Brown

321 F.3d 1217 Cassandra BROWN; Amy Courtney, Plaintiffs-Appellees, v. CALIFORNIA DEPARTMENT OF TRANSPORTATION; Jeff Morales, Defendants-Appellants. No. 02-15385. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 9, 2002. Filed March 13, 2003. COPYRIGHT MATERIAL OMITTED Bruce A. Behrens, Chief Counsel; David Gossage, Deputy Chief Counsel; Janet Wong, Assistant Chief Counsel; Daniel P. Weingarten, Deputy Attorney, San Francisco, CA, for the appellants. James Wheaton, David Greene, Oakland, CA; G. Dana Scruggs, Austin B. Comstock, Nathan C. Benjamin, Santa Cruz, CA, for the appellees. Appeal from the United States District Court for the Northern District of California; Ronald M. Whyte, District Judge, Presiding. D.C. No. CV-01-21200-PVT. Before: D.W. NELSON, BEEZER and WARDLAW, Circuit Judges. Opinion by Judge WARDLAW; Concurrence by Judge BEEZER. OPINION WARDLAW, Circuit Judge. 1 We must decide whether the California Department of Transportation's policy of permitting an individual to display United States flags, but no other expressive banners, on highway overpasses constitutes unreasonable viewpoint discrimination in violation of the First Amendment. I.…

Opinion by Judge WARDLAW; Concurrence by Judge BEEZER.

OPINION

We must decide whether the California Department of Transportation’s policy of permitting an individual to display United States flags, but no other expressive banners, on highway overpasses constitutes unreasonable viewppint discrimination in violation of the First Amendment.

I. Background

In the wake of the September 11th terrorist attacks, an American citizenry united in grief, fear, and defense of country, joined in a spontaneous display of patriotism. Across America, her great national emblem, the United States flag, and its colors, became ubiquitous, appearing everywhere — from cars to homes, buildings to clothes. The President of the United States, on September 21, 2001, addressed the nation: “The only way to defeat terrorism as a threat to our way of life is to stop it, eliminate it and destroy it where it grows.” 1 This declaration of a “war” on terrorism heightened the patriotic fervor, and, according to the California Department of Transportation (“CalTrans”), resulted in the proliferation of flags on California’s highways.

Highway 17 in Santa Cruz, California, was no exception. Private individuals hung…

concurring:

I concur in Parts I-IV of the opinion of the court, except for the first paragraph of Part I, the first sentence of the second paragraph of Part I, the sixth, seventh and eighth sentences of the third paragraph of Part IIIA and the last four sentences of the second paragraph of Part IIIB. I concur in the judgment of the court affirming and remanding for further proceedings.