(When you see it…. Image adapted from a photo by Ildar Sagdejev via Wikimedia Commons)
One aspect I briefly touched upon in my post last week in the comments was the possible chilling effects on free speech if people know that their comments on the Internet could be used to launch a federal investigation on them.
Keeping in the same vein, but hopefully moving away from the grim specter of terrorism, last week a St. Louis Judge ruled that flashing your headlights to warn fellow motorists of a police speed trap is constitutionally-protected speech under the First Amendment. Read the injunction ordering police to stop citing motorists for what judge called “retaliation for the individuals having engaged inexpressive conduct protected by the First Amendment” here.
For years, police across the country have ticked drivers who have flickered their high-beams, presumably, to warn oncoming drivers of police speed traps, often citing rules against flashing lights on vehicles in local traffic codes. While lawyers for these drivers have argued that such rules are intended to prevent motorists from mounting official-looking squad-car-style lights on their vehicles, they also claim the practice is an expression of free speech. Judges have generally agreed and dismissed the citations.
However, Eugene Volokh, a UCLA law professor, takes issue with the Minnesota judge’s argument that blinking one’s headlamps to warn motorists of speed traps falls under First Amendment protection. Such communication Volokh calls “Crime-Facilitating Speech […] which is to say speech that conveys information that makes it easier for people to commit crimes or to get away with crimes.”
He notes that the Supreme Court has “never squarely confronted when such crime-facilitating speech is protected by the First Amendment and when it’s not.” In a linked article to the Stanford Law Review, Volokh offers a definition for crime-facilitating speech:
The danger of crime-facilitating speech is related to that posed by crime-advocating speech. To commit a typical crime, a criminal generally needs to have three things:
(1) the desire to commit the crime,
(2) the knowledge and ability to do so, and
(3) either (a) the belief that the risk of being caught is low enough to make the benefits exceed the costs, (b) the willingness–often born of rage or felt ideological imperative-to act without regard to the risk, or (c) a careless disregard for the risk. Speech that advocates, praises, or condones crime can help provide the desire, and, if the speech urges imminent crime, the rage. Crime-facilitating speech helps provide the knowledge and helps lower the risk of being caught.
Should crime-facilitating speech as Volokh defines it becomes illegal, I fear a wide range of ostensibly innocuous activities will suddenly become outlawed. What if while traveling as a passenger in a car driven by your friend, you tell him to slow down in a section of road that you know is frequently patrolled by police? Are you not helping and encouraging your friend to break the law?
There seems to be a very twisted logic underlying Volokh and these ticketing police departments’ premise: “Mr. Scofflaw totally would have broken the law had YOU not warned him that we were around, so we’re going to punish you, since you caused us to miss him.” It reeks of preecrime and is completely contrary to the American legal precept that one is innocent until proven guilty.
Just for fun, since we recently read “Common-Law Courts in a Civil-Law System: the Role of United States Courts in Interpreting the Constitution and Law,” Supreme Court Justice Antonin Scalia’s essay on textualism, I wonder if Scalia left any hints as to what his opinion of the Minnesota ruling might be. Scalia says he looks for the “original meaning of the text,” whether he’s looking at the Constitution or a statute.
He also says earlier that while the First Amendment doesn’t specify “the full range of communicative expression,” the Constitution was designed to have “an expansive rather than narrow interpretation—though not an interpretation that the language will not bear.”
So he’d probably say a wide range of written and spoken communication would be protected by the First Amendment, but what about flashing your headlights? Well Scalia leaves a rather ominous aside when discussing how believers in the “living document” Constitution say the document can always point towards greater personal liberty.
(They consider that a great advantage for reasons that I do not entirely understand. All government represents a balance between individual freedom and social order, and it is not true that every alteration in that balance in the direction of greater individual freedom is necessarily good.)
(Photo by Stephen Masker via Wikimedia Commons)
I bet Scalia would laugh at your pathetic attempt to avoid a moving violation.