Honking is Protected Speech, ACLU tells Benton Harbor Court

Affiliate: ACLU of Michigan
August 16, 2012 11:10 am

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ACLU of Michigan
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Motion to dismiss criminal charges against peaceful protesters filed today

CONTACT: (212) 549-2666; media@aclu.org

Benton Harbor, Mich. – In an effort to protect the free speech rights of protesters, the American Civil Liberties Union of Michigan filed court papers today to dismiss criminal charges against three individuals who were ticketed for violating a Benton Harbor noise ordinance when they tooted horns during a peaceful demonstration against Public Act 4, the emergency manager law.

“It’s a shame that a cash-strapped city like Benton Harbor would waste limited resources prosecuting peaceful protesters and defending an unconstitutional noise ordinance,” said Miriam Aukerman, ACLU of Michigan staff attorney. “More than a half a century ago, the U.S. Supreme Court struck down a similar ordinance because it could, as in this case, be used as a ‘dangerous weapon’ to censor protected speech.”

On May 26, 2012, during the Senior PGA Golf Tournament in Benton Harbor, Chris Lamere, Sean Crawford and Robert Mabbitt participated in a public protest against Public Act 4, the appointment of a financial manager and the taking of public land from Klock Park for the development of the private golf course.

During the protest, Mabbitt and Crawford separately held up a sign with “P.A. 4” crossed out, similar to a no smoking sign. The sign also had a bicycle horn attached to it. After Mabbitt and Crawford tooted the horn on the sign, officers approached each of them and issued citations for violating the city’s noise ordinance. Lamere was issued a citation after tooting an airhorn during the protest. None of the protesters were issued warnings that tooting the horns would result in a citation. If convicted, Lamere, Crawford and Mabbitt could face a maximum penalty of 90 days in jail.

“I would find this whole situation difficult to believe had it not happened to me. Now that it has, I know that the time has come to push back,” said Crawford, a Flint resident. “The essence of democracy is the right to express our dissent. If we cannot express our discontent with laws we don’t agree with, we risk losing our democracy as a whole.”

In its 19-page motion, the ACLU of Michigan argued that the charges should be dismissed because the ordinance unconstitutionally violates the protesters’ rights to free speech and assembly. Not only is the use of horns during a protest considered protected political speech, but the ACLU argues that the ordinance’s ban on all horns or sound making devices is unconstitutionally overbroad, vague and content-based, meaning it allows some to make noise, but denies others based solely on their message or affiliation.

“This case is proof that the government should stay out of the speech regulation business. When the government passes overly broad laws, it risks, as in this case, silencing lawful speech,” said John Targowski, ACLU of Michigan cooperating attorney. “There’s no way around it – this ordinance lets the government decide what speech is allowed and what is illegal. That’s the textbook definition of an unconstitutional speech restriction.”

In 2007, the ACLU of Michigan addressed a similar issue by challenging the City of Ferndale’s practice of arresting peace protesters who encouraged passing motorists to honk in support and ticketing motorists who honked. A federal judge later agreed with the ACLU, ruling that honking is a form of constitutionally protected speech and a time honored tradition.

To read the protesters’ motion to dismiss, go to http://aclumich.org/sites/default/files/Berrien%20Joint%20Defendants%20Motion.pdf

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