Flash me: It takes two to conspire

When I read this Reason post yesterday about a Federal District Court judge who ruled [PDF] that flashing headlights to warn oncoming traffic of a speed trap is Constitutionally protected behavior, I thought it fairly straightforward.

Then I came across this WaPo/Volokh Conspiracy post by uber-First-Amendment-law-prof Eugene Volokh, which sought to throw a wrinkle into the issue in that oh-so-insufferable-everything-is-complex-only-if-you-were-smart-enough-to-understand-it-way that this most recent generation of lawprofs has seen it fit to model themselves after1

Before we get to how I’m wrong and Volokh is correct, let me give you the facts. It went thusly:

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 speedtrap [by flashing his headlights after observing a police car lying in wait]. While the charges were dropped, he promptly sued Ellisville, Missouri, for its speech-discouraging ways.

In ruling in his favor, the District Court judge wrote:

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.

Seems really straightforward. Except it’s complicated. From Volokh:

Whether this is the right answer is not clear. The situation is a special case of warnings to hide one’s illegal conduct because the police are coming — “abort the plan to rob the store” or “flush the drugs down the toilet.” True, here that is done by a stranger rather than by a lookout who’s in league with the criminals, but it’s not clear why that should make a constitutionally significant difference.

Really? It’s not clear why the former is criminal and the latter is not? Take two seconds to think about it. Got it, right? It’s because in the former scenario – “abort the plan to rob the store” – there’s a fucking conspiracy. In that, more than one person has agreed to do something illegal together and one of them has taken an substantial step in that direction. They’re both doing something illegal together and that was their goddamn plan from the beginning.

In the car-flashing scenario, there are complete strangers with no meeting of the minds. There’s no proof that the warning is even received by the intended recipient or that the recipient even understands what flashing headlights mean. Because if you believe in urban legends and you see headlights flashed at you, you might just shit your pants and hope that the girl you saved from being raped earlier somehow magically is the sister of the gang member who’s about to kill you and you remembered to take her wallet as proof2

Further, when you’re flashing your lights, you don’t even know if the intended recipient is breaking the law or not. How is flashing your lights, in of itself, illegal? Don’t you flash your lights at the person in front of you when they’re driving so damn slow and won’t get out of the left lane even though it’s rush hour and everyone’s trying to get to work and I need to eat the bagel and drink my coffee before court starts, WILL YOU JUST MOVE DAMMIT?

But what the hell do I know? I’m just a stupid trench lawyer and I don’t write for the Washington Post.

  1. No, not bitter at all.
  2. Training Day. Watch it.

14 thoughts on “Flash me: It takes two to conspire

  1. Max Kennerly

    Since lawprofing these days is all about trolling down slippery slopes (see, e.g., Rubenfeld & Chua), let’s take Volokh down the slope: if you’re lawfully crossing the road with your baby in a carriage, and a car is about to blow through a red light, and you yell “STOP!”, then you have conspired with the driver to avoid the driver’s future-crime of vehicular manslaughter. Heck, seems to me you’d be liable just for getting out of the way.

    It seems to me that Volokh can’t tell the conceptual difference between “hide the evidence!” and “conform with the law!” Flashing lights does not in any way encourage or assist a person to obstruct the prosecution of a crime that has been committed. It merely suggests they avoid future unlawful conduct. Indeed, while we’re trolling down the slippery slope, why not hold judges liable for imposing sentences meant to deter future unlawful conduct?

  2. shg

    There are two disappointing prongs to this post. The first is that Eugene’s effort to try to complicate this decision will make his WaPo readers stupider for having done so. It’s not that he meant to do that to his readers, but you are absolutely right about this insufferable need of lawprof’s to over-intellectualize every decision.

    The second is that you, in your artful manner, have emasculated Eugene’s silly argument, but chances of his reading the blog of a lowly trench lawyer is slim, and chances of his linking to it, citing it, correcting his post or even acknowledging that he might be a little off-base, are nearly nonexistent.

    Eugene has a big soapbox, and has used it poorly. It’s a shame that his readers don’t read here instead, so they at least have a fighting chance. And before leaving, I just want to note that this is the second time today that Max has made a comment that is thoughtful and well-informed. This is becoming a trend, and I like it.

    1. Gideon Post author

      Agree re: Max. As for the rest of it, Volokh will never see this post unless someone emails it to him or links to it in the comments to his post.

      1. shglaw

        It appears that Eugene is taken to task in the comments to his post, though not for the more sophisticated rationale the you provide. Maybe this will be a lesson to him, but I doubt it.

          1. T.D.

            Prof. Volokh seems to have decided to double down with a follow-up post and then, when people remained unconvinced, tripled (or, exponentially, quadrupled?) down with yet another one. Between this and his Cox petition, he does not seem to be having a red-letter week.

  3. Ron

    Everything you say makes sense. But the commentary is a little personal here, right? Let’s say he got it wrong. Can we just attack the substance of the commentary and not the person?

  4. gerardw

    So if there’s an unmarked police car hiding in the trees, and a marked cruiser stops by to say hello….
    Or how about when the police publish the locations of DUI in the newspaper in advance?

  5. alkali

    A quibble: I understand that “hide the drugs, the police are coming” might be a statement in furtherance of a conspiracy, but is the same true of “let’s not go through with the robbery, the police are coming”?


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