Caltrans and the First Amendment: Marine Veteran Steve LeBard and the Old Town Orcutt American Legion Post 534 Grapples with Caltran Policy in Trying to Erect a Veteran's Memorial

The Old Town Orcutt American Legion Post 534 seeks to erect a Gateway Monument and Veterans Memorial Flagpole on a 1,500 square foot patch of land within the CalTrans right of way. It would include five black pillars about eight feet tall, a sixty foot flag pole flying the United States flag, and the symbol of each branch of the military. It appears to have been a bear of a job getting the approvals and permits and a marine veteran named Steve LeBard has taken the lead in ramrodding the project through one bureaucratic obstacle after the next. But this veteran has run into a wall when it comes to CalTrans policies regarding the actual words that would appear on the monument. Steve Chawkins of the Los Angeles Times covered the story in an March 3, 2013, article entitled Caltrans policy stymies a proposed veterans monument.

As the facts appear in the press, according to LeBard, CalTrans won't permit the sixty-foot flagpole in the center of the memorial or certain words in the military seals such as United States, Army, or E Pluribus Unum. While CalTrans states that it hasn't made a final determination on the text of the monument and has said that the email discussing what would and wouldn't appear on the monument was taken out of context, it has also said that it is bound by Brown v. CalTrans, a 2003 Ninth Circuit United States Court of Appeals  decision. According to CalTans Spokesperson Jim Shivers,

The CalTrans right of way should not become a center of free speech. We have a very careful protocol as to where stop signs, traffic signals, cross walks, speed limit signs, other highway safety signs to allow for a proliferation of messages amidst those traffic safety signs, in our minds, would cause concern.

In Brown v. CalTrans, the Department of Transportation got hammered for taking down signs and banners hung over freeway overpasses, but leaving up American flags. The Court held that the agency couldn't pick and choose between what messages it would take down and leave up. The current situation isn't all that analogous. The Supreme Court has upheld the display of the flag and veteran's memorials time and time again. This isn't a case where a large white cross forms the dominant centerpiece of the monument or the Ten Commandments is prominently displayed. I see no legal impediment to CalTrans allowing this Veteran's memorial to be erected as intended, not with CalTran's absurd proposed modifications.

But CalTrans is still correct in its concern that allowing this monument at the CAlTrans right of way does open the potential door to other speech. Cf. United States v. Grace, 461 U.S. 171 (U.S. 1983) (reversing the dismissal of protester's action to enjoin enforcement of statutory prohibitions against the display of a flag, banner, or device on sidewalks outside the U.S. supreme court because the statute, by failing to sufficiently serve the public interests urged as its justification, was unconstitutional under the First Amendment).

If you have a monument to veterans, both CalTrans and the Veterans' organization will have to accept that subject to reasonable place, time, and manner restrictions, people with other views may want to make their opinions known. A war memorial may be the chosen site of an anti-war protest in the future. Where CalTrans is wrong is in its belief that it can limit future free speech at that site by removing a flag or certain words from the seals of the armed forces. The proposed Veteran's memorial is still going to be an expression of those seeking to honor this country's veterans; it is still speech. CalTrans thus errs in trying to keep the American Flag from flying at the center of the monument or believing that the removal of words such as United States or E Pluribus Unum will change a future court's analysis as to whether the site of the memorial is an appropriate site for future protests or the expression of other opinions.

CalTrans should not focus on stopping free speech, but rather ask itself under what circumstances can we have speech at this site and come up with reasonable policies that recognize the right of people to safely express their opinion. As I understand the situation, the determination has already been made that a Veteran's memorial can be erected at this site. The issue appears to be CalTrans' belief that by keeping the monument from displaying the flag and limiting the words on the monument, it will be in compliance with prior case law and it can keep people from expressing their opinion at the site. The reality is that there are sidewalks at or near the location. And people will be drawn to the memorial to photograph it and pay their respects. The opinion in Brown v. CalTrans wasn't telling CalTrans that its job was to prevent the exercise of free speech, but rather that CalTrans as a governmental agency cannot favor one viewpoint over another, e.g., flags versus protest banners.

In short, CalTrans drew the wrong lesson from the 2003 case. Instead of trying to micromanage the construction of the proposed memorial, CalTrans should instead focus on how it can appropriately allow Americans to safely and reasonably express themselves at this location. After all, you can still apply for a permit to hang a banner over a freeway overpass. Let the monument go in as designed and intended and let people apply for an appropriate permit if they want to express another opinion at this site. Let this be a true memorial for America's veterans and their dedication to this country's freedoms. Let the American flag fly.