Is flashing your car’s headlights protected by the First Amendment?

Missouri resident Michael Elli wanted to let others on the road know to slow down because they were about to drive into a speed trap, so he did what many kindhearted souls do: He flashed his headlights as a warning.


Police didn’t take at all kindly to warnings of this 21st century Paul Revere. They flashed him a ticket of his very own for obstruction of justice. Prosecutors eventually dropped the case, but Mr. Elli has now filed a class action lawsuit against the city because he says that the city retaliates against drivers who exercise their right to free speech–and that the government is trying to prevent it because it doesn’t like the message.

Under the law, obstruction of justice is generally defined as an attempt to interfere with the administration of the courts, the judicial system or law enforcement officers.

So if a person is aware of a confidential, ongoing investigation and tells the subject of the pending investigation, he or she may be guilty of obstruction of justice.

A former Key West bank officer pleaded guilty this past May to a charge that she received a grand jury subpoena, was told that it is a federal crime to disclose a federal grand jury subpoena received by a financial institution, but notified the subjects of the investigation. She faces up to five years in prison for the violation.

But the line between obstructing justice by advising others of an ongoing investigation and an individual’s right to free speech can be very murky.

This issue has popped up in several states where the police conducting a speed trap have not taken kindly to those who warn the oncoming speed demons. Courts in Florida, Utah, and Tennessee have all examined the question of whether the act is obstruction of justice or a form of protected speech and have found that it’s protected speech, and that the (headlight) flasher cannot be prosecuted.

But when motorists who had been prosecuted but later had their charges dropped then tried to sue the police for money for the wrongful prosecution, they have been far less successful.

A father and son in Florida who tried to sue the state of Florida in a class action lawsuit on behalf of all drivers given a ticket lost their lawsuit because the state government had rewritten its policy in the interim to train officers not to write such tickets.

So it’s no surprise that the charges against Mr. Elli were tossed; winning a lawsuit against the city for filing them in the first place may be more revolutionary.

Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the general counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

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