People sound their car horns every day to express themselves. It’s common, part of the American tradition — and it’s also a type of expression protected by the First Amendment. But in California, expressive horn use is against the law.
That’s why the First Amendment Coalition is supporting a federal civil rights case brought by the ACLU Foundation of San Diego & Imperial Counties that aims to limit when the government can ticket someone for sounding their car horn to speak out (read our amicus brief). The ACLU’s case is on behalf of Susan Porter, a San Diego-area woman who was cited in 2017 for offering a beep-beep in solidarity with protesters at a political demonstration. While the citation was dismissed when deputies failed to show in court, Porter argues her speech has been chilled by the threat of continued enforcement.
FAC’s newest team member, Legal Director David Loy, brought the case on behalf of Porter while he worked at the ACLU, and he continues to represent Porter in this First Amendment case. Oral arguments are set before the Ninth Circuit U.S. Court of Appeals on March 7.
The following is a Q&A with Loy about what the case means for First Amendment protections.
Q: Why did you decide this was an important First Amendment case to pursue?
A: I was shocked that state law prohibits a common and widespread means of political, social, and personal expression. The government should not be stifling a critical form of expression, especially when public-health restrictions can curtail other means of assembly and protest, as we’ve sometimes seen during the COVID-19 pandemic. The statute at issue, Cal. Vehicle Code § 27001, allows horn use to give a warning but prohibits it to communicate any other message. As applied to expressive horn use, that is the essence of unconstitutional content-based discrimination.
Q: Explain what the trial-level court got wrong and why you are appealing.
A: The trial court ignored First Amendment doctrine by contending the statute is not content based and deferring to unsupported speculation about alleged harms caused by expressive horn use. Despite over a century of automotive history, the government cited not one instance of any accident or hazard ever caused by expressive horn use. In fact, case law shows the opposite: that expressive horn use is perfectly safe. The court also disregarded settled law that restrictions on expression cannot be justified in the name of noise control unless the noise significantly exceeds ambient sound levels in a given time and place. The statute violates that rule by prohibiting expressive horn use at midday during a raucous protest while allowing a shrieking theft alarm to shatter a quiet night. Even if there are sometimes legitimate concerns about safety or noise control, the government can address them with obvious alternatives that do not stifle protected expression, such as appropriate enforcement of disturbing the peace laws or local noise ordinances.
Q: What do we know about how often police cite motorists for honking to express themselves?
A: The defendants in this case, the California Highway Patrol and San Diego County Sheriff’s Office, regularly enforce the statute. In this case and others, protesters have been cited for using their horns. Regardless of how often it’s enforced, the danger of a statute like this one is that it chills speech by its very existence and creates one more tool for police to punish expression.
Q: You are not asking the Ninth Circuit to invalidate the state law. So what should the court do here?
A: The Ninth Circuit should hold that § 27001 violates the First Amendment as applied to expressive horn use, reverse the trial court’s judgment in favor of the government, and remand for the trial court to craft an appropriate injunction that protects the right to engage in expressive horn use at protests or otherwise.
Read more about Porter v. Martinez on the ACLU’s website and on FAC’s case page. The case was heard by a three-judge panel of the Ninth Circuit on March 7, 9 a.m. seating of the Ninth Circuit U.S. Court of Appeals in Pasadena.