Court: District Court, S.D. California; December 13, 2018; Federal District Court
The legal issue centers on whether the act of sounding a car horn at a political rally constitutes constitutionally-protected speech or violates California Vehicle Code section 27001, known as the "horn ordinance." Plaintiff Susan Gore filed a complaint addressing this issue. On August 13, 2018, Commissioner Warren Stanley of the California Highway Patrol filed a motion to dismiss the complaint, which Sheriff William D. Gore subsequently joined. Plaintiff opposed the motion on October 16, 2018, and Stanley replied on November 9, 2018, with Sheriff Gore also joining the response.
A hearing was conducted on December 14, 2018, where the Court reviewed the moving papers, oral arguments, and relevant law, deciding to grant in part and deny in part the motion to dismiss. The factual background highlights California's horn regulations, which have existed since 1905, mandating that vehicles be equipped with a functional horn. The current Vehicle Code provisions restrict horn use to safety warnings or as a theft alarm, emphasizing that the horn should not be used otherwise. The Attorney General has classified section 27001 as a "vehicular noise law." Both defendants, Sheriff Gore and Commissioner Stanley, possess the authority to enforce this provision, with Sheriff Gore overseeing traffic laws in San Diego County and Stanley having statewide jurisdiction.
Plaintiff, residing in Oceanside, California, participated in weekly protests at Congressman Darrell Issa's district office in Vista from November 2016 to April 2018. These protests, held on Tuesdays from 10 to 11 a.m., often involved loud noise from both supporters and opponents of Issa, including the use of sound systems and vehicle horns. On October 17, 2017, during one such protest, Plaintiff drove past while honking in support and was subsequently cited by Deputy Sheriff Klein for violating section 27001. Although the citation was dismissed due to the deputy's absence at a hearing, Plaintiff filed a lawsuit on June 11, 2018, alleging violations of her First Amendment rights under 42 U.S.C. § 1983 and California's Article I, section 2 regarding freedom of expression. She claims section 27001 is overly broad and a content-based restriction that warrants strict scrutiny, or alternatively, insufficiently tailored for intermediate scrutiny. Plaintiff seeks both declaratory and injunctive relief to declare the statute unconstitutional as applied to her expressive conduct and to prevent its enforcement.
In response, Defendants filed a motion to dismiss, arguing that horn honking is not protected speech under the First Amendment. They assert that section 27001 is a content-neutral regulation subject to intermediate scrutiny, serving legitimate state interests in reducing noise and preventing driver distraction. They contend that the regulation is a valid time, place, and manner restriction and that the Plaintiff's overbreadth challenge is invalid. Additionally, Defendants claim that the Plaintiff's as-applied challenge is not ripe for adjudication and that the Eleventh Amendment bars her state constitutional claims.
To withstand a motion to dismiss under Rule 12(b)(6), a complaint must include sufficient factual matter, presumed true, to present a plausible claim for relief. Dismissal is warranted when the complaint lacks a legal theory or sufficient facts to support one. While detailed factual allegations aren't required, the complaint must surpass mere recitations of elements and conclusory statements. The factual content must suggest a claim that entitles the plaintiff to relief. Generally, courts cannot consider materials outside the complaint, but they may take judicial notice of public records if the facts are undisputed.
Regarding First Amendment claims, these are applicable to state laws via the Due Process Clause of the Fourteenth Amendment. The government must prove the constitutionality of any speech restrictions it imposes. However, the plaintiff must first establish that the challenged law indeed restricts speech as defined in First Amendment jurisprudence.
Horn honking may qualify as expressive conduct under the First Amendment, but it is not classified as pure speech. For conduct to be constitutionally protected, it must have an intent to communicate a specific message and a high likelihood that the message will be understood by observers. The plaintiff argues that horn honking serves as a form of expressive conduct, citing California's section 27001, which acknowledges its communicative function by allowing it for "audible warnings." However, defendants contest this, referencing case law to question whether honking can convey an intelligible message without codified systems like Morse code.
