Apr. 26, 2023
The hermeneutics of honking
The divide between the majority and dissent seems to be symptomatic of some murkiness in this area of First Amendment doctrine. Intermediate scrutiny for content-neutral statutes seems like an easy enough rule to apply, but that rule becomes complicated when dealing with a content-neutral statute being applied to political expression.
To paraphrase Juliet on her moonlit balcony, what's in a honk? The 9th Circuit wrestled with that question recently in Porter v. Martinez, --- F. 3d ---, No. 21-55149 (April 7, 2023). The case presents an intriguing discussion of First Amendment protection for non-verbal political conduct, and an equally intriguing disagreement between the majority and the dissent on the applicable level of scrutiny that should be applied to what the decision labeled "expressive honking." Given the recent uptick in significant First Amendment litigation in federal courts, this case about "expressive honking," which at first glance may seem like a contretemps about a traffic infraction, may merit closer attention.
In Porter, the defendant had been cited in 2017 for "misuse of a vehicle horn" under California Vehicle Code Section 27001 after she drove her car by a protest outside a government official's office and honked in support. Porter, Slip Op. at 8. Section 27001 provides, in relevant part, that a "driver of a motor vehicle when reasonably necessary to insure safe operation shall give audible warning with his [sic] horn," but also that "[t]he horn shall not otherwise be used, except as a theft alarm system."
Though the Section 27001 traffic case against Porter was eventually dismissed when the law-enforcement officer failed to attend her traffic-court hearing, Porter subsequently sought declaratory and injunctive relief in federal district court, arguing that Section 27001 violates the First and Fourteenth Amendments to the U.S. Constitution as a "content-based regulation that is not narrowly tailored to a compelling government interest." Porter, Slip Op. at 8. Porter argued that after her citation she had begun to refrain from honking in support of political rallies and sought an injunction against Section 27001 being enforced against "expressive" honking.
The district court granted the State's summary-judgment motion and dismissed Porter's First Amendment claim, concluding that, though Porter had standing, and her honking in support of the political protest was expressive for First Amendment purposes, Section 27001 was content neutral, and thus subject to intermediate scrutiny. In denying Porter injunctive and declaratory relief, the district court concluded that "California's interests in maintaining traffic safety and reducing noise pollution are significant, and that Section 27001 is narrowly tailored to serve those interests" and, accordingly, that the statute survived intermediate scrutiny. Porter appealed.
The Ninth Circuit affirmed, 2-1. Judge Friedland, writing for the majority, found that Porter had standing because she credibly claimed that, after her citation, she had refrained from honking in support of political events due to fear of future citations. The court concluded that Section 27001 was a content-neutral regulation because the rule applied evenhandedly to all drivers, based solely on whether there was a safety-hazard present. Having found that the regulation was content neutral, the majority opinion applied intermediate scrutiny and agreed with the district court's conclusion that the law was narrowly tailored to further the State's substantial interest in traffic safety.
Writing in dissent, Judge Berzon appeared to agree that the statute was content neutral, but emphasized that, in this case, the statute was being applied to what she deemed a "core form of expressive conduct that merits the most stringent constitutional protection," and that the statute could therefore not be constitutionally applied against "political honking." Porter, Slip Op. at 39. Judge Berzon appeared to disagree that intermediate scrutiny was appropriate to the facially content-neutral statute when the statute was applied to "political honking."
The divide between the majority and dissent seems to be symptomatic of some murkiness in this area of First Amendment doctrine. Intermediate scrutiny for content-neutral statutes seems like an easy enough rule to apply, but that rule becomes complicated, perhaps, as Judge Berzon suggests, when dealing with a content-neutral statute being applied to political expression - especially under the unique circumstances of this case, where much of the analysis involved a kind of hermeneutics of honking, with the court trying to determine when non-verbal honking sounds could be deemed "expressive" or even "political." The various questions raised by the case are taken up below.
I. When Is a Honk Expressive Conduct?
Both the majority and dissent seemed to agree that in this context - honking in support of a political protest - the non-verbal conduct of honking a car horn was expressive, for First Amendment purposes. Noting that "whether conduct such as honking is sufficiently imbued with elements of communication to be protected expression depends on the nature of the activity with the factual context and environment in which it was undertaken," the majority opinion concluded that "at least in some circumstances, a honk can carry a message that is intended to be communicative and that, in context, would reasonably be understood by the listener to be communicative." Porter, Slip Op. at 16-17 (cleaned up). The Court left a further delineation of the various species of honking for another day: "[T]he nature and circumstances of the honk will sometimes provide the necessary context for the message intended by the honk to be understood. Although we do not define today the full scope of expressive honking, we hold that enough honks will be understood in context to treat Section 27001 as prohibiting some expressive conduct." Id. at 17.
Judge Berzon, while agreeing that "at least some of the honking prohibited by Section 27001 is expressive for First Amendment purposes," Porter, Slip Op. at 39, proceeded to conduct a kind of taxonomy of honks, noting that while the honking in this case was "a core form of expressive conduct," "most other honking is not equally expressive," as "ordinarily, a honk is just a noise." Id. at 39-40. Judge Berzon provided the examples of "warning honks" and other honks "used to grab the hearer's attention, not to convey any articulable message." Id. at 41-42. Judge Berzon distinguished honking at a political protest from "[a] greeting honk ... that causes the listener to look up" or "a honk to summon a child ... [which] grabs the child's attention, so she notices that her parent is waiting for her." Id. at 42. Putting aside potential quibbles a reader may have with the proposition that warning, greeting, and summoning honks are not "expressive," Judge Berzon's purpose in this portion of the discussion appeared to be to highlight that while "[i]n many contexts, a honk conveys no comprehensible expressive message," here, Porter's political-support honking certainly did. Id. at 41. Judge Berzon concluded "that expressive horn use is a fairly narrow subset of horn beeping, of which political honking is the most obvious example." Id. at 38.
