Freedom of Speech

Flashing Headlights to Warn of Speed Trap May Be Protected by First Amendment

So holds a District Court decision, though stressing the "may be."

|The Volokh Conspiracy |

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.

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43 responses to “Flashing Headlights to Warn of Speed Trap May Be Protected by First Amendment

  1. So let’s say I stop to get gas and talk to another driver who is going the other way. I tell him, “Be careful. There are some troopers out about a mile down the road.”

    Surely that’s protected, isn’t it? What’s the difference?

    Besides, how can it be “crime-facilitating” when the result, if any, is to prevent a crime – speeding. If the concern is increasing public safety by reducing speeding the headline flash helps. Of course if the object is [gasp] to raise revenue then I can see why the police don’t like it. But so what?

    1. My thought exactly! If any message is being communicated here, it is, “Stop breaking the law!”

      How can the government make it a crime to advise people to stop breaking the law?

      1. Yeah, especially since the Brandenburg (sp?) test allows people to advocate actual lawbreaking so long as the advocacy isn’t too inciting.

        But saying “cut out the illegal behavior, you’ll get caught?” That’s not protected, according to the cops.

        1. “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

          https://www.law.cornell.edu/supremecourt/text/395/444

      2. Actually, flashing your headlights could encourage someone who wasn’t yet breaking the law but was considering doing so to rethink their plans. Or, it might even just warn someone who might inadvertently have increased their speed over the limit in the next 1/4 mile to be more careful not to do so.

        What’s next? Suppose you tell your daughter that if she steals a car she could get in trouble with the police. Will the government then claim that you “facilitated the crime of car theft”. After all, maybe absent that warning, she would have stolen a car and been caught.

    2. Also, wouldn’t the cops argument depend on a finding of fact that those to whom one flashed one’s lights were actually breaking the law at the time of the light-flashing.

  2. “the message that Obriecht conveyed helped others commit an illegal act without getting caught.”

    No it didn’t, it told them to stop committing an illegal act.

    1. No it didn’t, it told them to stop committing an illegal act.

      So if I’m driving at or below the speed limit and an upcoming car warns me of a “speed trap” – how is that “telling” me to stop an “illegal” act?

      There is no way an oncoming car will know how fast I’m going unless they have some specialized equipment. And police officers frequently “find” new and novel ways to pull you over even if you aren’t speeding.

      1. It’s not, but it is telling other, less law-abiding drivers, to stop speeding.

      2. “So if I’m driving at or below the speed limit and an upcoming car warns me of a “speed trap” – how is that “telling” me to stop an “illegal” act?”

        The whole issue is that if you warn oncoming traffic of a speed trap, they slow down. The reason they don’t get “caught” is because they are no longer speeding.

    2. Finally, a way to nail those criminals at MADD, who’ve spent decades warning people there are DWI checkpoints out there.

    3. A lot of cities run those automated radars that tell you your measured speed and flash a light to warn you to slow down. Must be the Department of Crime Facilitation setting them up.

      1. That’s an excellent observation! Thank you!

  3. One aspect of the state’s argument that needs to be corrected: speeding is not a crime.

    1. “speeding is not a crime.”

      In Ohio it is. A minor misdemeanor with no jail time but a criminal offense regardless.

      1. And in Texas, a class C misdemeanor again with no jail time but a maximum $500 fine instead of that puny $150 limit you have in Ohio.

  4. Also:
    Aren’t apps like WAZE equipped to allow users to point out speed traps?

    1. WAZE is spoofed by the cops, particularly on I-95.

  5. Warning of a speed trap seems to have the effect of reminding and encouraging the warned drivers to watch their speed and the speed limit, deterring the crime of speeding.

    However, the warner by deterring the crime of speeding is preventing the police from catching and ticketing speeders, and preventing the courts from collecting fines. THAT, boys and girls is the true “crime” that has the authorities upset.

  6. I agree the essential feature that distinguishes this case from the crime-facilitating speech cases is that the defendant wasn’t facilitating a crime. He may have been signaling people to slow down. But slowing down isn’t illegal. That’s the fundamental point where the analogy breaks down.

    In order for the crime facilitation speech cases to even arguably apply, the defendant’s speech has to have been facilitating a crime.

  7. “…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…”

    Likening a police officer looking for speeders to covert operations is silly. Police are in plain site. Usually they position themselves discretely relative to their target, but generally there is nothing particularly secretive about their operations to most casual observers from any other vantage point.

  8. How about the reader board signs that the state puts up saying “enforcement patrols in effect”? Is the state then interfering with themselves?

