County Traffic Court: TRAFFIC INFRACTIONS -  Defendants who were blowing their automobile horns in support of a protest violated §316.271(3). Constitutional arguments of free speech were insufficient to overcome statute both on its face and as applied. Judgment and sentence affirmed. Johnson v. State, No. CRC 05-96 APANO, (Fla. 6th Cir. App.Ct. November 9, 2006).

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

 

 

JOHN RANDALL JOHNSON, et al.

 

            Appellant,

 

v.                                                                                                                                           Appeal No. CRC 05-96 APANO

 CRC 05-97 APANO

 CRC 05-98 APANO

 Consolidated

UCN522005AP000096XXXXCR

STATE OF FLORIDA

 

            Appellee.

__________________________________/

 

 

Opinion filed _____________________.

 

Appeal from a judgment and sentence

entered by the Pinellas County Court

County Judge William Overton

 

Mark Kamleiter, Esq.

Attorney for appellants

 

Sherman Smith, Esq.

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. [1] 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. San Diego, 453 U.S. 490, 506 (1981). The courts of the State of Florida have long viewed vehicular traffic on the highways of this State as being particularly subject to supervision. See e.g., Bailey v. State, 319 So.2d 22 (Fla. 1975); DHSMV v. DeShong, 603 So.2d 1349 (Fla. 2d DCA 1992); State v. Potter, 438 So.2d 1085 (Fla. 2d DCA 1983). It is in this overall context that this Court views the defendants’ claims.

Statutory 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 (Fla. 2d DCA 2006); Racetrac Petroleum v. Delco Oil, Inc., 721 So.2d 376, 277 (Fla. 5th DCA 1998). There is a strong presumption in favor of the constitutionality of statutes, Wright v. State, 739 So.2d 1230, 1231 (Fla. 1st DCA 1999), and courts are obligated to construe statutes to avoid declaring them unconstitutional. Gray v. Cent. Fla. Lumber Co., 104 Fla. 446, 140 So. 320, 323 (1932). All reasonable doubts regarding the statute must be resolved in favor of constitutionality. State v. Hanna, 901 So.2d 201, (Fla. 5th DCA 2005). “Accordingly, a defendant who challenges the constitutional validity of a statute bears a heavy burden of establishing its invalidity.” Wright, 739 at 1231 (citing Milliken v. State, 131 So.2d 889 (Fla. 1991).

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 Virginia v. Black, 538 U.S. 343 (2003) (“The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech.”).  The United States Supreme Court, however, has rejected the idea “that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” United States v. O’Brien, 391 U.S. 367, 376 (1968). Instead, the Court has “extended First Amendment protection only to conduct that is inherently expressive.” Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 126 S.Ct. 1297, 1308 (2006). For instance, in Texas v. Johnson, 491 U.S. 397 (1989) the Court invalidated a statute that prohibited the burning of the American flag as an infringement on free speech because it found burning the flag was sufficiently expressive.

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

 418 U.S. 405, 409-10 (1974);  Troster v. Pa. State Dep’t

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, 418 U.S. at 410.

 

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.

            Content-based restrictions on free speech are presumed invalid, and the government has the burden of showing their constitutionality. Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656 (2004). Content-neutral, time place and manner restrictions that incidentally affect First Amendment rights are presumed constitutional. Hanna, 901 So.2d at 206.

            An 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 U.S. 781 (1984). An ordinance is content-neutral if it serves purposes unrelated to the content of the speech or expression. Ward, 491 U.S. at 791. “Government regulation of expressive activity is content neutral so long as it is ‘justified without reference to the content of the regulated speech.’ “ Id. Obviously, the statute in question is content-neutral. (This Court notes the defendants agree that the statute is content-neutral). It has nothing to do with the content of any speech. It is directed towards the sound made by a mechanical device. It was not adopted because of any disagreement with any message horn honking may convey. It does not distinguish among motorists, applying equally to all motorists regardless of the content of any message they may be attempting to convey by honking their horns. Its purposes are simply to ensure safety on the highways, facilitate the flow of traffic, and reduce noise.

            If, 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., 460 U.S. 37 (1983). This Court has already addressed the first test, and found the statute to be content-neutral.

            The 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 Hollywood, 274 F. Supp. 2d 1323 (S.D. Fla. 2003).

In State ex rel Nicholas v. Headley, 48 So.2d 80, (Fla. 1950), the Florida Supreme Court upheld an ordinance that prohibited the operation of vehicles using loud speakers on the city streets of Miami. The defendant, a candidate for office, was arrested for broadcasting on the streets on behalf of his candidacy. He argued that the ordinance was an unconstitutional ban on his right to free speech. The Court rejected that argument. It noted that:  “It is settled in this jurisdiction that the right of a citizen to use the public streets is not absolute and unconditional but may be controlled and regulated in the interest of the public good.” Id. at 81. The Court then went on to quote from a United States Supreme Court case, Kovacs v. Cooper, 336 U.S. 77 (1949):

                        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

 cities like Trenton,  with its more than 125,000 people,

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 Trenton

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.

