Horn-Honking and the First Amendment

California law provides,

(a) The driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his horn.

(b) The horn shall not otherwise be used, except as a theft alarm system.

The Ninth Circuit upheld this law earlier this month, against a challenge brought by a driver who wanted to honk her horn as an expression of support for political process. The court, in Porter v. Martinez (opinion by Judge Michelle Friedland, joined by District Judge Edward Korman, with a dissent by Judge Marsha Berzon), generally reasoned that the law was a content-neutral restriction on expression, and is narrowly tailored to the substantial government interest in traffic safety:

There is nothing novel about Section 27001's traffic-safety justification—in fact, it seems the California legislature had traffic safety in mind when it first enacted a version of Section 27001 in 1913. That early version of the law prohibited honking "for any purpose except as a warning of danger." . The traffic-safety justification for restricting the use of the horn can also be seen in the vehicle codes of at least forty other states, indicating a near-nationwide consensus on the need for such laws. This long history and consensus, coupled with the common-sense inference that the horn's usefulness as a warning tool will decrease the more drivers use it for any other function, support the State's asserted interest in traffic safety.

There's now a petition for en banc rehearing, filed by Porter's lawyer, David Loy of the First Amendment Coalition (a group that I've often represented in Amicus Brief Clinic cases); here's the Introduction:

As drivers commonly do without inci1dent, Porter beeped her horn to support a protest. After being cited for doing so, she brought this First Amendment action. Over Judge Berzon's dissent, the panel majority upheld a ban on expression in a public forum without a single fact showing the expression causes any risk of harm. The majority relied on fact-free conjecture by an "expert" and disregarded facts showing political horn use causes no hazard.

The First Amendment requires the government to prove hard facts before restricting speech. Rule 702 requires a foundation that expert opinion is reliable. By endorsing censorship based on conjecture and admitting speculative opinions from "experience" with no showing of reliability, the majority decision conflicts with the Supreme Court, this Court, and multiple other circuits. It confuses the law, threatens freedom of speech, and opens the door to unreliable opinions whenever a purported "expert" asserts "experience," from product liability actions to personal injury cases to prosecution for numerous offenses. Rehearing en banc is warranted to harmonize this Court's precedent on these vital issues.

An interesting issue; we'll see soon whether the Ninth Circuit agrees to hear the case en banc.

Comments

[grb]

Any chance we'll see a post named, "Government Retaliation and the First Amendment"? I'd love to read an analysis of Disney's case against DeSantis and this would seem to be the place.....

[Kazinski]

I think the legislature can make political decisions, even in retaliation, as long as they don't discriminate against a protected class, perform an illegal taking, violate due process or equal protection.

If your theory of political retaliation is correct then that means the legislature can't politically favor groups that have used first amendment protected speech to gain favor with the majority party too. That's going to surprise a lot of people and void a lot of legislation.

And I'm going out on a limb and say there were probably some political contributions, first amendment protected speech to be sure, Disney made before the Reedy Creek district was established to gain the legislatures favor and get the special favor of their own self governing district.

And the fight, at least legally, can't be boiled down to just DeSantis v Disney, because DeSantis didn't even have to sign the legislation to for it to become law.

[Eugene Volokh]

I've blogged quite a bit about such matters before, most recently with regard to NRA v. Vullo. But while the NRA v. Vullo cert. petition, on which I'm one of the lawyers, is pending, I'm reluctant to opine further on cases that raise similar issues -- I don't want to be in a position where I can't give a candid assessment of a case (here, the Disney case) because of my commitment to advocate for a party in another case; and if it so happens that my views on the two cases coincide, I don't want to be in a position where people think that my assessment of one case is skewed by my stance on the other.

Now sometimes I can avoid that, for instance if I had written extensively on the subject beforehand, so it's clear what my positions would be. But in this situation, I'm inclined to stick to minimalist coverage of the NRA v. Vullo filings (I post the material but don't opine further), and to not express my opinion on the Disney v. DeSantis litigation. Again, all that is just so long as NRA v. Vullo remains pending. (Naturally, none of this would stop any of my cobloggers writing about Disney v. DeSantis.)

