IN THE JUSTICE COURT FOR JACKSON COUNTY, OREGON. Plaintiff, This matter came before the court for trial on March 26, The question presented

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1 IN THE JUSTICE COURT FOR JACKSON COUNTY, OREGON STATE OF OREGON, vs. CHRISTOPHER HILL, Defendant. Plaintiff, FINDINGS AND JUDGMENT Citation No This matter came before the court for trial on March 26, The question presented is whether the government can use the traffic laws to punish a citizen for using his headlights as expressive conduct to warn other drivers of the presence of law enforcement. Given Oregon s broad protection of free expression, the simple answer is no. BACKGROUND FACTS Defendant Christopher Hill was driving westbound in his 2009 Peterbuilt on Highway 140 on September 6, 2013 in the vicinity of East Antelope Road and Kershaw Roads in White City, Oregon. Jackson County Sheriff Deputy Strohmeyer was also westbound on Highway 140, traveling behind the Defendant s vehicle. Deputy Strohmeyer received a telephone call from Sheriff Deputy Lance, who was eastbound on Highway 140. Lance told Strohmeyer during the call that the Defendant had been flashing his highbeam headlights on his truck to warn oncoming traffic on Highway 140 of the presence of law enforcement behind him. -1-

2 Although the Defendant first indicated that he thought that the driver in the UPS truck ahead was his neighbor, Defendant later testified at trial that he was, indeed, attempting to warn oncoming traffic. Defendant asserts that he has a First Amendment 1 right to communicate with other drivers on the road regarding the presence of law enforcement. Because Deputy Strohmeyer testified that he stopped the Defendant for flashing his headlights as a warning to other drivers, and the Defendant testified that was in fact his intent in flashing his headlights, the court determines that the purpose of Defendant s act of flashing his headlights was to engage in expressive conduct with other citizens on the road. APPLICABLE LAW Deputy Strohmeyer cited the Defendant for a violation of ORS ORS (1) provides that a person commits the offense of unlawful use or failure to use lights if the person does any of the following: (a) Drives or moves on any highway any vehicle at a time when vehicle lighting is... prohibited from being operated under ORS and operates... lighting equipment.... ORS , in turn, describes when lights must be used and what kind of lights must be used. 1 The First Amendment to the United States Constitution provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (Emphasis added). Because the Oregon Constitution creates a larger space for free expression, and Oregon courts look to the state constitution first, Oregon constitutional law provides the basis for decision here. This is sometimes referred to as the first things first doctrine. See Hans A. Linde, First Things First: Rediscovering the States Bills of Rights, 9 U Balt L Rev 379 (1980). -2-

3 ORS (6) directs that a person shall use a distribution of light or composite beam that is directed sufficiently high and that is of such intensity so as to reveal persons and vehicles on the highway at a safe distance in advance of the vehicle. A driver must do so when limited visibility conditions exist. Id. The Oregon Vehicle Code defines limited visibility conditions to mean: (1) Any time from sunset to sunrise; and (2) Any other time when, due to insufficient light or unfavorable atmospheric conditions, persons and vehicles are not clearly discernible on a straight, level, unlighted highway at a distance of 1,000 feet ahead. ORS In the second instance, for example, in conditions of heavy fog (which are not unusual in the Rogue Valley), a driver should display lights when he or she cannot clearly see ahead for a distance of approximately three football fields. The obvious purpose of this requirement is not only to allow a driver see clearly the way ahead, but also to allow vehicles to be seen by other drivers using the highway during unfavorable weather conditions. ORS (6) further provides that : (a) Whenever the driver of a vehicle approaches an oncoming vehicle within 500 feet, the driver must use a distribution of light or composite beam so aimed that the glaring rays are not projected into the eyes of the oncoming driver. The use of the low beams of the vehicle headlight system is in compliance with this paragraph at all times regardless of road contour and loading of the vehicle. (b) Except when in the act of overtaking or passing, a driver of a vehicle following another vehicle within 350 feet to the rear must use the low beams of the vehicle headlight system. (Emphasis added). The apparent purpose of this portion of the statute is to prevent a driver from being momentarily blinded by the glare from an oncoming vehicle or a vehicle -3-

4 following closely to the rear. The clear purpose of (former) ORS is to prevent accidents that are likely to occur if the driver of one motor vehicle is temporarily blinded by the high beam headlights of another. Stovall v. Perius, 61 Or. App. 650, 659, P.2d 393, 396 (1983). The safety purpose of the statute appears to be both to ensure the visibility of other vehicles at night or in conditions of limited visibility, and also to avoid distraction to oncoming or overtaken drivers by the inappropriate use of high beam lights. It is within common experience that drivers will often flash their headlights to indicate an intention to pass another driver, or to signal a driver who has just passed that he or she has enough room to change back into the travel lane of an overtaken vehicle. Headlight flashing therefore can be viewed as the equivalent of an optical horn. The expressive or communicative intent among drivers of a headlight flash (as opposed to steady high beam use in inappropriate circumstances), is thus readily apparent. ANALYSIS Under Article I, section 8, of the Oregon Constitution, all speech and expressive conduct are broadly protected, with limited historical exceptions 2. Article I, section 8 states: No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right. 2 Examples would include fraud and perjury. -4-

5 State regulation of expression based on the content of that expression is unconstitutional. State v. Robertson, 293 Or 402,649 P2d 569 (1982). There are three ways regulations can fail under the State v. Robertson free expression analysis: (1) if the law specifically focuses on the content of the speech, (2) if the law is focused on prohibited harms, but specifies speech as a forbidden means of bringing about the harm, or (3) if the law is speech-neutral, but nevertheless impermissibly burdens constitutionally protected expression. In this last instance, the law is valid but is unconstitutional as applied because it punishes protected speech. ORS is not clearly directed by its terms at the content of expression. Nor is the statute a law which focuses on forbidden effects but, by its terms, expressly prohibits expression used to achieve those effects. Therefore, neither of the first two levels of the Robertson analysis apply here. The defendant asserts that the government, in the circumstances presented here, exceeded the law s proper scope by (mis)applying it to his expressive conduct. Unconstitutional speech regulation may occur where the government applies a law in a manner that is not speech-neutral. See City of Eugene v. Lincoln, 183 Or App 36, 50 P3d 1253, 1257 (2002). Government cannot automatically confer upon itself the authority to regulate otherwise protected speech merely by doing so under the authority of a speechneutral law. Those who enforce and execute the law... must target regulable harm and not expression per se apart from harm. Id. -5-

6 The expressive conduct used by the Defendant at issue here potentially sends a message to other drivers on the road that they should bring their driving in conformity with the law, such as by slowing down or turning on one s own headlights at dusk or in the fog. Elli v. City of Ellisville, Missouri, U.S.D.C., E.D. Mo., 4:13-cv HEA, (2/3/14). Defendant s conduct here was clearly expressive. 3 The citation was clearly given to punish the Defendant for that expression. Defendant s expressive activity in this context is protected by Article I, section 8. 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. The Defendant is not guilty. Dated this 9th day of April, /s/ Joseph M. Charter Joseph M. Charter, Jackson County Justice of the Peace 3 Whether there is a meeting of the minds between the two drivers is not the issue. It is sufficient (and undisputed) that the Defendant here intended to convey a warning. -6-