68 F.4th 429
9th Cir.2023Background:
- Susan Porter honked in support of protesters outside a government office; a sheriff’s deputy cited her under Cal. Veh. Code § 27001 (horns only when "reasonably necessary" for safety); the citation was later dismissed but Porter sued for declaratory and injunctive relief.
- Porter alleges § 27001 violates the First Amendment as either content-based (requiring strict scrutiny) or, if content-neutral, as an overbroad time/place/manner restriction.
- The district court found Porter had standing based on self-censorship, treated § 27001 as content-neutral, admitted CHP Sgt. Beck’s traffic-safety expert testimony, and granted summary judgment for the State.
- The Ninth Circuit (majority) affirmed: Porter has standing; some honks can be expressive; § 27001 is content-neutral and survives intermediate scrutiny as narrowly tailored to the substantial interest in traffic safety.
- Judge Berzon dissented: she would exclude Sgt. Beck’s testimony, treat political-protest honking as core protected expression, and hold § 27001 unconstitutional as applied to political honking, enjoining enforcement against that use.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to bring pre-enforcement First Amendment challenge | Porter refrains from honking at protests due to a well-founded fear of citation (self-censorship). | Enforcement is rare; likelihood of citation is de minimis. | Porter has Article III standing based on credible self-censorship. |
| Is honking protected expressive conduct? | Some honks (e.g., political protest honks) are intended to convey a particularized message and are understood as communicative. | Many honks are mere noises; not all horn use is expressive. | Court: some honks can be expressive depending on context. |
| Is § 27001 content-based or content-neutral? | Plaintiff: law distinguishes based on message (warning vs. other messages), so it's content-based. | Defendants: law regulates use based on surrounding factual situation (safety hazard), not message. | § 27001 is content-neutral (applies evenhandedly and focuses on context, not message). |
| If content-neutral, does § 27001 further a substantial, non-suppressive interest? | Plaintiff: State offered little admissible empirical proof tying political honking to safety/noise harms. | Defendants: traffic safety and noise control are substantial; long legislative history and CHP expert support dilution/distraction rationales. | Court: traffic safety is a substantial interest and State met its burden (expert testimony + history/consensus/common sense). |
| Narrow tailoring / fit (intermediate scrutiny and remedies) | Plaintiff: statute burdens substantially more speech than necessary—protests often noisy, alternatives (local noise ordinances, Penal Code §415, targeted rules) exist. | Defendants: statute narrowly targets the exact harm (dilution and distraction) and leaves ample alternatives for expression. | Court: § 27001 is narrowly tailored to traffic safety and leaves ample alternative channels; affirmed summary judgment for State. Dissent would enjoin enforcement as applied to political protest honking. |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (facial content-based speech restrictions trigger strict scrutiny)
- United States v. O'Brien, 391 U.S. 367 (1968) (test for content-neutral regulation of expressive conduct)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, manner intermediate-scrutiny framework)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (requirement that empirical justification be proportional to the burden on speech)
- Texas v. Johnson, 491 U.S. 397 (1989) (nonverbal political conduct can be protected expression)
- Clark v. Cmty. For Creative Non-Violence, 468 U.S. 288 (1984) (alternatives and ample channels in manner restrictions)
- Spence v. Washington, 418 U.S. 405 (1974) ("particularized message" test for expressive conduct)
- City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464 (2022) (some regulations requiring examination of speech can still be content-neutral)
- Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640 (1981) (evenhanded regulations of forum conduct do not necessarily target content)
- Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (symbolic, nonverbal protest protected when conveying a political message)