No Constitutional Right To Honk Your Car Horn, Court Says
Plus: DeSantis does better than Trump in swing-state poll, majority say abortion pill should remain available, and more...
A federal appeals court says honking isn't First Amendment–protected activity. There's no constitutional right to honk your car horn, according to the U.S. Court of Appeals for the 9th Circuit.
The case involves Susan Porter, who repeatedly honked her car horn while driving past protesters in California in 2017. A deputy with the San Diego County Sheriff's Office issued Porter a ticket, saying she had violated a state law against misuse of car horns.
Porter pushed back, filing a federal lawsuit in 2018. In it, she alleged that honking her horn in solidarity with the protesters was protected First Amendment activity and that the California law used to ticket her—which prohibits using a car horn except "when reasonably necessary to insure safe operation" or when used "as a theft alarm system"—was unconstitutional.
A U.S. district court ruled against Porter, and now the 9th Circuit has upheld that lower court's ruling. For "the horn to serve its intended purpose as a warning device, it must not be used indiscriminately," wrote Judge Michelle Friedland for the majority.
But 9th Circuit judge Marsha Berzon thinks her colleagues got it wrong. In her dissent, Berzon noted that California cops are taught to use discretion when enforcing the horn-honking law, which could lead to selective (and discriminatory) enforcement. And Berzon scoffed at the idea that Porter honking while driving past a protest would be confused for anything but political speech.
"A political protest is designed to be noticed," wrote Berzon. "Political honking was hardly a significant source of noise or distraction in that environment. There is no basis for supposing that anyone was confused or distracted by the honking. Instead, Porter's honking was understood as political expression by the protesters, who cheered in response."
"Berzon also blasted the lower court's reliance on expert testimony by California Highway Patrol Sgt. William Beck," notes Courthouse News:
Beck said that car horns can startle and distract drivers and, if they're used indiscriminately, can "dilute the potency of the horn as a warning device." Berzon said Beck's testimony and the examples he gave amounted to opinion, not scientific fact.
"In none of these examples did Beck report any actual danger created by the honk. And, in any case, those examples were based on Beck's personal experience, no different from anyone else's experience with horn honking and so unrelated to any 'scientific, technical, or other specialized knowledge' or experience," Berzon wrote.
Plus, Berzon added, the point of a protest is to make noise to call attention to a cause or an issue—making it a free speech issue.
First Amendment Coalition legal director David Loy told The Washington Post that the court's decision "punishes a very common and ordinary form of political expression that people engage in every day."
"I was shocked that [California] law prohibits a common and widespread means of political, social, and personal expression," Loy said in a February interview on his group's website. "The government should not be stifling a critical form of expression, especially when public-health restrictions can curtail other means of assembly and protest, as we've sometimes seen during the COVID-19 pandemic. The statute at issue, Cal. Vehicle Code § 27001, allows horn use to give a warning but prohibits it to communicate any other message. As applied to expressive horn use, that is the essence of unconstitutional content-based discrimination."
California isn't alone in restricting expressive honking. Court rulings on these laws have been mixed, as Belmont law professor David L. Hudson, Jr. points out.
In a 1998 case, the Montana Supreme Court said protest-oriented honking "did not constitute a protest to government of government acts which would be entitled to protection under the First Amendment." A federal court in New York has also rejected the idea that horn honking is protected expressive conduct.
"However, at least one lower court has recognized a free expression challenge to a horn-honking law, albeit on state constitutional law grounds," Hudson notes. "The Oregon Court of Appeals, in City of Eugene v. Powlowski (Ore. App. 1992), ruled that a city law prohibiting horn honking for purposes other than a reasonable warning to another vehicle violated the free expression guarantee of Article 1, section 8 of the state constitution."
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DeSantis does better than Trump in swing-state poll. A new poll from Public Opinion Strategies suggests Florida Republican Gov. Ron DeSantis is more popular among swing-state voters than is former President Donald Trump. The poll suggests that in Arizona and Florida, DeSantis (who has not announced—yet—that he is running for president) could beat President Joe Biden but Trump could not.
In a hypothetical 2024 presidential matchup, 48 percent of Arizona poll respondents preferred DeSantis to President Joe Biden, who was preferred by 42 percent. In Pennsylvania, the divide was 45 percent to 42 percent.
In a hypothetical contest with Trump, Biden was victorious—though it was very close. In Arizona, 46 percent said they would vote for Biden and 42 percent said they would vote for Trump. In Pennsylvania, 45 percent said they would vote for Biden and 44 percent said they would vote for Trump.
A FiveThirtyEight analysis of Biden's approval ratings shows that the current president isn't much more popular than his predecessor. Biden's average approval rating is currently 43 percent, which is just one point above Trump's average approval rating in April 2019.
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Most Americans say the abortion pill mifepristone should remain available. In a CBS/YouGov poll conducted April 12–14, poll respondents were asked, "With regard to the abortion pill, would you like to see this medication continue to be available in states where abortions are legal or become unavailable, even in states where abortion is legal?" Sixty-seven percent said it should remain available in states with legal abortion, while just 33 percent said it should not.
At the same time, most respondents think the Biden administration should comply if a federal court tells the Food and Drug Administration to withdrawal its approval of mifepristone. But the divide was small: Fifty-two percent of those polled said the administration should "follow the ruling, and withdraw approval of the abortion pill," while 48 percent said it should "ignore the ruling."
Asked about the effect of a mifepristone ban on U.S. abortions, only 20 percent said it would be likely to "stop a lot of abortions." Around a third said it would not stop any abortions, while 47 percent said it would stop some.
The poll also asked whether states with abortion bans should "criminally punish women who travel to other states to have an abortion." The response was overwhelmingly negative, with 76 percent of respondents saying they should not.
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