Civil Liberties

Judge: Flashing Headlights To Warn of Speedtraps Is Protected by the First Amendment



Just last week, I passed a Yavapai County Sheriff's Office car parked along a rural stretch near absolutely nothing other than an intersection with unpaved track. He pulled out, turned on his lights, then sped by to pull over the guy in front of me who had been exceeding the ridiculously low speed limit by just a bit more than me. I passed on, then flashed my headlights at the next two cars I saw as a friendly warning. Cops don't necessarily like it when you do that, but I think it's common courtesy. Yet another federal judge just chimed in to say that it's also protected free speech.

In 2012, Missouri resident Michael Elli was pulled over and handed a $1,000 ticket for passing along just such a warning to motorists about a speedtrap. While the charges were dropped, he promptly sued Ellisville, Missouri, for its speech-discouraging ways.

Yesterday, he won.

U.S. District Court Judge Henry E. Autrey pointed out (PDF) in his decision that Ellisville's ordinance forbidding any sort of flashing of lights by vehicles other than buses directly contradicts Missouri Department of Revenue (which licenses vehicles in the state) advice that lights should be flashed to signal emergencies. More importantly, people have the right to communicate with each other on the road.

Defendant suggested that flashing head lamps might be illegal interference with a police investigation; however, the expressive conduct at issue sends a message to bring one's driving in conformity with the law—whether it be by slowing down, turning on one's own headlamps at dusk or in the rain, or proceeding with caution… Even assuming, arguendo, that Plaintiff or another driver is communicating a message that one should slow down because a speed trap is ahead and discovery or apprehension is impending, that conduct is not illegal.

Ellisville officials promised, cross their hearts and hope to die, that they would stop enforcing their law against First Amendment protected speech. Judge Autrey found that unconvincing.

The chilling effect of Ellisville's policy and custom of having its police officers pull over, detain, and cite individuals who are perceived as having communicated to oncoming traffic by flashing their headlamps and then prosecuting and imposing fines upon those individuals remains, regardless of the limited special order. As the other preliminary injunction factors are presumed when a likelihood of success on a First Amendment claim is shown, the Court will issue a preliminary injunction.

Elli is represented by the ACLU of Missouri, which seeks to have the injunction made permanent—and the lesson that motorists can warn each other about speedtraps if they damned well please shared with law enforcement everywhere.