First Amendment

Is honking your car horn expressive conduct protected by First Amendment? 9th Circuit weighs in

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A federal appeals court has upheld a California law that bans honking your car horn—except when reasonably needed to warn of a safety hazard.

The 9th U.S. Circuit Court of Appeals at San Francisco ruled April 7 against Susan Porter, who was cited for honking her horn in support of protesters.

Porter had contended that the law violates the First Amendment because it is a content-based regulation that is not narrowly tailored to address a compelling government interest.

Porter had honked her horn “in three clusters of short beeps, for a total of 14 beeps,” the 9th Circuit said.

The appeals court found no First Amendment violation in a 2-1 decision. Judge Michelle T. Friedland, an appointee of former President Barack Obama, wrote the majority opinion.

The majority said horn honking can carry a message in some circumstances, and the honking law bans some expressive content. But the appeals court said the law draws a line based on the factual situation, rather than the content of the expression, making it a content-neutral law.

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

The law is narrowly tailored to further California’s interest in safety and satisfies the First Amendment, the 9th Circuit concluded.

The state had relied on testimony by a 24-year police veteran who said improper use of a horn can startle or distract drivers and others. He also said the usefulness of a horn as a warning device would be diminished if officers couldn’t enforce the law.

The appeals court agreed that the more that horns are used for nonwarning purposes, the less that people can rely on the sound as an alert to imminent danger. In support of that idea, the appeals court cited an oft-told tale: The Shepherd Boy and the Wolf in Aesop’s Fables.

Judge Marsha S. Berzon dissented. She would that hold the law violates the First Amendment because it is not narrowly tailored to exclude political protest honking from the banned conduct.

Hat tip to Law360, which covered the ruling, and How Appealing, which linked to the decision.

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