By: Alexander Mech*
April 24, 2014
I. The Proposed Legislation
New Jersey Assemblyman Ronald S. Dancer (R-Burlington, Middlesex, Monmouth, Ocean) recently introduced Assembly Bill 2922, which if enacted, would clarify that it is legal to flash a "vehicle's headlamps in the direction of oncoming traffic to warn the operator of another motor vehicle of a traffic accident, a road hazard, or of the presence of law enforcement officers enforcing the speed limit." Dancer says that motorists who warn others of speed traps help reduce traffic speeds and improve road safety, but opponents of the bill cite their concern that such use of headlamps can distract and blind drivers. Dancer further argues that use of headlamps in this manner is protected by the First Amendment. At very least, Dancer is correct in asserting that the First Amendment is implicated.
II. Current Law on Flashing Headlamps in N.J.
The current law in New Jersey on the issue is less than clear. While an unpublished 1999 Appellate Division ruling held that the use of headlamps to warn of speed traps is legal in New Jersey, it is non-binding and did not address the issue of free speech. Similarly, a 1972 trial court ruling out of Bergen County found that similar behavior—a person’s display of a sign reading "RADAR AHEAD"—did not "obstruct" or "interfere" with the driving of motorists for purposes of a disorderly persons statute.
III. Related Developments in Other States
While courts in New Jersey have not held that such conduct is protected by the First Amendment, several courts across the country have. A recent ruling by a federal district court in Missouri reached the issue of free speech, and found that such conduct is protected. In Elli, the court emphasized that "the expressive conduct at issue sends a message to bring one's driving in conformity with the law," and is not illegal. According to the American Civil Liberties Union, Elli is the country's first federal court ruling on this issue and a major civil rights victory for motorists. Previously, there were a few rulings which reached the same conclusion, but only in lower state courts. The success of First Amendment arguments is intriguing since prior courts, including the nearby Pennsylvania Supreme Court, found different, non-constitutional grounds for reversing convictions based on such conduct.
Elli may very well inspire more litigation on the issue, and early indicators suggest it already has. Earlier this month, after reading about the success of the plaintiff in Elli, a truck driver in Oregon convinced a county judge to dismiss a citation, wherein he argued that such conduct is protected speech, albeit under the Oregon Constitution.
IV. What the Proposed N.J. Legislation Does Not Protect
What is interesting is what Assembly Bill 2922 does not specifically authorize: flashing headlamps to warn others of non-speed-related law enforcement activities. If the bill is enacted as currently worded, it is possible that a police officer could still issue a citation to someone for flashing their headlamps to warn another motorist of a DUI checkpoint. Such a case could be distinguished from Luptak, which only addressed speed traps. Furthermore, flashing one’s headlamps to remind another motorist to turn their headlamps on or off would likely not fall under the categories of accident, road hazard, or law enforcement provided for in the bill.
If enacted, the bill would bring more clarity to an uncertain area of law and advance public safety. Its wording condones the use of headlamps to alert oncoming motorists to accidents and hazards, thereby advancing road safety. In situations involving speed traps, the bill also would expressly protect motorists from penalties aimed at their intent in flashing headlamps at oncoming traffic. However, the bill could potentially be improved by amending it to protect those drivers who flash their headlamps at other motorists, whether in oncoming traffic or going the same direction, to remind them to turn their headlamps on or off as appropriate. Such provisions would not prevent the police from issuing citations when flashing of headlamps is performed in a dangerous manner.
Significantly, driver intent might still factor into police decisions to issue citations when motorists alert each other to non-speed-related law enforcement, such as DUI checkpoints. This is consistent with the public policy of promoting road safety: while alerting other drivers to speed traps encourages them to slow down and come into compliance with the law, assisting other drivers in avoiding detection at DUI checkpoints enables them to continue breaking the law and endangering others on the road. Therefore, the bill properly excludes the latter conduct from its protections.
 Assemb. 2922, 216th Leg., 1st Sess. (N.J. 2014), available at http://www.njleg.state.nj.us/2014/Bills/A3000/2922_I1.PDF.
