Vehicle Code 27001 Illegal Use of Horn, 1st Amendment?
In 2017, Susan Porter drove her car past a group of protesters gathered outside a San Diego government official’s office, a protest that, minutes earlier, she herself had been attending. As she drove down the street, which was located between a residential area and a six-lane freeway, Porter honked her horn in support of the protesters.
As San Diego Sheriff’s deputy pulled Ms. Porter over and gave her a citation for misuse of a vehicle horn under Vehicle Code § 27001.
Porter’s citation was later dismissed when the sheriff’s deputy failed to attend Ms. Porter’s traffic court hearing.
Ms. Porter subsequently filed a declaratory and injunctive relief action, Susan Porter v. Kelly Martinez, in her official role as Sheriff of San Diego, and Amanda Ray, in her capacity as Commissioner of the California Highway Patrol, in federal district court in San Diego. Ms. Porter’s Complaint contended that Vehicle Code § 27001 violated the First and Fourteenth Amendments as a content-based regulation that is not narrowly tailored to a compelling government interest (freedom of speech). A law student will recognize this claim calls for “strict scrutiny.”
Alternatively, she argued that even if the law is not content-based, it is a content-neutral regulation that burdens substantially more speech than necessary to protect legitimate government interests. A law student will recognize this level of scrutiny is regarded as “intermediate scrutiny.”
To establish standing to challenge the law, Ms. Porter alleged that she drives by rallies, protests and demonstrations in San Diego County and elsewhere in California and would like to express her support for these events by honking.
To establish harm to herself, Ms. Porter alleged she now refrains from using her horn for such purposes because she fears enforcement of Vehicle Code § 27001.
Ms. Porter also sough injunctive relief to get a court order barring enforcement of § 27001 against “expressive” honking, which she characterizes as honks to “support candidates or causes,” but also to “greet friends and neighbors, summon children or co-workers, or celebrate weddings or victories.”
The State of California, on behalf of the CHP, moved to dismiss Ms. Porter’s First Amendment claim, arguing that even if § 27001 governs expressive activity, the law is content neutral and reasonably furthers California’s interests in promoting traffic safety and reducing noise pollution. This argument, in other words, was that the law passes “strict scrutiny.”
The District Court responded by denying the State’s demurrer on grounds that the law passes “intermediate scrutiny” because the State failed to argue that the law passed intermediate scrutiny. In other words, the State defaulted on Ms. Porter’s claim that honks such as hers undermine the government’s interest in traffic safety and noise control. Accordingly, the district court refused to dismiss the First Amendment claim.
The parties then proceeded into discovery and the State filed a motion for summary judgment to dismiss Ms. Porter’s claim that even if content-neutral, the statute burdens more speech than is necessary to protect legitimate government interests.
In support of their motion, the motion for summary judgement included a declaration from Sergeant William Beck, a twenty-four year veteran of the CHP. In his declaration, he opined that when a vehicle’s horn is used improperly, it can create a dangerous situation by startling or distracting drivers and others. He also stated that a vehicle horn’s usefulness as a warning device would be diminished if enforcement officers were unable to enforce Vehicle Code § 27001.
The district court judge then granted summary judgment for the CHP, finding that the statute is content neutral and subject to intermediate scrutiny and that the State’s interest in maintaining traffic safety and reducing noise pollution are significant and that 27001 is narrowly tailored to serve those interests.
Ms. Porter then appealed to the U.S. Court of Appeals for the Ninth Circuit in Pasadena, which affirmed the district court. The Ninth Circuit opinion traced the history of automobiles and the regulation of vehicle horn usage. It concluded after reviewing the district court’s ruling that banning honking other than when necessary to alert others to danger was the only plausible way to further the state’s interest and that people who wanted to communicate their ideas still had many ways to do so, other than by using their car’s horn.
Client Reviews
★★★★★
"Thank you so much for putting so much effort in this case. We really appreciate it and we are happy that all turned out well." S.A., Torrance
★★★★★
"Greg Hill did an outstanding job on every level. He was efficient, thorough, knowledgeable, courteous, responsive & brilliant. He welcomed my input and my concerns. . . from the first conversation to the last - I always felt 'it mattered' to him." S.C., Rolling Hills Estates
★★★★★
"Thanks again for your hard work. We want you to know that we are very appreciative of all that you have done [on our son's] behalf. With warmest regards." L.H., Torrance
★★★★★
"Dear Greg, Thank you again for all your help. Your professionalism and thoroughness is greatly admired. I will definitely recommend you to my friends if they ever need legal help." V.L., Carson
★★★★★
"Thanks for investing in my case. I talked to other attorneys out there and they had an arms-length of attitude, but not you. Your intensity and interest helped a lot." C.R., Pomona