Federal appellate court rules honking a car horn is not protected speech

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A federal appellate court affirmed that a California woman who was ticketed for honking her car horn in support of a political protest was not engaging in protected Free Speech. 

Key Players 

Susan Porter, an Oceanside, California, resident, is politically active in her area.

William Gore formerly served as the San Diego County Sheriff. 

U.S. Circuit Judge Michelle Friedland ​​was nominated to the 9th Circuit by former President Barack Obama in 2013.

Further Details

Protests against former Rep. Darrell Issa (R) began shortly after former President Donald Trump was inaugurated in January 2017, and they lasted over a year, The Sacramento Bee reported. The protests drew demonstrators “both for and against Trump, Issa and Republican policies” every Tuesday.  

On Oct. 17, 2017, Porter, who regularly protested outside of Issa’s office, decided to leave one of the protests after she noticed San Diego County Sheriff’s deputies arriving and putting parking tickets on her car. As she drove off, she honked her horn 14 times in succession to signal her support for the demonstration, and the crowd cheered. 

Immediately after, a county deputy pulled her over and cited her for misusing her car horn, The Washington Post reported. State law affirms that Californians can honk their horns to convey messages of “audible warning,” but that horns “shall not otherwise be used, except as a theft alarm system.”

Afterward, Porter retained a lawyer and wrote to Gore on Nov. 9, asking him not to enforce the law, which she said stood “against protected speech.” Three weeks later, Gore’s chief legal adviser declined her request, declaring her ticket was a “straightforward violation of the Vehicle Code,” court documents state. 

In February 2018, Porter’s citation was dismissed after the deputy failed to attend her traffic court hearing, The Bee reported. However, Porter did not drop the issue, and in June 2018, she filed a federal lawsuit against Gore, alleging that he and his deputies used state law “for a speech-chilling purpose.” 

Porter further claimed that since her citation, she had censored herself on multiple occasions by “refraining from using her vehicle for expressive purposes” and not honking in solidarity with “rallies, protests,” and other events she passed by while driving. 

Outcome 

Lower court rules against Porter

On Feb. 5, 2021, U.S. District Judge Gonzalo P. Curiel, nominated by former President Obama, ruled in favor of the state, writing that state law barring nonemergency honking was not only constitutionally enforced against Porter but also did not burden her Free Speech because of “ample alternative channels for communication.”

Later that month, Porter appealed the decision. 

Circuit Court of Appeals affirms lower court’s decision, Porter seeks rehearing

On April 7, 2022, a three-judge panel of the 9th Circuit Court of Appeals ruled 2-1 against Porter, upholding the district court’s decision. 

Writing for the majority, Friedland relied on expert-witness testimony frpm California Highway Patrol Sgt. William Beck, who said that “when a vehicle horn is used improperly, it can create a dangerous situation by startling or distracting drivers and others,” concluding that state law around honking was not unconstitutional because it served a purpose of ensuring safety on roadways. 

In dissent, U.S. Circuit Judge Marsha Berzon, nominated by former President Bill Clinton, opposed Beck’s testimony, calling it “speculative” and “anecdotal,” declaring that he had not cited any studies or experience related to “any actual danger” from car honking. She advocated restricting the use and enforcement of state law against “political protest honking,” but conceded that such a distinction could be too vague and unenforceable. 

The sheriff’s office responded to the decision by saying that its “deputies use discretion and their best judgement when enforcing the laws of the state of California and we appreciate the court’s consideration and the resultant decision in this case,” Courthouse News Service reported. 

On April 21, 2023, David Loy, who serves as legal director of the First Amendment Coalition, as well as Porter’s lawyer, filed a motion for the case to be reheard in the 9th Circuit.In previous statements to The San Diego Union-Tribune and The Post, respectively, Loy said the ruling “upholds censorship by speculation” and, referencing Beck, stated that if one single anecdote was “enough to silence your right to free speech, we don’t have a First Amendment.”