Is It Legal?

Is freeway blogging legal?

People who want to know about freeway blogging as a peaceful demonstration and an effective way of reaching thousands of viewers per hour want to know if freeway blogging is legal.

Here’s the legal disclaimer.  The owner of this site is not an attorney.  This is not “legal advice” in the strict legal sense.  It’s not illegal either.  It’s advice about a legal topic provided by a non attorney.  This is based on experience and research on the California Codes that anybody can do.  You have the right to read the law and apply it to your situation, and that does not require an attorney.  This is only information and advice from one citizen about what the law says and my opinion about it.  You don’t need to go out and hire an attorney but of course you could.

The short answer is that if you do it right (which is very easy) freeway blogging is legal.

This page is so long it needs its own outline:

What you should do #1:  Clear your event with CHP.

What you should do #2: know the law and take copies with you

What you should do #3: Videotape the entire event!

Researching California laws

The California Constitution and free speech

First Amendment and free speech

Jurisdiction

Do you have any recourse?

What do the California Codes say?

Other possible distractions which the State allows

Cops and legal hair splitting

Assumptions behind the cops’ interpretation of Vehicle Code 2410

Drivers’ responsibility

Remember from the home page, our definition of freeway blogging is displaying a hand held banner bearing a political message near a freeway.   In other words you do not attach your banner or sign to the overpass or any state property.  You hold it, maybe by holding poles that hold your banner or sign up.  Actually the 10’ plastic coated metal poles that we have been using in Davis have a slight bend in them.  At the bicycle and pedestrian overpass the fence curves inward toward the center of the overpass as it goes up.  This allows us to wedge the poles supporting the banner in between the fence and the sidewalk so that they will stand up on their own.  The poles are not attached to the overpass but they do support the banner on their own.  That’s why this is a good overpass.

If you were to attach a banner or sign to the overpass there is a California Code that applies and that is illegal.    We are not saying it is a bad idea or that you shouldn’t do it.  See the website of freewayblogger.com for information on that style of freeway blogging.  Civil disobedience has a long and rich history in America, and that form of freeway blogging works too.  However this site is devoted to freeway blogging with unattached banners or signs.

What you should do #1:  Clear your event with CHP.

We have a page devoted to that.  This is how you can gain the cooperation of CHP and prevent them from intentionally disrupting your event and being an obnoxious adversary.  They just don’t like surprises.  the 911 call system is in place and that’s how CHP will probably hear about your event, unless you tell them first.  Unless they have been notified in advance that you will be out there on such and such a day and time freeway blogging, the 911 system requires cops to treat 911 calls as true and as real emergencies.  They have to assume it.  This is bad news for you and your peaceful demonstration because it gives them the attitude that they are gangbusters and their #1 mission is to shut you down to prevent accidents.  All of that can be prevented by some advance planning, so please read our page about clearing your event with CHP (or the local police, or both.  Usually if you talk with CHP they will pass the message on to the local police.)

If you do that, then the next “What you should do” item will not be necessary.  In fact most of the discussion on this whole page will not be necessary.  It’s better to be in cooperation with CHP from the start than to be in the position of having to argue the law with them.  You will probably be much better informed about the law and you will probably lose the argument anyway.  Whether or not you might win the argument in court months later will not help you to enjoy your event.

What you should do #2: know the law and take copies with you

What you should do is print all of the relevant sections of the California Codes and take several copies with you.  Have them in your pocket so you don’t have to go digging in your backpack in case you are holding up your banner.  This way you can pull out your copy of the Codes, show them to the cops and hand them to the cops.  That’s the most you can do to persuade them that you are complying with the law.

What you should do #3: Videotape the entire event!
This is a good idea even if you have done #1 and cleared your event with the CHP.
Bring and use your video camera!  This is an invaluable piece of advice.  Many hand held digital cameras take videos, and you can also buy a small digital video camera.  Make sure you have plenty of storage and your battery is charged before you go out.

Videotape your conversation with CHP or the local police from start to finish.  You have an absolute right to do this and under no circumstances can they tell you (lawfully) not to videotape, let alone take your camera away.