[Kazinski]

In terms of my assertion above that the legislature can legally retaliate by withdrawing special privileges because a previously favored corporation became disfavored, I think Vullo is different because 1) it's not the legislature, 2) NRA didn't have special privileges to be withdrawn. 3) the NRA is being denied equal protection of the laws.

[Rev. Arthur L. Kirkland]

(Naturally, none of this would stop any of my cobloggers writing about Disney v. DeSantis.)

Then what is stopping the other Volokh Conspirators from writing about Disney v. DeSantis? DeSantis v. books? Or any of the other half-dozen or so DeSantis-related issues recently prominent? The book-banning (Moms for Liberty) wave?

Fox-Smartmatic? Fox-Dominion Systems? Dominion-individual defendants? Carroll-Trump?

Tennessee's racist, censorious Republican legislators? Montana's bigoted, censorious legislators?

The consumption and transactional habits of Clarence and Ginni Thomas? The striking career trajectory of Jane Roberts (and its intersection with her husband's)? The curious transactional record of Neil Gorsuch?

The Volokh Conspirators refrain from addressing these and similar points (while this blog supplies a remarkably steady stream of content from the drag queen/transgender sorority drama/lesbian/transgender bathroom/Muslim/transgender parenting beat). A discussion of this point would be welcome. So long as these law professors decline to comment, however, the obvious answers are cowardice, partisanship, and hypocrisy, with a side of bigot-hugging.

[TwelveInchPianist]

Here's a decent analysis.

[Kazinski]

Yep, Dilan did a good job on that, and not just because he agrees with me.

A valid act by a legislative body just isn't the same as an executive or appointed official singling out one person for special action and enforcement.

But when you read all the analysis about Disney's first amendment rights it's nice to know Citizen's United has been embraced by everyone now, it's gone from being reviled by at least half the country and denounced by Obama in the SOTU, to wisdom for the ages.

[Ridgeway]

So can "Honk if you're horny!" bumperstickers be banned as an incitement to imminent lawless action in CA? The world will be a far duller place if people can no longer demonstrate their horniness via horn-honking. ):

[John F. Carr]

Most of these laws only apply on public roads. It may be legal to honk at a fellow Walmart customer in the parking lot.

[darkknight9]

Kind of a drag to think of never being able to honk when someone drives by with the "just married" regalia on the ole vehicle.

[Dr. Ed 2]

If everyone is blowing the horn, it will be ignored in an emergency.

[Mr. Bumble]

Now you sound like Dr. Karen.

[Frank Drackman]

Keep honking your horn and you'll go blind.

Frank "honks every day"

[Purple Martin]

Ah, so Dr. Ed is the expert witness arguing: "...the common-sense inference that the horn's usefulness as a warning tool will decrease the more drivers use it for any other function."

Of course, that issue was addressed in the petition for en banc rehearing:

...the panel majority upheld a ban on expression in a public forum without a single fact showing the expression causes any risk of harm. The majority relied on fact-free conjecture by an "expert" and disregarded facts showing political horn use causes no hazard.

The First Amendment requires the government to prove hard facts before restricting speech. Rule 702 requires a foundation that expert opinion is reliable. By endorsing censorship based on conjecture and admitting speculative opinions from "experience" with no showing of reliability, the majority decision conflicts with the Supreme Court, this Court, and multiple other circuits. It confuses the law, threatens freedom of speech, and opens the door to unreliable opinions whenever a purported "expert" asserts "experience..."

Those last dozen words could have been written expressly to highlight a...substantial...number of of Ed's comments here.

[ToddR]

Does the statute really read, "to insure?"

[John F. Carr]

"Insure" can be used to mean "ensure". Such use is in decline.

[John F. Carr]

How would you design a study that is reliable, admissible, and persuasive to a skeptical judge?

[Dr. Ed 2]

UMass actually could -- they have a driving simulator that shows the effect of distraction, without real injuries.

