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Rules Against NAFTA Superhighway Protest
By Mark Anderson
Texas -- U.S.
Judge Xavier Rodriguez has denied a request by an anti-NAFTA highway
a temporary restraining order and motion for preliminary injunction
city of San
This legal action was sought by Texans Uniting for Reform and Freedom
the city denied TURF’s paid applications to hang two
informational banners over
public streets in preapproved areas.
FOLLOWS AFTER VIDEOS
GRASSROOTS GROUP FIGHTS NAFTA SUPERHIGHWAY
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.
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.
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
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 www.281overpassesnow.com
for those who want more information.
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.
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.
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.
other proposed banner (www.RecallDiane.com)
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.
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
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
families for generations. The TTC alone would amount to over 4,000 miles of
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.
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
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."
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.
Hall released a statement the day after the Jan. 5 hearing; it states, in part:
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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