Videotaping your conversation will give you indisputable evidence for later use (in case you go to court, or you file a complaint with CHP).  It will also cause the police to behave differently than they would otherwise. This is just common sense.  They know that anything they say can and might be used against them when they are being recorded.  That’s very good for you as a citizen exercising your rights.

Remember that the police have their cameras (inside their car) going and their own audiotape recording device which they are wearing.  They are going to at least have an audiotape recording of the conversation.  You should have yours, audio and video.

What should you videotape? Your conversations with CHP, and any other police who show up.  Just as important, you should videotape the actual flow of traffic before you begin and while your banner is up, on both sides of the overpass.  Both sides means before your banner (where drivers can see it) and after your banner (where they cannot).  This is very valuable evidence in case you need to prove to somebody later on (for example, if you file a complaint with CHP) what the actual traffic conditions were at the time.

Researching California laws

You can find information about California laws, which are all in 29 Codes, on line at

http://leginfo.ca.gov/calaw.html

This page contains a search feature which allows you to search any or all of the California Codes. The Codes most relevant to freeway blogging are the Vehicle Code, the Streets and Highways Code, and the Civil Code.

There are also city and local laws that affect freeway blogging.

The California Constitution and free speech

The California Constitution gives you the right to free speech.  Freeway blogging is one form of free speech.

The California Constitution is found on line at:

http://leginfo.ca.gov/const.html

Like the site with the 29 California Codes, this contains a search feature.

ARTICLE 1 of the CALIFORNIA CONSTITUTION, DECLARATION OF RIGHTS, says:

“SEC. 2.  (a) Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”

First Amendment and free speech

There is also the U.S. Constitution, First Amendment, which protects freedom of speech and freedom of assembly against laws that Congress might pass.

I – Freedom of Speech, Press, Religion and Petition

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Jurisdiction

Typically, the California Highway Patrol (CHP) is responsible for enforcing State laws and local police departments are responsible for enforcing city (municipal) laws.

Do you have any recourse?

The best option is for you to clear your event with the local CHP office well in advance.  This way on the day of your event you might have no contact with the police, or if you do, that contact may go smoothly where they know the law, care about the law, follow the law, and properly apply the law.  As a freeway blogging citizen, you may have to educate your police about what the law says and how it applies.  It may take a bit of a conversation, but you can end up with a good result, in other words where your right to free speech is acknowledged and you can continue freeway blogging.

I suppose the court is another form of recourse, but as a freeway blogger I don’t have the time or patience for it to get that far.  It shouldn’t get that far.

Other recourse; if you are freeway blogging and CHP or any local police officer hassles you, and you feel violates your right to free speech and / or due process, you can call (or go in) and have a friendly conversation with the Sergeant or police captain.  They are people too, and relating to them as a person is the best way.  Be civil, be firm, be specific, leave out the pejoratives, and stick to 2 things; the facts and the law.  You could get some satisfaction out of this way, in particular the result could be that the next time you go out to do freeway blogging you may get a friendlier reception from the cops.

If that doesn’t work, another option is for you to file a formal written complaint with CHP (assuming that’s who hassled you).  The CHP website contains a page and a form for this.

If that doesn’t work, and you should give it the full time to allow it to work, there is a California Code that could work in your favor.  The Civil Code, Section 52.1, gives you some recourse in the event you are intimidated in attempting to exercise and enjoy your Constitutional rights.

In particular, and I am paraphrasing here, if a cop interferes or attempts to interfere by threats, intimidation or coercion with your exercise and enjoyment of your Constitutional right, the citizen can bring his or her own civil action (yes a lawsuit) for damages, injunctive relief and other appropriate relief.  In other words you can take the cop to court.  There is no guarantee that you will win, and again I am not an attorney, and the court may lean very heavily in favor of the cops, but there it is in black and white.  Read and decide.  This is something you would want to plan very carefully if you do it.

What do the California Codes say?

First of all, there is no California Code, law, rule or regulation that prohibits freeway blogging. You are on solid ground.  Remember that we are talking about unattached signs or banners.

