FIRST AMENDMENT RIGHT TO SPEECH ON FREEWAY OVERPASS
Lately MAGA supporters, groups remembering the October 7 terror victims and October 7 hostages and pro Hamas or pro Palestine demonstrations have included assembling on freeway overpasses and hanging signs. Caltrans has been targeting these groups very selectively. Depending on the location, Caltrans allows signs from one group but challenges signs help by other groups. Our office has been defending the 1st Amendment Rights of all these groups regardless of how we feel about the content of their speech Here is a letter (edited) that Daniel Horowitz sent to Caltrans.
There are two legal issues:
1. The absolute (almost) right to assemble and express political views as long a traffic and safety issues do not arise.
2. The conditional right to put signs on overpass fences. (If one group is allowed, all groups are allowed.
Note: If you have photos of signs that are tolerated by Caltrans, please email them to law94549@gmail.com. We will use those images to support the free speech rights of all groups.
Here is the letter relating to the Curtola overpass in Lafayette, California.
Dear Director Tavares:
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.
I am attaching photos of Memorial Day flags flying on the Curtola bridge.
No Caltrans interference took place. As shown by A & B attached Caltrans regularly allows flags, banners and political materials to hang on their overpass fences even when people are not present.
Recently Caltrans (at the request of the City of Lafayette) had people come out and ask that the signs be taken down. These employees acted with tremendous respect and dignity. However, the idea that a City (Lafayette) or member of the public can trigger Caltrans to SELECTIVELY censor some speech but allow other is unacceptable - and that is happening.
I am attaching a copy of Judge Whyte’s 2003 order which permanently enjoins Caltrans from allowing some groups to use the fence and prohibiting others. Recently the Memorial Day flags hung all day without interference. This is very much like the situation that Judge Whyte addressed when 9/11 commerative flags were flying but anti-abortion flags were banned.
Many overpasses have pro “Palestine” flags and they fly for weeks unremoved.
There have been some hints that the overpass itself is not a public forum. However, that is widely rejected (as I presume you know). Just in case, 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 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. Certainly allowing some viewpoints “River to the Sea” vs. “Free the Hostages” is likewise a violation.
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 write this letter with the greatest respect for the job that you are doing and the difficulties of balancing various political perspectives. However, in this instance there is a clear 1st Amendment violation and it needs to be remedied.
Daniel Horowitz