    1. The signs saying “speed checked by aircraft” would even be disclosing the means of enforcement.

  9. I happen to agree that it’s protected speech, but I can see the police’s position: when you warn a speeder to slow down, the police are unable to subject them to what they think is an appropriate amount of deterrent enforcement. The motorist may well continue to speed when warned to avoid a speed trap, rather than being deterred from future speeding by being ticketed, surcharged, and even required to attend “speeder school.” You helping him to avoid police enforcement may well abet his future speeding, which could result in injury or death to others.

    For example, a warned speeder is not likely to reason “wow, I’ve been warned, I’ll never speed again!” While a speeder subject to the justice system, ticketed, surcharged, and educated, is much more likely to reform. Chronic offenders face loss of license.

    1. I’d be a lot more sympathetic to that view if the speed limits were normally set where traffic engineers say to set them, rather than artificially low to enable revenue from speeding tickets.

      A town near my former residence had an unmarked, and thus 55mph, road going into down. Just before you hit town, on one side of an intersection, there was a prominent speed limit sign reading 35mph.

      On the other side of the intersection was a sign reading 25mph. THAT sign was behind a bush!

      Needless to say, they were nailing a lot of people for 10mph over the speed limit on that road.

    2. What difference does it make? If the point of police deterrence is to reduce dangerous speeds, isn’t the same accomplished by light-flashing civilians?

      1. Publius’ point seems reasonable to me. A ticket inflicts more pain than just slowing down for a few minutes, so it’s more likely to affect future behavior, not to mention the risk that future tickets wil bring heavier fines, higher insurance rates, and so on.

        So does Brett’s. The whole business of “you can go five miles over unless the county needs more money” is sort of silly. Set a sensible limit.

        1. I agree that silly, needlessly low speed limits are bad. See Rhode Island. It’s my understanding that speed limits were originally set by monitoring the speed that was customary on the road before the limit was set, and setting it at the average.

          Local knowledge helps. I happen to know that in my town they enforce 10+ miles over the limit, and that on the turnpike you’re O.K. as long as you don’t exceed 80 (marked 65).

          1. I don’t think that’s how speed limits were originally set. I have read that civil engineers specializing in driver safety have determined that the optimal safe speed limit is that at or under which 80% or the drivers travel.

          2. Publius, I’m also from RI and have noticed that comparable roads in CT and MA have speed limits 10 MPH faster than ours (except highway ramps in MA, which have frighteningly sharp turns).

      2. “What difference does it make?”
        The difference that it makes is exactly what I described in the comment that you replied to! Maybe you don’t get it: in one case the offender slows down, and suffers no repercussions, and there’s no record. In the other case, he’s punished, and perhaps educated, and there’s a record of his behavior so that if he offends again, he’s subjected to more sever punishment, additional education, and potentially loss of privileges.

        The police might make the case that the headlight flasher is interfering with this overall enforcement, punishment, and education process. Obstruction?

  10. You actually wrote a post about a similar case back in 2014.

    1. I recalled that as well, though this was old news.

  11. This looks like a good case for the “Let’s get rid of qualified immunity” zealots to chime in on.

  12. I was once pulled over and threatened for this, I got a ticket for a literal mike over the limit. The most infuriating part is that it was a rental van and I had just come out of a tunnel. I had no idea the Ventura cop was even there.

  13. Google Maps told/warned/advised me of an upcoming speed trap when I was using Maps to navigate to another city last weekend. Potentially criminal conduct or protected GoogleSpeech?

  14. If it’s night-time (i.e., headlights are required), does the state have a case for “unsafe operation” if the operator intentionally turns off the headlights while in motion?

    1. I think flashing one’s high-beams is de rigueur. Turning lights on and off ended with the disappearance of dashboard-mounted push/pull headlight switches. You’re showing your age. 🙂

  15. […] Flashing Headlights To Warn Of Speed Trap May Be Protected By First Amendment – Reason […]

  16. […] A federal judge has decided — albeit not very firmly — that at least one of these actions is protected by the First Amendment. Wisconsin Magistrate Judge Stephen Crocker says flashing your headlights to warn drivers of speed traps is expressive speech — something cops would be better off not trying to punish. (via Volokh Conspiracy) […]

  17. […] A federal judge has decided — albeit not very firmly — that at least one of these actions is protected by the First Amendment. Wisconsin Magistrate Judge Stephen Crocker says flashing your headlights to warn drivers of speed traps is expressive speech — something cops would be better off not trying to punish. (via Volokh Conspiracy) […]

  18. […] A federal judge has decided — albeit not very firmly — that at least one of these actions is protected by the First Amendment. Wisconsin Magistrate Judge Stephen Crocker says flashing your headlights to warn drivers of speed traps is expressive speech — something cops would be better off not trying to punish. (via Volokh Conspiracy) […]

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