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James J. Kilpatrick: His Own Sign, His Own Property
uexpress.com ^ | 12/3/03 | James J. Kilpatrick

Posted on 12/07/2003 5:05:09 PM PST by blitzgig

HIS OWN SIGN, HIS OWN PROPERTY

Pat Barber is a lawyer who feels strongly about both the First and the Fourth Amendments. Nothing unusual there. But Barber put up a billboard to express his view. The Texas Supreme Court made him take it down. Now he's asking the U.S. Supreme Court to put it back. The facts are clear. Barber lives and practices law in the West Texas town of Colorado City (pop. 4,281). In 1997 he erected the offending billboard on vacant land he owns adjacent to Interstate 20 in Mitchell County. This was no itsy-bitsy roadside sign. It was 8 by 16 feet. In letters big enough to be read by passing motorists, it said:

"Just Say NO to Searches." (This was his Fourth Amendment concern.)

His office telephone number completed the billboard. Curious callers heard a two-minute message. It began: "This recorded information is provided as a public service by Pat Barber's Law Office in regard to the large number of unreasonable searches being pursued by state officers on the highways ...

"Many people are being intimidated. Often, when an officer has asked for a search and is refused, the officer will threaten to obtain a warrant from a judge. This threat is a bluff because most of the time the officer doesn't have probable cause. ... An innocent citizen may have nothing to hide, but has done nothing wrong, and should know that when an unreasonable search request is refused, the officer must let him go."

The taped message told of an incident in which a woman consented to a search. She was compelled to stand by the side of the road while officers threw her possessions on the ground. "I am offended by this kind of police behavior, and I feel a duty to inform citizens about their rights," the tape explained.

This combination of billboard and recorded message understandably irked the local sheriff. He took the matter to the state Department of Transportation. The department responded by sending Barber a notice to remove the sign pursuant to the Texas Highway Beautification Act. The act forbids outdoor advertising within 660 feet of an interstate or other major highway. Barber said this wasn't outdoor advertising; it was First Amendment free speech. The Texas Court of Appeals agreed, but the state Supreme Court voted 6-3 to reverse.

In his petition to the U.S. Supreme Court, Barber argues that the state act is riddled with exceptions that serve to give commercial speech more freedom than ideological speech. The Texas Civil Rights Project in Austin has taken up his cause. Counsel contend that Barber's billboard was obviously "content-based." It was not informational, as in "Sweetwater 20 miles." It did not promote a tourist attraction. This was "core speech."

Barber relies in large part on the Supreme Court's 1994 opinion in Ladue v. Gilleo. The case involved a formidable lady, Margaret P. Gilleo, who in 1990 put up a 2-by-3-foot sign in her front yard: "Say NO to War in Persian Gulf." Thieves stole the sign. She put up another. Vandals knocked it down. Finally she posted a 9-by-11-inch sign in her front window: "For Peace in the Gulf." The city fathers of Ladue, Mo., a suburb of St. Louis, adopted an ordinance explicitly forbidding such impertinence. She went to court.

Speaking through Justice John Paul Stevens, the high court unanimously found in her favor. True, said Stevens, roadside signs pose distinctive problems. Unlike oral speech, they take up space, obstruct views, distract motorists and displace other uses, but in the political realm the roadside sign "is a form of expression protected by the free speech clause." Ms. Gilleo's sign was "absolutely pivotal speech."

The trouble with relying heavily on the Gilleo case, it seems to me, is that Stevens repeatedly emphasized that Ms. Gilleo posted the anti-war signs at her own residence. The law, he said, accords special respect to individual liberty "in the home." Displaying a sign "from one's own residence" carries a distinct message of personal advocacy. Ms. Gilleo was appealing to any strangers who drove by, but she also was lobbying her neighbors.

I hope the high court takes the case. The only other recent relevant precedent came from an outdoor advertising case in San Diego in 1981, but the nine justices were so divided in that case that not much can be made of it. I am no friend to highway clutter, but Barber's billboard has a right to inform drivers and discombobulate the cops.


TOPICS: Constitution/Conservatism; Government; US: Texas
KEYWORDS: billboard; billofrights; courtcases; courts; firstamendment; jamesjkilpatrick; judiciary; property

1 posted on 12/07/2003 5:05:11 PM PST by blitzgig
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To: blitzgig
I certainly hope they grant cert to Barber, then follow up with a 9-0 ruling in his favor.

If not, kiss the 1st A. bye-bye.

2 posted on 12/07/2003 5:09:03 PM PST by Hank Rearden (Dick Gephardt. Before he dicks you.)
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To: Hank Rearden
Yes, it seems a very clear case to me. This is true censorship.
3 posted on 12/07/2003 5:38:04 PM PST by marktwain
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To: Hank Rearden
One thing the police count on is you not knowing your rights. And they intend on keeping it that way.
4 posted on 12/07/2003 6:13:32 PM PST by Blood of Tyrants (Even if the government took all your earnings, you wouldn’t be, in its eyes, a slave.)
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To: blitzgig
I don't know why this would not be an informative sign. He is advising citizens to just say no to searches. Like "wear your seat belt" "drive with your door closed" etc
5 posted on 12/07/2003 6:21:38 PM PST by JSteff
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To: blitzgig
The best answer to this question I have ever heard was this..." I would love to consent to a search officer ... however my uncle who is about 15 minutes behind me is an attorney for the ACLU and if he found out I consented to a search I would never hear the end of it...."
6 posted on 12/07/2003 6:27:58 PM PST by Walkingfeather
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To: JSteff
"drive with your door closed"

Does this mean that I have to put the doors back on my Jeep?

7 posted on 12/07/2003 6:28:07 PM PST by Politically Correct
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To: blitzgig
Here is the Texas Supreme Court's opinion, denying Barber the right to post his sign:

Texas Department of Transportation v. Barber

8 posted on 12/07/2003 7:52:11 PM PST by Looking for Diogenes
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To: Politically Correct
No you just can not put up a sign about it one way or the other.
9 posted on 12/10/2003 8:15:47 PM PST by JSteff
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