[Juste Milieu]

You've got to be kidding. How much "evidence" would one need that sounding a signal for any purpose other than either of the only two limited purposes allowed by law will be mistaken by those who hear it as signaling in accordance with one of the authorized purposes? False alarm much?

[JHR]

If it's so obviously true, then it shouldn't be hard for the government to prove it. That's how the First Amendment works. No proof, no speech restrictions.

[Old Smokin' Egg]

I've got a device that mimics the sound of a police/fire/ambulance siren, and I sound it as I drive around town in my car festooned with stickers and signs proclaiming that "$ISSUE is a national emergency!" Since it's a form of political speech, do I have a First Amendment right to sound my siren despite laws restricting their use to government-authorized emergency vehicles?

[Purple Martin]

Seems it could be an issue for finders-of-fact to present to a jury (OK, more the examples in this case in this post than your exaggerated extreme). And, as JHR said in the comment you replied to: "...then it shouldn’t be hard for the government to prove it.

[Noscitur a sociis]

If it’s so obviously true, then it shouldn’t be hard for the government to prove it.

It's wasn't hard for the government to prove it.

[JHR]

Yet another example of why Austin is problematic. Lower courts have just taken it to mean that Reed is overruled.

Here's another way of analyzing the law: It's essentially a categorical time/place/manner restriction that says don't make loud and obnoxious noises on the roads, regardless of why. But it has a narrow exception for warning of danger. That could be viewed as simply a codification of the doctrine of necessity: You always have a common law right to disregard a law when necessary to preserve life and limb. That doctrine doesn't make an otherwise content-neutral time/place/manner restriction content-based.

[Jason Cavanaugh]

The fact that they identified it as 'political' honking should have sealed the deal in favor of the First Amendment.

If it didn't convey a message, they would have referred to it as just 'honking.'

[Kazinski]

No, because it's noise pollution, which can be as detrimental to health as other pollution.

If someone were doing political "coal rolling" would that also be a slam dunk argument that it's legal?

Nope it's illegal for any purpose, even if one might argue that it's de minimus pollution quicky dissapates and has no long-term effects.

Content neutral health and safety laws are evaluated on a rational basis, and there is certainly a rational basis for this law.

[HumanoidAnderoid.]

It's a perfect demonstration of why enforcement discretion is necessary for society to work: a law that says honking should be limited to emergency situations is obviously valid exercise of police powers, and a police officer that cites someone for honking in support of a political protest is a frigging moron.

[Dilan Esper]

Right. There's certainly an argument that this is no different than a law that requires the volume be turned down on the sound trucks.

[Jason Cavanaugh]

I can see where you're trying to come from, but 'coal rolling' is never legal, and I don't think it's an appropriate analogy to a car horn based on the effects of exposure from each.

[el jaguar]

Back in 2001/2002 there were large pro-Israel protests at the Federal Building in Los Angeles, with constant honking throughout the day. I worked from home in an apartment across the street and it was like being stuck in a cell in Abu Ghraib. I kept a tally of every honk and used that to determine how much money I'd donate to a Palestinian charity at the end of each month. Wish they had enforced the law back then.

[John F. Carr]

Listen to Aaron Naparstek's talk "Honku" on "The Moth" show. He got sick of illegal honking and did something about it.

[Krayt]

Honk if you like irritating people who choose to live near a road!

[Frank Drackman]

See "Problems, First World"
I had the same problem when I did my Surgical Internship in Atlanta, except it was N-words playing loud rap music, and I was sleeping in my Apartment the few hours I wasn't working at the Hospital. I didn't keep a tally, and didn't make enough money to give to the Order, NAAWP, or the Grand Daddy of White Surpremercist Groups, the DemoKKKrat (even has "KKK" in their name) party,

Frank

[Bored Lawyer]

"and it was like being stuck in a cell in Abu Ghraib"

Doubtful.

[santamonica811]

One assumes hyperbole, for the purposes of illustrating and emphasizing a point.

