Posted by Eugene Volokh:
Honk If You Love Incitement Law:
http://volokh.com/archives/archive_2009_02_22-2009_02_28.shtml#1235567175
From Goedert v. City of Ferndale, 2008 WL 928315 (E.D. Mich.), a case
decided last year, but just posted on Westlaw -- a fun and unusual
fact pattern. I offer the opinion as an interesting bit of First
Amendment analysis for First Amendment buffs; I leave it to you to
figure out whether and to what extent you think this is right.
Plaintiffs challenge the City of Ferndale's suppression of
automobile horns as a form of expression. The City has enforced an
ordinance to prohibit the display of signs asking motorists to
"honk" their horns to express their support for the demonstrators,
and prohibiting motorists from honking their horns for that
purpose. Plaintiffs allege that the City's prohibition violates the
First Amendment's guarantee of freedom of speech.
In support for peace in Iraq, Plaintiffs Nancy Goedert, Victor
Kittila, and Jim Grimm have participated in a Vigil on the corner
of Woodward Avenue and Nine Mile Road in the City of Ferndale on
Monday evenings. The Vigil has been conducted at that location for
nearly five years. At one point, Vigil participants began to
display signs stating "Honk for Peace" and later "Honk if You Want
Bush Out." Over the years, hundreds of motorists have communicated
their agreement with the demonstrators by honking their horns as
they passed by the Vigil. Plaintiffs characterize the honks in
support of the Vigil as citizens electing to join in a conversation
among the citizens on perhaps the most pressing public issue of the
day.
For the first three and a half years of the Vigil, there were no
traffic problems or accidents associated with the Vigil. Ferndale
changed its approach towards the Vigil in June of 2006, when Police
Captain Timothy Collins witnessed the same intersection crowded
with health care reform demonstrators. Demonstrators were on every
corner of the intersection, the sidewalks, and alongside the
median. A concerned Captain Collins felt that the demonstrators
were unruly and were causing a safety hazard by leaning into
traffic with their signs, and he felt that the honking of vehicle
horns was a distraction that could lead to safety problems. The
next morning, Captain Collins discovered a Michigan Statute, M.C.L.
257.706(a), which provides that "the driver of a motor vehicle
shall when reasonably necessary to insure safe operation give
audible warning with his horn but shall not otherwise use the horn
when upon a highway." This "Honk Statute," like the rest of
Michigan's Motor Vehicle Code, has been incorporated into
Ferndale's ordinances....
Captain Collins then contacted the City Attorney's Office to
ascertain whether both statutes could be enforced against the
demonstrators. The City Attorney's Office approved the enforcement
of the statutes against those at the Vigil, and the decision to
apply them to ban the use of the word "honk" on any signs at the
Vigil. After receiving a warning from the Ferndale police
department, Plaintiff Kittila revised his sign to read "Ferndale
Cops Say: Don't HONK if you want BUSH OUT." Plaintiff Nancy Goedert
was holding a similar sign that read "POLICE SAY DON'T HONK for
PEACE." On July 3, 2006 Plaintiff Kittila was arrested for holding
his sign, while two weeks later, on July 17, 2007 Nancy Goebert was
ticketed by the City for violation of the "Honk Statute ." On
October 9, 2006, Officer Carroll stopped and ticketed a motorist
who honked in support of the Vigil, Plaintiff Brian Price....
([1]Show the rest of the opinion.)
Ferndale claims that the honk signs are not protected speech because
the signs were directed at inciting the lawless action of non-traffic
hazard warning related honking. The City relies principally on
Brandenburg v. Ohio, 395 U.S. 444 (1969). In that case, Brandenburg, a
member of the Ku Klux Klan, spoke at a rally where he advocated
violence to further the white-supremacist goals of the Klan.
Brandenburg was convicted under Ohio's Criminal Sydicalism Statute,
which barred advocating or teaching violence as a means of
accomplishing social change as well as assembling with others for that
purpose. Id. Later decisions of the Supreme Court, however, have
"fashioned the principle that the constitutional guarantees of free
speech and free press do not permit a State to forbid or proscribe
advocacy of the use of force or law violation except where such
advocacy is directed to inciting or producing imminent lawless action
and is likely to incite or produce such action."
