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California Balks at Public Display of American Flag

It’s an impermissible “public expression.”

11:00 AM, May 9, 2011 • By JEFFREY H. ANDERSON
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In the small town of Orcutt, California, a private association has raised donations to erect a flagpole and monument between a highway exit and a park-and-ride lot, at the entrance to the community’s Old Town section. The pole would hang the American flag, encircled by five pillars, one each for the U.S. Army, Navy, Air Force, Marines, and Coast Guard. The California Department of Transportation (CalTrans), however, has stymied the effort, calling it an impermissible act of “public expression.”

American flag waving

The Orcutt Pioneer reports that, although the Old Town Orcutt Revitalization Association (OTORA) “intends its flag as a tribute and symbol of freedom” — which would seem to be how most Americans would view their nation’s flag — “CalTrans sees it as a form of speech or expression, something more personal than patriotic.”   

OTORA, a typical Tocquevillean-style private civil association, has been fundraising for over a year to collect the necessary $60,000 to build the flagpole and monument, above which would wave a 12-by-18-foot iteration Stars and Stripes. But CalTrans has declared that its policy forbids such efforts. In a letter to OTORA, CalTrans explains that it developed its policy in response to a ruling released by a 3-judge panel of the notorious Ninth Federal Circuit Court of Appeals, a ruling that was issued in response to impromptu flag-hanging in the wake of the September 11 terrorist attacks.   

The panel’s ruling demanded “viewpoint neutrality.” That is, if CalTrans was going to allow the hanging of the American flag on public land, then it must also allow the hanging of all flags — whether the British flag, the Nazi flag, or the Jolly Rogers — as well as “expressive banners” of all sorts.  In its letter to OTORA, CalTrans writes,

To answer your question regarding the court’s decision in Brown v. California Department of Transportation pertaining to flying the American Flag in the State right of way, it was established that, “The display of the United States flag constituted expressive activity, within the meaning of the First Amendment.”

The concern that we have in this situation is that, whether a flag hanging on a bridge [not OTORA’s proposal], or a monument placed within a park and ride lot [the proposal], we would be placed in a position of having to permit all forms of expression as encroachments in the right of way if we were to allow yours.  As such, the department has determined that the state highway system is not a forum for public expression except as expressly allowed.

Last summer, a few days before the Fourth of July, CalTrans painted over a 35-foot American flag mural on a hillside in the East Bay, several hours north of Orcutt, which had been completed in the wake of the terrorist attacks.  CalTrans painted over the mural with gray paint. Even before the Fourth, a couple of industrious citizens painted it red, white, and blue again. After being heavily criticized, CalTrans apologized.

OTORA is fighting CalTrans’s ban, and has so far managed to get a bill through the California senate’s veteran affairs committee by a unanimous vote, and through the senate's transportation and housing committee by an 8-to-1 vote. It is being aided in its efforts by the Marine Corps League’s Coastal Valley Detachment 1340, which would maintain the Old Town Orcutt Gateway Monument if the bureaucracy, responding to the judiciary, ever allows it to be built.

We certainly live in interesting times: The claim is made that American citizens can be compelled to buy federally approved health insurance under penalty of law, while simultaneously being prohibited — at least in California — from hanging an American flag at the entrance to their town. It’s hard to know which of these two acts would have shocked the Founders more.

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