 

Id. In Headly, the Florida Supreme Court noted that the ordinance was a valid and reasonable exercise of the police power because the loud noises coming from the amplifier constituted a traffic hazard endangering the safety of motorists, and the noise distracted the attention of motorists. The statute in the case at bar is of precisely the same nature.

Moreover, the United States Supreme Court has held that public safety is a significant government interest, City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 781-782 (1988); and that noise levels are also a significant government interest. Ward, 491 U.S. at 796; City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993). Certainly, the twin purposes of the statute --- public safety of motorists and pedestrians and the reduction of noise --- are significant, and even compelling, government interests.

            The 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 U.S. at 798-99. It will be considered narrowly tailored “[s]o long as the means chosen are not substantially broader than necessary to achieve the government’s interest … the regulation will not be invalid simply because a … less-speech-restrictive alternative [exists] … [or] simply because there is some imaginable [less- restrictive] alternative …  .” Id. 491 U.S. at 800.

            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.

            In 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. Colorado, 530 U.S. 703 (2000). This Court rejects the defendants’ proposal to insert a content-based speech exception into an otherwise content-neutral statute.

            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.

            The 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 Rockford, 408 U.S. 104, 114 (1972). The overbreadth doctrine comes with a strong caveat, particularly where conduct, as opposed to pure speech, is concerned. “Application of the overbreadth doctrine ··· is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort.”

Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).

 [T]he plain import of our cases is, at the very least, that

 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

 unprotected conduct···· To put the matter another way,

*482 particularly where conduct and not merely speech

 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.

 

Id., 413 U.S. at 615.

 

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 Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800-801 (1984).

 

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 U.S. 479 (1965). This Court, however, need not address those situations in this case at bar. 

            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 Manhattan traffic. He was cited under the ordinance. The defendant claimed the ordinance violated his First Amendment right to freedom of speech. The court rejected this claim. While noting that it was debatable that automobile horn honks can ever relay an intelligible message (without the assistance of Morse code), the court held that the ordinance was a reasonable time, place, or manner restriction of any communicative element of the defendant’s conduct in honking his automobile horn. The court found that the ordinance was content-neutral because it prohibited horn honking except in cases of imminent danger, regardless of the user’s intended meaning. The court also found the ordinance was reasonably related to two significant government interests --- reducing noise and maximizing the utility of automobile horns. It actually found them both to be compelling government interests. The court found the ordinance left open alternative means of communication for the defendant: flashing his lights, signaling with his hands, or calling out. Finally, the court found that the ordinance posed little threat to free speech, noting that the civil penalty --- as opposed to a criminal penalty --- also justified its decision.     

In State v. Compas, 964 P.2d 703 (Mont. 1998), the trial court found the defendant honked her horn for three long, steady bursts as she traveled the length of the RV park in protest of the placement and operation of the park. The defendant testified that it was her personal policy to honk every time she drove by the park to protest its location on the Yellowstone River. In upholding the defendant’s conviction for disorderly conduct, the Montana Supreme Court said that although the defendant claimed that her horn honking activities were expressive conduct which has long been recognized as protected speech under the United States Constitution, she cited no authority to support her position. The court went on to note that to prevail on her claim that the statute was unconstitutional as applied to her, she has to prove that her horn honking activities were constitutionally protected; something she failed to demonstrate.

Only one intermediate state court decision favors the defendants’ position on this issue. In City of Eugene v. Powlowski, Jr., et al., 116 Ore. App. 186, 840 P.2d 1322 (Or. Ct. App. 1992), the court found that the ordinance prohibiting the use of an automobile horn other than as a warning was unconstitutional because it was overbroad. The court found that “[b]ecause the ordinance regulates far more than the consequences of the conduct that the city argues that it is intended to prevent, it is unconstitutionally broad.” Id. 840 P.2d at 1325. The court based its decision on its belief that the ordinance was not limited to those circumstances when the noise or abuse of the horn adversely affected the public interest.

            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.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this ____ day of November, 2006.

 

_____________________________

J. Thomas McGrady                                                             Circuit Judge

 

 

 

                                                            _____________________________

R. Timothy Peters

    Circuit Judge

           

                                                           

 

                                                            ____________________________

                                                                        John A. Schaefer

                                                                            Circuit Judge

           

cc:        Sherman Smith, Esq.

 

            Mark Kamleiter, Esq.

 

            Judge Overton

                                   

 

 

                                                                                                                                                                                   

 



[1] 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).