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Ninth Circuit:
Horn-Honking in Support of Protest Is Not Protected
Majority Upholds Constitutionality of California Statute Restricting the Sounding of a Horn to Ensuring Safety;
Dissenter Says Law Violates First Amendment When Applied to Person Expressing Support of Demonstrators
By a MetNews Staff Writer
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—CN Demonstrations took place every Tuesday from 2017-18, outside the building in Vista where U.S. Rep. Darrell Issa had his field office when he represented California’s 49th District (now representing the 48th District). One protester left the rally on Oct. 17, 2017, and honked as she passed the demonstrators, drawing a citation for violating a state law limiting horn-use. The constitutionality of that law was upheld Friday by the Ninth U.S. Circuit Court of Appeals in a 2-1 decision. |
The Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, on Friday rejected a challenge to the constitutionality of a California statute under which a woman was given a ticket by a sheriff’s deputy for honking her horn in support of a political protest.
Horn-honking can constitute a form of expression, Ninth Circuit Judge Michelle T. Friedland said in her majority opinion, but noted that the statute is content-neutral and, as such, she wrote, is subject to intermediate scrutiny. Under that test, she concluded, it passes muster in light of the state’s legitimate interest in traffic safety.
District Court Judge Edward R. Korman of the Eastern District of New York, sitting by designation, joined in Friedland’s opinion while Ninth Circuit Judge Marsha S. Berzon dissented, arguing that honking a horn to show support for a protest is protected by the First Amendment.
Protest Against Issa
The demonstration took place on Oct. 17, 2017, outside U.S. Rep. Darrell Issa’s field office in Vista, located in San Diego County. About 300 persons gathered every Tuesday from 10 to 11 a.m. to protest the Republican lawmaker’s pro gun-rights stance.
Susan Porter, a resident of Oceanside, regularly participated in such displays of opposition, and had done so on the date in question. As she departed in her automobile, she drove past the demonstrators and honked her horn in support of their cause.
She was pulled over and issued a citation by San Diego sheriff’s deputy Kyle Klein. Porter had violated Vehicle Code §27001, which harks to a law enacted in 1913.
It provides:
“(a) The driver of a motor vehicle when reasonably necessary to ensure safe operation shall give audible warning with his horn.
“(b) The horn shall not otherwise be used, except as a theft alarm system.”
Lawsuit Brought
Porter brought an action in the U.S. District Court for the Eastern District of California on June 11, 2018. Her pleading sets forth:
“This Complaint seeks declaratory and injunctive relief to protect and vindicate the rights of the concerned citizens of the City of Vista and other communities within California against unconstitutional enforcement of California Vehicle Code § 27001 to silence expression in support of political protests and otherwise. By prohibiting numerous uses of a vehicle horn for expressive purposes, regardless of noise level or impact on traffic safety, the statute violates the First Amendment of the United States Constitution and Article I, § 2 of the California Constitution.”
Named as defendants were the then-sheriff of San Diego County and the then-California Highway Patrol commission, each of whom has been replaced as a defendant by his successor.
Although Porter’s citation had been dismissed on Feb. 5, 2018, after Klein failed to appear in court, the matter is not moot, Friedland said, declaring:
“We hold that Porter has standing to challenge that law because, ever since she received a citation for impermissible horn use, she has refrained from honking in support of political protests to avoid being cited again.”
‘Expressing Honking’
Addressing the merits, Friedland said:
“Of course, a honk is just a noise, so it may not always be understood—indeed, it may be particularly susceptible to being misunderstood given the inflexibility of the medium. A driver honking while passing by a protest might be expressing support, expressing disagreement, or signaling to another driver that continuing to change lanes could cause an accident. But the nature and circumstances of the honk will sometimes provide the necessary context for the message intended by the honk to be understood. Although we do not define today the full scope of expressive honking, we hold that enough honks will be understood in context to treat Section 27001 as prohibiting some expressive conduct.”
Explaining why intermediate scrutiny is appropriate, the jurist wrote:
“Porter does not argue that Section 27001 is justified by anything other than the safe operation of motor vehicles and noise reduction, nor does she argue that the California legislature was motivated by disagreement with any particular expressive use of the vehicle horn. Aware of no evidence that would have supported such arguments, we proceed to evaluate Section 27001 as a content-neutral law, applying intermediate scrutiny.”
Legitimate State Interest
Apply that level of scrutiny, she found the statute to be in furtherance of a legitimate governmental interest, explaining:
“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.”
The statute is, Friedland said, narrowly tailored to achieve its objective. It does not preclude the expression of views, she observed, pointing out:
“As Porter herself has done on numerous occasions, drivers can park their cars and attend political demonstrations on foot. They can also express agreement with protestors from their cars by waving, giving a thumbs up, or raising a fist as they drive by. They can put bumper stickers on their cars.”
Berzon’s Dissent
Berzon said in her dissent:
“I would hold that Section 27001 is unconstitutional as applied to political expressive conduct such as Porter’s. The majority’s fundamental error, in my view, in concluding otherwise is that it does not sufficiently focus on the specific type of enforcement at the core of this case—enforcement against honking in response to a political protest.”
She went on to say:
“It is important to clarify…that honking at a political protest is a core form of expressive conduct that merits the most stringent constitutional protection, and is, in that respect, qualitatively different from warning honks and other forms of vehicle horn use.”
The dissenter wrote that “much honking is just noise, not First Amendment-protected communication” but that honking while passing a demonstration “is a use of a vehicle horn that definitely does constitute message-conveying expressive conduct and so merits First Amendment protection.”
Delivering Message
Berzon continued:
“When Susan Porter honked while passing a protest against U.S. Representative Darrell Issa, she was not just making noise to attract attention. She was conveying a distinct message—agreement with the protesters’ objections to Darrell Issa’s stance on gun control. And that message was understood, as the protesters cheered when she beeped. The protesters did not have to be startled into looking up to understand what Porter was honking about: in the context, they understood the message immediately.”
She maintained that §27001 “violates the First Amendment because Defendants have not shown that the statute furthers a significant government interest as applied to political protest honking, and because the statute is not narrowly tailored to exclude such honking.”
The case is Porter v. Martinez, 21-55149.
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