SUBJECT: STATE HIGHWAYS: GATEWAY MONUMENTS
KEY ISSUE: SHOULD CITIES AND COUNTIES BE AUTHORIZED TO DISPLAY THE
FLAG OF THE UNITED STATES OR THE FLAG OF CALIFONRIA ON A "GATEWAY
MONUMENT"?
SYNOPSIS
Existing law authorizes the display of the Flag of the United States or the Flag of California on a
sidewalk located in or abutting on a state highway situated within a city, if the type of flag and
the methods of installation and maintenance do not violate Department of Transportation rules.
This bill would authorize a city or county to display the U.S. or California flag, or both, as part
of a "gateway monument." A gateway monument includes any freestanding structure or sign,
constructed within the state's right of way, which communicates the name of the city or county to
motorists or others as they enter the city or county. There is no opposition to this bill.
SUMMARY:
1) Authorizes a city or county to display the Flag of the United States of America or the Flag of
California, or both, as part of a gateway monument if the flags are maintained by the city or
county.
2) Defines "gateway monument" to mean any freestanding structure or sign, or non-integral or
non-required highway feature, constructed within the state's right-of-way, which
communicates the name of the city or county.
EXISTING LAW authorizes the display of the Flag of the United States of America or Flag of
the State of California to be displayed on a sidewalk located in or abutting on a state highway
situated within a city, if the type of flagholder and the method of its installation and maintenance
are not in violation of the Department of Transportation's rules. (Streets and Highways Code
Section 670.5.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: Existing law authorizes the display of the Flag of the United States or the Flag
of California on a sidewalk located in or abutting on a state highway situated within a city, if the
type of flag and the methods of installation and maintenance do not violate Department of
Transportation rules. This bill would, additionally, authorize a city or county to display the U.S.
or California flag, or both, as part of a "gateway monument." A gateway monument includes any
freestanding structure or sign, constructed within the state's right of way, which communicates
the name of the city or county to motorists or others as they enter the city of county.
AB 866
Page 2
According to the author, this bill is necessary because of a policy that the Department of
Transportation adopted in response to a 2003 decision by the U.S. Ninth Circuit Court of
Appeals in Brown v. California Department of Transportation. In that case, private individuals
had hung American flags from a highway overpasses along Highway 17 near Santa Cruz,
apparently in response to the September 11, 2001, terrorist attacks. Subsequently, two other
persons hung an anti-war banner next to the flags, apparently in response to President Bush's
claim that the nation was now engaged in a "war" on terror. Although the banners were
apparently removed by a Scotts Valley police officer, the Department of Transportation stated in
its pleadings that it would have removed them for traffic safety reasons, because a banner may
only be hung from a highway overpass pursuant to an authorizing permit. The American flag,
however, was not removed, though apparently whoever hung the flag had not acquired a permit
and the flag was arguably just as distracting to motorists as the banner. The Ninth Circuit
affirmed a district court injunction against the department's policy of exempting American flags
from permit requirements but requiring permits for, or prohibiting altogether, the display of all
other expressive signs and banners. (Brown v. California Department of Transportation (2003)
321 F.3d 1217.) In short, the First Amendment requires the department to treat flags and
expressive banners equally, either requiring both to have a permit or requiring neither to have a
permit.
The Committee has been unable to confirm the author's claim that the Ninth Circuit ruling
caused the Department of Transportation to prohibit any flags on any state right-of-way. If the
department did prohibit all flags in the manner suggested by the author, it was certainly not
required to do so by the Ninth Circuit ruling. The department is still free to ban all flags and
banners, freely allow all flags and banners, or only allow flags and banners pursuant to a permit.
Moreover, the issue in Brown involved flags and banners hung from a highway overpass, which
may present unique safety concerns, not with flags displayed as part of a gateway monument.
Finally, the Brown ruling did not prohibit the department from authorizing flags. The Brown
ruling merely said that, if the department has a policy on permitting flags and banners, the policy
must be "reasonable." The court concluded that the department's apparent policy of allowing
flags without a permit was unreasonable because there was no discernable difference between
the distraction caused by a flag and the distraction caused by a similarly sized banner.
ARGUMENTS IN SUPPORT: According to the author, "CalTrans currently does not allow the
Flag of the United States of America, nor the flag of the State of California, on state right of
ways, including gateway monuments." The author claims that in the wake of Brown v.
Department of Transportation, the department "overcorrected by disallowing all flags on state
right of ways." This bill will correct that overcorrection, the author believes, by expressly
allowing the display of the flag on gateway monuments.
REGISTERED SUPPORT / OPPOSITION:
Support
None on file
Opposition
None on file
Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334
