Lawsuit Argues Honking Your Car Horn Is Protected By The First Amendment

from the #LEGALIZEIT dept

The First Amendment covers a whole lot of area. Since it covers “expression,” it doesn’t necessarily have to be anything commonly thought of as “speech.” It doesn’t have to be printed. It doesn’t have to be said. Lighting a flag on fire requires no statement of intent. The act itself is expressive enough. Passively gathering information (like recordings or public records) is protected by the First Amendment. Taking photos is a protected act, even if the photos are never used to express anything more than a memory of an event or place.

It has been argued nudity or partially-exposed bodies are expressions deserving of protection by the First Amendment. Exotic dancers and “bikini barristas” have engaged in multiple free speech lawsuits targeting allegedly unconstitutional restrictions on their expressive conduct.

A plaintiff currently suing a sheriff and the head of the California Highway Patrol is arguing that honking a car horn is protected speech and that the citation she received after engaging in this expression is unconstitutional. (via Courthouse News)

Susan Porter was driving by a protest held outside of Rep. Darrell Issa’s office. These frequent demonstrations gathered both protesters and counter-protesters, all of who made plenty of noise. Passing traffic would express their support/displeasure for Issa by honking their horns. (Which would make not honking your horn similarly protected expression, although it’s unlikely anyone would be cited for not honking their horn while driving by a protest.)

The demonstation briefly attended by Porter drew the attention of local law enforcement, who showed up to hand out citations to protesters. Porter was parked in a nearby parking lot. When the cops showed up, Porter decided to clear out. As she drove away past the protesters and newly-arrived law enforcement officers, she sent off one last car horn blast of support. Cue unneeded officer involvement. From the lawsuit [PDF]:

After Ms. Porter sounded her horn in support of the protest, Sheriff’s Deputy K. Klein (“Deputy Klein”), ID. Number 7275, directed Ms. Porter to pull over.

Deputy Klein told Ms. Porter she was pulled over for sounding her vehicle horn, and issued her a citation for alleged violation of Vehicle Code 27001, which states that “[t]he driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn,” but “[t]he horn shall not otherwise be used, except as a theft alarm system” (emphasis added). Cal. Veh. Code 27001.

Section 27001 does not require that the use of a horn meet any specified noise level, disturb the peace, distract drivers or pedestrians, or endanger safety.

[…]

Ms. Porter’s citation… states that the citation was for violation of “27001(A) cvc [sic] — unreasonable use of horn” and contains no allegations as to noise level, disturbing the peace, distracting drivers or pedestrians, or endangering safety.

It looks like Deputy Klein didn’t like being honked at (though he wasn’t) by some protester slipping away from the scene of the crime in her vehicle and tagged her with a “don’t fuck [with] the police” ticket. I’m sure he never expected his department would be named in a civil rights lawsuit, but that’s the sort of thing that happens when the law is used in ways it shouldn’t be. If these law enforcement officers were that concerned about horn noise, all they had to do was camp out outside Issa’s office and hand out horn tickets all day long. But law enforcement is never about consistent enforcement. It’s highly selective and sometimes the law that ends up being enforced isn’t the one officers had in mind when they initiated the stop. (But that’s a completely different amendment.)

In this case, her honked horn wasn’t a violation of the law, but rather her way of “convey[ing] a message of support for the protest.” But it was also a violation of the law, if officers wanted to get technical. And Deputy Klein certainly did.

Selective enforcement of seldom-enforced laws around demonstrations and protests is a great way to rack up civil liberties violations and their attendant lawsuits. Porter claims the deputy’s decision to enforce the states horn ordinance out of the blue creates a chilling effect for politically-inclined drivers like herself.

Ms. Porter regularly drives her vehicle in areas of San Diego County and the State of California where the Sheriff’s Department or California Highway Patrol is responsible for traffic enforcement.

In driving her vehicle in those areas, Ms. Porter observes rallies, protests, demonstrations, or other events for which she would like to express her support through use of her vehicle horn.

Given the citation issued to her and her knowledge of the statute, Ms. Porter reasonably fears that the Sheriff’s Department or California Highway Patrol will enforce section 27001 against her if she uses her vehicle horn for such expressive purposes.

