Opposition Brief — Susan Porter, Petitioner v. Kelly Martinez, in Her Official Capacity as Sheriff of San Diego County, et al.

No. 23-423

In the Supreme Court of the United States

SUSAN PORTER,

Petitioner,

v.

KELLY MARTINEZ, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

THOMAS S. PATTERSON

Senior Assistant

Attorney General

January 22, 2024

SAMUEL T. HARBOURT*

TERESA A. REED DIPPO

Deputy Solicitors General

PAUL STEIN

Supervising Deputy

Attorney General

SHARON L. O’GRADY

Deputy Attorney General

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

455 Golden Gate Avenue

Suite 11000

San Francisco, CA 94102-7004

(415) 510-3834

Samuel.Harbourt@doj.ca.gov

*Counsel of Record

i

QUESTION PRESENTED

Section 27001 of the California Vehicle Code prohibits drivers from using their vehicles’ horns except

to “give audible warning” when “reasonably necessary

to insure safe operation.” Pet. App. 9a. Based on the

testimony of an expert witness with “decades of experience working for the” California Highway Patrol, id.

at 28a, as well as “a near-nationwide consensus on the

need for such laws,” id. at 33a, the court of appeals

rejected petitioner’s First Amendment challenge to

Section 27001. The court reasoned that the statute is

content-neutral, justified by an important interest in

traffic safety, and adequately tailored to satisfy intermediate scrutiny. The question presented is:

Whether the court of appeals’ application of intermediate scrutiny to California’s vehicle horn regulation comports with the First Amendment.

ii

TABLE OF CONTENTS

Page

Statement .................................................................... 1

Argument ..................................................................... 4

Conclusion.................................................................. 14

iii

TABLE OF AUTHORITIES

Page

CASES

Brewer v. City of Albuquerque

18 F.4th 1205 (10th Cir. 2021) ........ 8, 9, 10, 11, 13

Burson v. Freeman

504 U.S. 191 (1992) ................................................ 9

Cutting v. City of Portland

802 F.3d 79 (1st Cir. 2015) .............. 8, 9, 10, 11, 13

Daubert v. Merrell Dow Pharms.

509 U.S. 579 (1993) ................................................ 8

Fla. Bar v. Went For It, Inc.

515 U.S. 618 (1995) ................................................ 9

Greenlaw v. United States

554 U.S. 237 (2008) ............................................ 4, 7

Lange v. California

141 S. Ct. 2011 (2021) ............................................ 1

Lorillard Tobacco Co. v. Reilly

533 U.S. 525 (2001) ................................................ 9

McCullen v. Coakley

573 U.S. 464 (2014) ........................................ 11, 13

Members of City Council of Los Angeles

v. Taxpayers for Vincent

466 U.S. 789 (1984) ................................................ 6

iv

TABLE OF AUTHORITIES

(continued)

Page

Nev. Comm’n on Ethics v. Carrigan

564 U.S. 117 (2011) .............................................. 13

Pagan v. Fruchey

492 F.3d 766 (6th Cir. 2007) (en banc) .. 8, 9, 10, 13

Reynolds v. Middleton

779 F.3d 222 (4th Cir. 2015) .......................... 11, 13

San Antonio Indep. Sch. Dist. v.

Rodriguez

411 U.S. 1 (1973) .................................................. 13

Sorrell v. IMS Health Inc.

564 U.S. 552 (2011) .............................................. 13

State v. Immelt

173 Wash. 2d 1 (2011) .................................... 10, 11

Turner Broad. Sys., Inc. v. FCC

512 U.S. 622 (1994) .............................................. 11

United States v. Sineneng-Smith

140 S. Ct. 1575 (2020) ............................................ 7

Ward v. Rock Against Racism

491 U.S. 781 (1989) ................................................ 6

STATUTES

Ala. Code § 32-5-213(a) ............................................... 1

v

TABLE OF AUTHORITIES

(continued)

