UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SUSAN PORTER, No. 21-55149

Plaintiff-Appellant, D.C. No. 3:18-cv-01221- v. GPC-LL KELLY MARTINEZ, in her official capacity as Sheriff of San Diego ORDER AND County; AMANDA RAY, as AMENDED successor to Warren Stanley, in her OPINION official capacity as Commissioner of California Highway Patrol,

Defendants-Appellees, and WARREN STANLEY,

Defendant.

Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding 2 PORTER V. MARTINEZ

Argued and Submitted March 7, 2022 Submission Vacated March 17, 2022 Resubmitted March 31, 2023 Pasadena, California

Filed April 7, 2023 Amended May 22, 2023

Before: Marsha S. Berzon and Michelle T. Friedland, Circuit Judges, and Edward R. Korman,* District Judge.

Order; Opinion by Judge Friedland; Dissent by Judge Berzon

SUMMARY**

Civil Rights

The panel affirmed the district court’s summary judgment in favor of the State of California in an action challenging a California law that prohibits honking a vehicle’s horn except when reasonably necessary to warn of a safety hazard. Cal. Veh. Code § 27001. Plaintiff was cited for misuse of a vehicle horn under Section 27001 after she honked in support of protestors * The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. PORTER V. MARTINEZ 3

gathered outside a government official’s office. Although the citation was dismissed, Porter filed suit to block future enforcement of 27001 against any expressive horn use―including honks not only to “support candidates or causes” but also to “greet friends or neighbors, summon children or co-workers, or celebrate weddings or victories.” She asserted that Section 27001 violates the First and Fourteenth Amendments as a content-based regulation that is not narrowly tailored to further a compelling government interest. Alternatively, she argued that even if the law is not content based, it burdens substantially more speech than necessary to protect legitimate government interests. The panel first held that plaintiff had standing to challenge the law because, ever since she received a citation for impermissible horn use, she has refrained from honking in support of political protests to avoid being cited again. Addressing the merits, the panel determined that at least in some circumstances, a honk can carry a message that is intended to be communicative and that, in context, would reasonably be understood by the listener to be communicative. The panel next held that because section 27001 applies evenhandedly to all who wish to use a horn when a safety hazard is not present, it draws a line based on the surrounding factual situation, not based on the content of expression. The panel therefore evaluated Section 27001 as a content-neutral law and applied intermediate scrutiny. The panel concluded that Section 27001 was narrowly tailored to further California’s substantial interest in traffic safety, and therefore that it passed intermediate scrutiny. The panel noted that plaintiff had not alleged that the State has a policy or practice of improper selective enforcement of Section 4 PORTER V. MARTINEZ

27001, so the panel had no occasion to address th