 See Matt Friedman, Using Headlights to Warn of Speed Traps is Free Speech, NJ Lawmaker Says, NJ.COM (April 8, 2014, 11:28 AM), http://www.nj.com/politics/index.ssf/2014/04/using_headlights_to_warn _of _speed_traps_is_free _speech_nj_ lawmaker_says.html.
 See Eugene Volokh, Crime-Facilitating Speech, 57 STAN. L. REV. 1095, 1131-1132 (2005) (arguing that punishments for allegedly crime-facilitating speech in violation of laws prohibiting criminal facilitation or obstruction of justice ought to receive First Amendment strict scrutiny).
 See State v. Luptak, No. A-6074-97T1, slip op. (N.J. Super. Ct. App. Div. July 20, 1999), available at http://www.dpdlaw.com/Luptak.PDF (holding that such behavior is not misuse of headlamps in violation of N.J. STAT. ANN. § 39:3-60 (West 1999)).
 See State v. Taylor, 297 A.2d 216 (N.J. Dist. Ct. 1972) (mentioning in dictum that such conduct is protected by the First Amendment).
Our decision today is in keeping with the First Amendment to the Constitution of the United States. Although defendant's act in displaying the sign stating ‘RADAR AHEAD’ is not particularly meritorious or praiseworthy, it is nevertheless a form of speech that is rigorously protected by the First Amendment.
Id. at 218-19 (footnote omitted).
 See Elli v. City of Ellisville, Mo., --- F. Supp. 2d ---, No. 4:13CV711 HEA, 2014 WL 409103 (E.D. Mo. Feb. 3, 2014).
 Id. at *3.
 See Jenny Tsay, Flashing Headlights as Speed-Trap Warning is Free Speech: Judge, FINDLAW (Feb. 6, 2014, 3:33 PM), http://blogs.findlaw.com/decided/2014/02/flashing-headlights-as-speed-trap-warning-is-free-speech-judge.html; Robert Patrick, Is Flashing Headlights to Warn of Speed Trap Protected by the First Amendment?, ST. LOUIS POST-DISPATCH (Feb. 4, 2014, 12:15 AM), http://www.stltoday.com/news/local /crime-and-courts/is-flashing-headlights-to-warn-of-a-speed-trap-protected/article_a6d677f1-baf3-5347-bf25-503520dca8cf.html; Federal Judge Rules Drivers Allowed to Flash Headlights to Warn of Speed Traps, FOXNEWS.COM (Feb. 05, 2014), http://www.foxnews.com/politics /2014/02/05/federal-judge-rules-drivers-allowed-to-warn-other-motorists-speed-traps/.
 See State v. Walker, No. I-9507-03625 (Tenn. Williamson Cty. Cir. Ct. Nov. 13, 2003) (holding that defendant's conduct which consisted of flashing his headlamps to warn oncoming motorists about speed trap was protected by the First Amendment); Kintner v. Eslinger, No. 2011CA002986 (Fla. Seminole County Ct. May 22, 2012) (unpublished) (same); see also Rene Stutzman, Sanford Judge Rules in Favor of Motorist Who Flashed his Headlights, ORLANDO SENTINEL (May 22, 2012, 6:33 PM), http://articles.orlandosentinel.com /2012-05-22/news/os-flashing-headlights-ruling-20120522_1_ryan-kintner-free-speech-headlights (noting that the judge in Kintner reached the First Amendment issue and found in favor of motorist).
 See, e.g., Com. v. Beachey, 728 A.2d 912 (Pa. 1999) (holding that motor vehicle code under which defendant was convicted did not apply to midday use of headlamps); People v. Lauber, 617 N.Y.S.2d 419 (App. Term 1994) (holding that "flicking" headlamps on and off is insufficient to cause "dazzling light" or "interfere" with the safe driving of other motorists).
 See Jeff Barnard, Flashing Headlights As Speed Trap Warning Is Protected Free Speech, Oregon Judge Rules, HUFFINGTON POST (Apr. 11, 2014, 12:53 AM), http://www.huffingtonpost.com/2014/04/11/flashing-lights-as-speed-trap-warning_n_5130399.html.
 No. A-6074-97T1, slip op. at 2-3.