Depending on which CHP officers come out to talk to you, as will likely happen after some drivers call in to complain, you could get any type of response.  CHP may try to accuse you of violating certain laws.  There are a few sections of Codes which have been interpreted as giving the police the authority to order a citizen to take down a sign or banner.  Here are the ones we have run into and my response to each one.

Vehicle Code Section 2410

This Code has been interpreted by CHP to give them the authority to order citizens displaying a sign near a highway to take it down.  Whether that is a correct interpretation or one that would hold up in court I don’t know.  But you as a freeway blogger should know the ins and outs.

“2410.  Members of the California Highway Patrol are authorized to direct traffic according to law, and, in the event of a fire or other emergency, or to expedite traffic or insure safety, may direct traffic as conditions may require notwithstanding the provisions of this code.”

There is a large stretch in saying that making a citizen take down a banner or sign is “directing traffic”.  Let’s assume that it is.

CHP typically makes 1 of 2 claims in applying this Code to freeway blogging:

#1)  The banner is causing traffic to slow down.  This ties in with the “to expedite traffic” clause above.

Response:  What CHP would have to prove in order to correctly apply this interpretation is that the traffic before the banner (where drivers can see it) is moving more slowly than the traffic after the banner (where drivers have driven past the banner, it is behind them, and they can no longer see it). This requires CHP to actively monitor the situation, the flow of traffic, the highway conditions on both sides of the overpass.  If there is no significant slowdown in traffic, this claim does not apply.  CHP would be giving you an unlawful order if they ordered you to take down your banner based on this claim and the facts did not show an actual traffic slowdown.

#2)  The banner is causing a distraction to the drivers, or is distracting drivers.  This ties in with the “insure safety” clause above.

Response:  There is no California Code, law, rule or regulation that prohibits creating a “distraction” anywhere near a highway.    Let’s suppose for the sake or argument that there were such a law.  What CHP would have to prove in order to correctly apply this interpretation is that drivers are actually distracted, and that this is a sufficiently large distraction that it is affecting their driving.  This is actually very hard to prove.  It involves either pointing to an actual accident (as evidence that something went wrong) and getting testimony from somebody involved in that accident, which would be IMPOSSIBLE to provide at the time CHP is talking to citizens up on the overpass, OR in involves reading the drivers’ minds.    Some relevant factors that might help a reasonable person evaluate whether a banner is distracting drivers are; if the citizens have been there for let’s say an hour already and 5,000 cars and trucks have gone by with no accidents, there can be a couple of explanations, all good for the citizens.  Either the drivers are not getting distracted, or they are but it is such a minor and temporary distraction that it does not affect their driving.  Either way CHP cannot correctly apply this claim to make you take your banner down.

Other possible distractions which the State allows

One could reasonably argue that every billboard is a distraction, especially those that light up and night and show different messages; the electronic billboards. Drivers might also get distracted by other drivers, directional signs (which are sometimes posted directly over the freeway, and sometimes off to the side), bumper stickers, road construction, all of which are allowed by the State.  We could mention wildlife and weather, but those are not man made so they’re not comparable.  Drivers could be distracted by their cell phones.  Even though texting while driving is illegal, and you have to use a hands free device while talking and driving, talking on the cell phone while driving is still potentially distracting and thus a  potential safety hazard.  Other possible distractions, all allowed by the State, are the car’s radio / CD player and the GPS or on board navigation system.  How about children?  Children of any age can distract a driver.  Imagine the crying infant or toddler, the fighting siblings, etc.

Cops and legal hair splitting

Remember the disclaimer at the beginning of this page that said the owner of this website is not an attorney and this is not advice from an attorney?  Well guess who else is not an attorney but often expresses an opinion about the law?  Police officers, that’s who.  They don’t have to give you a disclaimer; in fact they can pretend that they know the law when in many cases they have no idea.

