Honking at a protest isn’t free speech, California judges rule. Driver loses appeal

A woman who was cited for honking 14 times at a protest claimed that “expressive horn use” was her First Amendment right.

California appeals court judges disagreed.

In a majority opinion, judges for the U.S. 9th Circuit Appeals Court ruled in favor of the state, which said that honking a car horn is prohibited “except when reasonably necessary to warn of a safety hazard,” according to the court’s decision filed April 7.

In 2017, the driver, Susan Porter, drove past a group of demonstrators protesting U.S. Rep. Darrell Issa, a Republican from California’s 48th District, and honked her horn 14 times, according to the decision. A San Diego County sheriff’s deputy pulled her over and cited her for misuse of a vehicle horn.

The protest was of one of many held outside Issa’s office in Vista every Tuesday for more than a year after the inauguration of Donald Trump, according to The Mercury News. The events drew demonstrators “both for and against Trump, Issa and Republican policies,” the outlet reported. Vista is about 40 miles north of San Diego.

Although Porter’s citation was later dismissed because the deputy did not attend her traffic court hearing , she filed a lawsuit to try to block the state from enforcing the horn honking statute in the future. Porter claimed that the law infringed upon her right to “expressive horn use,” including “honks not only to support candidates or causes but also to greet friends or neighbors, summon children or co-workers, or celebrate weddings or victories.”

She testified that, since being cited, she has been afraid to use her horn as a means of expression, for example, to show support for veterans when driving past a banner on the highway that says “Support our Veterans” or showing solidarity with demonstrators at political protests.

But a witness for the state, California Highway Patrol Sgt. William Beck, testified that horn honking can create hazards by “startling or distracting drivers and others,” the decision says. He also said that a horn’s ability to serve a warning for other motorists would be “diminished” if people were able to use their horns for purposes “unrelated to traffic safety.”

Judge Michelle Friedland, who wrote the court’s majority opinion, agreed with Beck and wrote that a horn could not be used “indiscriminately” if it’s meant to serve as a warning device.

But she also agreed with parts of Porter’s testimony and wrote that some examples of honking prohibited by state law could be considered expression under the First Amendment. For example, when Porter honked at the group of protesters, the crowd cheered, showing that they understood her intended message of support, the decision says.

But a honk is “just a noise,” the decision says, “so it may not always be understood — indeed, it may be particularly susceptible to being misunderstood given the inflexibility of the medium.”

Because state law prohibits all honking that is not related to traffic safety and doesn’t make a distinction about what message the driver is trying to convey, the law doesn’t discriminate based on the “content of the expression,” according to the decision. Laws that limit speech based on content are presumed unconstitutional and must be strictly scrutinized.

“(The law) does not single out for differential treatment, for example, political honking, ideological honking, celebratory honking, or honking to summon a carpool rider,” the decision says. “Instead, the law ‘applies evenhandedly to all who wish to’ use the horn when a safety hazard is not present.”

But Judge Marsha Berzon, who wrote the dissenting opinion, called honking at a political protest a “core form of expressive conduct that merits the most stringent constitutional protection.”

She also disagreed with Beck’s testimony that improper use of car horns can create dangerous situations on the road.

When asked for information about what he based that opinion on, “He did not provide a single example of an accident caused by any type of horn honking, let alone honking in support of a political protest,” Berzon wrote.

Porter’s lawyer, David Loy, who is the legal director of the First Amendment Coalition, told McClatchy News that the majority opinion was upheld without the evidence required by the First Amendment.

“The government is not typically allowed to tell you that you can’t express yourself in a certain way unless they can prove that what you’re doing is actually causing some harm,” he said.

This decision, he said, could lead to government officials being empowered to censor speech based on speculation.

But overall, the court’s majority agreed that the state’s law on honking is intended to advance “California’s substantial interest in traffic safety” and not aimed at quashing certain forms of expression.

Loy said he and his client have until April 21 to decide whether they want to bring the case to the full 9th Circuit Court of Appeals.

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