My son Will is known for his work with migrant farmworkers. But on one occasion in 2016 he participated in a demonstration at a Vermont Gas facility in Williston when the company announced plans to expand its pipeline network. Protesters lined the street surrounding the facility grounds. Needing to leave before it was all done, Will got in his car, and as he drove slowly along the street next to the demonstration, he beeped his horn to show his solidarity. He beeped the horn repeatedly.
A cop standing alongside the protest flagged him over. The cop had probably been there all day and was surely tired and grumpy. He scolded Will and handed him a citation to court for violating a Vermont statute, Title 23 section 1131. The statute reads:
The operator of a motor vehicle, whenever reasonably necessary to ensure safe operation, shall give an audible warning with the horn of his or her vehicle but shall not otherwise use the horn when upon a highway.
As it was not reasonably necessary to sound his car horn to ensure safe operation, Will had, in fact, used the horn “otherwise.” A chargeable offense. Will was so charged, and cited to appear in traffic court, or pay a default fine.
Will appeared in court to plead his case, and the cop came too to testify. There really weren’t any facts in dispute, and the judge issued the fine.
Will came over for dinner one day and told me about his new criminal record. My God, I thought, the state has trampled on his right to free speech! Free expression under the First Amendment need not comprise vocalizations or the written word. Could be a sculpture or a symphony or a salute. Or a honk—if intended to convey a message.
The appeal period had not yet run in Will’s case. You can appeal from traffic court to Vermont Superior Court. It is a de novo appeal, meaning you can have a new trial. We filed our appeal.
A deputy state’s attorney from Chittenden County was assigned to represent the interests of the state. His boss was TJ Donovan, the state’s attorney for that county at the time. TJ Donovan is now the Vermont Attorney General. At that time, in fact, he was campaigning to be elected to that position. He was out there in the public eye.
I explained our case to the deputy state’s attorney. Will was engaged in expressive speech protected by the First Amendment. Anybody would know—any reasonable cop would know—that the beeping of the horn, in those circumstances, was intended to be an expression of solidarity with the protesters.
People sound their horns at weddings, maybe at Veteran’s Day parades, and all sorts of other occasions unrelated to using one’s horn to ensure safe operation of the vehicle. To charge Will with a traffic offense was to punish him for his political views. In First Amendment law, that is known as viewpoint discrimination, and it is the worst sin.
The deputy state’s attorney heard my spiel, hemmed and hawed a bit over a few days, and wisely decided to dismiss the charges against the offender. Chalk up a victory for the First Amendment.
But I was sorry that we didn’t get our chance to go to trial. In my back pocket, I had a nice piece of evidence I wanted to spring out at the climactic moment of the trial. It was a photograph that someone had posted on Instagram. The Instagram account was owned by TJ-for-Vermont.
The photograph? Six individuals, including our current Vermont Attorney General TJ Donovan, standing with campaign signs and a banner at a busy intersection in St. Johnsbury. Donovan himself is giving a thumbs-up sign. We’ve all seen this kind of thing.
You know where this is going. The caption alongside the Instagram photo reads “HONKING & WAVING IN ST. JAY!”
Bernie Lambek has practiced law in Montpelier for more than 30 years. He is a grandfather of five. He serves on the boards of ACLU-Vermont and the Green Mountain Film Festival, and is the author of Uncivil Liberties: A Novel (Rootstock Publishing 2018).