Some cops think they know the law better than you, the citizen activist, and will attempt to persuade you that the law says things it does not say.  Do not fall for this.  The only argument you should listen to is if they tell you that your event is slowing down traffic AND THERE IS CLEAR EVIDENCE TO SUPPORT THIS.  Cops throw out this accusation all the time even when they know it is false.  The clear evidence would be, for example, that the traffic approaching the overpass where you are is significantly slower than the traffic just beyond that overpass, in other words on the other side of it.  That is proof.  Usually though the traffic is equally slow on both sides.  Cops will lie to you and tell you that they think, as they stand right there on the overpass and look or (probably) choose not to look at the traffic on both sides, that your event is really slowing down traffic.  Liars.  You do not have to listen to this.

Take videos and photos of the traffic on both sides of the overpass while you are up there discussing it with CHP.  Ask them (and catch this on camera, as well as all of it) to please take a look at the traffic on both sides of the overpass.  Especially if they don’t, you can use that video later in your written complaint or in court if you go to court (by choice or not).  The facts of the situation are equally important as the law.  The law does give CHP discretionary authority to “regulate traffic” but they cannot do so when the facts do not justify it.  They cannot lie about the facts of traffic in order to order you to take your banner down.  That is illegal, a violation of your right of free speech, and they can be charged with a crime for doing it.

Some cops will attempt to split hairs with citizens to prove that a banner or sign is a much worse distraction than a billboard, when in fact they are not.  They may claim that the banner or sign is directly in the line of sight, whereas billboards and some directional signs are off to the side. This argument actually works against the cops, because by being directly in the line of sight (directly above the highway) drivers can read it without turning their head or their eyes at all. Besides, as mentioned some directional signs (“Exit Sunset Blvd., 2 miles”) are right directly above the highway, in the same position essentially as your banner or sign.

The other hair splitting argument cops may make is that drivers are accustomed to seeing all the billboards and directional signs at your overpass, but your banner is new, it is usually not there, and therefore it is a distraction where the billboards and directional signs are not.  This is another nonsense argument.  Many drivers going past your overpass have never driven that way before, and for them EVERY billboard, directional sign, and your banner or sign are all new.

The reality is that there are plenty of man made distractions visible from the highway, and yet drivers manage to drive safely anyway.

Assumptions behind the cops’ interpretation of Vehicle Code 2410

The cops’ assumption is that drivers, despite constantly seeing billboards and directional signs which do not cause them to slow down or lose focus, will suddenly slow down or lose focus because of your banner or sign.  There is no reason to assume this, and in fact a good reason to assume the opposite.  The fact that drivers see many billboards and directional signs per mile is reason to assume that “one more won’t make any difference”.  They will see it, read it if time permits, and keep going as usual.

The cops’ assumption is also that drivers will slow down to read your banner or sign.  Once again false.  The same reasoning as in the previous paragraph applies here.  Think about it, when you see a political sign near a highway do YOU slow down?

Drivers’ responsibility

Each driver has the responsibility to drive safely and to know and follow the traffic laws.  That includes paying attention.  That includes handling unforseen situations, and a banner or sign by a freeway blogger is an unforseen situation.

Encroachments regulated by the Streets and Highways Code

The California Streets and Highways Code, sections 660, 670 and so on define and regulate encroachments. A cop may tell you that your banner or sign is an encroachment and without a permit you are not allowed to do that.

However this is false. The definition of an encroachment is in Section 660 and it clearly does not include your banner or sign:

660.  As used in this chapter:

(b) “Encroachment” includes any tower, pole, pole line, pipe, pipe line, fence, billboard, stand or building, or any structure, object of any kind or character not particularly mentioned in this section, or special event, which is in, under, or over any portion of the highway. “Special event” means any street festival, sidewalk sale, community-sponsored activity, or community-approved activity.

That’s our discussion about the question, “Is it legal?”

By all means try freeway blogging if you want to.  Remember the laws are there to protect free speech, and political free speech is at the heart and center of that.

For some examples of how CHP and local police have reacted to freeway blogging, see the videos from We Are Change L.A. from April, May, and August, 2008.  These are on youTube, and you can find them on our home page of this site.

For help in researching Federal and State court decisions, see

http://www.loc.gov/law/help/judicial-decisions.php#state

Many thanks to Bruno of We Are Change L.A. for friendly non-legal advice which has helped. However the owner of this website takes responsibility for any and all mistakes.

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