While pure speech is defined as "purely expressive activity," the plaintiff has not provided sufficient legal precedent to categorize horn honking as such. Previous cases have characterized it as expressive conduct, notably in State v. Immelt. Comparisons to musical expression in Ward v. Rock Against Racism are deemed inappropriate, as honking lacks the emotional and intellectual appeal of music. Courts, such as in Goedert v. City of Ferndale and Meaney v. Dever, have ruled that horn honking does not implicate First Amendment protections unless contextual factors establish it as expressive.
In contrast, cases like Martinez v. City of Rio Rancho illustrate that honking can convey a specific message in certain contexts, such as alerting another driver about their headlights. The court finds merit in the plaintiff's assertion that her honking was intended to show support for a protest and was perceived as such by others. Additionally, various courts have recognized honking as a form of expressive conduct, further supporting the plaintiff's argument.
The Court confirms that the Plaintiff's expression is protected and identifies the nature of the forum as a traditional public forum, a classification both parties agree upon. A traditional public forum is defined as a space historically available for public expression, such as streets and parks. The street where the Plaintiff was cited fits this definition, as these areas have long been used for public assembly and communication. The Court rejects the Defendants' argument that the forum is a "specific channel of communication relating to motor vehicle operation," which they claim is subject to less scrutiny due to California's regulation of vehicle use. The Court emphasizes that a designated public forum can only be established through intentional government action to open a nontraditional forum for public discourse. Since the Defendants argue that horn honking lacks intelligible speech, they cannot assert that the State has intentionally created a dedicated communication channel for such discourse. Therefore, the analysis remains focused on the traditional public forum.
Section 27001 is classified as content-neutral. The government’s ability to restrict expressive activities in public forums is limited but not entirely prohibited. Regulations targeting speech based on content are presumptively unconstitutional, requiring the government to demonstrate a compelling interest and narrow tailoring. Conversely, reasonable time, place, and manner restrictions may be imposed if they are content-neutral, which are subject to intermediate scrutiny. Such restrictions must serve a significant government interest without regard to the content of the speech and must provide ample alternative channels for expression. The determination of whether Section 27001 is content-based or content-neutral hinges on whether it differentiates between speech types based on content. The statute would be deemed content-based if its primary purpose is to suppress or favor specific content or if it explicitly distinguishes between types of speech.
Section 27001 is determined to be content-neutral, as it does not discriminate based on the content of messages conveyed by horn honking. The Supreme Court's guidance from Reed emphasizes that the first step in content neutrality analysis is to assess whether a law discriminates on its face. There is conflicting authority on this matter. In the case of Goedert, the court found a similar ordinance to be content-based, as it required police to interpret the message behind horn honking before issuing citations. Conversely, in Weil and Rio Rancho, the courts ruled that honk ordinances were content-neutral, as they prohibited horn usage solely based on the context of imminent danger, not the intended message. The current court aligns with Weil and Rio Rancho, asserting that laws restricting the manner of expression, rather than the content, are content-neutral. Section 27001 specifically prohibits non-essential horn honking without regard for the meaning behind the honk, thus regulating based on the manner of expression. The court concludes that this statute conforms to the precedent set by Turner I, which differentiates between the manner of expression and the content of the message.
Plaintiff argues that section 27001 of the ordinance is content-based, similar to horn honking ordinances discussed in Goedert, which require police to evaluate the message of a honk before issuing citations. The Plaintiff cites McCullen v. Coakley to support this claim, asserting that enforcement authorities must assess the message to determine violations. However, the Supreme Court has not deemed minimal reviews necessary for enforcement as problematic. In Hill v. Colorado, the Court dismissed concerns from "sidewalk counselors" who claimed a similar law necessitated content examination, emphasizing that such reviews are typically limited to determining whether the law applies to innocuous speech. The Court concludes that the inquiry required under section 27001 would involve only a brief assessment regarding the necessity of horn use for safe driving, which does not constitute a content-based restriction.
Section 27001 is characterized as a content-neutral regulation, justified without regard to the content of speech. A regulation can be considered content-based if it is enacted due to disagreement with the message conveyed; however, if the regulation serves purposes unrelated to the content of expression, it is deemed neutral despite any incidental effects on particular speakers or messages. The regulation's intent to manage "secondary effects" from protected expression, rather than to suppress the expression itself, satisfies the content-neutrality requirement.
