Flashing Lights to Warn of Cops: Part 2

In an earlier post I used Eugene Volokh’s analytical method to discuss whether flashing headlights to warn oncoming drivers of a speed trap was constitutionally protected speech.  In this post I want to discuss the issue under conventional free speech doctrine.  The actual case is Elli v.City of Ellisville.  Local police routinely cited drivers who flashed their headlights to warn oncoming drivers of a speed trap.  The police relied on a city ordinance that permitted flashing warning signals on school buses in school use, vehicles in U.S. postal use, buses owned or operated by religious institutions, and “commercial passenger transport vehicles” stopped to load or unload passengers.  No other vehicle was permitted to use any flashing warning signals. Michael Elli flashed his lights to warn oncoming drivers of a waiting policeman and was initially fined $1000 for his efforts.  He challenged the validity of the law in federal court and obtained a preliminary injunction restraining its enforcement. 
    There is no doubt that the common act of flashing one’s headlights to alert oncoming drivers of some condition ahead is a form of expressive conduct.  For conduct to be expressive, and thus treated as speech, the Supreme Court has said that the actor must intend “to convey a particularized message” and the probability must “be great that the message would be understood by those who viewed it.” Flashing lights convey one of several possible messages: “It’s dark; your headlights are off”; “Dim your high beams”; “There’s a cop ahead;” "There’s an accident, or other road emergency ahead”; “Slow down!” The specific message is contextual and the context will trigger the recipient’s understanding one or more of these messages.
    Given the breadth of the Ellisville ordinance, which bans all uses of flashing lights, the law may regulate speech without regard to its content.  If so, and assuming the city’s purpose was not to squelch messages but to enhance traffic safety by limiting the frequency of emergency signals, the ordinance would be valid if it is “narrowly tailored to serve a significant government interest” and “leaves open ample alternative channels of communication.” The former criterion is met if the law “promotes a substantial government interest that would be achieved less effectively absent the regulation.” It is not clear that there is any marginal improvement in traffic safety by a total ban on flashing lights, much less that the government’s interest is substantial.  Moreover, the law prohibits an entire channel of communication, practically the only way drivers can signal anything to other drivers.  The Supreme Court has held a near-total ban on yard and house signs failed to leave open ample alternative channels of communication.  If banning most, but not all, signs is an invalid media ban, the total ban of private motorists signaling to other drivers is an even greater media ban. 
    The law is also astonishingly overbroad. Most of the messages that can be communicated by flashing lights have nothing to do with facilitating crime or avoiding its consequences.  Most of those messages provide useful warnings of dangers on the road that any motorist would be gratified to know.  More importantly, those benign messages are presumed to be constitutionally protected.  As a substantially overbroad law, the Ellisville ordinance is unconstitutional on its face. 
    Finally, if the law is only applied to driver signals of a policeman ahead, it would be applied on the basis of the content of the message.  Regulating speech on the basis of its content is presumed to be invalid.  At the very least, the government must prove that such regulations are necessary to accomplish a compelling, or supremely important, interest. And to prove necessity, the government must show that its law is narrowly drawn to reach only the speech that affects the government’s compelling interest.  Ellisville has a hopeless task should it seek to prove those elements. 
    Defenders of the law might say it is just like a person saying to a burglar: “Run; the cops are coming.” But speech warning ther burglar to flee has no non-criminal value.  Its only purpose is to assist a criminal in avoiding the consequences of his crime.  Flashing lights, even when done to warn of a speed trap, has the primary purpose of warning the oncoming drive to obey speed limits.  Only secondarily does it assist the oncoming driver to avoid the consequences of his prior unlawful behavior. 

Comments

[Bruce Boyden]

"Only secondarily does it assist the oncoming driver to avoid the consequences of his prior unlawful behavior." If that's true, wouldn't people flash their brights at all speeders, and not just in proximity to speed traps? But that doesn't seem to be what actually happens, which indicates that what you describe as the secondary purpose is actually the primary purpose.