IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF
JOHN RANDALL JOHNSON, et al.
v. Appeal No. CRC 05-96 APANO
CRC 05-97 APANO
CRC 05-98 APANO
Opinion filed _____________________.
Appeal from a judgment and sentence
entered by the Pinellas County Court
County Judge William Overton
Mark Kamleiter, Esq.
Attorney for appellants
Attorney for appellee
ORDER AND OPINION
THIS MATTER is before the Court on Elizabeth Valentine, Margaret Lakas, and John Johnson’s appeal from findings of guilt and sentences imposed on them by the Pinellas County Court. All three of the defendants were separately found guilty of violating §316.271(3), Fla.Stat. (2005) --- improper use of an automobile horn. Following non-jury trials, they were each found guilty of traffic infraction and fined $70.50. The trial court withheld adjudication of guilt in each case. All three defendants timely filed appeals, and these appeals were consolidated. After reviewing the briefs and record, this Court affirms the trial court’s decision in these three cases.
These cases arise out of an incident near the Baywalk complex on a Saturday night. That night, there were numerous protesters near the Baywalk complex. A twelve-person police unit was there to coordinate traffic and monitor the protesters, pedestrians, and patrons coming and going to Baywalk. In the defendant Valentine’s case, the officer testified that he was escorting pedestrian traffic to Baywalk. While doing so, he received numerous complaints from families about how some drivers were using their automobile horns. The officer observed Valentine drive her automobile on the road in front of the protesters and honk her horn excessively. Once the officer determined that Valentine was not honking because of a vehicle obstructing her path or an emergency (the defendant also admitted she was just honking her horn in support of the protesters), the officer gave her a citation.
In the defendant Lakas’ case, a different officer testified that he saw the defendant travel about half a block in front of Baywalk honking her automobile horn. She then came to a halt on a pedestrian crosswalk and continued honking her horn eight to ten times in support of the protesters. She was asked twice to move her car, and told four times not to honk her horn. She ignored the requests and commands, and continued to honk and lean on her horn the entire time. The officer gave her a citation.
The appellant’s counsel failed to file a transcript of the proceedings against the final defendant, Johnson. Presumably, however, Johnson also was given a citation for honking his horn in support of the protesters instead of doing so because there was a necessity.
The statute the defendants were found guilty of violating states:
The driver of a motor vehicle shall, when reasonably
necessary to ensure safe operation, give audible warning
with his or her horn, but shall not otherwise use such
horn when upon a highway.
§316.271(3), Fla.Stat. (2005). A violation of this statute is a non-criminal, non-moving traffic infraction. §316.271(8), Fla.Stat. (2005).
The defendants contend that this particular statute is unconstitutional --- both as applied and on its face. It is, however, difficult to address the legal arguments raised by the appellants because they do not clearly distinguish between their two challenges.  The defendants’ challenge to the statute as applied seems to be their claim that they were engaged in political activity --- supporting protestors --- at the time they were honking their horns; therefore, the statute cannot be constitutionally applied to them. It seems that the defendants are arguing that the street is a public forum; and that the statute as applied to them is not a valid time, place, or manner restriction on their right to express themselves. The defendants’ challenge to the facial constitutionality of the statute appears to be that it is overbroad.
The United States Supreme Court has noted
that: “[e]ach method of communicating ideas is a ‘law unto itself’ and that law
must reflect the ‘differing natures, values, abuses and dangers’ of each
method.” Metromedia, Inc. v.
interpretation raises an issue of law; therefore, the trial court’s ruling is
subject to de novo review. Wegner v. State, 928 So.2d 436 (
Initially, this Court must determine if horn honking is a form of free speech
protected under the First Amendment.
Conduct may, at times, be sufficiently expressive to be considered speech and
thus implicate the First Amendment. See
Automobile horn honking, however, is not inherently expressive. A motorist honking his or her horn is conduct that emits a loud mechanical noise. It is supposed to function as a warning to address some traffic-related problem. People do not instinctively understand what particular political message is being sent, or even that a message is being sent, when they hear a horn honk. There is really no way anyone could know that the act of honking an automobile horn is intended to convey a message; it is only the explanation of the person doing the honking that makes it clear. Appellants’ counsel suggests that the defendants were responding to some of the signs that the protestors were carrying that encouraged motorists to honk their horns in support of their cause. The record, however, does not support this contention. Two of the defendants, however, did testify that they were honking their horns to show their support for the protestors. It is the defendants’ testimony about why they were honking their horns that is the speech in this case. As noted in Rumsfeld:
The expressive component of a [in that particular case] law school’s actions is not created by the conduct itself but by the speech that accompanies it. The fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently
expressive that it warrants protection under O’Brien.
