JOHN FRITZE, USA TODAY
November 17, 2023
WASHINGTON – Susan Porter remembers the shock she felt when the sheriff's deputy finally explained why he pulled her over.
"He said, 'illegal use of horn' and gave me the ticket," the 69-year-old Californian recalled.
"I said, 'There’s a law for that?'"
Porter had been driving by a rally outside her congressman's office in 2017 and her honks were a sign of support – in the same way drivers beep for a political candidate waving a sign at rush hour, or to celebrate a sports team after a game.
Porter has challenged a California traffic law that bans honking – other than to warn another driver – all the way to the Supreme Court. Her argument: Since the dawn of the automobile, car horns have sometimes served as a form of expression. Because of that, Porter says, beeping is protected under the First Amendment.
"The car horn is the sound of democracy in action," her lawyers wrote in their appeal.
Though they appear to be rarely enforced, similar laws are on the books in 41 states, according to court records. A New York law bars drivers from sounding a car horn for anything other than as a "reasonable warning." Missouri admonishes drivers to use their horns "for warning purposes only."
Porter’s attorneys say such requirements defy reality. During the pandemic, to avoid bringing large crowds together for a traditional campaign rally, then-presidential candidate Joe Biden organized drive-in rallies in which he encouraged people to "honk if you want to be united again."
In 2020, a convoy of truckers honked their horns outside the White House in protest as former President Donald Trump was delivering remarks in the Rose Garden.
At the time, Trump described the horns interrupting his remarks as a "sign of love."
Edwin Hernandez pumps his fist as passing car honks. Striking health care workers picket in front of Kaiser Permanente Medical Center in Panorama City, Calif., on Oct. 4.
The Supreme Court has repeatedly ruled that speech protected by the First Amendment encompasses more than the spoken word. In a landmark 1969 decision, for example, a 7-2 majority of the justices ruled that students wearing black arm bands to protest the Vietnam War were taking part in protected speech. Seven years later, the court said that campaign contributions are a form of political speech.
David Loy, legal director at the California-based First Amendment Coalition, said he was as stunned as Porter to learn about “warning-only" car horn restrictions and the extent to which they exist across the country. Many of those restrictions, he said, date to the early 20th century and were enacted without much thought to First Amendment implications.
Susan Porter, a California woman who has filed an appeal at the Supreme Court asserting that honking a car horn can be expressive conduct protected by the First Amendment.
"This kind of expression with vehicle horns is as old as the automobile. We've been doing this for decades," said Loy, who has been working on Porter's case for years. "Who doesn't honk their horn at somebody to say 'hello' or honk at the protesters on the corner? I mean, everyone does it."
California's Department of Justice and an attorney representing the San Diego County Sheriff's Department did not respond to multiple requests seeking comment. But in lower courts, the state argued the law is intended to improve traffic safety by avoiding the distraction of other drivers with unnecessary noise.
"Horn honking is very loud and distracting by design, and the restriction ... has been 'nearly universally accepted as a means to reduce the incidence of vehicular accidents' for more than 100 years," the state told an appeals court in 2021, partly quoting from a lower court's earlier decision in the case.
Along Rt 46 by Veterans Memorial Park supporters of President Trump encourage vehicles to honk support in 2020.
A three-judge panel of the San Francisco-based U.S. Court of Appeals for the 9th Circuit sided with the state in May, concluding that horn honking can be a form of “expressive conduct” but that California's interest in traffic safety justified the law. In a decision from two of those judges, the court wrote that there was a "common-sense inference" that the horn's "usefulness as a warning tool" would be reduced if more and more drivers use it for other purposes, like beeping at a protest. The third judge dissented.
The law at issue in the Supreme Court appeal is different from noise ordinances adopted in many local communities. Those usually involve time or place restrictions barring drivers from leaning on their horns in a residential neighborhood, for instance, or in the evening. The California law Porter was ticketed for violating is categorical, meaning it applies at all times and places.
If the Supreme Court agrees to decide the case, it would add to a docket full of First Amendment controversies this term. Many of those cases focus on social media and how far the government may go to regulate or control the posts on Facebook or X, formerly Twitter. And so while the court is wrestling with speech on high-tech platforms, it would also confront what a Pennsylvania State University professor recently described as one of the first electrical consumer technologies of the 20th century, if it agreed to hear the case.
Andrew Row, one of the lawyers working on Porter's case, said that California officials had taken notice of the appeals court decision against Porter and had been "emboldened" by it. During the Hollywood strikes this year a sign appeared outside a studio in Burbank, California, where some workers were protesting.
"Excessive horn use," the sign warned, "violates" state law.
"This is not just a theoretical thing," Row said. "It's now being used by law enforcement."
Supporters listen from their cars as Democratic presidential nominee Joe Biden speaks at a get-out-the-vote drive-in rally at Cleveland Burke Lakefront Airport on November 02, 2020 in Cleveland, Ohio.
This article originally appeared on USA TODAY: Supreme Court asked if beeping the horn is a First Amendment right
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