The Volokh Conspiracy
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From Obriecht v. Splinter, decied yesterday by Magistrate Judge Stephen L. Crocker (W.D. Wis.):
In a brief argument, defendants contend that because Obriecht's conduct was intended to warn oncoming drivers of a covert law enforcement operation and facilitated the crime of speeding, it does not fall within the protection of the First Amendment. Although defendants cite some cases involving speech that urges or advocates the commission of a crime or instructs others how to commit a crime, they rely on only two cases in making their crime-facilitation argument: (1) Haig v. Agee, 453 U.S. 280, 308-90 (1981), in which the Supreme Court held that an ex-CIA agent's repeated disclosures of intelligence operations and the names of intelligence personnel were not protected speech under First Amendment because of the "substantial likelihood of 'serious damage' to national security or foreign policy"; and (2) U.S. v. Lane, 514 F.2d 22, 26-27 (9th Cir. 1975), in which the Ninth Circuit concluded that a criminal defendant who warned a drug ring of an impending police raid was guilty of aiding and abetting a conspiracy to sell drugs. Although Haig involved a First Amendment challenge, there was no First Amendment claim in Lane, and the court of appeals in that case did not analyze whether the defendant's conduct could be considered protected speech.
The crux of defendants' argument is that much like warning others about intelligence operations or an impending police raid, the message that Obriecht conveyed helped others commit an illegal act without getting caught. However, at most, Obriecht's actions may have prevented the State Patrol from apprehending a few would-be speeders. Obriecht's warning did not present the same national security concerns at issue in Haig or form an integral part of the crime as in Lane. Compare United States v. Twinn, 369 F. Supp. 2d 721, 724-25 (E.D. Va. 2005) (citing Haig in support of finding that defendant's identification of undercover police officer not protected by First Amendment because defendant intended to interfere with known investigation of illegal sexual solicitation). As the Supreme Court has made clear, "the prospect of crime … by itself does not justify laws suppressing protected speech." Ashcroft v. Free Speech Coal., 535 U.S. 234, 245 (2002) (citing Kingsley Int'l Pictures Corp. v. Regents of Univ. of N.Y., 360 U.S. 684, 689 (1959) ("Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech" (internal quotation marks and citation omitted)). See also NAACP v. Claiborne Hardware, 458 U.S. 886, 909-10 (1982) (knowingly publishing names of people who were not complying with boycott was constitutionally protected, even though some non-participants had been violently attacked and publication clearly could facilitate such attacks).
"No Supreme Court case squarely deals with crime-facilitating speech." Crime-Facilitating Speech, 57 Stan. L. Rev. 1095, 1128 (2005) (reviewing cases and citing Stewart v. McCoy, 537 U.S. 993, 995 (2002) (Stevens, J., respecting the denial of certiorari) ("Our cases have not yet considered whether, and if so to what extent, the First Amendment protects such instructional speech.")). However, as Obriecht points out, one federal district court has addressed conduct similar to that in this case and found that it is entitled to protection under the First Amendment. Elli v. City of Ellisville, Mo., 997 F. Supp. 2d 980, 984 (E.D. Mo. 2014) ("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."). In addition, at least two state circuit courts also have found that drivers have a constitutional right to flash their headlights. See State of Oregon v. Hill, Citation No. 034117 (Jackson Cty. (Ore.) Justice Ct. Apr. 9, 2014) (flashing vehicle headlights to warn others about presence of law enforcement is protected free speech under state constitution); State v. Walker, No. I-9507-03625 (Williamson Cty. (Tenn.) Cir. Ct. Nov. 13, 2003) (accepting First Amendment defense to charge of knowingly interfering with officer where defendant flashed headlights to warn oncoming motorists about speed trap).
In sum, although the law is far from clear on this issue, defendants have failed to meet their burden of showing that Obriecht has no plausible claim for relief under the First Amendment.