It is unclear if Brandenburg may be so narrowly read to include only
incitement to violence, as Plaintiff suggests. However, the present
case does not seem to be within its scope. Violation of the "honk
ordinance" in question in this case is a mere civil infraction, hardly
the same kind of "lawlessness" addressed in Brandenburg....
Brandenburg's scope does not cover the honk signs in this case, nor
does it defeat the protestors' claims that the holding of the signs is
protected speech.
While Defendant Ferndale claims that the sounding of a horn is
incapable of being speech, the honks nevertheless convey a
particularized message that is understood by those who hear it. In
fact, the Ferndale police ticket the motorists purely based upon
exactly that, the "particularized message" the motorist is trying to
convey. Motorist Brian Price was ticketed by Officer Carroll for the
message he tried to convey through use of his horn. For Ferndale to
now claim that a honk is simply a honk, incapable of conveying speech
is disingenuous. If a honk is incapable of conveying speech, then
Ferndale would not be able to discern which honks are unlawful under
their "Honk Statute," making the ordinance impossible to apply to
motorists. Ferndale's application of the statute, however, is evidence
of the ability of the vehicle's horns to convey speech. The "Honk
Statute," as written, provides for an inference that a honk may convey
speech, that of "warning." ...
Plaintiff argues that Woodward and 9 Mile is properly characterized as
a traditional public forum for First Amendment Analysis. The right of
the government to limit expressive activity is limited in places that
have been traditionally devoted to assembly and debate. A street has
been consistently held to be a public forum. "At one end of the
spectrum are streets and parks which 'have immemorially been held in
trust for the use of the public and, time out of mind, have been used
for purposes of assembly, communicating thoughts between citizens, and
discussing public questions.'" Sidewalks are also traditional public
forums for purposes of First Amendment protection.
Woodward and 9 Mile is in the heart of downtown Ferndale. It is one of
the busiest intersections in Ferndale, second only to Woodward and
Eight Mile in the volume of traffic. There is typically significant
traffic noise during the time of the Vigil. The intersection of 9 Mile
and Woodward is properly characterized as a public forum for a First
Amendment analysis.
Plaintiff claims Ferndale's "Honk Statute" is a content based
restriction, while Defendant claims the statute is content neutral. To
determine whether a restriction is content-based, the courts look at
whether it "restrict(s) expression because of its message, its ideas,
its subject matter, or its content." The Ordinance is content-based as
any message, other than a warning, delivered by the "honk" sign or
horn honking violates the Ordinance. A sign simply encouraging peace
in Iraq would not be an issue, while a sign encouraging motorists to
honk for peace in Iraq would violate the ordinance. Signs with the
word "honk" contained in it are treated differently than other signs,
and, therefore, the regulation is content-based.
In this case, honking a vehicle's horn is not banned completely, only
the honking for reasons other than traffic warning is deemed unlawful.
The content of the message contained within the honk must be
determined by the police before issuing citations, therefore the
regulation, as applied to the honking motorists, may also be properly
classified as a content-based policy....
Having determined that the signs encouraging the honking of vehicle
horns, as well as the honking of the horns are speech, and that the
City of Ferndale's regulation of the two are content based, Ferndale
must "show that (its ordinance) is necessary to serve a compelling
state interest and that it is narrowly drawn to achieve that end."
Ferndale must satisfy the test for both, the regulation of the display
of honk signs, as well as the regulation of non-traffic related
honking.
E. The City of Ferndale's Purported Interests in Regulating Horn
Honking
1. Safety
The City must come forward with evidence showing that honking a
vehicle horn other than to convey a warning causes a safety hazard.
"The government has the burden of showing that there is evidence
supporting its proffered justification." "Mere speculation of harm
does not constitute a compelling state interest."
Even if the City's interest in promoting the safety of its citizens is
a compelling state interest, Ferndale has not shown that the honk
ordinance is "necessary" to achieve that interest. The burden is on
the City of Ferndale, and the City has not come forward with any
evidence correlating a single honk expressing support for a
demonstration with safety problems. The Vigil began nearly five years
ago, and thousands of expressive honks have been made in support. Not
a single accident has occurred as a result of the Vigil. Ferndale has
not provided a single study or report showing that horn-honking or
holding "honk" signs causes traffic safety problems.
