Federal Judge: Flashing headlights to warn drivers of a speed trap = free speech

[Redfairen]

Flashing headlights to warn oncoming drivers that the police are waiting to catch speeders is protected by the First Amendment. So held a federal trial judge in Monday's Elli v. City of Ellisville (E.D. Mo. Feb. 3, 2014), and he wasn't the first — see, for instance, this Florida trial court ruling, as well as State v. Walker, No. I-9507-03625 (Williamson Cty. (Tenn.) Cir. Ct. Nov. 13, 2003).

Whether this is the right answer is not clear. The situation is a special case of warnings to hide one's illegal conduct because the police are coming — "abort the plan to rob the store" or "flush the drugs down the toilet." True, here that is done by a stranger rather than by a lookout who's in league with the criminals, but it's not clear why that should make a constitutionally significant difference. And this "police are coming!" scenario is in turn is a special case of what I call Crime-Facilitating Speech (see 57 Stan. L. Rev. 1095 (2005)), which is to say speech that conveys information that makes it easier for people to commit crimes or to get away with crimes. The Supreme Court has never squarely confronted when such crime-facilitating speech is protected by the First Amendment and when it's not.

When I've blogged about this in the past, some people have argued that flashing headlights should be protected because it's encouraging legal behavior (slowing down) rather than illegal behavior, but I don't think that can dispose of the issue: Many lookouts do the same, e.g., when a lookout warns would-be robbers to abandon their plans because a police car is driving by. [UPDATE: Remainder of paragraph added.] Moreover, a headlight flasher’s warning to speeders seems likely to (and probably intended to) slow them down only until they get past the police car — they’d just be postponing their illegal act by a few seconds. That’s why the “he’s only trying to get people to be law-abiding” argument strikes me as weak; what he’s actually doing (and trying to do) is decrease the cost to drivers of breaking the law.

http://m.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/05/flashing-headlights-to-warn-drivers-of-a-speed-trap-constitutionally-protected-speech/

[Th1onein]

1. What a one sided analysis of this ruling!

Blechh.

[mgcgulfcoast]

2. i agree with the ruling

speed traps are basically another way to tax people.

[Th1onein]

6. I do, too. But the author of the article apparently doesn't.

[Ikonoklast]

11. The author of the article assumes everyone seeing the warning being flashed is speeding.

Since that assumption can easily be proven to be false, the rest of what he thinks about the matter can easily be ignored as being based on a false assumption.

[Th1onein]

13. I agree.

[djg21]

8. The Volokh Conspracy . . .

is a well-known legal blog written from a conservative liberatarian perspective.

That being said, it raises a valid point. There isn't much of an analytical difference between flashing lights at upcoming traffic and warning the local heroin dealer to flush his stash because the police are on route to his home. In fact, the only difference is that speeding is generally just an infraction or violation, where as the distribution of heroin is felonious.

This isn't about whether you believe speed traps are revenue generators, or whether you generally are biased against law enforcement, etc. It's about weighing 1st Amendment freedoms against the societal interests inherent in seeing that laws are enforced, and that law enforcement is able to enforce laws without interference or obstruction. If speeding were a serious offense, i could see an argument that the flashing of lights could make one an aider and abettor. Should the fact that speeding generally is considered a minor, non-criminal infraction really change the analysis? This is the issue the author is highlighting.

[Th1onein]

9. Conservative libertarian perspective? Enough said.

[fasttense]

3. My son won a case in court over just this issue.

A TN State Trooper gave him a $150 ticket for flashing his lights at oncoming traffic. He went to court and won. The judge agreed it was freedom of speech.

In fact, the judge told him he should become a lawyer (he's in college), he was so good at arguing his case.

[MindPilot]

4. The author is a UCLA law prof who specializes in 1st Amendment issues.

So I suspect he is playing devil's advocate here.

But he misses what I think is a very important point; the driver flashing the lights does not and can not know the speed of the oncoming vehicle or the intentions of that vehicle's driver. Therefore, the flashing lights are nothing more than a courteous generic warning of "hazard ahead, reduce speed and watch out."

That and his false equivalency of the "crime" of driving too fast with actual crimes like burglary and drug trafficking.

[Sunlei]

5. guess I can still keep warning my friends about the local cop who hides behind the stop sign here.

[Ikonoklast]

12. That must be one skinny cop.

Or one big-ass stop sign.

[Nancy Waterman]

7. if this were found illegal

based on "speech that conveys information that makes it easier for people to commit crimes or to get away with crimes,"
then you would have to find illegal all websites that show how to build bombs or make plastic guns or anything else that aids people in committing a crime.

[SmittynMo]

10. I'm going back to court

to have my ticket revoked from 1993.