As a result, Ms. Porter is censoring herself by refraining from using her vehicle horn for expressive purposes, including but not limited to expressing support for political protests, rallies, or demonstrations.

It seems like a ridiculous legal hill to die on, but it does raise a valid point: if officers are going to use a horn ordinance to selectively punish supporters of certain causes, the state is basically placing itself between residents and their ability (however limited its usefulness in this particular application) to petition their government.

This will make for an interesting case. Porter isn’t alleging anything but an ongoing First Amendment controversy due to the state’s restriction on horn use. The state will likely claim the public is served by a law that discourages people from blowing their horns whenever they damn well please, but those arguments are going to sound kind of ridiculous when actually verbalized. Is a law really necessary to keep horns from blaring constantly? Or has it long been accepted horns do double-duty as expressive speech, delivering pithy messages like “You suck at driving,” “You suck in general,” “Your ride is here,” and “I heartily approve/disapprove of this issue being debated freely in the marketplace of ideas, which is apparently located at Rep. Issa’s office at the moment.”

Whatever the basis for the law, it was pretty clearly used here to express a law enforcement officer’s distaste for the message conveyed by Porter, even if the message the deputy received was “I support the people you’re currently citing for other legal violations,” rather than the one Porter intended to send. Since it would be almost impossible to carve out a protest-only waiver on horn restrictions, the court either has to find the law unconstitutional in whole or decide it can be selectively used to punish ostensibly political speech. However it decides to handle this, it should be a fun case to watch.



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Comments on “Lawsuit Argues Honking Your Car Horn Is Protected By The First Amendment”

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59 Comments
Anonymous Anonymous Cowardsays:

The constitutionality of laws

I wonder. How many laws would be actually upheld (assuming here reasonable courts that took the constitution seriously, which is not necessary common) if each and every one of them (laws that is) were tested on a constitutional basis, with the testing parties looking for the most likely constitutional violation when they initiate the act which gives them standing?

First off, it would be absurdly expensive, Second, what to do about those courts who do not take the constitution seriously, or revert to ‘their’ interpretation of what the ‘Founding Fathers’ were thinking, which has very, very wide levels of interpretation. Then, third, what the upper courts are following as agenda these days. Don’t forget, that appeals, and supreme court appointments are political in nature, whether the agenda is stated in advance, or not.

Then there is the reduced workload of the highest court, as well as their propensity to avoid either hard questions, or hard answers to the questions they accept. Solving half the cases of their predecessors while avoiding making usable rulings appears to be their raison d’etre these days. So sad. If they didn’t want the job, why did they stand for it?

Anonymoussays:

Re: Re: The constitutionality of laws

Laws are only considered unconstitutional if they have virtually no applications that are constitutional. The horn honking law is almost certainly constitutional since there really isn’t anything constitutionally wrong with having a law against me driving around a residential street at 3am honking my horn because I feel like it.

The problem is this particular application of the law. Odds are Ms. Porter will have her citation thrown out, win some token amount, and the judge will order the relevant departments to instruct their officers on how to deal with protestors. Odds are the departments will manage to not properly instruct their officers no matter what the judge rules.

Anonymoussays:

Re: Re: Re: Re: The constitutionality of laws

A noise ordinance restricting noisy conduct during the late hours of the night has a substantial public value, and could be argued to be reasonably tailored toward serving that interest. A blanket prohibition on honking the horn for any non-traffic-critical purpose is not narrowly tailored, so while it does do extra duty as a night-time noise ordinance, it is not at all narrowly tailored to serve only the compelling interests and nothing extraneous.

Anonymoussays:

Re: Re: The constitutionality of laws

Sad to say, but it’s quite easy to find laws that are unconstitutional and in some cases, in direct conflict with existing Supreme Court precedents.

For instance, take a look at
http://codes.ohio.gov/orc/2927.11

Now take a look at https://en.wikipedia.org/wiki/Texas_v._Johnson

The thing that’s really sad about the conflict is the Supreme Court case was in 1989 and the effective date for the Ohio code cited above is 1999.

cruiserbobsays:

Re: Re: Re: Re: The constitutionality of laws

Three points to consider.