I think that an unfortunately-large percentage of us have lived in apartments at one point or another. So, we've all be subjected at least once to a car alarm blaring for 3 minutes till it shuts off . . . and then resumes its blaring rhythm again 7 seconds later. Inescapable honking could easily become incredibly bothersome. (I don't think that people are thrilled about the one-off 3:00 am car honk that occasionally happens; but we're not apoplectic about them either. It's the endless repetition that burrows into our brains.)

[Old Smokin' Egg]

I can see two ways in which promiscuous honking would cause problems.

First, someone hearing a random horn might take it for a warning honk and transfer their attention to the direction from which it’s coming, thus taking their attention away from more critical zones. For instance, if I hear a honk off to my right, I might look that way and, in the second it takes to do so, not see that the driver in front of me has stomped on his brake, leading me to rear-end him.

Second, there’s the crying-wolf situation. If random honking is sufficiently common, I’ll no longer pay any attention to it, and will ignore the frantic honking coming from the guy on the cross-street who’s just discovered that his brakes have failed. I blithely drive into the intersection, where I’ve got the right of way, and one of us T-bones the other.

[Krayt]

I hate driving with the radio on, and I hear a honk, or worse, screetching tires coming over the radio. Now that’s dangerous, not just irritating. Some songs do have these things in them.

Your brain doesn’t have time to ponder if it is coming through the radio before starting to avoid whatever.

[Old Smokin' Egg]

I agree. For that matter, a local radio station ran an ad that included the beeping of a truck backing up, causing me to look around frantically to see where the truck was an if I was in its path.

[Mr. Bumble]

Is there a difference between tooting your horn and leaning on it?

[santamonica811]

Great point. There's absolutely a difference. I've passed by literally hundreds of various protests over the years, and every single supporter toots his horn once, or a handful of times. I've NEVER experienced anyone leaning on his horn in those locations. People toot their horn for the 3-7 seconds it takes to pass the location, and then they resume their ordinary, honking-free, driving behavior.

[Alpheus W Drinkwater]

Is there really ever a safety-related reason for a driver to honk a horn? As someone who literally never uses his car horn, I'm skeptical. When the person in front of you at the traffic light doesn't drive soon enough after the light turns green, that isn't a safety-related reason.

I guess that question doesn't have much to do with the 1A question.

[Artifex]

Absolutely. I can think of three occasions in which I have honked.

1. The driver in front of me is so engrossed by their cell phone that they miss the light turning green.

2. In a parking lot when someone is backing in to me.

3. On the road when some one is performing a lane change without looking and I need to make them aware I am in their blind spot.

[Mr. Bumble]

...and of course the old Chuck Berry line "tooted my horn for the passing lane" which is completed ignore and replaced with bumper riding tail gating.

[Artifex]

Also:

When the person in front of you at the traffic light doesn’t drive soon enough after the light turns green, that isn’t a safety-related reason.

While you might be able to make this argument in a more libertarian society, it should be noted that many progressive places consider it enough of a safety hazard that they will send the guys with uniforms and guns after you should you use your cell phone in the car.

[Alpheus W Drinkwater]

I don't consider 1 or 2 to be safety related. As for 3, I would argue honking your horn is the least effective action you could take. Usually too little too late.

[David Nieporent]

When the person in front of you at the traffic light doesn’t drive soon enough after the light turns green, that isn’t a safety-related reason.

It certainly is. My honking protects the driver in front of me from getting his head smashed in with a baseball bat.

[Alpheus W Drinkwater]

Okay, THAT one I'll accept!

[jorgyusa]

What about specialty horns with unique sounds, like wolf whistles and ahooga horns. These horns are commonly used in all states including California to say hello, or goodbye or your are attractive, etc. I have a 1930 Ford with an ahooga horn and people absolutely love the sound and wave and scream yea when they here it. Owners of these older cars frequently honk their horns for fun, and yes in California too. Are we all criminals?

The fact that this law is not (nor can it be) regularly enforced should be enough to get rid of it.