Page

Cal. Penal Code

§ 19.6 ....................................................................... 1

§ 19.8 ....................................................................... 1

Cal. Veh. Code

§ 21000 .................................................................... 1

§ 24250 .................................................................... 1

§ 27001 ......................... i, 1, 2, 3, 4, 5, 6, 7, 8, 10, 12

§ 40000.1 ................................................................. 1

Ind. Code § 9-19-5-2 ..................................................... 1

Md. Code Ann., Transp. § 22-401(b) ........................... 1

Tenn. Code Ann. § 55-9-201(a) .................................... 1

OTHER AUTHORITIES

Fallon, Fact and Fiction About Facial

Challenges, 99 Cal. L. Rev. 915 (2011) .................. 5

Judicial Council of Cal., Uniform Bail

and Penalty Schedules (2021)

https://www.courts.ca.gov/documents

/UBPS-2021-Final.pdf ............................................ 1

Schauer, Cuban Cigars, Cuban Books,

and the Problem of Incidental

Restrictions on Communications, 26

Wm. & Mary L. Rev. 779 (1985) .......................... 12

1

STATEMENT

1. Like many other States, California has adopted

comprehensive laws governing traffic safety. See, e.g.,

Cal. Veh. Code § 21000 et seq.; id. § 24250 et seq. The

provision of the Vehicle Code at issue in this case restricts the circumstances when drivers may lawfully

use the horns on their vehicles. Pet. App. 9a. California first adopted such a restriction in 1913, shortly after “the introduction of the Model T Ford,” id. at 8a,

and the current provision bars honking except as an

“audible warning” when “reasonably necessary to insure safe operation” of a vehicle, Cal. Veh. Code

§ 27001. Forty other States have adopted similar restrictions. Pet. App. 9a. 1 So have the drafters of the

Uniform Vehicle Code. Id.

A violation of Section 27001 is an infraction under

California law. Cal. Veh. Code § 40000.1. Infractions

are punishable by fines, not jail time. Cal. Penal Code

§§ 19.6, 19.8; Lange v. California, 141 S. Ct. 2011,

2016 (2021) (contrasting a “lower-level[] noise infraction” with a misdemeanor authorizing jail time). The

current fine for a violation of section 27001 is $238. 2

1 See, e.g., Ala. Code § 32-5-213(a) (“unlawful . . . for any person

at any time to use a horn otherwise than as a reasonable warning”); Ind. Code § 9-19-5-2 (“driver . . . shall, when reasonably

necessary to ensure safe operation, give audible warning with the

horn on the motor vehicle but may not otherwise use the horn”);

Md. Code Ann., Transp. § 22-401(b) (“driver . . . shall, when reasonably necessary to insure safe operation, give audible warning

with his horn, but may not otherwise use the horn”); Tenn. Code

Ann. § 55-9-201(a) (“unlawful . . . for any person at any time to

use a horn otherwise than as a reasonable warning”); see also Pet.

App. 62a-68a (collecting additional examples).

2 See Judicial Council of Cal., Uniform Bail and Penalty Sched-

ules (2021) 25, https://www.courts.ca.gov/documents/UBPS2021-Final.pdf (last visited Jan. 17, 2024).

2

2. Beginning in 2017, petitioner Susan Porter

“regularly participated in . . . weekly protests” held

outside the district office of U.S. Representative Darrell Issa. Id. at 138a. On one occasion, petitioner

“honked her horn 11-15 times in a row” in support of

the other protesters. Id. at 139a. A sheriff ’s deputy

stationed nearby “pulled her over and gave her a citation for misuse of a vehicle horn under Section 27001.”

Id. at 10a. The citation “was later dismissed when the

sheriff ’s deputy failed to attend [petitioner’s] traffic

court hearing.” Id.

3. Petitioner then filed this lawsuit in federal district court, seeking the invalidation of Section 27001

“both on its face and as applied” to what petitioner referred to as “expressive honking.” Pet. App. 156a,

164a (emphasis omitted). The court granted summary

judgment to the State. Id. at 155a-175a. 3 Because petitioner failed to “present[] arguments and case law to

support” her facial challenge, id. at 156a, the court

“limit[ed] its analysis to [her] as-applied challenge,” id.

at 157a.

The court concluded that the State’s

longstanding restriction on honking is content-neutral

and narrowly tailored to serve important interests in

traffic safety and noise control. Id. at 159a-161a,

163a-174a. The court pointed to both expert testimony

offered by the State, see, e.g., id. at 169a, and “common

sense,” id. at 165a, which informed its determination

that unnecessary honking “increases the likelihood of

an accident” by distracting other drivers, id. at 166a.

The district court also expressed “concern[] as to

how [petitioner’s] requested remedy of ‘not enforcing

3 Defendants are the Commissioner of the California Highway

Patrol and the Sheriff of San Diego County. Pet. App. 135a. For

simplicity, this brief refers to them collectively as the State.

