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Sunday, May 1, 2011

Letter Sent 4-22-2011 to Federal Circuit Court Judge - The Federal Case that Changed Caltrans Policy

Old Town Orcutt Revitalization Association
120 E. Clark Avenue, Orcutt, CA 93455

The Honorable Kim McLane Wardlaw
U.S. Court of Appeals, Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119

April 22, 2011

Re: Brown v. California Department of Transportation Case No. 02-15385
Resulting in California Department of Transportation Policy Change

Dear Judge Wardlaw:

Did Caltrans’ interpret the decision correctly in Brown v. California Department of Transportation (hereinafter Caltrans) Case No. 02-15385 when they applied the court’s ruling to their current policy?

Caltrans current policy does not allow the flag of the United States of America and the flag of the State of California to be displayed anywhere in the State right of way.

California law allows the flag of the United States of America and the flag of the State of California to be displayed in the sidewalk area in the State right of way.

Caltrans admitted that their decision to change their policy was based solely on their defeat at appeal to the Ninth Circuit Court of Appeals in Brown v. Caltrans Case No. 02-15385.

My opinion is that Caltrans simply lost the lawsuit because 1. Caltrans allowed freedom of expression on a non public forum (the overpass) 2. Caltrans discriminated on the basis of viewpoint 3. Caltrans violated their own pre Brown v. Caltrans policy by allowing anything to be hung from an overpass that was distracting and potentially dangerous to the public.

In questioning a Caltrans representative on why our recent “Gateway Monument” permit was denied I was told that "The display of the United States flag constituted expressive activity, within the meaning of the First Amendment".

While I agree with Caltrans’ statement in context to Brown v. Caltrans, where the flag was draped over the overpass, I do not agree that it applies to the daily occurrence of flying the American flag as a symbol of our great nation and in full compliance with the United States Flag Code.

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,

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?

In a landmark Supreme Court Case Texas v. Johnson the Court ruled in favor of Gregory Lee Johnson, then a member of the Revolutionary Communist Youth Brigade, 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 of the United States of America 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 (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.

I believe Caltrans current policy removes public forums. The multiplicity of transportation components in the evolution of Caltrans right of ways has effectively created three categories of public forums, including the traditional public forum which is held in the highest regard.

In many scenarios throughout California, the consequences of Caltrans changing their policy has been the removal of traditional public forums (sidewalks and parks) from the State right of ways.

There was no compelling State interest in Caltrans changing their policy. Nothing had changed in the sidewalk areas. The overpasses were still off limits.

Supreme Court Justice Roberts’ 1939 dictum states “traditional public forums have been held in trust for the public and from ancient times, been a part of the privileges, immunities, rights and liberties of citizens.” Traditional public forums cannot be changed to nonpublic forums by governments.

In closing, I believe that Caltrans current policy demoralizes patriotism, discourages national pride and is an injustice to every American.

Your response to my opinions could be immeasurably helpful in getting the American flag flying once again in suitable areas of the California State right of ways.


Steve LeBard
OTORA President
805-714-1165 email