Flashing Your Headlights is Protected Speech

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(When you see it…. Image adapted from a photo by Ildar Sagdejev via Wikimedia Commons)

One aspect I briefly touched upon in my post last week in the comments was the possible chilling effects on free speech if people know that their comments on the Internet could be used to launch a federal investigation on them.

Keeping in the same vein, but hopefully moving away from the grim specter of terrorism, last week a St. Louis Judge ruled that flashing your headlights to warn fellow motorists of a police speed trap is constitutionally-protected speech under the First Amendment. Read the injunction ordering police to stop citing motorists for what judge called “retaliation for the individuals having engaged inexpressive conduct protected by the First Amendment” here.

For years, police across the country have ticked drivers who have flickered their high-beams, presumably, to warn oncoming drivers of police speed traps, often citing rules against flashing lights on vehicles in local traffic codes. While lawyers for these drivers have argued that such rules are intended to prevent motorists from mounting official-looking squad-car-style lights on their vehicles, they also claim the practice is an expression of free speech. Judges have generally agreed and dismissed the citations.

However, Eugene Volokh, a UCLA law professor, takes issue with the Minnesota judge’s argument that blinking one’s headlamps to warn motorists of speed traps falls under First Amendment protection. Such communication Volokh calls “Crime-Facilitating Speech […] which is to say speech that conveys information that makes it easier for people to commit crimes or to get away with crimes.”

He notes that the Supreme Court has “never squarely confronted when such crime-facilitating speech is protected by the First Amendment and when it’s not.” In a linked article to the Stanford Law Review, Volokh offers a definition for crime-facilitating speech:

The danger of crime-facilitating speech is related to that posed by crime-advocating speech. To commit a typical crime, a criminal generally needs to have three things:

(1) the desire to commit the crime,

(2) the knowledge and ability to do so, and

(3) either (a) the belief that the risk of being caught is low enough to make the benefits exceed the costs, (b) the willingness–often born of rage or felt ideological imperative-to act without regard to the risk, or (c) a careless disregard for the risk. Speech that advocates, praises, or condones crime can help provide the desire, and, if the speech urges imminent crime, the rage. Crime-facilitating speech helps provide the knowledge and helps lower the risk of being caught.

Should crime-facilitating speech as Volokh defines it becomes illegal, I fear a wide range of ostensibly innocuous activities will suddenly become outlawed. What if while traveling as a passenger in a car driven by your friend, you tell him to slow down in a section of road that you know is frequently patrolled by police? Are you not helping and encouraging your friend to break the law?

There seems to be a very twisted logic underlying Volokh and these ticketing police departments’ premise: “Mr. Scofflaw totally would have broken the law had YOU not warned him that we were around, so we’re going to punish you, since you caused us to miss him.” It reeks of preecrime and is completely contrary to the American legal precept that one is innocent until proven guilty.

Just for fun, since we recently read “Common-Law Courts in a Civil-Law System: the Role of United States Courts in Interpreting the Constitution and Law,” Supreme Court Justice Antonin Scalia’s essay on textualism, I wonder if Scalia left any hints as to what his opinion of the Minnesota ruling might be. Scalia says he looks for the “original meaning of the text,” whether he’s looking at the Constitution or a statute.

He also says earlier that while the First Amendment doesn’t specify “the full range of communicative expression,” the Constitution was designed to have “an expansive rather than narrow interpretation—though not an interpretation that the language will not bear.”

So he’d probably say a wide range of written and spoken communication would be protected by the First Amendment, but what about flashing your headlights? Well Scalia leaves a rather ominous aside when discussing how believers in the “living document” Constitution say the document can always point towards greater personal liberty.

(They consider that a great advantage for reasons that I do not entirely understand. All government represents a balance between individual freedom and social order, and it is not true that every alteration in that balance in the direction of greater individual freedom is necessarily good.)

Bottom line?

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(Photo by Stephen Masker via Wikimedia Commons)

I bet Scalia would laugh at your pathetic attempt to avoid a moving violation.

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12 Responses to Flashing Your Headlights is Protected Speech

  1. pjshield says:

    This is a very interesting topic nowadays. Everyone just assumes they can say or do anything and call it under their constitutional rights whether it’s legal or not. I think they should still pull over vehicles that flash their lights. For one, it’s a sign of distress to communicate with other drivers not to warn them to disobey rules of the road. Secondly, I have heard of gang members that drive without their headlights on and the first person to flash their lights to let them know becomes the target for their gang initiation. I don’t think our forefathers decided to give us the First Amendment so it could be used in this situation. It needs to be respected and not overused.

