N.J. bill puts spotlight on right to flash high beams

Should drivers have the legal ability to flash their headlights as an alert to a police presence on the road? That knotty legal question is gaining momentum after a legal decision in Missouri, an Oregon ruling, and a new effort in New Jersey.

New Jersey Assemblyman Ronald S. Dancer introduced a bill in March that would make the use of flashing high beams at motorists legal under state law.

Proponents of the measure are citing a legal victory for the pro-high-beam crowd in a federal court in Missouri from February, which was reaffirmed last week.

U.S. District Judge Henry E. Autrey had issued a preliminary injunction in February prohibiting the town of Ellisville from prosecuting drivers who allegedly flashed their vehicles' headlights to warn of radar and speed traps. The city didn't appeal the decision.

Last week, Judge Autrey expanded that decision to a permanent injunction.

The American Civil Liberties Union championed the case of Elli v. Ellisville. Last April, the ACLU of Missouri sued on behalf of Michael Elli, who was pulled over in 2012 by a police officer and issued a citation for flashing lights to warn of radar use ahead. Elli faced a $1,000 fine for flashing the lights.

"Expressive conduct is protected whenever a particular message is present and the likelihood is great that the message would be understood by those who viewed it," said Tony Rothert, legal director of the ACLU of Missouri in a statement issued about the case. "Even new drivers understand that an oncoming car with flashing headlights means they should either slow down, turn on their headlights, or otherwise use caution."

The Asbury Park Press reported on the New Jersey story on Tuesday and it interviewed attorneys familiar with the proposal. They seemed to agree on the constitutional point but were skeptical if a New Jersey motorist would mount a constitutional challenge to protest a $54 fine.

But it did bring up a case from the 1990s where a motorist went to court and won a verdict that threw out a fine for illegal headlight flashing. However, that court's decision wasn't binding or applicable to other cases.

And there have been other instances where headlight flashers have won in court.

Last week, an Oregon man, Chris Hill, fought a $260 ticket for improperly using his headlights while driving a truck full of logs. Hill won his legal fight, and he acted as his own attorney in the proceeding.

"The citation was clearly given to punish the defendant for that expression," the judge said in the case. "The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct."

In May 2012, Ryan Kintner from Lake Mary, Fla., successfully fought a citation for violating a state traffic law by using headlights as a warning signal. The judge said the flashing was protected under the First Amendment.

"I felt an injustice was being done. … I have nothing against officers … keeping speeding down, but when you cross a line and get into free speech, I feel it's gone too far," Kintner told the Orlando Sentinel during the lawsuit's proceedings.

Back in New Jersey, the Newark Star-Ledger's editorial board has endorsed Dancer's measure, in opposition to the New Jersey Police Chiefs Association.

"At its core, this is a free-speech issue," the board said. "Police can't prevent you from stopping at every gas station to sound the alarm about a speed radar, or starting your own blog about the locations of hidden cruisers. Look — it exists already on Twitter. They shouldn't be able to prevent an altruistic citizen from flicking headlights, either."

The importance of the free-speech issue isn't likely to go away, as people facing relatively small fines are willing to take their cases to court.

As we profiled last month, a Pennsylvania man spent thousands of dollars in legal costs to protest a $150 fine for evading questions asked to him by a game warden. He won a legal victory over his Fifth Amendment rights, which apparently conflicted with a Pennsylvania deer-hunting statute.

Scott Bomboy is the editor in chief of the National Constitution Center.

Philadelphia's National Constitution Center is the first and only nonprofit, nonpartisan institution devoted to the most powerful vision of freedom ever expressed: the U.S. Constitution. Constitution Daily, the Center's blog, offers smart commentary and conversation about constitutional issues in the news, drawing insights from America's history and a variety of expert contributors.