The Old Town Orcutt Gateway Monument/Veterans’ Memorial Flagpole permit has been denied by the California Department of Transportation (Caltrans) for a reason that is unconscionable to me. The project contains an American flag and pole displayed in full compliance with the United States Flag Code and California Streets and Highway Code 670.5.
Caltrans current policy is based on a lawsuit that they lost when American flags were being hung on overpasses and zip tied to fence lines just after 911. Two women put up banners “At What Cost” and “Are You Buying This War?” which were promptly taken down by the local police but the American Flags were allowed to remain. These women successfully sued Caltrans for a violation of their first amendment rights. Courtney, one of the plaintiffs, said the lawsuit was solely about free speech and not meant to belittle the U.S. flag.
In defending itself against this lawsuit Caltrans contended that its “then” policy was compelled by its obligation to comply with the 1953 California state statute (streets and highway code 670.5) governing the display of flags, which reads:
The Flag of the United States of America and the Flag of the State of California may be displayed on a sidewalk located in or abutting on a state highway situated within a city, if the type of flag-holder and the method of its installation and maintenance are not in violation of the department's rules.
The opinion of Judge Wardlaw from the Ninth Circuit Court of Appeals stated “At oral argument, CalTrans abandoned its reliance on this statute, and for good reason. It simply does not apply to the facts of this case.”
In making a case for the “Old Town Orcutt Gateway Monument” we are complying with the Caltrans permitting process, California State Law and Federal Law. In Brown v. Caltrans no permits were applied for or obtained to hang flags from overpasses or to fasten them to fences with zipties. In Brown v. Caltrans safety concerns were at issue. Our planned location poses no safety concerns.
The American Flag, appropriately displayed as a symbol of the United States of America, in a public forum does not constitute any form of speech or expression. It simply is synonymous with freedom.
Over the last nine years the Old Town Orcutt Revitalization Association a.k.a. OTORA (a non-profit 501C) has accomplished many community beautification projects. Our latest project is to build the Old Town Orcutt Gateway Monument which includes a Veteran’s Memorial and American Flag/Pole. As the current President of OTORA and a Viet Nam Veteran I have been spearheading this project.
California State Senator Tony Strickland has introduced Senate Bill No. 443 This bill would authorize the Old Town Orcutt Revitalization Association to plan, construct, and maintain a veterans’ memorial in a specified state-owned park and ride parking lot in Orcutt in consultation with the Caltrans.
Still one question remains unanswered and is nagging at me to bring to the attention of anyone that will listen. When does the American Flag transition from being the symbol of the United States of America to becoming someone’s form of speech or expression?
Since the birth of our nation the purpose of the American Flag was and is to serve as a symbol of our country. The American Flag and Freedom are inseparable much like the heart and soul of a man.
In a landmark Supreme Court Case Texas v. Johnson the Court ruled in favor of Gregory Lee Johnson finding that Johnson's burning of the flag was expressive conduct protected by the First Amendment.
The American Flag that Johnson burned was stolen from a flagpole. I contend that the American Flag transitioned from being the symbol of the United States of America when it was stolen from the flagpole where it was being displayed as the symbol and according to United States law.
When the flag thief first touched that American Flag it became desecrated and It was then and there that the flag transitioned into becoming someone’s “free speech or expression”. Did Johnson have a right to burn the flag? Hell no, the flag didn’t belong to him (that's my opinion).
Does anyone have a right to burn the American Flag? Yes, because we are free to express ourselves. But at the point of desecration the flag ceases being the symbol of America’s freedom. And that freedom must remain forever pure for the world to witness.