    • zoneofsubduction says:

      Under what law are Arizona law enforcement officials authorized to stop and detain motorists for flashing their lights?

      http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/28/00947.htm&Title=28&DocType=ARS

      Arizona Revised Statute 28-947.D. as quoted:

      “A vehicle may have lamps that may be used to warn the operators of other vehicles of the presence of a vehicular traffic hazard requiring the exercise of unusual care in approaching, overtaking or passing. The vehicle may display these lamps as a warning in addition to any other warning signals required by this article. The lamps used to display the warning to the front shall be mounted at the same level and as widely spaced laterally as practicable and shall display simultaneously flashing white or amber lights or any shade of color between white and amber. The lamps used to display the warning to the rear shall be mounted at the same level and as widely spaced laterally as practicable and shall show simultaneously flashing amber or red lights or any shade of color between amber and red. These warning lights shall be visible from a distance of at least one thousand five hundred feet under normal atmospheric conditions at night.”

      The end result is that if a police or authorized emergency vehicle is stopped on the roadway or may likely enter onto the roadway, it may be prudent to flash one’s lights at oncoming motorists in order to comply with the requirements of A.R.S. 28-947.D. and avoid a civil citation. The law does not enunciate a clear definition of a traffic hazard, yet it could be reasonably be broadly construed by a reasonable motorist.

      The internet hoax that gang members are flashing their lights at other drivers in order to shoot them is exactly that – a hoax. There are no actual incidents involving this.

      http://www.snopes.com/crime/gangs/lightsout.asp

      Assigning an intent on flashing lights by drivers of motor vehicles to avoid police speed enforcement to the Founding Fathers is an extraordinary reach of assigned interpretive thought.

      • Harmon Gale says:

        In response to the last statement in your comment, if we re-phrased what’s happening here might clarify what the Founders’ position might have been on this.

        Is warning others about ongoing police activity in order to avoid getting caught protected by the First Amendment?

        Now that I think about it, that would outlaw Paul Revere’s famous ride through Middlesex County, MA, wouldn’t it?

        Of course, I suspect the Founders would see a big difference between resisting agents of a tyrannical power and the police hired by officials who themselves were appointed by elected officials.

  2. zoneofsubduction says:

    Those reading this blog should note that the higher court’s interpretation applied solely to a Missouri town ordinance which specifically prohibited this action based on the theory that ‘it could interfere with a police investigation’. It’s scope is rather limited.

  3. ffleming72 says:

    This is a controversial topic on which there are many ways to look at the situation. First off I think that Scalia would refer to “innocent till proven guilty.” Scalia is a textual person and I think he would be able to argue better that there has to be proof of the crime. I say this because if your friend told on you for speeding but a police officer never saw you then how can you be charged of a crime like speeding? Another question if my friend was going to kill someone and I stopped him from committing murder does that mean I go to jail because I stopped the crime? Just something to think about. Also to comment on the first comment, flashing your lights at a car of potential gang members has been proven as a gang initiation. This happens a lot from where I am from in Los Angeles. So everyone be careful!

    • zoneofsubduction says:

      Keep in mind that in most States, a simple case of speeding is not a criminal offense, but is a civil violation. The standard of proof in a criminal case is ‘beyond a reasonable doubt’, whereas it is ‘the preponderance of the evidence’ in a civil proceeding. In Arizona, a police officer must witness the civil offense first hand to take action on it.

      Criminal speeding according to State statute is limited to drag racing, speeding through school zones, and excessive speed [86 or more miles per hour], and similar speed offenses.

  4. darrian01 says:

    I find this topic very interesting because both arguments can be seen as valid considering the individual who’s reading it. Though many may feel that the flashing of headlights to warn drivers of police speed traps should amount to punishment, I feel that until law enforcement can prove why the individual in the car was flashing their headlights they have no authority to cite these motorists. Maybe the flashing of headlights will help save a life that might not have made it to the police speed trap because they were involved in a collision. Also they need to realize that these warnings can also help motorists understand the dangers of speeding and they may change their speed not only because of their knowledge of the speed traps, but for safety reasons. I do consider flashing of headlights free speech and it shouldn’t be punished by law.

  5. This places a good point on not only the First Amendment but also the right to just flash your lights in traffic. This, in my opinion is a double edged sword due to many things but specifically two subjects. Yes, I agree that warning on coming vehicles of speed traps ahead is wrong and needs to be controlled. I have also read about gangs placing a newly gang member in a car and having them drive around town with their lights off at night and the first vehicle to flash their head lights at the vehicle, the new member must kill or hurt the driver for initiation to their gang. This has been not only a warning from the law but also protection. On the other hand, I have seen people with their head lights off by accident get hit in the middle of the night due to the fact that their lights were off and were unseen by other drivers so people I know do flash lights to drivers with their lights off to protect them and others.

  6. jamietraxler says:

    This post was interesting to me. I find it a weir thing to debate about but I think that flashing your headlights should be protected. Speed traps are an easy way for lazy cops to meet their monthly quotas. While there are dangers for flashing your lights as stated in previous comments. There’s also an inherent danger in getting into your car every morning and trusting everyone else on the road with your life. Anything that can make the driving experience a little bit more pleasant, I say go for it.

  7. I’m glad it was useful to me. Thanks for your work.

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