Protected Speech: Flashing Headlights to Warn of Cops

      Eugene Volokh, who is a titanic free speech scholar, has a post on his blog concerning a recent decision upholding, as protected free speech, the right of a motorist to flash his headlights to warn oncoming drivers of a police speed trap.  Professor Volokh wonders whether this is the correct ruling.  I am hesitant to take issue with Volokh because his magisterial article on Crime-Facilitating Speech, 57 Stan. L. Rev. 1095 (2005), covers the enitre complicated area quite well.  But, undaunted, here is my take on this issue, applying Volokh's own approach.

      In the Stanford article Volokh defines crime-facilitating speech as "(1) any communication that, (2) intentionally or  not, (3) conveys  information that (4) makes it easier or safer for some listeners or readers (a) to commit crimes, torts, acts  of  war  (or  other acts by foreign nations that would be crimes if done by individuals), or  suicide, or (b) to get  away with committing such acts."  Flashing lights to warn of a speed trap does make it "easier or safer" to "get away with" speeding, even though the immediate consequence of heeding the warning is to comply with applicable speed limits.

       In the same article Volokh argues that "crime-facilitating speech ought to be constitutionally protected unless (1) it's said to a person or a small group of people when the speaker knows these few listeners are likely to use the information for criminal purposes, (2) it's within one of the few classes of speech that has almost no noncriminal value, or (3) it can cause extraordinarily serious harm (on the order of a nuclear attack or a plague) even when it's also valuable for lawful purposes."         Flashing headlights to warn of a speed trap implicates none of these concerns.  The recipient of the flashed warning is not likely to use the information for criminal purposes.  Indeed, the recipient is likely to use it to comply with the law.  Flashing lights is not expression that has "almost no non-criminal value" because its value is both to encourage lawful conduct and to aid speeders to avoid the consequences of his lawbreaking.  Thus, it's hard to conclude that flashing lights has "almost no noncriminal value."  Finally, it's quite dubious to assert that warning other drivers of a speed trap can cause "extraordinarily serious harm," especially because the likely effect of the warning is to induce compliance with the law. 

     Even on Volokh's terms it seems that this is constitutionally protected expression, so I do not understand what his concern may be.   

Comments

[Michael Risch]

Your first point is what I was thinking when I read that post - don't people slow down and comply with the law when they see the lights? If so, then the flashing lights replace really good eyesight.

I suspect the response is that it does facilitate crime, because now everyone can drive around really fast, and the warnings will tell them to slow down to avoid capture. I'm not buying that story, though - you can't be assured that someone will speak to you wherever there's a speed trap, for example.

[Jimbino]

You are right, Volokh is wrong, and your post is written in English, unlike those of Volokh, who continues to say, "forbid...from..." and other infelicities, all the while deigning to advise students on proper legal writing.

[Howard Wasserman]

Michael: Volokh would equate flashing flights to the lookout shouting "here come the cops," causing his co-conspirators to forego or change their robbery plans. There is a difference between that and flashing lights, but I haven't been able to fully articulate it.

I wonder if we also can point out that sometimes the government warns about speed zones or about air-based traffic surveillance, as a way to deter the activity. So should the same warnings be unprotected when coming from individuals?

[Michelle Meyer]

Follow-on post: http://m.washingtonpost.com/news/volokh-conspiracy/wp/2014/02/05/warning-lawbreaking-friends-and-family-that-the-police-are-watching-might-indeed-be-illegal/

[Jeff Harrison]

This is probably attributable to not reading the decision or the post but am I hearing this right: "Warning people they may be caught increases crime?"

[Jeff Harrison]

It's a bit of a problem to refer to this as crime. It is but the law clearly is designed to discourage speeding for some reasons and not for others. It actually creates an expected fine that people may or may not be willing to pay. If I am rushing an injured child to the hospital I "buy" some speeding; if I am late to a movie, I may not. So, if this is the case, someone flashing lights has the effect of telling the motorist that the expected cost of speeding up ahead is higher than he or she may anticipate. This means they slow down when they might otherwise not slow down. If anything, flashing lights causes "crime" to decrease below obtimal levels.