September 4, 2009
Is horn honking protected speech?
By ANDREW BERGH
Special to the Journal

C'mon, admit it.

Once in a while, you really enjoy honking your horn at another driver who cut you off or otherwise acted like a jerk. I'm not referring to just a short toot, mind you, but a truly long blast where you're counting to yourself, “One one-thousand, two one-thousand... ”

But blaring your horn nonstop for a whole 10 minutes? That admittedly seems a bit extreme, and as Helen Immelt learned, can even land you in hot water with the local authorities.

The Case of the Harassing Honker hails from Snohomish County.

By way of short background, Immelt and her roommates - an unknown number of chickens - lived on a cul-de-sac in a development governed by restrictive covenants.

In early May of 2006, Immelt received a letter from the homeowner's association advising her that she couldn't keep chickens in her backyard. Instead of rolling with this punch, Immelt screamed and yelled at a neighbor who knew nothing about the letter, and she then initiated a shouting match with the president of the association. This attracted three more neighbors, including John Vorderbrueggen, who admitted that he was the one who complained about the chickens.

The very next morning around 5:50 a.m., Immelt parked her car in front of Vorderbrueggen's house and honked her horn for about 10 minutes. After the constant noise woke him up, Vorderbrueggen recognized the car and called 911. Immelt drove away but soon called Vorderbrueggen, mentioning her chickens and her desire to “make sure” he was up for his 6 a.m. “wake-up call.”

In response to the 911 call, Sgt. David Casey drove to the neighborhood and contacted Vorderbrueggen, who described the morning's events.

The officer then contacted Immelt and asked her to stop honking her horn. But the chicken owner again lost her cool, heatedly claiming her car's horn didn't work but later claiming it had gone off all by itself. On top of that, she wouldn't let Sgt. Casey view her car and check out the alleged horn problem. So after telling Immelt that she would be arrested if she kept blowing the horn, Sgt. Casey returned to Vorderbrueggen's home to obtain his statement.

Around 8 a.m., Sgt. Casey saw Immelt pull out of her driveway and heard three “long blasts” of her horn as she drove by in her car. After leaving Vorderbrueggen's house and speaking with yet another neighbor who confirmed that Immelt had sounded her horn, the officer quickly pulled Immelt over and arrested her.

Immelt at first denied honking her horn but later said she had done so because the neighbor made an obscene gesture at her.

The chicken lover was later charged in Snohomish County District Court with violating the county noise ordinance, and was convicted in December of 2006 following a three-day jury trial. (A fine example of taxpayer dollars hard at work). Immelt then appealed, arguing that the noise regulation was unconstitutionally vague and overbroad, and interfered with her right to free speech.

But under Washington law, a party challenging an ordinance must demonstrate that it's unconstitutional beyond a reasonable doubt. And according to the Washington appeals court that recently affirmed her conviction, Immelt had failed to meet this heavy burden.

Under free speech principles, said the court, conduct that is “sufficiently imbued with elements of communication” — even horn honking — may be covered by the First Amendment. For example, in an Oregon case decided in 1992, horn honking that demonstrated support or disapproval of a political issue was found to be protected speech.

But the appeals court rejected Immelt's argument that she had only sounded her horn to protest the actions of the homeowners' association. Horn honking done to annoy or harass is not “speech,” said the court, and the evidence showed that Immelt had repeatedly beeped her horn in front of her neighbor's home to harass him in retaliation for his complaint about her chickens.

The appeals court likewise rebuffed the hen supporter's claim that the county's noise law is unconstitutionally vague. To prove that proposition, Immelt had to establish, among other things, that people of “common intelligence” wouldn't know what conduct was proscribed by the regulation. This Immelt could not show, said the court, since the ordinance clearly bans horn honking for purposes other than public safety, and since people of ordinary intelligence can readily comprehend the term “public safety.”

So are Immelt's horn honking days over?

Your guess is as good as mine. But speaking of noises, I'll bet she's still squawking about her court case.