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Judge Rules Against NAFTA Superhighway Protest


By Mark Anderson

SAN ANTONIO, Texas -- U.S. District Judge Xavier Rodriguez has denied a request by an anti-NAFTA highway group for a temporary restraining order and motion for preliminary injunction against the city of San Antonio. This legal action was sought by Texans Uniting for Reform and Freedom because the city denied TURF’s paid applications to hang two informational banners over public streets in preapproved areas.



However, the judge did not rule on the merits, so this case may go to the discovery phase, which could set a precedent on what degree citizen banners over public right-of-ways are protected by the First Amendment. For now the city's stance is having a major impact on San Antonio citizens' awareness about gas-tax alternatives to converting part of the U.S. 281 freeway into a tollway. TURF says such conversions are meant to phase out freeways so they don't compete with growing toll networks that could culminate in construction of the Trans-Texas Corridor part of the NAFTA highway system.

The TTC was recently declared "dead" by Texas highway officials who, however, conceded that the same basic plan will proceed piecemeal under a different name. Its huge proposed size, up to a quarter-mile wide in some areas, may be scaled back to roughly 400 feet, as reported in another recent AFP online story.

All banners hung across San Antonio's thoroughfares must be made by preapproved, bonded sign companies, a requirement that TURF met by hiring Allied Advertising to make the banners, as noted Jan. 5 when the judge heard the case. American Free Press attended the four-hour hearing at the John Wood United States Courthouse.


One banner – the one made and paid for, although TURF was given a refund when the city balked – is about tolling the freeway and provides the web site for those who want more information.

TURF founder Terri Hall, a well-known Trans-Texas Corridor opponent, said during testimony that the people cannot get this information anywhere else and that other means of getting her toll-related messages out to the public proved too expensive. She also argued that the city itself is by no means neutral when it comes to toll policy.

Those called to testify Jan. 5 besides Ms. Hall were three city employees involved in the decision-making process regarding sign regulations, most notably Rod Sanchez, director of planning and development services. The buck stops with him. Two of his underlings, including David Simpson, his immediate subordinate, also testified, as did Kandice Lopez of Allied Advertising.

As shown in court with the admission of more than 20 exhibits, the city – through Simpson and his underling – had first indicated to the sign company, in separate email and phone correspondence for each banner, that TURF's applications and designs for the two banners were acceptable for temporary placement, which is the status for all banners hung in the city's preapproved areas. Banners are typically displayed for perhaps four weeks. Permits last 90 days. But soon the city did a "180" and denied the permits without clear explanation, as Hall and her attorney told the judge, explaining the reason for this lawsuit.

The other proposed banner ( plugs TURF's effort to raise public awareness about the proposal to recall District 8 City Council member Diane Cibrian for allegedly flip-flopping on the toll issue. Ms. Cibrian said she opposed tolling freeways until she got into public office and switched to a pro-toll stance. No recall election has been set yet, however, a point duly noted by TURF attorney David Van Os when the city's hired attorney, Shawn Fitzpatrick. argued that the ordinance does not allow overtly "political" banners. Fitzpatrick argued that both banners are essentially "political" and therefore not allowable under the ordinance, which is actually silent on that point.

Ms. Hall has long argued that the tolling of freeways is part of the larger plan for installing the TTC, in that doing so would eliminate freeways as competition to tollways and force people to use tollways, including the massive TTC – which would be a much wider tollway partly because of parallel rail and utility lines.

As a major part of the NAFTA superhighway envisioned by hemispheric planners who want a North American Union to supplant the U.S., Mexico and Canada, the original TTC plan could gobble up almost 600,000 acres, much of which is prime ranchland that has been in the same Texas families for generations. The TTC alone would amount to over 4,000 miles of right-of-way.

Judge Rodriguez heard strong arguments Jan. 5 by the TURF attorney that the ordinance does not actually define "community announcement." Moreover, the three city officials called to testify who are in charge of signage regulations could not agree on a solid definition. They sometimes contradicted each other, as the judge noted in his ruling.

"Given the lack of definitions or limiting terms in the [city] code and the placement of decision-making authority in the director of development services [Mr. Rod Sanchez]," the judge wrote in his ruling, "the ordinance appears to allow virtually unfettered discretion in the director to determine what qualifies as a 'community announcement.' Standing alone, this evidence would suggest that the ordinance is constitutionally problematic because that amount of discretion seems unreasonable in light of the nature of the forum and could permit the director to make decisions based on viewpoint."
He added: "...There is a distinct possibility that the plaintiffs may ultimately prevail on the claim that the ordinance violates the First Amendment as applied to them..."

Ms. Hall added in a Jan. 14 news release: "The case now goes to the discovery phase where we'll be able to lay out the facts of the case more fully in what ultimately could be a precedent-setting decision as to whether the space above roadways of public streets is indeed protected from government infringement by the First Amendment."

The reason Judge Rodriguez did not grant TURF's injunction request was that TURF, in his view, did not meet the high standard of evidence needed to grant an injunction. He pointed to Sanchez's argument on whether the city street is a "limited" or "traditional" public forum and noted that this is a sticking point, given Sanchez's observation that in a limited forum, the city believes advocacy banners about a particular viewpoint should be disallowed. The city allows banners for blood drives, fundraising by community groups and other seemingly neutral purposes, but it has never before dealt with information like TURF's, as city officials admitted in court.

Ms. Hall released a statement the day after the Jan. 5 hearing; it states, in part:

"First the City denied our banners saying we didn’t meet the ‘definition,’ now they’re saying they denied the banners because the content or message of the banners was ‘controversial.’ They’re making this stuff up on the fly, demonstrating for all of us that this is a politically motivated gag order of citizens who dare oppose the politics of those in power. The City’s reasons for denial are NOT in the ordinance, plain and simple. The Judge even said so on several occasions."

She added: "It’s no secret that Mayor [Phil] Hardberger and many councilmembers as well as city staff who sit on the Metropolitan Planning Organization have cast votes for and advocated toll roads. Based on the city’s actions, one can conclude that the city will not tolerate differing viewpoints or give fair and equal access to citizens’ groups wishing to utilize temporary banners to communicate important community information to its fellow citizens in the public’s right of way."

Mark Anderson is the corresponding editor of American Free Press.


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