CALTRANS WRONG TO LOWER FLAGS By Michael Giorgino

By Michael S. Giorgino

The American flag is more than just one form of "expressive speech" to which anyone may demand "equal time."

A California transportation worker? No. British light infantry. Concord Bridge. April 19, 1775. "By the rude bridge that arched the flood, Their flag to April's breeze unfurled, Here once the embattled farmers stood, And fired the shot heard round the world."

U.S. District Court Judge Ronald Whyte's ruled that Caltrans' policy of allowing citizens to hang the American flag on our bridges and overpasses while prohibiting protest signs is unconstitutional. Judge Whyte ordered Caltrans to end its "American flags only" policy. The flag, he said, is not "viewpoint neutral." Therefore, Caltrans' policy of exempting private citizens from obtaining a permit to display American flags violated the First Amendment rights of two Santa Cruz women who wanted to hang anti-war banners on an overpass.

Caltrans' spokesman Tom Nipper expressed disappointment. Then, folding like a cheap umbrella, he said, "We're going to remove everything."

The American flag is more than just one form of "expressive speech" to which anyone may demand "equal time." In his dissent to the 5-4 Texas v. Johnson U.S. Supreme Court case, which legalized flag burning, Chief Justice Rehnquist pointed out, "The flag is not simply another `idea' or `point of view' competing for recognition in the marketplace of ideas. Millions upon millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have."

Yet, the Johnson decision was narrow--it did not overturn Congress' (or the States') authority to regulate the manner in which the flag may be displayed. While prohibiting the government from criminally punishing a person for burning a flag as a means of political protest, the Court did not object to the state's legitimate interest in "preserving the national flag as an unalloyed symbol of our country."

Caltrans seems to think there are only two ways to respond to Judge Whyte's ruling: either (1) allow any kind of posters or banners without permit (which Caltrans considers a safety hazard to drivers); or (2) to remove the flags put up by private citizens and not allow any new ones to go up. There is a third alternate, but it will take courage and may land Caltrans back in court.

Caltrans itself can raise an American flag on every bridge and overpass in California. The agency can set up a fund whereby private citizens may donate flags for the project. These flags would then be no different from those flying over any other public place. Judge Whyte's ruling is also narrow--it applies only to flags the state allows private citizens to put up in places that have not traditionally been used for public expression. It does not apply to the flags flown by the government itself. Does anyone seriously believe Judge Whyte would demand protestors get "equal time" to post signs alongside the flags over the State Capitol or in his courtroom?

When Robert E. Lee's rebel army invaded Maryland, the men of Frederick hauled down the American flag. 90-year-old Barbara Frietchie took it and flew it from her attic window. Spying the colors, Stonewall Jackson ordered, "Fire!" splintering the window and rending the banner. Quick as it fell from the broken staff, Barbara snatched it up. She leaned far out on the windowsill and shook it forth with a royal will. "Shoot, if you must, this old gray head, But spare your country's flag."

If the leadership at Caltrans has one man or woman with an ounce of American grit left, they will stand up to this misguided judge and fly the American flag over every bridge and overpass from the Klamath River to San Ysidro.

Mike Giorgino retired as a Commander from the U.S. Navy in 1997 and is a Gulf War veteran. He now practices law in San Diego. He is a Republican candidate for the State Senate District representing South San Diego, Imperial, and part of Riverside County. He can be reached via e-mail at mgiorgino@aol.com. Website: http://www.giorginoforsenate.com.