Choosing a Location -
When choosing a location you want to look up the most congested freeways and intersections or areas with lots of foot traffic. Then look that location up on Google maps. Zoom in on the location until you get the street view of the location. Now that you can actually physically see the location, you want to make sure:
- It’s safe for banner activism
- Your banner will be visible from the bridge (for freeway bannering)
- There’s parking near by for the members to meet and assemble the banner
- There is a busy enough intersection close by that you can move to in case CHP wants you to move off the bridge (for freeway bannering)
What to bring with you -
- Food, water and sunscreen
- Wear bright clothing.
- Bring materials to hand out to stopped traffic.
- Be aware of your local Vehicle Code and Street and Highway Codes (CA is listed below)
- Print out any related DMV Vehicle Codes and have them ready and accessible.
- Do not attach the banner to anything and make sure the banner is being tended to.
- Don’t buy into negative feedback - move on when it is encountered.
Further Freeway Banner info can be found at: http://freewaybanner.blogspot.com/
CALIFORNIA STREETS AND HIGHWAYS CODE SECTION 660
660. As used in this chapter:
(a) "Highway" includes all, or any part, of the entire width of
the right-of-way of a state highway, whether or not the entire area
is actually used for highway purposes.
(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.
CALIFORNIA CODES VEHICLE CODESECTION 2410
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.
--CA Department of Transportation Encroachment Permits, LA County and City 501.7 Banners and Decorations Permit Code BR
BR permits authorize the erection of banners, decorations, and temporary signing for events by nonprofit organizations over and within State conventionalhighway right of way…Authorized banners and decorations over the roadway must have a clearance of at least 18 feet and be suspended securely from permanent structures or poles.
- -LA City SEC. 62.132. STREET BANNERS. (Added by Ord. No. 86,614, Eff. 7/31/42.)(a) Definitions. 1. "Street Banner". Any pennant, streamer, flag, sign, picture, figure or other object, regardless of the material of which it is made, which is suspended or otherwise displayed over any public street, way or place, designed for decoration or advertisement, or to attract the attention of passersby; except, however, official warning devices, public service facilities, street lights and the like. The term shall not include signs, the installation and maintenance of which is regulated by Article 1, Chapter 9 of the Code. (Amended by Ord. No. 89,977, Eff. 1/28/46.) (d) Permit Required. (Former Subsec. (b) Redesignated Subsec. (d) by Ord. No. 172,899, Eff. 12/23/99.)No person shall install or maintain any street banner without a permit therefor from the Board of Public Works.
So, is it legal?
Inquiring minds want to know if freeway blogging is legal. The short answer is that if you do it right, YES, freeway blogging is legal.
The definition of freeway blogging is displaying a hand held banner bearing a 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. If you were to attach a banner or sign to the overpass there is a California Code that applies, and that is illegal.
There is no California Code, law, rule or regulation that prohibits freeway blogging with a hand held banner. You are on solid ground. Remember that we are talking about unattached signs or banners.
Jurisdiction Typically, the California Highway Patrol (CHP) is responsible for enforcing State laws and local police departments are responsible for enforcing city (municipal) laws. Freeways bridges or overpasses are under the jurisdiction of the CHP.
If the police request you to leave, you can either leave or request a ticket. The ticket will give you the opportunity in court to argue that freeway bannering is a free speech issue. Most officers won’t give you a ticket, but they may make safety requirements. Knowing which laws apply and how they apply, along with evidence or video footage is imperative.
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.
No.2 Videotape the entire event!
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 the 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? 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.
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 that 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 a response to each one.
What do the California Codes say?
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 can no longer see it). This requires CHP to actively monitor the situation, the flow of traffic, and 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 was such a law. What the CHP would have to prove in order to correctly apply this interpretation is that drivers are actually distracted, and that the distraction is significant enough 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 the CHP is talking to citizens up on the overpass, OR it 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 the 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 at 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, and 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 onboard navigation system. How about children? Children of any age can distract a driver. Imagine the crying infant or toddler, the fighting siblings, etc.
CHP and legal hair splitting
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 it is 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 CHP, 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 that CHPs’ 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 CHPs' 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 there is 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 CHPs' 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 handheld banner near a highway do YOU slow down?
Each driver has the responsibility to drive safely and to know and follow the traffic laws. That includes paying attention. That includes handling unforeseen situations, and a banner or sign by a freeway blogger is an unforeseen 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 CHP officer 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.
Both the, County – Title 16 Highway, and City - Article 2 Sec 62.132 of Los Angeles, do require a permit for an installed banner, a handheld banner is not installed, therefore a permit is not required.
Peddlers or solicitors permits are not required, as we do not provide products or services for cost, nor do we distribute advertising materials, as defined as booklets, brochures, catalogs, audio tapes, video tapes, CDs, etc., designed to provide information, and stimulate interest, about a product or business.
In next month’s issue, California Vehicle Code 2410 and California Streets and Highways Code, sections 660, 670, with LA County and City requirements will be made available. All the information collected regarding banners will be made available at ZMCA.Org
After all this reading this is how a scenario can unfold, or not.
One can take on the freeway banner project as a lesson on handling yourself in public while under pressure.