THE TEXAS OBSERVER
NOVEMBER 6, 1998
NO TYRANNY HERE. Score one for the First and Fourth Amendments in West Texas. A billboard erected by Colorado City attorney Pat Barber on I-20 can stand, for now, thanks to a temporary injunction granted by Travis County District Judge Suzanne Covington last month. Erected about seventy-five miles west of Abilene, the sign reads "Just say NO to searches!"...
and lists a phone number, where callers can listen to a two-minute recorded message about their constitutional rights - especially their Fourth Amendment protection against illegal search and seizure -- should a peace officer request to search their vehicle. Only four days after the billboard went up, the Texas Department of Transportation demanded that it be taken down, citing the Texas Highway Beautification Act, which regulates billboards on interstates outside of city limits. Passed in the mid-1960s, the law requires that highway billboards be within 800 feet of at least two commercial businesses, unless the subject matter falls into one of several exempted categories, including chamber of commerce booster ads, religious material, "for sale" signs, and others. Ads for political campaigns have their own set of regulations, but other political material, or public service announcements (as Barber refers to his billboard), are not provided for in the code. TxDot eventually set a deadline for the sign's removal, and threatened to fine Barber, who owns the land on which the sign stands, $1,000.00 per day thereafter. Covington enjoined the highway department from levying the fine until a full hearing can be held in April, ruling that Barber had "established that he will probably prevail on his claim that the statute as written and enforced is an unconstitutional infringement on his rights of free speech." According to Barber, unwarranted searches during traffic stops have become a problem, not only in West Texas, but all over the state, particularly in the last six months or so. Special anti-drug taskforces are part of the problem, according to Barber. "Here in Mitchell County we have three task forces at work, and we're just getting hammered," Barber said. He has collected anecdotal evidence of and increase in searches, and stories of pressure tactics commonly used by D.P.S. and anti-drug task force officers. "They won't tell you that you have an absolute right to refuse a search, and that your refusal cannot in any way be used against you in court," Barber says. Instead, officers threaten to detain uncooperative drivers until they obtain search warrants from the local justice of the peach - virtually always a bluff, according to Barber. He has had difficulty assessing just how many searches are being done, however, because the D.P.S. keeps no records of searches that do not result in a charge. Barber reports hearing one Abilene area task force officer tell a Colorado City chamber of commerce employee that the task force was averaging 500 stops for every one arrest.
In First Amendment terms the states are also high, according to Barber, "This could force them to rewrite that part of the code," if the Highway Beautification Act is found unconstitutional on its face. Similar provisions exist in most state highway codes, because the regulations stemmed from a federal initiative hatched by Lady Bird Johnson.