Defendants argue that Section 27001 serves three purposes related to the secondary effects of honking:
1. Promoting traffic safety by reducing distractions for drivers.
2. Maximizing the utility of car horns for actual emergencies by limiting non-emergency honking.
3. Noise reduction to prevent excessive noise pollution.
The Plaintiff does not claim that Section 27001 was enacted with a speech-restraining intent, and there is no evidence suggesting that its purpose is to control protected communication content. Instead, the regulation focuses on mitigating noise and distractions arising from honking.
Plaintiff's as-applied challenge to section 27001 is deemed appropriate as the statute is content-neutral and requires immediate scrutiny. The Court distinguishes between as-applied and facial challenges, noting that a facial challenge targets the entire statute, while an as-applied challenge focuses on specific applications or instances. The Supreme Court advises resolving as-applied challenges before addressing facial issues to avoid unnecessary overbreadth discussions.
The Court affirms that the as-applied challenge is ripe for consideration, countering Defendants' argument that the dismissal of Plaintiff's citation renders her challenge speculative. The law recognizes self-censorship as a valid injury, sufficient to demonstrate ripeness even without actual prosecution. The threat of enforcement inherent in the statute contributes to this determination. Plaintiff's previous citation, although dismissed, creates a reasonable fear of future citations for similar expressive activities, leading her to self-censor. Consequently, she asserts her right to seek preventative relief without waiting for prosecution, establishing the ripeness of her as-applied challenge.
Section 27001 is challenged as an ineffective time, place, and manner restriction concerning freedom of speech. To withstand intermediate scrutiny, an ordinance must serve a substantial government interest, be narrowly tailored, and not unreasonably limit alternative communication avenues. The government asserts that Section 27001 addresses traffic safety by reducing horn usage to minimize distractions and noise pollution, which are recognized as substantial interests.
However, the plaintiff argues that the law is not narrowly tailored to achieve its intended outcomes. While acknowledging the importance of noise reduction and traffic safety, the plaintiff contends that the regulation unnecessarily restricts speech. The standard for narrow tailoring does not require the least restrictive means but does prohibit regulations that excessively burden speech when other less restrictive alternatives are available. The burden of proof lies with the government to demonstrate that the regulation is appropriately tailored to its objectives, necessitating a compelling justification rather than mere assertion of the problems it seeks to address.
Defendants must demonstrate that the harms addressed by the regulation are real and that the regulation will effectively alleviate these harms. They argue that section 27001 adequately reduces noise from car horns, which are inherently loud by design and law, as mandated by California Vehicle Code § 27000(a). This section restricts horn usage to prevent distractions and desensitization, allowing use only for automated theft alarms or safe operation.
The Plaintiff challenges this by asserting that Defendants have failed to prove that expressive use of the horn, such as in political protests, undermines the government's objectives. She argues that there is no substantial evidence linking expressive honks to public safety or noise pollution issues, characterizing Defendants' claims as unsupported assertions. The Court concurs, stating that Defendants have not met their burden of proof required to justify section 27001 under intermediate scrutiny standards. The government must provide reasonable inferences based on substantial evidence that the statute is closely related to the governmental interest.
Furthermore, the Court emphasizes that the government cannot rely on inadequate data or reasoning and typically needs an evidentiary record to support its legislative actions. In this case, Defendants have not provided any evidence indicating the legislative intent behind section 27001 or how it specifically addresses the concerns that prompted its enactment.
The Court cannot assess whether the legislature based its conclusions on substantial evidence due to the lack of record evidence. Defendants' assertions linking honking to noise pollution and traffic safety are insufficient, as mere conjecture cannot satisfy the First Amendment burden. Previous Ninth Circuit rulings emphasized the need for concrete evidence rather than hypothetical situations when establishing a significant government interest. The Court notes that the Plaintiff argues that section 27001 fails to effectively address the alleged harms to traffic safety and noise control, as it is both under-inclusive and over-inclusive. Specifically, section 27001 allows excessive use of vehicle horns as theft alarms, contributing to noise pollution, while simultaneously prohibiting expressive uses that do not threaten traffic safety or create excessive noise. The Plaintiff suggests alternative regulatory measures, such as noise regulations, that could effectively serve the government’s interests with minimal impact on speech. While the Court finds the under-inclusiveness argument less compelling, it acknowledges the concern regarding over-inclusiveness, noting that a statute cannot be significantly overinclusive to be considered narrowly tailored. This aligns with the principle that a state need not address all facets of a problem simultaneously.
