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.
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.