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Ninth Circuit Rules Honking One’s Car Horn Is Not Protected by the First Amendment

by Jordan Arizmendi

The U.S. Court of Appeals for the Ninth Circuit ruled that honking a horn for any other reason than the safety of the driver and his or her passengers is not a form of expression protected by the First Amendment. Porter v. Martinez, 64 F.4th 1112 (9th Cir. 2023).

Susan Porter got a ticket for honking her horn in support of an anti-Trump protest that she passed while driving. The San Diego police officer who issued the ticket believed that she had breached a state law regarding the misuse of car horns.

In response, Porter filed a federal lawsuit in 2018, claiming that honking her horn to show support for the protesters is protected by the First Amendment. She also claimed that the California law, on which her ticket was based, is unconstitutional. The California law prohibits the use of a car horn for anything except to ensure a safe driving environment or as a theft alarm system.

After a U.S. District Court ruled against Porter, the Ninth Circuit upheld the lower court’s ruling. Judge Michelle Friedland wrote, for “the horn to serve its intended purpose as a warning device, it must not be used indiscriminately.”

However, Ninth Circuit Judge Marsha Berzon disagreed with the ruling. She wrote in dissent, “A political protest is designed to be noticed. As Deputy Klein testified, ‘it was loud.’ Political honking was hardly a significant source of noise or distraction in that environment. There is no basis for supposing that anyone was confused or distracted by the honking. Instead, Porter’s honking was understood as political expression by the protesters, who cheered in response.”

 Based on the Court’s decision, it’s fair to ask had Porter not honked her horn in solidarity but instead gave a thumbs-up or pumped her fist, and thus removing her hand from the steering wheel and creating a dangerous environment on the road, would that be the appropriate method of exercising her First Amendment rights? Instead of honking, what if Porter waved her hand, and as a result, she crashed her car? It certainly seems as though a simple honk of the horn is the safest way to express solidarity with a protest while driving past it. 

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