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WEIL v. MCCLOUGH

October 2, 1985

CHARLES A. WEIL, Plaintiff, against JOSEPH T. McCLOUGH and ERMYN STROUD, Defendants


The opinion of the court was delivered by: GOETTEL

GOETTEL, D.J.

On June 6, 1982, the plaintiff, who was operating an automobile in the midst of what he describes as a massive Manhattan gridlock, honked his horn, apparently a number of times. He received a citation for "horn honking" in violation of N.Y. City Admin. Code § 1403.3-4.05(1) (1975), which provides, in pertinent part, "No person shall operate or use or cause to be operated or used any claxon installed on a motor vehicle, except as a sound signal of imminent danger . . . ." Id. A hearing on the citation was scheduled before the New York City Environmental Control Board (the "Board"). Prior to the hearing, the plaintiff commenced an Article 78 proceeding in New York Supreme Court, Special Term, seeking a declaration that § 1403.3-4.05(1) was unconstitutional, a stay of the hearing before the Board, and an order prohibiting the Board from proceeding further with the matter. By order dated December 17, 1982, Special Term denied the requested relief. The plaintiff unsuccessfully appealed that decision.

 On May 29, 1984, the plaintiff brought this action pro se seeking a declaration that N.Y. City Admin. Code § 1403.4-4.05(1) (1975) is unconstitutional and an order enjoining the proceedings before the New York Environmental Control Board. On June 1, 1984, this Court denied the plaintiff's motion for a temporary restraining order. The plaintiff's motion for a temporary restraining order. The plaintiff's administrative hearing was conducted on June 15, 1984. The administrative law judge found him guilty of illegal horn-honking and fined him $250.00.

 By decision dated November 16, 1984, this Court denied the defendants' motion for summary judgment on the grounds of res judicata. The defendants now move to dismiss the action pursuant to Fed. R. Civ. P. 12(b) for failure to state a claim on which relief can be granted. The plaintiff cross-moves pursuant to Fed. R. Civ. P. 12(c) for judgment on the pleadings. The plaintiff has also moved pursuant to Fed. R. Civ. P. 15(d) for leave to file a supplemental pleading and pursuant to Fed. R. Civ. P. 12(f) to strike all of the defendants' affirmative defenses. For the reasons stated below, the defendants' motion is granted. The plaintiff's cross-motion is denied. The plaintiff's other motions are thereby rendered moot.

 I. Discussion

 A. The Free Expression Claim

 The plaintiff first contends that this application of section 1403.3-4.05(1) of the New York City Administrative Code ("the ordinance") violated his first amendment right to freedom of speech as incorporated in the due process clause of the fourteenth amendment. According to the plaintiff, its application limited his ability to express his desire to communicate with a specific policeman. (For purposes of this motion we will accept his claim that he was seeking to advise the traffic officer of the massive traffic jam -- in case it had not come to the officer's attention -- and that he was not simply expressing his frustration at being impeded by it.)

 Of course, simply because conduct has a communicative element does not make a statute prohibiting or limiting that conduct per se unconstitutional. Cox v. Louisiana, 379 U.S. 536, 555, 85 S. Ct. 453, 464-65, 13 L. Ed. 2d 471(1965). The Supreme Court has recognized the validity of enactments that reasonably limit the time, place, or manner of speech without regard to content; that serve a significant governmental interest; and that leave ample alternative channels for communication. Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 535-36, 100 S. Ct. 2326, 2332, 65 L. Ed. 2d 319 (1980).

 The ordinance does not attempt to regulate the "content" of horn-honking. Rather, it prohibits all horn-honking, except in cases of imminent danger, regardless of the user's intended meaning. *fn1" The ordinance also leaves open alternative means of attracting the attention of a police officer. It remains for a motorist to flash his lights, signal with his hands, or call out. The plaintiff, nevertheless, asserts that his message was stifled because he had no alternate means to relay his message. However, in the same breath, he admits that his message was not, in fact, stifled; a police officer who acknowledged his hand signal proceeded to ignore it. *fn2" Thus, the ordinance neither discriminates among messages nor limits the expression of any particular message. It is based on the manner of expression, not on its content.

 The ordinance is also reasonably related to two significant governmental interests, reducing noise and maximizing the utility of car horns. The reduction of noise, particularly in a noise polluted city like New York, is a particularly compelling government interest. Kovacs v. Cooper, 336 U.S. 77, 87, 69 S. Ct. 448, 453-54, 93 L. Ed. 513 (1949). In this Court's view, any effort to dim the seemingly unending crescendo of honking horns on New York's city streets is to be commended. This appears to be the Supreme Court's view as well. In Kovacs v. Cooper, supra, the Court upheld the constitutionality of an ordinance banning sound trucks from the public streets of Trenton, New Jersey. The Court thought it permissible "to bar sound trucks with broadcasts of public interest, amplified to a loud and racous volume, from the public ways of municipalities." Id. at 87. To forbid, on first amendment grounds, the regulation of horn honking, which has little if anything to do with the public interest, would be to ignore and, indeed, flaunt, this important precedent.

 The honking of car horns in situations not involving imminent danger not only causes unnecessary noise, but also seriously undercuts the usefulness of such horns as a method of indicating the existence of an actual emergency condition. New York City has a compelling interest in seeing that this does not occur. Limitations on horn honking are a rational mean to this end.

 The Court, therefore, concludes that the ordinance is a reasonable time, place, or manner restriction that does not violate the first amendment right to freedom of speech as incorporated in the due process clause of the fourteenth amendment.

 B. The Vagueness and Overbreadth Claims

 "It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." *fn3" Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 2298-99, 33 L. Ed. 2d 222 (1972). Of course, language can never provide meaning with mathematical certainty. The test in determining whether or not a statute is unconstitutionally vague is whether "men of common intelligence must ...


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