It is important to note that the conditions surrounding the health
care rally that led to the initial concern of the Ferndale Police
Department involved protestors on all four street corners, the
sidewalks, and the median at Woodward and 9 Mile. Some of the health
care demonstrators were even reaching into traffic. The noise of the
honks was much greater than any honking Captain Collins had heard at
the Vigil. It is clear that the safety concerns implicated by the
health care rally are of a different kind than that found at the peace
Vigils.
2. Excessive Noise
Ferndale's ban on "honk" signs and the honking at the Vigil cannot be
justified on the ground that it prevents "excessive" noise. Horn
honking is consistent with the normal noise level of Woodward and 9
Mile Road during rush hour of a week day, or busy weekend shopping
day, as it is in the heart of downtown Ferndale. The intersection and
adjacent streets are the sites of many boisterous organized events,
such as the Woodward Dream Cruise [footnote: The Woodward Dream Cruise
is "the world's largest one-day celebration of car culture,"
attracting more than 1 million visitors and "more than 40,000 muscle
cars, street rods, custom, collector and special interest vehicles."]
and the Gay Pride Fest, where music on bandstands blare across the
streets. The Dream Cruise, an event heavily promoted by Ferndale,
generates widespread complaints from Ferndale citizens. Numerous noisy
night clubs and restaurants are also located in the area of the
intersection.
Assuming arguendo that noise regulation may be deemed a "compelling
state interest," the City of Ferndale has not produced evidence that
the honk regulation is "necessary" to limit the noise. While a Vigil
held at midnight on a subdivision street that encouraged horn honking
would seem to clearly be excessive noise for the circumstance,
scattered honks on a busy intersection during rush hour do not rise to
the level of "excessive." The maximum level for a
residential/commercial area between 7:00 a.m. and 10:00 p.m., which
would apply to the Vigil, is 75 decibels. Ferndale Code § 2-100(a).
Sound levels are to be determined by a sound meter. Ferndale Code §
2-101. Ferndale has never measured the decibel level at the Vigil with
a sound meter, and has failed to determine if the horn-honking there
has exceeded the permissible level. Ferndale has simply failed to
provide any meaningful support for their position that banning
individual honks during rush hour on 9 Mile and Woodward is necessary
to serve its interest in noise reduction.
F. Narrow Tailoring of Policy
Ferndale has not adopted the least restrictive means of preventing
excessive noise, or alleviating safety concerns. A single honk
violates Ferndale's regulation, and, as explained above, Ferndale has
not offered evidence that a single honk can be classified as excessive
noise, or as contributing to traffic concerns.
Captain Collins' concern initially grew out of observing a health care
rally, which involved more people than the normal attendance of the
Vigil. While this Court understands that the City of Ferndale has a
legitimate interest in preventing such "hornet's nests" of noise from
occurring, the prohibition of individual honks does not pass the
"narrow tailoring" prong of First Amendment inquiry.
An example for how a narrowly tailored honk ordinance would look like
may be found in Ferndale's own noise ordinance, which confines
prohibited noise to any "excessive or unnecessary loud noise of a high
volume or intensity which is clearly audible and which disturbs,
annoys, or endangers the calm, comfort, quiet, repose, health, peace
or safety of others beyond the immediate vicinity of the disturbance."
Ferndale Code of Ordinances § 2-98. The Noise Ordinance also
specifies the maximum permissible sound levels at 75 decibels.
Ferndale is free to determine whichever means they would choose,
however, there must be narrow tailoring of the regulation to the
compelling state interest in order to survive First Amendment
scrutiny.
The City of Ferndale selectively enforces the application of the "Honk
Statute." Ferndale permits non-traffic related expressive horn-honking
throughout the year for several events. For example, celebratory
honking is tolerated following certain sporting events, the annual
"dream cruise" event, as well as after weddings. Ferndale's
willingness to grant exemptions for such events permits the inference
that they may grant exemptions for other events, such as the peace
Vigil....
For the reasons stated above, The City of Ferndale has failed to show
that application of its "Honk Statute" to the Vigilers is necessary to
serve any articulated compelling state interest. Ferndale has also
failed to satisfy the narrow tailoring prong of First Amendment
content-based restriction on speech scrutiny.
([2]Hide most of the above text.)
References
1. file://localhost/var/www/powerblogs/volokh/posts/1235567175.html
2. file://localhost/var/www/powerblogs/volokh/posts/1235567175.html
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