Horn-Honking and the First Amendment

California regulation supplies,

(a) The driving force of a motorized vehicle when fairly essential to insure protected operation shall give audible warning along with his horn.

(b) The horn shall not in any other case be used, besides as a theft alarm system.

The Ninth Circuit upheld this regulation earlier this month, towards a problem introduced by a driver who needed to honk her horn as an expression of help for political course of. The court docket, in Porter v. Martinez (opinion by Choose Michelle Friedland, joined by District Choose Edward Korman, with a dissent by Choose Marsha Berzon), typically reasoned that the regulation was a content-neutral restriction on expression, and is narrowly tailor-made to the substantial authorities curiosity in site visitors security:

There may be nothing novel about Part 27001’s traffic-safety justification—in actual fact, it appears the California legislature had site visitors security in thoughts when it first enacted a model of Part 27001 in 1913. That early model of the regulation prohibited honking “for any objective besides as a warning of hazard.” . The traffic-safety justification for proscribing using the horn may also be seen within the car codes of at the very least forty different states, indicating a near-nationwide consensus on the necessity for such legal guidelines. This lengthy historical past and consensus, coupled with the commonsense inference that the horn’s usefulness as a warning instrument will lower the extra drivers use it for some other perform, help the State’s asserted curiosity in site visitors security.

There’s now a petition for en banc rehearing, filed by Porter’s lawyer, David Loy of the First Modification Coalition (a bunch that I’ve typically represented in Amicus Temporary Clinic instances); this is the Introduction:

As drivers generally do with out inci1dent, Porter beeped her horn to help a protest. After being cited for doing so, she introduced this First Modification motion. Over Choose Berzon’s dissent, the panel majority upheld a ban on expression in a public discussion board and not using a single truth displaying the expression causes any danger of hurt. The bulk relied on fact-free conjecture by an “knowledgeable” and disregarded information displaying political horn use causes no hazard.

The First Modification requires the federal government to show exhausting information earlier than proscribing speech. Rule 702 requires a basis that knowledgeable opinion is dependable. By endorsing censorship primarily based on conjecture and admitting speculative opinions from “expertise” with no displaying of reliability, the bulk determination conflicts with the Supreme Courtroom, this Courtroom, and a number of different circuits. It confuses the regulation, threatens freedom of speech, and opens the door to unreliable opinions each time a purported “knowledgeable” asserts “expertise,” from product legal responsibility actions to private harm instances to prosecution for quite a few offenses. Rehearing en banc is warranted to harmonize this Courtroom’s precedent on these important points.

An fascinating concern; we’ll see quickly whether or not the Ninth Circuit agrees to listen to the case en banc.