Without the motorists’ explanations of what they were intending to convey with their honks, the conduct is essentially meaningless. All honks are not expressive, a fact the defendants seem to acknowledge in their briefs. Even the honks that are intended to be expressive are only made intelligible by the testimony of the person honking. Such conduct is insufficiently communicative, and does not rise to the level of speech protected by the First Amendment.
Nevertheless, this Court recognizes that:
[c]onduct is protected by the First Amendment when
‘the nature of [the] activity, combined with the factual
context and environment in which it was undertaken,’
shows that the ‘activity was sufficiently imbued with
elements of communication to fall within the
[First Amendment's] scope.’ Spence v. Washington
of Corrections, 65 F.3d 1086, 1090 (3d Cir. 1995).
Context is crucial to evaluating an expressive conduct
claim because ‘the context may give meaning to the
symbol’ or act in question. Spence,
Tenafly Eruv Assoc., Inc. v. Borough of Tenafly, 309 F.3d 144, 157 (3d Cir. 2002).
Therefore, despite this Court’s belief and finding that horn honking is not conduct protected under the First Amendment, this Court will, while analyzing both the defendant’s claim that the statute as applied to them is unconstitutional and the facial challenge, assume arguendo that horn honking is protected under the First Amendment.
The defendants argue that the statute is unconstitutional as it applies to them. They argue that in the context of their support of the protestors, the automobile horn honking restriction was applied to their actions in a way that was unconstitutional.
restrictions on free speech are presumed invalid, and the government has the
burden of showing their constitutionality. Ashcroft v. Am. Civil Liberties
ordinance is content-based when the government adopts it as a regulation on
speech because of disagreement with the message the speech conveys. Ward v.
Rock Against Racism, 491
as this Court has found, a statute is content-neutral, the Court must then
determine if the statute satisfies the time, place, or manner test. In a
traditional public forum, such as the city street, the government may impose
reasonable limitations on the time, place, or manner of protected speech as
long as the limitations are: (1) content-neutral; (2) narrowly tailored to
serve a significant government interest; and (3) leave open alternative
channels of communication. Perry Edu. Ass’n v. Perry Local Educators’ Ass’n.,
next question for this Court to resolve is whether or not the statute is
narrowly tailored to serve a significant government interest. “It is undisputed
that the state has significant interests in vehicle and pedestrian safety and
the free flow of traffic.” Sun-Sentinel Co. v. City of
ex rel Nicholas v. Headley, 48 So.2d 80, (
City streets are recognized as a normal place for the exchange
of ideas by speech or paper. But this does not mean the freedom
is beyond all control. We think it is a permissible exercise of
legislative discretion to bar sound trucks with broadcasts of
public interest, amplified to a loud and raucous volume, from
the public ways of municipalities. On the business streets of
such distractions would be dangerous to traffic at all hours
useful for the dissemination of information, and in the
residential thoroughfares the quiet and tranquility so
desirable for city dwellers would likewise be at the mercy
of advocates of particular religious, social or political
persuasions. We cannot believe that rights of free speech
compel a municipality to allow such mechanical voice
amplification on any of its streets. The right of free speech
is guaranteed every citizen that he may reach the minds
of willing listeners and to do so there must be opportunity
to win their attention. This is the phase of freedom of
speech that is involved here. We do not think the
ordinance abridges that freedom. It is an extravagant
extension of due process to say that because of it a city
cannot forbid talking on the streets through a loud speaker
in a loud and raucous tone. ** * We think that the need for
reasonable protection in the homes or business houses
from the distracting noises of vehicles equipped with such
sound amplifying devices justifies the ordinance.
United States Supreme Court has held that public safety is a significant
government interest, City of Lakewood v. Plain Dealer Publishing Co.,
statute must be narrowly- tailored to meet those government interests; but it
is not necessary that the statute be the least restrictive or least intrusive
means. Rather, the requirement of narrow tailoring is satisfied “so long as the
… regulation promotes a substantial government interest that would be achieved
less effectively absent the regulation.” Ward, 491
As noted previously, the statute has two purposes --- public safety and the reduction of noise. It is the first of these two purposes that is most important. When a motorist or pedestrian hears a horn honk, it should mean something. Obviously, the automobile horn was intended to be used as a warning device. The statute attempts to preserve the utility and uniqueness of automobile horn honking as a warning device.
their briefs, the defendants argue for special exceptions, both as to time and
location, when the horn honking is for political expression. Creating a special
exception for horn honking, however, would undermine the main purpose of the
statute --- ensuring that horns are only used on a highway when safety dictates
it. It would dilute the effectiveness of horn honking as a warning. It would
rely upon the subjective intentions of the individual motorists. It would
confuse both the public and law enforcement, and diminish public safety. In
short, the defendants’ proposal is unworkable. “A court must not second guess a
responsible decision maker’s means ‘concerning the most appropriate method for
promoting significant government interests’ … . ” Sun-Sentinel Co., 274
F.Supp.2d at 1331. “Courts owe some deference to the laws state legislatures
enact to accommodate competing public interests.” Hill v.
