Ninth Circuit Says Expressive Honking Not Protected by First Amendment

A 1908 Model T, equipped with a horn one could at one time use freely in California (image: Ford Motor Co.)

In what is purported to be a liberal stronghold where all sorts of outrageous behavior is tolerated, condoned, and even encouraged, it turns out to be illegal to honk your horn, at any time and for any purpose, unless “reasonably necessary to insure safe operation” or as a “theft alarm system.” Cal. Veh. Code § 27001.

To my horror, a panel of the Ninth Circuit has just voted 2-1 to reject a First Amendment challenge to this draconian measure.

The California statute provides as follows:

Every motor vehicle shall be equipped with a bell, gong, horn, whistle or other device in good working order, capable of emitting an abrupt sound adequate in quality and volume to give warning of the approach of such vehicle to pedestrians and to the riders or drivers of animals or of other vehicles and to persons entering or leaving street, interurban and railroad cars. No person shall sound such bell, gong, horn, whistle or other device for any purpose except as a warning of danger.

Sorry, that was the original version, adopted in 1913. That was five years after the introduction of the Model T, a revolutionary motor vehicle that was affordable, simple to operate, and durable, and which has left a timeless legacy. (NOTE: Most of the previous sentence is courtesy of Ford Motor Company, which is a client, though to my knowledge we are not currently involved in any Model-T-related litigation.) The vehicle had many new features that were unique for its time (same), and as you can see, it came with a horn. I take it that from 1908 until 1913, California was overrun by a horde of inferior vehicles equipped with no such device. I also take it, or at least want to believe, that after 1913 some vehicles were equipped with gongs large enough to be capable of emitting an abrupt sound adequate in quality and volume to give warning of said vehicle’s approach.1

That does not appear to be the case today, however, because the statute currently says this:

(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.

Still written with the California Legislature’s characteristic flair (see also Cal. Civ. Code § 3537 (“Superfluity does not vitiate”)), but it no longer mentions gongs, bells, or whistles, just boring old horns. More importantly here, it states that the horn shall be used “when reasonably necessary to insure safe operation,” and may be used as a “theft alarm system” (if one wishes to annoy residents and amuse thieves, I guess), but “shall not otherwise be used” (emphasis added).

But what if I want to use it to communicate?

Susan Porter allegedly broke this law in 2017, when she honked while driving past a protest (of which she had been a part) outside a government office. As the opinion describes it, “while departing …, [she] honked her horn in three clusters of short beeps, for a total of fourteen beeps.” She testified that these 14 beeps were intended to show support for the protest, and the crowd cheered in response, “suggesting that the group … understood her intended message.”

But one or more of these beeps had also been heard by a local sheriff’s deputy, who, needless to say, sprang into action. Bravely enforcing the mandate of section 27001, he cited Porter for misuse of a vehicle horn. But he failed to show up for her hearing, and the citation was dismissed. Perhaps suspecting the deputy’s action was something more than an impartial effort to protect the community from willful and malicious tooting, Porter sued, arguing the law was an unconstitutional restriction on what she called “expressive honking.”

The first question was whether Porter had standing to sue. “Standing” requires some sort of concrete injury (at least in federal court). To establish this, Porter testified she now refrains from using her horn for expressive purposes due to fear of another citation. Such “self-censorship” is enough so long as the fear is “well-founded.” The State argued that Porter had not met her burden to show this because “she [had] not shown a concrete plan for expressive honking” in the future and because it almost never cites anyone for violating Section 27001. I would very much like to see what a “concrete plan for expressive honking” looks like, but the court held Porter had standing even without one. On to the First Amendment itself.

I was pleased to see there was no dispute that at least some honking is “expressive conduct” to which the First Amendment may apply. (But then you already know that. SeeWashington Horn-Honker Wins First Amendment Challenge” (Oct. 27, 2011)). Of course it may depend on the circumstances, but here there was no doubt Porter’s honks conveyed a message. “Although we do not define today the full scope of expressive honking,” the Ninth Circuit wrote—again greatly disappointing me—it held that the message of “enough honks will be understood in context to treat Section 27001 as prohibiting some expressive conduct.”

Porter argued that the law is unconstitutional because, on its face, it’s a “content-based regulation” subject to strict scrutiny. That means it’s valid only if it is the “least restrictive means” to further a “compelling government interest.” Laws almost always fail this test. No, the State argued, it’s “content-neutral,” which means it only has to be “narrowly tailored” to further a “significant government interest” (the “intermediate scrutiny” test). Which test applies often makes all the difference, and that was the case here.

Porter argued that any honk is expression, but the court held that didn’t matter. The law doesn’t distinguish between different kinds of honked messages, the court held, it “prohibits all driver-initiated horn use” that isn’t necessary for safety. It doesn’t single out, for example, “political honking, ideological honking, celebratory honking, or honking to summon a carpool rider.” (Yes, if you’ve ever summon-honked in California, you committed a crime.) So on its face, the law doesn’t discriminate based on content.

Not surprisingly, the court found traffic safety to be a “significant government interest.” But is this law “narrowly tailored” to further that? The majority said yes, noting that under intermediate scrutiny the government doesn’t have to use the “least restrictive means.” Okay, but this law completely bans expressive honking, so it isn’t tailored at all. Porter pointed out that instead of saying “honk for safety and no other purpose,” California could—as other places have—forbid only honking that “disturbs the peace.” Under a law like that, honking to summon a carpool rider wouldn’t make you a criminal, nor would a 14-short-beep salute like Porter’s. The majority sticks its response to this in a footnote, maybe because it’s not very persuasive. In any event, it rejected Porter’s challenge to the statute.

Porter seems to have focused on attacking the statute “on its face” instead of “as applied.” The majority says that wouldn’t have made a difference, but I’m not sure about that. In a lengthy dissent—27 of this honking opinion’s 60 pages—Judge Berzon said that even assuming intermediate scrutiny applies to “political protest honking,” she didn’t think the State met its burden to show it had a significant interest in applying the statute to such honking. Or any interest at all, given that “everyone who drives in California knows” that “[t]he honking of horns for non-safety reasons is rampant and hardly ever sanctioned.” She also said she didn’t think the statute was “narrowly tailored” anyway, and for that reason too would have held the statute cannot be enforced against “political protest honking.” (Protecting all “expressive honking” would be going too far, she said, because that term is “too vague to be enforceable.”)

I encourage you to honk at some point today to protest this decision, but you unfortunately do so in California at your own risk.

1 Sadly, I found little evidence that this was the case, although Wikipedia claims the first police car in the world was an electrically-powered vehicle deployed by the Akron (Ohio) Police Department in 1899, and that it was equipped with a gong. The latter claim is poorly sourced, however.