Flashing – A Debate on Freedom of Speech

There’s a speed trap back there, dude. You better slow down and heed my flashing headlights before you get to it.

That’s what I think as I so thoughtfully flash my headlights at 4:30 in the afternoon on my way home from work. I drive the route twice a day, so I pretty much know all the places law enforcement likes to sit in waiting, like a spider waiting for a big fat insect to fly into it’s web. Of course, they change things up a bit and they aren’t always in the same places at the same times. I can’t blame them because that is what they are supposed to do, catch people speeding (although I honestly think there are probably more productive things law enforcement could be doing other than sitting around waiting for violators – that is a debate for another day).

Now, I know. I shouldn’t speed. No one should ever speed. I try not to but it happens sometimes. So, before we get side tracked by the whole “You wouldn’t need to flash your lights if they (or you) weren’t speeding in the first place” argument let me just say that if you have never sped (either on purpose or inadvertently) then you may throw the first stone. Otherwise, bite your tongue.

The questions is, “Can I flash my headlights to warn other drivers of a speed trap?” Recently there has been a minor debate about this question and I have even had driver’s ed students ask about this during classroom instruction. For the most part, my answer has always been that in Washington state it is illegal, per RCW (Revised Code for Washington) 46.37.230. However, this has always bothered me because I believe that flashing my headlights is a form of communication (speech, if you will), which is obviously much more effective than me rolling down my window and yelling at passing cars.

Background

This RCW seems to be open to a bit of interpretation however. It is typically the one cited in “flashing light” tickets, but there is nothing in the language specifically that says “flashing,” only that a vehicle must lower their headlights from high to low for oncoming vehicles within 500 feet and when approaching from the rear of a vehicle within 300 feet. This article from the Seattle Times (2008) where, according to Trooper Pratt, “they are for illumination, not communication.” The article continues, “It’s illegal to flash your high beams or activate them within 500 feet of an approaching vehicle, and 300 feet if you’re coming up behind another vehicle.”

First, Troopers Pratt and Merrill (the latter was also interviewed for the article) must be misinformed. The RCW didn’t say anything about flashing headlights and yet they say that the fine for “inappropriate flashing of high beams” has increased from $101 to $112. So, if our law enforcement officers don’t know the law, then how are we supposed to be clear on what is allowed and what isn’t? Second, there are parts of our state that have signs that say, “Daylight headlights section,” or something to that effect (signs probably vary). If it is during the day, there is plenty of light and the headlights are clearly not for illumination so they must be for communication to other drivers so they take notice of the vehicles on the roadway.

Your Rights – The First Amendment

There have been several cases in recent years that have started to shed some light (no pun intended) on laws such as the one in Washington. First, let me highlight the one in Florida. In this instance, the court eventually ruled that indeed the First Amendment had been violated and that flashing your headlights is a legitimate form of communication. Florida soon changed it’s laws to reflect the protection of this civil right. In Missouri recently, once again, a court decided that flashing of one’s headlights was not illegal and is protected free speech. There have been cases in Utah and Tennessee that follow along the same lines.

Jonathan Turley, a criminal attorney and a professor at George Washington University Law School, said courts across the country are dealing with the same issue. In virtually every case except those still being decided, the person cited has prevailed, Turley said.

“This has sweeping implications for the First Amendment,” Turley said. “What this citizen is doing is warning other citizens about the violation of law. People regularly warn others about the possibility of arrest. There’s no difference between a verbal warning and a mechanical warning. Both are forms of speech.” (Missouri article)

The ultimate point is that if you are given a ticket that involves flashing your headlights, your First Amendment rights likely have been violated. Whether you are in my state or another, law enforcement doesn’t have a clear handle on what is permissible and what isn’t and in most cases they are just miffed because you seemingly were interfering with what they considered a need for enforcement. Could you be causing a danger in flashing your lights? I suppose you could be, but that is a purely subjective call, one law enforcement seems to have expanded beyond reasonable application.

If you are wondering where your state falls on this issue, Wikipedia has a pretty good list of not only states where it may or may not be illegal but even some countries that address the issue as well. As far as I can tell from my research, there are no pending cases for this issue currently in Washington state. So, if you get a ticket for it, you could be the one to challenge it and change the law for all in Washington state. In the Missouri case, the ACLU took on the case which likely didn’t cost the individual much money, if any at all.

I think the key here is that no matter the intent, whether to warn someone out of their criminal intent or out of legitimate concerns for public safety, it has the same effect – it causes people to slow down, even if only briefly. That, in and of itself, may be all that is needed to prevent an accident or a ticket – that clearly isn’t be a negative thing.

So, I say, “LET THE FLASHING BEGIN!” Fight for your First Amendment freedoms.

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