The third issue to be decided is whether or not the statute leaves open alternative channels of communication. This, the motorists have in abundance. If, as the defendants claim, they were trying to show their support of the protestors, then they have numerous methods of doing so without violating the statute. For example, they could lower their window and shout their approval, give a thumbs up, wave, or park their cars and get out and demonstrate their approval.
§316.271(3), Fla.Stat. (2005) meets all three of the requirements established by the United States Supreme Court in Perry. That is, the statute is content-neutral, narrowly tailored to serve the significant government interests of improving traffic safety and noise reduction, and leaves ample alternative means of communication, it is a reasonable time, place or manner restriction. Therefore, the statute is a reasonable time, place or manner restriction on the use of an automobile horn.
defendants also contend that the statute is unconstitutional on its face
because it is overbroad. A statute is overbroad “if in its reach it prohibits
constitutionally protected conduct.” Grayned v. City of
facial overbreadth adjudication is an exception to our
traditional rules of practice and that its function, a limited
one at the outset, attenuates as the otherwise unprotected
behavior that it forbids the State to sanction moves from
“pure speech” toward conduct and that conduct-even if
expressive-falls within the scope of otherwise valid criminal
laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally
is involved, we believe that the overbreadth of a statute
must not only be real, but substantial as well, judged in
relation to the statute's plainly legitimate sweep.
Although one might be able to imagine a hypothetical situation wherein the statute could be impermissibly applied, the threat of overbreadth is insufficiently substantial to invalidate this statute on its face.
The concept of ‘substantial overbreadth’
is not readily reduced to an exact definition. It is clear,
however, that the mere fact that one can conceive of
some impermissible applications of a statute is not
sufficient to render it susceptible to an overbreadth
challenge···· In short, there must be a realistic danger
that the statute itself will significantly compromise
recognized First Amendment protections of parties
not before the Court for it to be facially challenged
on overbreadth grounds.
City Council of
This Court cannot find in the case at bar that there is a realistic danger that the
statute will significantly compromise recognized First Amendment protections of the
motoring public at large.
Finally as to the defendants’ overbreadth argument, in a
closer case such as one of the hypothetical situations advanced by the
defendants, the statute could still be found constitutional by the use of a
limiting or narrowing construction. See e.g., Dombrowski v. Pfister, 380
Despite the ubiquitous presence of statutes limiting automobile horn honking, there is a relative paucity of cases specifically dealing with the claim that those statutes violate free speech. The parties, and this Court’s independent research, have located only three: all from other jurisdictions; therefore, none of them are binding precedent.
In Weil v.
McClough, 618 F. Supp. 1294 (S.D.N.Y. 1985), the only Federal case
addressing the issue, a New York City ordinance provided that no person could
use their motor vehicle horn except as a signal of imminent danger. The
defendant repeatedly honked his horn while in
In State v. Compas, 964 P.2d 703 (
Only one intermediate state court decision favors the
defendants’ position on this issue. In City of
The Powlowski court, however, failed to appreciate the main purpose of the statute. It wrongly supposed that the statute was only directed towards preserving the tranquility and quiet. Nowhere in the opinion is there an analysis of the main purpose of the statute --- public safety. Nowhere in the opinion is there an acknowledgment that the statute is necessary to preserve the uniqueness of horn honking as a warning. This Court is not persuaded by its reasoning.
In summary, the statute is not unconstitutional as applied to the defendants. It is a reasonable time, place, or manner restriction. Neither is the statute unconstitutional on its face. It is not overbroad. The defendants have failed in their heavy burden to establish that §316.271(3), Fla.Stat. (2005) is unconstitutional. Accordingly, the trial court’s findings of guilt and its sentences must be affirmed.
IT IS THEREFORE ORDERED that the findings of guilt and sentences are affirmed.
AND ORDERED in Chambers at
J. Thomas McGrady Circuit Judge
R. Timothy Peters
John A. Schaefer
cc: Sherman Smith, Esq.
Mark Kamleiter, Esq.
 This Court also notes the appellants’ factual assertions are not supported by citation to the record. This is not in compliance with Fla.R.App.P. 9.210(b)(3).