This core disagreement, as to whether the Court was considering a challenge to application of Section 27001 to all "expressive" honking or, as Judge Berzon saw it, to a narrower subset of "political honking," seemed to drive the differing conclusions of the majority and dissent. The majority noted in a footnote that, while the dissent argued that "Section 27001 is unconstitutional as applied to political honking," Porter had not made that argument, but had instead argued that "the statute is unconstitutional as applied to all expressive honking, which under her definition include[d] honking to communicate greetings and celebratory sentiments, among other things." Porter, Slip Op. at 18 n. 6.
II. Was This a Facial or As-Applied Challenge?
The parsing of expressive and non-expressive honks dovetails into the question of whether Porter's challenge to Section 27001 was a facial or as-applied challenge. The majority noted that Porter appeared to argue that her challenge was both facial and as-applied, but that "[u]ltimately, ... [they did not need to] decide whether Porter's claim [was] best described as an as-applied or facial challenge (or both)" because the "constitutional analysis [would] be the same either way," given that "the substantive legal tests used in facial and as-applied challenges are invariant." Porter, Slip Op. at 17-18 n.5.
Judge Berzon appeared to mostly sidestep the question of whether Porter's challenge was facial or as applied, but her analysis did consistently note that the question, in her view, was whether Section 27001 could be constitutionally applied to political honking: "I concentrate this dissent on the application of Section 27001 to political protest honking." Porter, Slip Op. at 39. Notably, Judge Berzon cites Texas v. Johnson, 491 U.S. 397, 402-20 (1989), the flag-burning case, where the U.S. Supreme Court "analyz[ed] the constitutionality of a statute prohibiting flag burning based on its restriction of an individual's political protest regarding the renomination of Ronald Reagan for president." Porter, Slip Op. at 42-43.
III. Was Intermediate Scrutiny Appropriate?
As noted, the majority, having concluded that Section 27001 was content neutral, applied intermediate scrutiny. The majority had to address Porter's contention "that Section 27001 is content based on its face because an officer must examine the content of the message that is conveyed to determine whether a violation has occurred." Porter, Slip Op. at 20 (cleaned up). The majority, in rejecting this argument, noted that an officer need not examine the "content" of a honk, but instead need "only observe traffic circumstances and determine if a safety risk is present." Id. The majority further observed that "even if evaluating the traffic-related context of a honk involves listening to the sound of the horn - and thus could be seen as analogous to reading a sign to evaluate its content," that was permissible under City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 142 S. Ct. 1464, 1471 (2022), where the Supreme Court "rejected as too extreme an interpretation of its precedent a rule that sign regulation cannot be content neutral if it requires reading the sign at issue." (Cleaned up.) Ultimately, the majority seemed persuaded that a situation where an officer hears a honk and then needs to look at the context to determine if the honk was "reasonably necessary to ensure safe operation" of the vehicle "does not inherently present the potential for becoming a means of suppressing a particular point of view." Porter, Slip Op. at 22 (cleaned up).
Judge Berzon, while acknowledging that the statute was content-neutral, and assuming arguendo that intermediate scrutiny applied, nevertheless took issue with the application of intermediate scrutiny: "I assume ... that intermediate scrutiny applies. But I am not certain that categorization is correct. As Section 27001, in my view, mostly applies to non-expressive conduct, the content neutrality rubric adopted by the majority seems inapplicable. Rather ... the focus should be on the ban of political protest honking - a ban that viewed discretely would surely trigger strict scrutiny." Porter, Slip Op. at 43 n. 5.
That is, Judge Berzon suggests that in the case of honking, where, in her view, most of the regulated conduct (honking) is simply noise conveying "no comprehensible expressive message," the content-neutral/content-based distinction breaks down and is less useful - because the regulation governs primarily non-expressive conduct, and not primarily speech. Her comments suggest that her analysis was driven by the nature of the expressive conduct that was regulated, expressive conduct she identified as core political speech; thus, her level of scrutiny with regard to the application of the statute to "political honking" appears to have been somewhat more stringent than mere intermediate scrutiny. Judge Berzon concluded that, at a minimum, "an injunction against enforcement of the statute against political protest honking is an appropriate remedy for Porter's injury here." Porter, Slip Op. at 49.
IV. Some Provisional Conclusions
The core disagreement in this case about how to characterize the nature of the challenge - whether the challenge was to application of the statute to merely "expressive" honking or to "political" honking - appears to tie into larger potentially unresolved questions in First Amendment doctrine about what types of expressive speech or conduct merit what levels of scrutiny. While it's true, as the dissent suggests, that political speech is generally deemed worthy of the most stringent scrutiny in First Amendment doctrine, isn't the same true of artistic expression? Or religious expression? One can imagine the thorny questions that might arise had Porter been honking in support of a religious group holding up signs saying, "Honk for Jesus." Would that be religious/political speech entitled to a higher level of scrutiny, given the Religion Clauses of the First Amendment? Or what if she had been rhythmically honking as part of an avant-garde performance-art piece on the 110? Or in response to a lone individual holding up a sign by the side of the road that read "Honk if You're Happy"? Judge Berzon's dissent notes that she would limit an injunction to "political honking" to cure the specific injury Porter identifies, but that "[o]thers who wish to beep their horns to convey a specific message may seek similar relief, and an injunction could be tailored to cover their [expressive] communication," perhaps anticipating knotty scenarios like these. Porter, Slip Op. at 53 n. 7. Questions for another day, perhaps.
For the moment, the Porter decision appears to be the final word on "expressive honking" in the Ninth Circuit. We'll see if this case ends up making more noise down the road.
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