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The 9th U.S. Circuit Court of Appeals is poised to uphold a decision preventing the California Department of Transportation from tearing down signs of protest from freeway overpasses while simultaneously allowing the American flag to fly. A three-judge panel, though potentially divided, was skeptical Wednesday that the message the flag projects is neutral, an assertion the state used to defend itself against charges that it is discriminating by tearing down signs of protest while leaving patriotic displays of the Star-Spangled Banner in place. Earlier this year, U.S. District Judge Ronald Whyte ruled that Caltrans must adopt an all-or-nothing policy: Either leave all banners in place or tear down everything. The case arose in the wake of last year’s Sept. 11 attacks, when Californians bedecked the state’s roadways with American flags in a spontaneous show of national pride. However, two Santa Cruz women posted banners reading, “Are you buying this war?” and “At what cost?” at a Scotts Valley overpass. They filed suit after Caltrans removed the banners. A lawyer for the state said the flag displays were “viewpoint neutral,” and a display that could mean many things to many people. But Judge Kim Wardlaw questioned whether in the context of the 9/11 attacks, it could still be considered a neutral display. A lawyer for the two women, James Wheaton, compared the Caltrans policy to a hypothetical scenario where the city of San Francisco prevented banners from being hung from City Hall — “except those that extol the virtues of the mayor,” a comparison that drew laughter from the courtroom. Wheaton said the flag is “pregnant with meaning,” but added, “It certainly does not convey messages of dissent.” Senior Judge Dorothy Nelson joined Wardlaw in apparent skepticism of the state’s position. Senior 9th Circuit Judge Robert Beezer grilled lawyers on whether the lower court was aware that the state could be subject to a 10 percent penalty in federal funding for allowing highway signage to remain in place.

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