The first point is the most relevant, and that is that the phrase “without privilege to do so” doesn’t mean that you can’t do any of these things, just that you need some legal justification to do so. In the case of flag burning, the legal justification is the First Amendment, provided you own (or have permission to burn) the flag in question. This section of code basically provides enhanced penalties for vandalism of specific objects.

The second thing to consider is that legislatures rarely pass laws to remove unconstitutional laws. Unconstitutional laws stay on the books but are no longer enforceable.

Which brings us to the final point, which is that the effective date doesn’t necessarily mean that a separate law was passed in 1999 to create this bit of statute. The effective date can either be when this whole bit of code was created, or the last date it was modified. If it’s the last date that the section was modified, A.1. could be much older than 1999, and the effective date due to something else being added or changed. While it’s possible that the Ohio legislature passed this whole thing in 1999, it’s much more likely that they just passed a modification to some part of it.

Anonymoussays:

What are you SJWs whining about now? Oppressed cause can't HONK?

I suppose it’s okay to park a boom car outside your house at 3 AM? Cause that’s what you’re asking for when some other whiny little idiot wants to protest YOU, until everybody is fucking DEAF.

Get a life you whiny little SJWs. This is stupid.

Anonymoussays:

Re: Re: What are you SJWs whining about now? Oppressed cause can't HONK?

Isn’t freedom of speech grand!!
You are protesting a protest on an online forum. I for one love the whiny quite large faction of Social Justice Champions. Besides who is going to stand up for you when when you need it? It won’t be YOU or anyone LIKE YOU.

Mike Masnicksays:

Re: Re: What are you SJWs whining about now? Oppressed cause can't HONK?

Get a life you whiny little SJWs. This is stupid.

Wait. I’m confused. I thought it was those awful SJWs who were against free speech. Now you’re telling me they’re for it.

Also, if this were the other way around, and it had been a protest by your own tribe, I’m betting you’d be whining about the "snowflakes" who can’t take a little honking.

Anonymous Anonymous Cowardsays:

Re: Re: Re: Re: What are you SJWs whining about now? Oppressed cause can't HONK?

"I thought it was those awful SJWs who were against free speech. Now you’re telling me they’re for it."

Well, there seems to be some confusion about that. At least in the ACLU’s mind.

Others, who don’t have some agenda, tend to think the 1st Amendment is for everyone. Some SJW’s think only their shit stinks. Um…erm…maybe I mixed something up there…

Anonymoussays:

Re: Re: Re: Re: What are you SJWs whining about now? Oppressed cause can't HONK?

Sorry Mike I think you mistake Conservitard Trolls as SJW’s, I don’t know for certain but I would bet that there are no SJW’s here, Libertariantards are simply likely to try to impersinate things to prop up their own sad usless narative of human behaviour

“boreing fucking politics will get us all shot, Left wing, right wing you can stuff the lot, keep you petty prejuduce I don’t see the point

ANARCHY AND FREEDOM IS WHAT I WANT”

-Crass somewhere around 1980

Point is we’re all someones useless asshole and you/me/all of people need to focus on what is good for all people and not allow ourselves to be distracted by what is really capiatlist propaganada freedom is the objective and being sidetracked by intentional trolls is not going to get any of us there.

Anonymoussays:

Re: Re: What are you SJWs whining about now? Oppressed cause can't HONK?

I suppose it’s okay to park a boom car outside your house at 3 AM? Cause that’s what you’re asking for when some other whiny little idiot wants to protest YOU, until everybody is fucking DEAF.

sigh

No, that’s not what we’re asking for, nor is that what will happen by any stretch of the imagination.

Honking your car horn in a public place (such as a protest rally outside a public official’s office) is a well accepted use of your horn. Have you never seen corner curbside protesters holding signs saying things like "honk if you brake for whales"? Not to mention all the bumper stickers saying stuff like "honk if you support x political candidate". But regardless of that, honking your horn can be and is valid in a multitude of situations.

