Flashers unite – ‘First Amendment’ defense leads to legal victories in Missouri, Oregon

By Greg Grisolano, staff writer

I’ll cop to being a flasher. Not the trench-coat-and-a-smile kind, but rather the kind who will “flash” my headlights to alert my fellow motorists to the presence of nearby “bears.”

While I happen to think of it as common courtesy, the law has different and wildly varying opinions from state to state or town to town. But a couple of recent court cases could be paving the way for such actions to have some of the highest protection afforded under law: First Amendment protection.

The most recent involves trucker Christopher Hill, of Klamath Falls, Ore., who fought and won a case in which he was ticketed by the Jackson County (Ore.) Sheriff’s Department for unlawfully using his headlights to alert another trucker that Smokey was on the prowl.

Oregon law prohibits using high beams or flashing lights in a manner that creates traffic hazards or blinds other drivers, but Hill argued in court that his right to free expression was infringed upon and that police were retaliating against him by citing him.

The judge in his case agreed with Hill’s assessment and threw out the ticket in an April 9 ruling in Jackson County Court.

“The government certainly can, and should, enforce the traffic laws for the safety of all drivers on the road,” Judge Joseph Charter wrote in his ruling. “However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct.”

A week earlier, a federal judge in my state of Missouri also ruled in favor of a four-wheel driver who was ticketed for flashing motorists to alert them to a speed trap in the town of Ellisville. The American Civil Liberties Union filed a lawsuit on behalf of the driver, Michael Elli, on the grounds that the citation impinged upon the driver’s right to free expression. The city entered into a permanent injunction against the practice on April 2.

“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,” Tony Rothert, legal director of the ACLU of Missouri, said in a press release on the Missouri ACLU’s website. “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.” 

While these two cases are clearly wins for the drivers and the motoring public in their respective jurisdictions, they don’t spell the end of such punitive practices by law enforcement elsewhere. What they do provide, however, is the legal argument to provide others with a path to victory in future legal challenges.

Here’s hoping state and local lawmakers take notice, and amend their laws to prevent infringing on free expression. LL