A divided appellate panel has ruled that under California law, the only car horn honking allowed is to warn of danger, not show support for political causes, but a dissenting judge says beeping is a long-recognized form of free speech.
The April 7 decision was authored by Judge Michelle Friedland, with agreement from District Judge Edward Korman, of the U.S. Court of Appeals for the Ninth Circuit. Judge Marsha Berzon dissented. The majority decision favored San Diego County Sheriff Kelly Martinez and California Highway Patrol Commissioner Amanda Ray, in an action brought against them by Oceanside resident Susan Porter.
On Oct. 17, 2017, Porter took part in a protest outside U.S. Rep. Darrell Issa's office in Vista. Issa is a Republican and the protest was over Issa's position on gun control. During the event, San Diego County Sheriff's deputies arrived and issued parking tickets. While they were present, Porter moved her parked car to avoid a possible ticket. While doing so, Porter drove by the protestors and beeped her horn in support. A deputy by the name of Klein then cited her on a complaint of misusing a vehicle horn. Other motorists were also honking, according to court papers.
The deputy invoked the state law that prohibits use of a horn except when necessary to warn of a hazard. On average, the sheriff's office issues eight horn citations per year, according to court documents.
Porter demanded a trial, but the deputy did not show and the citation was dropped.
Nonetheless, Porter went to federal district court to claim the horn law violates free speech. She asked that the law be declared unconstitutional and for the sheriff's office and highway patrol to be ordered to stand down from enforcing it. Judge Gonzalo Curiel refused.
On appeal, the issue concerned the state's interest in promoting traffic safety versus "expressive honking," as Porter put it, that is used to show support for causes, to greet and summon people or to celebrate. The state contended indiscriminate honking can dilute the value of honking as a warning, can startle or district other drivers and pedestrians, and cause unnecessary noise.
Judge Friedland noted California has had a law against misuse of a vehicle horn since 1913, and 40 other states have similar laws.
"Porter has done nothing to cast doubt" that the law "helps guard against distracting honking, or the entirely common-sense inference that, the more drivers honk for non-warning purposes, the less people can rely on the sound of a honk as an alert of imminent danger," Friedland said.
Friedland also pointed out the law does not single out "political honking, ideological honking, celebratory honking, or honking to summon a carpool rider."
Friedland further said there is no way non-distracting honks could be permitted, while banning distracting honks.
"The law’s justification is so logical," Friedland stated.
In dissent, Judge Berzon observed, "Honking is a widespread, long-established form of political protest" and is not startling or alarming "in context."
In addition, Berzon said, "There is no evidence in the record (or elsewhere, as far as I can determine) that such political expressive horn use jeopardizes traffic safety or frustrates noise control."
Berzon further determined, "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."
Porter has been represented by John Loy, of the First Amendment Coalition in San Rafael, and by Mikle Jew, J. Mark Waxman, Lindsey Pierce and Benjamin Morris, of the San Diego office of Chicago-based Foley & Lardner.
The sheriff was defended by Jeffrey Michalowski, of Paul, Plevin, Sullivan & Connaughton, of San Diego, and by San Diego County Senior Deputy Attorney Timothy White.
The highway patrol was defended by California Attorney General Rob Bonta and Sharon O'Grady, Paul Stein and Thomas Patterson, of Bonta's office.
Friend-of-the-court arguments in support of Porter were filed by the First Amendment Coalition, of San Rafael.