Parking a "boom car" outside someone’s private property and blasting music at 3 a.m. is completely and totally different. That’s called a disturbance of the peace and it has its own special law to cover it.

Basically it means you can’t do anything (not just boom cars or honking horns) that would disturb someone’s right to peace and quiet in the comfort of their own PRIVATE property (see the difference?). It does not cover public places, because, you know, they’re public and you have to accept the fact that people can and will be jerks in public. If you don’t like it, you don’t have to go to those public places.

Bergmansays:

Re: Re: What are you SJWs whining about now? Oppressed cause can't HONK?

Flashing high beams to warn of a speed trap or check point has been ruled to be expression, so I have no doubt a car horn would be too.

It’s arguably closer to speech than the high beams are, since honking horns in support of or against something at least falls into the same category of expression as speech — they both make noise.

Aaron Walkhousesays:

Actually this law is about the same everywhere?

?that horns are limited to warning of imminent collision and
sometimes as theft alarms. ? There’s little controversy in it,
and it’s only rarely enforced because it’s rarely a nuisance.

This attempt will likely fail because courts tend to call it
misdemeanor abuse of safety equipment, not speech of any kind;
because it’s legally expected that we shall not dilute the
attention-getting function of horns to occasionally save lives.

carlbsays:

Re: Re: Actually this law is about the same everywhere…

Actually, it’s completely possible to send any arbitrary textual message as a series of car horn beeps. It’s called the Morse Code and it’s one of the latest technological wonders of the 19th century.

It’s not used often, but occasionally one does hear a mobile amateur radio operator tap out a brief di-di-di-di, di-di (“HI” in Morse) to a fellow ham on the horn. Free expression.

Paul Brinkersays:

Re: Re: Actually this law is about the same everywhere?

They might get away with this line of thinking if the issue was that it was not selectively used only when people are protesting.

The state requires you to have a horn, requires it to be in working order on your car (in most states), and states that the horn is a piece of safety equipment to be used in accordance with your driver’s license. Following this line of thought, abuse of safety equipment is possibly reasonable.

Following this train of thought to the end, it would also be 100% legal to install a non required horn or speaker like device on your car for the anoyimnet of all around. Just like an Ice Cream truck.

Of course the state now needs to show:
– That people using the horn for its non intended purpose is a problem
– That this is the least restrictive method for ensuring the horn is effective for its intended purpose.

Anonymoussays:

Re: Re: Re: Re: Actually this law is about the same everywhere?

My car has both. On the left side of the steering wheel, I have the Danger/Alert horn. On the right is the I support X cause/I agree with your bumper sticker button. They didn’t bother to label them, but it wasn’t hard to figure them out.

They sound identical of course.

Docrailgunsays:

At least in North Carolina (and maybe in California… I forget) if someone honks their horn you are obliged by traffic law to get out of the way because they are signaling that there is going to be an impact. So, it’s not far-fetched to suggest that in NC (at least) the horn is for emergency situations, not a general noise-making device.

JoeCoolsays:

Re: Re:

Hahahaha… uh, no. That is not the law in NC.

? Every licensed motor vehicle must be equipped with a horn in goodworking order.

? The horn must be loud enough to be heard for at least 200 feet, and it must not make any unreasonably loud or harsh sound.

? If the horn fails, have it repaired immediately.

? The horn must be used as a reasonable warning device. You should not use the horn unnecessarily or unreasonably.

and later

If a crash seems likely:

? Sound the horn;

There is nothing about being required to give way if you hear a horn. Now an emergency siren is another thing altogether.

Anonymoussays:

Capt. Pike Ms. Porter is not.

Sure, prudent policing would be best, however a motor vehicle horn has a purpose. A car is by far the most dangerous machine most people will ever use. Not only to them but especially to the world around them. The most effective and at times only way for one driver to alert another of danger is the horn. It is not there so you can tell the world you heart or hate puppies or lower taxes or porn or Jesus. Neither is it there for you to tell the world you?re an impatient, arrogant idiot who thinks they?re in charge of anyone?s vehicle besides their own or are too goddamn lazy to get out and knock on a door. No.

You?ve gotta be some kinda dumb to not see the problem in repealing laws that define how such a safety device may be used.

