From the March 2004 Idaho Observer:

Just Say No to Searches! (an inspiring story)

COLORADO CITY, Texas -- In June, 1998, West Texas lawyer Pat Barber put up a billboard on his ranch bordering I-20 with the message, “Just Say NO to Searches!” with an information line phone number. The info line has a two minute recorded public service message informing the traveling public about the 4th Amendment. “You probably can't teach courage,” Barber said, “ but if people know they have an absolute right to say no, then in the face of intimidation some people are going to be able to resist.”

One working day after the “sign” went up, the local Sheriff complained to the Texas Department of Transportation, and the next day TexDOT sent Barber a threatening letter demanding he remove the sign or be fined $1,000 per day for violation the Highway Beautification Act.

Barber filed a lawsuit for declarative and injunctive relief against TexDOT in Austin. In October 1998, a Travis County district judge found that it was probable that he would prevail against the state on his claim that the state's enforcement attempt violated his free speech constitutional rights.

The judge enjoined the state from any action against Barber until a final hearing.

So the billboard was allowed to stay up.

A year later, on October 25, 1999, a hearing was held on joint motions for Summary Judgment. Another Travis County district judge, newly assigned to the case, indicated intention to grant the state's motion and deny Barber's motion, and further indicated intention to dissolve the temporary injunction restraining the state's desired enforcement action against Barber.

Barber appealed the adverse ruling. Since the state refused to delay forcing the removal of the sign until an appeal could be heard, Barber had no choice but to remove the sign or become liable for fines of up to $1,000 per day.

On November 4, 1999, Barber stood beside Interstate 20 at high noon and burned down his public service billboard. “I hope our dramatic removal of the sign will emphasize its message to all who see it. Just Say NO to Searches!”

On April 5, 2001, the Austin Court of Appeals reversed the trial court's grant of summary judgment permanently enjoining Barber from displaying and maintaining his billboard. The Justices unanimously held that the Texas Highway Beautification Act is unconstitutional as enforced against Barber in his expression of noncommercial, ideological speech on his own property and ordered that the Texas Department of Transportation, its officials, and the Texas Attorney General were enjoined from enforcing the Act as to the previously erected sign.

The State appealed.

On July 3, 2003, the Supreme Court of Texas reversed the Austin Court of Appeals.

On Monday, February 23, 2004, the Supreme Court of the United States denied Barber's Petition for Writ of Certiorari regarding the Texas court's decision.

Their action does not mean they agree with the Texas Supreme Court decision, but it does mean the high court will not hear Barber's appeal. For every petition granted, over 700 are denied.

This puts Mr. Barber back to where he was with the Texas Supreme Court's adverse 6-3 split decision: A declaration that the state legally forced the removal of the billboard without violating the 1st Amendment, and he looses $14,000 trial expenses, out-of-pocket appellate expenses, lawyer's fees and he has to pay the state $1,200 in state attorney's fees and court costs.

However, the same Texas Supreme Court opinion appears to give Barber the right to put up a similar billboard if there is on-site activity related to the sign. TexDot's regulations exempted billboards or signs which related to on-site commercial activity, such as “Watermelons for Sale,” but failed to provide an exemption for billboards which related to on-site noncommercial or political activity. The Court (majority opinion) used language in discussing TexDot's regulation omission as “constitutionally suspect,” “does not comport with the Act's language,” and “run[s] afoul of the concerns expressed by (the U. S. Supreme Court's) Metromedia's plurality and concurrence (opinions).”

One justice at oral argument gave an example of on-site political activity, such as signing a petition, that could relate to a billboard such as Barber's.

Barber has decided to raise money, through contributions or otherwise and plans to reconstruct a similar billboard with the following message: “Just Say NO to”, “(325)728-5505,” and “Sign Petition Here.” The website has been up, off and on, since 1998 and provides educational information about constitutional rights, searches and the billboard litigation. The phone number was deactivated when the billboard was removed, but will be operational by the time the new billboard is constructed.

Callers to that number heard a brief message about the 4th Amendment, and by using a computer answering machine, additional educational material can be provided through button selection, i.e., “If you would like to hear more, press 2.”

In front of the billboard Barber plans to provide an opportunity for on-site activity that relates to the billboard, such as a way to sign a petition in support of the 4th Amendment and the Just Say NO to Searches billboard.

In any event, the Just Say NO to Searches billboard project is not dead; wounded maybe, but the fat lady hasn't sung yet.

Anyone who would like to contact Barber about the billboard is welcome.

Pat Barber
102 W 2nd St.
Colorado City, TX 79512
off: (325) 728.3391

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