Was Honking My Horn at a Police Officer Protected by the First Amendment?

Answer

California has a vehicle code provision that prohibits the use of horns other than by “the driver of a motor vehicle when reasonably necessary to insure safe operation.” Cal. Veh. Code § 27001 (West).  If using your horn was reasonable necessary for safety reasons, your conduct may fall within what is allowed by the statute, First Amendment concerns aside.

As to the First Amendment issue, I could not find any challenges to this law on First Amendment grounds.  If someone were to challenge the vehicle code provision law as overbroad, a court would first have to determine whether honking is constitutionally protected conduct.  See e.g. Grayned v. City of Rockford, 408 U.S. 104, 114 (1972).  Conduct is constitutionally protect as “speech” when an actor intends to communicate a message and the message can be understood in context Texas v. Johnson, 491 U.S. 397, 404, (1989).

While the court in State v. Immelt, 267 P.3d 305 (2011), the Washington case you mentioned, did find that honking was expressive conduct deserving of First Amendment protections, courts in other jurisdictions have held differently.  See, e.g., Weil v. McClough, 618 F. Supp. 1294, 1298 (S.D.N.Y.1985) (rejecting an overbreadth challenge to a local ordinance that prohibited horn honking except to provide warning of imminent danger); State v. Compas, 290 Mont. 11, 17, 964 P.2d 703 (1998) (holding that the defendant’s conviction for honking her car horn to protest a local recreational vehicle park did not violate her rights to free expression); Meaney v. Dever, 326 F.3d 283, 287–88 (1st Cir.2003) (expressing misgivings that horn honking constitutes expressive conduct but assuming arguendo that it does and rejecting free speech claims on other grounds).

Even if a court were to find that honking can be expressive conduct worthy of First Amendment protection, it could still find the law is a valid time, place, or manner regulation, which precludes an overbreadth attack. Grayned v. City of Rockford, supra,408 U.S. at 114–121, 92 S.Ct. at 2302–06; see also Broadrick v. Oklahoma, 413 U.S. 601 (1973) (“Where conduct and not merely speech is involved, the overbreadth of a statute not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”)

In sum, we cannot know whether the California law on honking would withstand a constitutional challenge.

Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.