the letter I sent to each and every Lafayette city council member warning them to stop their harassment of my clients.

Feel free to use.  It is particularly on point for California but 99% of the law applies everywhere.

Dear City Council Member:

I am writing as attorney for two groups of citizens who are assembling on the Curtola overpass to express their political views. These groups can be generally deemed as MAGA supporters and people in support of Hamas freeing the October 7 hostages. The City of Lafayette through its City Manager has been prodding Caltrans to take action to effectively remove people from the overpass. The City Manager is acting in the course and scope of her employment by the City of Lafayette.

As explained in this letter, this conduct by the City of Lafayette violates the 1st Amendment leaving the city liable for millions of dollars in damages and attorney’s fees in a lawsuit under 42 U.S.C. 1983 (and other statutes). The City of Lafayette has been largely silent on speech at that overpass except when it has been occupied by those expressing certain very specific viewpoints. Basically MAGA views and those in favor of freeing October 7 hostages have been the sole targets of Lafayette. I am attaching photos of Memorial Day flags flying on the Curtola bridge. No City of Lafayette or Caltrans interference took place.

This is content based conduct by Lafayette and Caltrans and such content based action is a 1st Amendment violation. It is notable that Caltrans has regularly allowed anti-Israel signs to be displayed and even remain displayed after the political proponents have left. (See A & B attached) Both David Ambuehl, Chief Deputy District Director of Caltrans and City Manager Naroop Srivatsa have expressed to the public shocklingly inaccurate legal opinions regarding political conduct on the overpass.

The source of their “legal opinions” is unknown but both have expressed these opinions to the public in an effort to suppress speech. I am not aware of the legal experience or background of Deputy Director Ambuehl or City Manager Srivatsa but they are legally incorrect. The Curtola overpass is a traditional public forum. See, Ovadal v. City of Madison, Wis., 416 F.3d 531, 536 (7th Cir.2005) (holding that a pedestrian overpass constitutes a traditional public forum). In Ovadal the court found that: The extent of limitation that is permissible is determined by the forum in which the speech takes place. Frisby v. Schultz, 487 U.S. 474, 479, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). The district court found that the pedestrian overpass was a traditional public forum because it was a portion of a public sidewalk. See United States v. Grace, 461 U.S. 171, 179, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983).

“Time out of mind, public streets and sidewalks have been used for public assembly and debate, the hallmarks of a traditional public forum.” Frisby, 487 U.S. at 480, 108 S.Ct. 2495 (internal quotations omitted). We agree with the district court's conclusion that “[a] public sidewalk does not lose its status as a traditional public forum when it passes over a highway overpass.” All public sidewalks “are held in the public trust and are properly considered traditional public fora.” Frisby, 487 U.S. at 481, 108 S.Ct. 2495. Thus, as the district court correctly determined, Ovadal's protest occurred in a public forum. (Ovadal v. City of Madison, Wisconsin (7th Cir. 2005) 416 F.3d 531, 536, emphasis added) In Faustin v. City, County of Denver, Colorado (10th Cir. 2001) 268 F.3d 942 the court found that an “ overpass is a traditional public forum.” Id 950 See also: Lewis v. McCracken, 782 F. Supp. 2d 702, 713 (S.D. Ind. 2011) (holding, for purposes of qualified immunity, that it was “clearly established” that a “privately owned sidewalk adjacent to a public highway [running through rural Indiana is] a traditional public forum”); Lytle v. Brewer, 77 F. Supp. 2d 730 (E.D. Va. 1999) (holding, for purposes of qualified immunity, that “a person had a clearly established right to protest their individual beliefs on traditional public fora, such as sidewalks and pedestrian crosswalks,” including the pedestrian sidewalk abutting the interstate highway at issue); Swagler v. Sheridan, 837 F. Supp. 2d 509, 515 (D. Md. 2011) (considering speech occurring in the “grassy shoulder along Route 24” - a state highway running through rural Harford County - and holding that the protestors' First Amendment free speech claims were clearly established for purposes of qualified immunity); cf. Knights of Ku Klux Klan v. Arkansas State Highway & Transp. Dep't, 807 F. Supp. 1427, 1435 (W.D. Ark. 1992) (“The court believes that it is undeniable that in this day and time that public highway rights-of-way have become places where ‘speech’ of one type or another is engaged in.” “The court believes that highway rights-of-way are traditional public forums.”); Corral v. Montgomery City., 4 F. Supp. 3d 739, 751 (D. Md. 2014) (holding that it is clearly established that “where there is a ‘thoroughfare,’ a traditional public forum exists,” and therefore denying qualified immunity to officer's policing of a sidewalk easement “integrated into the street grid”). The conduct on the overpass is not just protected, it is highly protected. “[S]peech in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum”. Schenck v. Pro-Choice Network Of Western New York (1997) 519 U.S. 357, 377 It is true that freeway fences are not traditional public forums. (See Brown v. California Dept. of Transp. (9th Cir. 2003) 321 F.3d 1217 [The State's highway overpass fences have not “traditionally been available for public expression”.] Therefore Caltrans can argue that even if the political expression is protected the fence cannot be used. This argument will fail in court as Caltrans has consistently allowed and its fences to be used by various groups. The asymmetric application of any otherwise valid restriction is again a 1st Amendment issue. The City of Lafayette’s participation in the asymmetric application of the law is also actionable under 42 U.S.C. 1983. I have provided two example of signs that Caltrans allowed to be pinned to the fence but this is just the tip of the iceberg. Palestinian signs have remained posted on the 80 overpass near Emeryville for days, even when the individuals promoting the signs have left. Similar Palestinian signs have been displayed remained after people have left throughout the State. Signs on various topics have been displayed on fences over the Highway 24 overpass in Orinda on various topics. So summarized, everything is a protected speech area except the fence. However, the fence use can only be restricted in a content neutral manner.