Anonymoussays:

Re: Re: Capt. Pike Ms. Porter is not.

You?ve gotta be some kinda dumb to not see the problem in repealing laws that define how such a safety device may be used.

Oh yes, because impending disaster is waiting for every driver if they can LEGALLY honk their horn whenever they want. So then, what do you propose we do about the majority of the American population who drives cars and honks at signs, protests, and bumper stickers? Lock them all up? Yeah that sounds like a good solution.

I would say most people don’t even know there are laws against using their horn for anything other than safety purposes and you don’t see every driver in the America going around constantly honking their horn. Because seriously, who wants to listen to that all the time, even if you are the one making the noise? And honestly, who bloody cares? When someone honks what’s your first reaction? Look to see where it’s coming from. That’s the whole idea, it’s an attention getter.

It will not lessen the safety effect if there is or is not a law dictating how it can be used. If you think otherwise, I would like to refer you to any major metropolis where there are constant and frequent traffic jams where everybody and their brother’s cousin twice removed constantly honks their horn.

Vindictive Cowardsays:

Re: Re: Re: Re: Capt. Pike Ms. Porter is not.

Your admission that most people don’t know the law(s) for the very thing they are using to annoy others only helps the previous comment about people being a "special kind of dumb" to be more accurate.

I also should add that people must be a special kind of stupid asshole to assume that just because THEY don’t care about something, then no one else in the world should care or think it is a big deal. It would be nice if the world operated that way because there are ways that I’d love to ‘take care of’ people with that type of mindset that I’d personally and conveniently consider to "not be a big deal" since my actions towards those people would not be affecting myself, and I would also argue "who cares?" about what I did.

Situational SJWs

Social Justice Warriors have their origins in radical Catholicism~ Jesuits, and leftist ADLism.

It is not so much a genuine social outcry as it is a pitch for organized religions false .morality based in suspended beluef and superstition~fear of consequences if G_d finds out.

Very easily exploited Edward Bernays styled Liberty Torches, favorites of neocons and the cry bullies.

sumgaisays:

Again, two things….

a) Selective enforcement. Have you ever successfully defended against a citation for excessive speed by stating to the Judge that "everyone else was going 10 over, why’d he pick on only me?" The Judge is thinking to himself "Why do I get all the loonies", but he’s saying to you "Why did you choose, of your own free will, to exceed the speed limit by any amount, thus breaking the law? Which you just admitted to in open court. Guilty as charged. Next, please."

b) Yelling "FIRE!" in a crowded theatre is against local laws almost everywhere – yet it is a form of expression. I’d hate to foot the legal bills for attempting to controvert this one.

The public’s right to a peaceful environment whenever reasonably expected trumps one’s "right" to disturb that peace without good cause. (Although in Chicago, you need only two things to drive a car – a working horn and a working middle finger….)

The whole case rests on attempting to invalidate a portion of Cal Vehicle Code 27001 for repugnance to the Constitution. I don’t foresee much success in that regard, though there maybe an admonishment from the court that the scope of 27001 might need some closer attention. Personally, I’ll bet it stands, and that Porter will be seeing fewer portraits of dead Presidents in her wallet as a result.

Anonymoussays:

Re: Re:

Two things:

a) This can succeed, especially when everyone else was honking their horns at the same time, same place, and same situation, and she is the only one who got a citation. Not to mention, it’s a dumb law, which is probably why it never gets enforced. The average driver probably doesn’t even know it’s illegal and if you told them it was would probably say "that’s stupid and I’m going to continue anyway".

b) Actually this is patently false. It is not against the law to yell fire in a theater and is a tired trope that has been debunked many times. For example, you can absolutely yell fire in a theater if, you know, the theater is actually on fire. Not to mention other situations, such as getting too involved in the movie and yelling at the character on-screen to fire his weapon (this may get you ejected from the theater for disturbing other people’s experience but it’s not illegal). Or if you’re telling a story and recounting what someone said which happened to be "Fire!".

The public’s right to a peaceful environment whenever reasonably expected trumps one’s "right" to disturb that peace without good cause.

