A little-known California law bars drivers from honking their horns, except to warn other motorists or pedestrians. In the case of a woman who beeped in support of political protesters, a federal appeals court pondered Monday whether some applications of the law violate freedom of expression.
Susan Porter was pulled over by a San Diego County sheriff's deputy in October 2017 after honking a number of times while driving past a weekly demonstration outside the office of Rep. Darrell Issa, R-Vista (San Diego County), protesting his support of President Donald Trump. The citation against her, punishable by a fine, was dropped when the officer failed to appear in court, but Porter then sued for violation of her free-speech rights. Issa, meanwhile, decided not to seek re-election in 2018, then returned to Congress after winning election in a nearby district in 2020.
U.S. District Judge Gonzalo Curiel — the same judge Trump called a biased "hater" in 2016 while Curiel was presiding over a fraud suit by students at the now-defunct Trump University — ruled that the officer who stopped Porter had legitimate concerns about noise and public safety. But in an appeal by Porter, a panel of the Ninth U.S. Circuit Court of Appeals seemed divided Monday on whether the law was overbroad and whether enforcement could be limited to honking that caused actual harm.
"You could pass a more targeted statute," like one that limits the number of honks, Judge Marsha Berzon told a lawyer for the state at a hearing in Pasadena. "You're not protecting clear speech in a public forum."
Deputy Attorney General Sharon O'Grady replied that the law, passed more than 100 years ago, "is directed to conduct, not speech," and that narrowing its enforcement would subject neighborhoods to more noise.
She appeared to draw support from Edward Korman, a federal judge from New York temporarily assigned to the appeals court, who said exempting protests from the law would require police to decide why drivers were honking their horns. People in the neighborhood "have rights as well," he said.
Berzon acknowledged that it could be difficult to distinguish between expressive and disruptive honking. And the third panel member, Judge Michelle Friedland, said that when you honk your horn, "nobody knows what you're saying."
Porter was backed by the American Civil Liberties Union and the First Amendment Coalition. David Loy, legal director of the First Amendment Coalition, said courts, and neighbors, can usually tell the difference between free expression and disruptive or dangerous noise, even when the sound is wordless.
"People understand in context when a horn is used to express a message," Loy told the court. "The point of the First Amendment is to protect freedom of expression, not the convenience of the government."
He said Porter had previously taken part in a number of protests outside Issa's office but, after her traffic stop, had been deterred from honking her horn at other demonstrations. The Vista office was alongside a freeway, Loy said, and the chanting of the protesters was matched or exceeded in noise volume by a counterprotester's loudspeaker.
While O'Grady said 40 states have horn-restriction laws similar to California's, Loy said a New Mexico community, Rio Rancho, has effectively narrowed its law to prohibit only honking that distracts other drivers or disturbs the peace. He also said courts have refused to enforce laws against standing on traffic medians when they are used to arrest political protesters, but allowed their enforcement against those who try to camp on medians.
But O'Grady said the state law can be enforced without interfering with free speech.
"Nothing was preventing Ms. Porter from expressing her message," the state lawyer said. "All that is at issue in this case was the noise made by her horn."
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