Federal Judge Says Flashing Headlights To Warn Drivers Of Hidden Cops MIGHT Be Protected Speech
from the DISRUPT-SPEED-TRAPS dept
Law enforcement officers tend to frown on citizens interfering with their revenue generation. This has led to a number of First Amendment lawsuits from people arrested for warning others about [check notes] the existence of police officers in the vicinity.
One citizen was told as much when he was arrested for holding up a sign reading “Cops Ahead.” One cop kept on script, referring to the man’s actions as “interfering with an investigation.” It wasn’t an investigation. It was a distracted driving sting. The cop actually hauling him to the station was more to the point, telling the man he was arresting him for “interfering with our livelihood.” First Amendment violation or felony interference with a business model? Why not both?
A lawsuit was filed in 2018 seeking a declaration that honking a car’s horn is protected expression. And, all the way back in 2011, a class action lawsuit was filed over citations and arrests for flashing headlights to warn drivers of unseen officers.
A federal judge has decided — albeit not very firmly — that at least one of these actions is protected by the First Amendment. Wisconsin Magistrate Judge Stephen Crocker says flashing your headlights to warn drivers of speed traps is expressive speech — something cops would be better off not trying to punish. (via Volokh Conspiracy)
Andrew Obriecht passed a speed trap outside Caledonia, Wisconsin. After passing it, he flashed his headlights to warn oncoming drivers to slow down. He was then pulled over by a state trooper, who issued him a citation for violating a state statute that doesn’t really appear to fit the alleged crime:
347.07 Special restrictions on lamps and the use thereof.
(1) Whenever a motor vehicle equipped with headlamps also is equipped with any adverse weather lamps, spotlamps or auxiliary lamps, or with any other lamp on the front thereof projecting a beam of intensity greater than 300 candlepower, not more than a total of 4 of any such lamps or combinations thereof on the front of the vehicle shall be lighted at any one time when such vehicle is upon a highway.
(2) Except as otherwise expressly authorized or required by this chapter, no person shall operate any vehicle or equipment on a highway which has displayed thereon:
(a) Any color of light other than white or amber visible from directly in front; or
(b) Any color of light other than red on the rear; or
(c) Any flashing light.
Yeah… that’s a stretch. Obriecht sued, claiming this citation was retaliation against protected speech — namely, the brief flashing of his headlights to warn other drivers of a speed trap.
The government argued that it wasn’t. In fact, it argued that Obriecht’s light flashing was not protected because it “facilitated speeding by others.” This is a super hot take. This argument basically says that anyone who encourages others not to break the law is “facilitating” the very crime they’re warning them not to engage in. I guess it’s time to open up our conspiracy laws.
The defendants tried to equate warning drivers to slow down to warning criminals of an impending law enforcement raid. The court says it isn’t even close.
The crux of defendants’ argument is that much like warning others about intelligence operations or an impending police raid, the message that Obriecht conveyed helped others commit an illegal act without getting caught. However, at most, Obriecht’s actions may have prevented the State Patrol from apprehending a few would-be speeders.
As the Supreme Court has made clear, “the prospect of crime . . . by itself does not justify laws suppressing protected speech.” Ashcroft v. Free Speech Coal., 535 U.S. 234, 245 (2002) (citing Kingsley Int’l Pictures Corp. v. Regents of Univ. of N.Y., 360 U.S. 684, 689 (1959) (“Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech” (internal quotation marks and citation omitted)). See also NAACP v. Claiborne Hardware, 458 U.S. 886, 909-10 (1982) (knowingly publishing names of people who were not complying with boycott was constitutionally protected, even though some non-participants had been violently attacked and publication clearly could facilitate such attacks).
The judge also points out two state courts have held that headlight flashing is protected speech.
In addition, at least two state circuit courts also have found that drivers have a constitutional right to flash their headlights. See State of Oregon v. Hill, Citation No. 034117 (Jackson Cty. (Ore.) Justice Ct. Apr. 9, 2014) (flashing vehicle headlights to warn others about presence of law enforcement is protected free speech under state constitution); State v. Walker, No. I-9507-03625 (Williamson Cty. (Tenn.) Cir. Ct. Nov. 13, 2003) (accepting First Amendment defense to charge of knowingly interfering with officer where defendant flashed headlights to warn oncoming motorists about speed trap).
The court doesn’t go so far as to declare this activity protected, but it has expressed its doubts about the state’s arguments this speech isn’t protected. The judge has called out the bullshit expressed by the defendants seeking to turn headlight flashing into a criminal conspiracy by pointing out the defendants, at best, lost a little revenue when Obriecht send uncoded messages to oncoming drivers. This case may ultimately result in a definitive declaration that warning drivers of speed traps is protected speech, but it’s not quite there yet.