Judge: Flashing Headlights To Warn of Speedtraps Is Protected by the First Amendment

Just last week, I passed a Yavapai County
Sheriff’s Office car parked along a rural stretch near absolutely
nothing other than an intersection with unpaved track. He pulled
out, turned on his lights, then sped by to pull over the guy in
front of me who had been exceeding the ridiculously low speed limit
by just a bit more than me. I passed on, then flashed my headlights
at the next two cars I saw as a friendly warning. Cops don’t
necessarily like it when you do that, but I think it’s common
courtesy. Yet another federal judge just chimed in to say that it’s
also protected free speech.

In 2012, Missouri resident Michael Elli was pulled over and
handed a $1,000 ticket for passing along just such a warning to
motorists about a speed trap. While the charges were dropped, he
promptly
sued Ellisville, Missouri, for its speech-discouraging
ways.

Yesterday, he won.

U.S. District Court Judge Henry E. Autrey
pointed out (PDF) in his decision that Ellisville’s ordinance
forbidding any sort of flashing of lights by vehicles other than
buses directly contradicts Missouri Department of Revenue (which
licenses vehicles in the state) advice that lights
should be flashed to signal emergencies. More
importantly, people have the right to communicate with
each other on the road.

Defendant suggested that flashing head lamps might be illegal
interference with a police investigation; however, the expressive
conduct at issue sends a message to bring one’s driving in
conformity with the law—whether it be by slowing down, turning on
one’s own headlamps at dusk or in the rain, or proceeding with
caution… Even assuming, arguendo, that Plaintiff or
another driver is communicating a message that one should slow down
because a speed trap is ahead and discovery or apprehension is
impending, that conduct is not illegal.

Ellisville officials promised, cross their hearts and hope to
die, that they would stop enforcing their law against First
Amendment protected speech. Judge Autrey found that
unconvincing.

The chilling effect of Ellisville’s policy and custom of having
its police officers pull over, detain, and cite individuals who are
perceived as having communicated to oncoming traffic by flashing
their headlamps and then prosecuting and imposing fines upon those
individuals remains, regardless of the limited special order. As
the other preliminary injunction factors are presumed when a
likelihood of success on a First Amendment claim is shown, the
Court will issue a preliminary injunction.

Elli is represented by the ACLU of Missouri, which seeks to have
the injunction made permanent—and the lesson that motorists can
warn each other about speed traps if they damned well please shared
with law enforcement everywhere.