As the Ninth Circuit noted in Brown v. California Dept. of Transp. (9th Cir. 2003) 321 F.3d 1217, “[r]estrictions on free expression in a nonpublic forum are constitutional only if the distinctions drawn are (1) “reasonable in light of the purpose served by the forum” and (2) “viewpoint neutral.” Cornelius, 473 U.S. at 806, 105 S.Ct. 3439.” Brown v. California Dept. of Transp. (9th Cir. 2003) 321 F.3d 1217, 1222 The advocacy of Lafayette’s City Manager against only MAGA and those in favor of protecting hostages is a clear political choice. In Brown, on remand, Judge Whyte found that “CalTrans's policy of allowing the non-permitted display of United States flags from state highway overpasses while not allowing the display of other expressive flags, signs, or banners—whether containing words or otherwise—is not reasonable.” Brown v. California Dept. of Transp. (N.D. Cal. 2003) 260 F.Supp.2d 959, 967 He then issued a permanent injunction. Defendant CalTrans is hereby permanently enjoined from continuing, adopting or implementing a policy or practice which allows an individual to hang a United States flag from a highway overpass without a permit while not allowing an individual to hang any other sign, banner, or flag from a highway overpass without a permit. CalTrans must enforce its permitting and maintenance rules and regulations on a content neutral and viewpoint neutral basis. Brown v. California Dept. of Transp. (N.D. Cal. 2003) 260 F.Supp.2d 959, 968 Allowing Memorial Day flags to fly but not MAGA (upside down flags this last week) or American and Israel Flags tied to freeing hostages is a direct violation of Judge Whyte’s order. It does not matter that Caltrans is the ultimate violator of the 1st Amendment. The City of Lafayette is liable. A city policy causes injury when it is the “moving force” behind a constitutional violation. Chew v. Gates, 27 F.3d 1432, 1444 (9th Cir. 1994) (citing Monell v. Dept. of Soc. Serv. of City of N.Y., 436 U.S. 658, 694 (1978)) This concept of indirect involvement as creating liability under 42 USC 1983 was also discussed in Devecchis v. Scalora, 179 F.Supp.3d 208 (2016) and Alla v. Verkay, 979 F.Supp.2d 349 (2013). The liability arises from the participation of the instigator that although indirect, included helping, or encouraging others to commit the unlawful acts. Please bear in mind that as explained in McCormick v. City of Lawrence, Kansas, 253 F.Supp.2d 1172 (2003) even the threat of arrest in certain circumstances could be seen as a significant deterrent, sufficient to constitute a violation of the First Amendment. Specifically the court found that “[a]ny form of official retaliation for exercising one's freedom of speech, including prosecution, threatened prosecution, bad faith investigation, and legal harassment, constitutes an infringement of that freedom.” Id 1191

With respect to the threat of arrest the McCormick court found that “the threat of arrest by a police officer is exactly the sort of act that would deter a person of ordinary firmness from exercising his or her First Amendment right to orally challenge that officer.” Based upon the above, the City of Lafayette has already violated the 1st Amendment rights of my clients. The City should cease all interference with my clients. If there is further unconstitutional action the lawsuit will be one of major proportions. The City should be aware that the conversations on this topic both formal and informal are subject to discovery. If any member of city government has received texts, e-mails or had communications on the above subjects they need to be preserved as their destruction will be subject to serious scrutiny. We are in converation with First Amendment attorney Martin Garbus and we anticipate joining him in any 1st Amendment lawsuit. Martin Garbus has a 60 year history as the nation’s leading First Amendment lawyer. He has represented Nelson Mandela, Andrei Sakharov, Václav Havel, Samuel Beckett, Al Pacino, Daniel Ellsberg, Philip Roth, Michael Moore, Sean Connery, Michael Caine, Michael York, and Lauren Bacall. I am meeting with him next week on this subject. I suggest that if the City of Lafayette and/or City Manager have views on MAGA or the October 7 hostages that they express their views fully and comprehensively. However, what the City and its manager cannot do is use the municipal power of the City of Lafayette to shut down the speech of my clients.

I hope you take this letter very seriously and act without any delay in correcting the presently untenable situation.