Defendants argue that a citation for a single honk, such as that by Plaintiff, falls under a straightforward application of the vehicle code, despite no allegations regarding noise level or traffic danger. Plaintiff counters that Defendants must provide evidence that her honk undermines the interests they aim to protect, which they have failed to do. This case parallels Tollis, where the Ninth Circuit found insufficient evidence to support the government's claims regarding adult-oriented businesses and their harmful secondary effects. Similarly, there is a lack of evidence regarding whether Plaintiff's single honk diminishes the horn's safety utility, making the case inappropriate for resolution under Rule 12(b)(6). Additionally, the Court noted that no First Amendment cases were dismissed at this stage without further record development. Defendants have not justified the broad application of section 27001 or contested the availability of less restrictive alternatives. Consequently, the Court rejects the motion to dismiss Plaintiff's First Amendment claim. Furthermore, Plaintiff's claims under Article I, Section 2 of the California Constitution are solely against Sheriff Gore in his official capacity, seeking both a declaration that section 27001 is unconstitutional and an injunction against its enforcement. Sheriff Gore argues that the Eleventh Amendment, as interpreted in Pennhurst, poses a barrier to such claims.
The court rules that federal jurisdiction is precluded in this case based on the Eleventh Amendment, following the precedent set in *Pennhurst*, which protects states from claims against state officials based on state law. The plaintiff argues that naming the Sheriff, a county official, excludes her claims from this protection, as counties do not enjoy Eleventh Amendment immunity. However, the court finds that the nature of the relief sought—invalidating a state law—means the claims effectively target the State of California, regardless of the official named. The court emphasizes that the relief against a county official can still impact the state itself, affirming the broader implications outlined in *Pennhurst*. The court also dismisses the plaintiff's state law claims but allows for the possibility of amending the complaint to address jurisdictional issues. Consequently, the motion to dismiss is granted for the state-law claims but denied for the First Amendment claims.
Dismissal of the state law claims is without prejudice, allowing the Plaintiff to file an amended complaint within 30 days of the order. The request for oral argument, if made by an attorney with less than five years of experience in the California bar, will favor holding a hearing. The County's unopposed request for judicial notice of California's prior motor vehicle statutes is granted. The California Vehicle Code defines "highway" as a publicly maintained way open for vehicular travel, including streets. There is ambiguity regarding who received citations related to the protests—whether Issa supporters or protestors—and the specific reasons for the citations. Defendants assert that section 27001 is a reasonable time, place, and manner restriction, contingent upon the existence of a public forum. The Plaintiff references the case Immelt, arguing that a horn ordinance may not properly restrict content but notes that the ordinance's context is different from section 27001. The document cites various regulations around the use of vehicle horns, emphasizing safe operation and prohibitions against distracting motorists or disturbing the peace. The Ninth Circuit recognizes two forms of as-applied challenges: one based on a specific fact situation and another on selective enforcement of a neutral law. The Court identifies only a "paradigmatic" challenge in the Plaintiff's complaint, noting the absence of claims regarding the law's neutrality or discriminatory enforcement practices.
Plaintiff does not assert a content-discriminatory enforcement of Section 27001, lacking any claims that Defendants selectively enforced the law against protesters while exempting supporters of Representative Issa. The Court acknowledges the need for substantial deference to legislative predictive judgments during intermediate scrutiny, as established in Turner II, but emphasizes that such deference does not shield the government from meaningful judicial review, as noted in Young. For judicial review of legislative policy judgments to occur, there must be evidence that the legislature made the policy judgment claimed by the Defendants. Additionally, it is significant that the motion to dismiss Plaintiff's claims under the California constitution comes from Commissioner Stanley's counsel, representing the Attorney General, rather than from Sheriff Gore, whose counsel has only joined the defense.