This only applies in regards to one’s private property, not a public space. And a public official’s office is a public space, by definition. If someone is blaring their music out there car going down the street or in a parking lot, you can’t report it to the police as a disturbance of the peace, they’ll laugh at you before hanging up. Now if you made the same call from your home, they would send someone right over. Private vs public space, context is key. As an extreme example, you can’t call a rock concert in the town square a disturbance of the peace. Same with buskers, boomboxes, singing, whistling, humming, speaking loudly, etc…

The Wanderersays:

Re: Re:

Re a): I’m given to understand that in fact, if everyone else on the road is speeding, and you aren’t, you can be cited for unsafe driving. It’s considered unnecessarily risky to drive slower or faster than the prevailing traffic, or words to that effect.

Under that same principle, you can in fact argue in court that "everyone else was driving 10 over the limit, so it wouldn’t have been safe for me to drive at the limit", and get a speeding ticket dismissed – at least if you can sufficiently prove both that the surrounding traffic was in fact driving at that speed, and that driving slower would in fact have been unsafe.

That may not apply in every jurisdiction, but I believe there are ones where it does, and I wouldn’t be surprised if it did in most of them.

Re b), Popehat would like a word with you.

sumgaisays:

Re: Re: Re: Re:

I did indeed misquote the law as commonly found, by omitting the word “falsely” in front of “yell fire”.

While Popehat always has good lessons to teach, in point of fact, there are many small, and not-so-small, towns and cities with the exact law on the books. Correctly put there or not, enforced or not, it’s just plain common courtesy that one does not incite others to act in a dangerous way (IOW, make them panic) without good cause. But our society does have a small percentage of bad actors who received questionable parenting in their formative years, hence the “trope” is codifed to some degree. That’s not always a bad thing.

Did you happen to read the comments? I think some of those were quite telling, and I wish Ken had delved into discussion with at least a few of the commenters – that would’ve been even more instructive.

Anything can be considered speech, art, web communication, and i guess if you honk your horn it’s because you feel some type of way about your environment… the biggest question here is…can you you proof it in court?….as of now there’s not precedent, so i would very much like to see how everything finalizes. great article and even better discussion from everyone here.

Anonymoussays:

I think they may be able to settle this on a noise ordinance basis.

Horns are exempt from such noise ordinances as long as they are used in the danger/alert function.

But if not, they are likely quite a bit louder than the accepted noise levels.

At which point it becomes a problem of only selectively enforcing the law. Report everyone who honks except for danger. If they turn any of them down, you have a case.

Anonymoussays:

So long as the vehicle is moving, I think the use of a horn needs to be in compliance with motor vehicle law.

Now, if the operator made some kind of expression over a bullhorn, then that wouldn’t apply. But, the vehicle horn is a component of traffic law, and if that vehicle is in motion, then traffic law applies.

I don’t see a 1st amendment defense. She should just use something other than the vehicle horn.

Keith Lankfordsays:

Horn Honking

Hello
I am Keith Lankford, I have information that might be useful relating to your article on car horns, alarms etc.
I am the 911 grassroots organizer in Alaska from 2002-present. In 2012 I became the victim of daily stalking by federal and state government.
This stalking includes noise harassment campaigns that are directed against innocent American civilians, namely whistleblowers, political activist, etc.
There is much documentation that has been gathered about these programs over the years readily available on the internet.
These programs are ran by the FBI, NSA, Homeland Security, State and local Police, Infraguard, National Neighborhood Watch groups, etc through our nations Fusion Centers.
There are many respectable individuals who have spoken out against what is basically state funded terrorism against American civilians.
NSA whistleblowers Kirk Wiebe, William Binney, Karen Stewart, Edward Snowden have many video?s available online speaking of this.
Dr Nick Begich son of late Senator Begich and brother of ex Senator Begich has videos that help explain the electronic warfare technology also used against American civilians as it has been used against US diplomats, in crowd control weapons as well as the use seen in the Syrian and Iraqi conflicts.
Ella Free has great interviews about this with respectable individuals such as John Mcafee, etc.
Thank you
Keith Lankford

Sent from my iPhone

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