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A federal appeals court says honking isn't First Amendmentprotected activity. There's no constitutional right to honk your car horn, according to the U.S. Court of Appeals for the 9th Circuit.

The case involves Susan Porter, who repeatedly honked her car horn while driving past protesters in California in 2017. A deputy with the San Diego County Sheriff's Office issued Porter a ticket, saying she had violated a state law against misuse of car horns.

Porter pushed back, filing a federal lawsuit in 2018. In it, she alleged that honking her horn in solidarity with the protesters was protected First Amendment activity and that the California law used to ticket herwhich prohibits using a car horn except "when reasonably necessary to insure safe operation" or when used "as a theft alarm system"was unconstitutional.

A U.S. district court ruled against Porter, and now the 9th Circuit has upheld that lower court's ruling. For "the horn to serve its intended purpose as a warning device, it must not be used indiscriminately," wrote Judge Michelle Friedland for the majority.

But 9th Circuit judge Marsha Berzon thinks her colleagues got it wrong. In her dissent, Berzon noted that California cops are taught to use discretion when enforcing the horn-honking law, which could lead to selective (and discriminatory) enforcement. And Berzon scoffed at the idea that Porter honking while driving past a protest would be confused for anything but political speech.

"A political protest is designed to be noticed," wrote Berzon. "Political honking was hardly a significant source of noise or distraction in that environment. There is no basis for supposing that anyone was confused or distracted by the honking. Instead, Porter's honking was understood as political expression by the protesters, who cheered in response."

"Berzon also blasted the lower court's reliance on expert testimony by California Highway Patrol Sgt. William Beck," notes Courthouse News:

Beck said that car horns can startle and distract drivers and, if they're used indiscriminately, can "dilute the potency of the horn as a warning device." Berzon said Beck's testimony and the examples he gave amounted to opinion, not scientific fact.

"In none of these examples did Beck report any actual danger created by the honk. And, in any case, those examples were based on Beck's personal experience, no different from anyone else's experience with horn honking and so unrelated to any 'scientific, technical, or other specialized knowledge' or experience," Berzon wrote.

Plus, Berzon added, the point of a protest is to make noise to call attention to a cause or an issuemaking it a free speech issue.

First Amendment Coalition legal director David Loy told The Washington Post that the court's decision "punishes a very common and ordinary form of political expression that people engage in every day."

"I was shocked that [California] law prohibits a common and widespread means of political, social, and personal expression," Loy said in a February interview on his group's website. "The government should not be stifling a critical form of expression, especially when public-health restrictions can curtail other means of assembly and protest, as we've sometimes seen during the COVID-19 pandemic. The statute at issue, Cal. Vehicle Code 27001, allows horn use to give a warning but prohibits it to communicate any other message. As applied to expressive horn use, that is the essence of unconstitutional content-based discrimination."

California isn't alone in restricting expressive honking. Court rulings on these laws have been mixed, as Belmont law professor David L. Hudson, Jr. points out.

In a 1998 case, the Montana Supreme Court said protest-oriented honking "did not constitute a protest to government of government acts which would be entitled to protection under the First Amendment." A federal court in New York has also rejected the idea that horn honking is protected expressive conduct.

"However, at least one lower court has recognized a free expression challenge to a horn-honking law, albeit on state constitutional law grounds," Hudson notes. "The Oregon Court of Appeals, in City of Eugene v. Powlowski (Ore. App. 1992), ruled that a city law prohibiting horn honking for purposes other than a reasonable warning to another vehicle violated the free expression guarantee of Article 1, section 8 of the state constitution."

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No Constitutional Right To Honk Your Car Horn, Federal Court Says - Reason