3

Section 27001 against expressive honking’ would work

in practice.” Pet. App. 167a. While acknowledging petitioner’s desire to honk in certain circumstances prohibited by the statute—such as to “express a greeting”

to friends or neighbors, id. at 198a—the court emphasized that any injunctive relief “must be ‘reasonably

understandable’” to officers in the field, id. at 167a. In

the court’s view, “it [would] be extremely difficult, if

not impossible,” for such officers to determine if a honk

qualifies as “protected expression.” Id. at 168a.

4. The court of appeals affirmed. Pet. App. 8a-37a.

The court noted that petitioner “seemed to use” the

terms facial challenge and as-applied challenge “interchangeably.” Id. at 21a n.5. “Ultimately, however,”

the court saw no need to “decide whether [petitioner’s]

claim is best described as an as-applied or facial challenge.” Id. In the court’s view, petitioner’s challenge

fails either way because section 27001 is a contentneutral restriction that satisfies intermediate scrutiny

both on its face and as applied to so-called “expressive

honking.” Id. at 20a; see id. at 27a-36a. Invoking the

same expert testimony relied on by the district court,

the court of appeals explained that “indiscriminate

horn use can distract other drivers and pedestrians”

and “dilute the potency of the horn as a warning device.” Id. at 29a. The court also emphasized that the

challenged law “has existed since the dawn of the automobile” and that “forty other states have similar

laws.” Id. at 33a

The court of appeals did not address the argument

that Section 27001 “is unconstitutional as applied to

political honking—specifically, ‘honking in response to

a political protest.’” Pet. App. 21a n.6 (emphasis in

original). As the court explained, petitioner “[did] not

advance[] that argument.” Id. “Indeed, when pressed

4

at oral argument on whether she sought to enjoin the

statute as applied only to political honking,” petitioner’s counsel “expressly disavowed any such . . . argument.” Id.; see id. (“[W]e rely on the parties to frame

the issues for decision.”) (quoting Greenlaw v. United

States, 554 U.S. 237, 243 (2008)).

Judge Berzon dissented. Pet. App. 37a-60a. She

did not contest the conclusion that Section 27001 is

content-neutral and valid in most of its applications.

See id. at 44a-47a, 49a. Nor did she conclude that petitioner is entitled to an order prohibiting “all ‘expressive honking,’” which she agreed would be “too vague

to be enforceable.” Id. at 60a n.7. Instead, Judge Berzon would have held that petitioner is entitled to an

injunction barring enforcement of Section 27001

against “political protest honking.” Id. at 44a. While

appearing to acknowledge that petitioner failed to

seek such relief, see id. at 43a, Judge Berzon reasoned

that “we are not bound by the scope of a party’s requested remedy,” id.

Petitioner filed a petition for rehearing en banc.

Pet. App. 7a. No judge requested a vote, and the petition was denied. Id.

ARGUMENT

For more than a century, California has prohibited

drivers from honking except when reasonably necessary to warn of danger. Pet. App. 8a-9a. The court of

appeals properly rejected petitioner’s First Amendment challenge to that longstanding restriction. As

the court explained, there is a “near-nationwide consensus on the need for such laws,” id. at 33a, and expert testimony introduced by the State showed that

Section 27001 of the California Vehicle Code is narrowly tailored to serve an important interest in traffic

5

safety, see id. at 34a-37a. Petitioner provides no basis

for this Court to disturb that judgment.

1. While petitioner’s complaint “purported to challenge Section 27001 both (1) on its face and (2) as applied to expressive horn use,” petitioner “seemed to

use these phrases interchangeably” on appeal. Pet.

App. 21a n.5. Petitioner takes a similar approach before this Court, failing to specify in her petition which

type of challenge she seeks to advance. Cf. Pet. i-ii,

11-12. Either way, the petition should be denied: the

court of appeals correctly held that Section 27001 is a

“content-neutral law” that satisfies intermediate scrutiny both on its face and as-applied to what petitioner

refers to as “expressive” honking. Pet. App. 27a.

As to facial validity, Section 27001 “is narrowly tailored to further California’s interest in traffic safety.”

Pet. App. 34a. 4 Based on expert testimony introduced

by the State, as well as “simple common sense” id. at

32a (internal quotation marks omitted), the court of

appeals concluded that Section 27001 prevents “indiscriminate horn use,” id. at 29a. As the State’s expert

explained, such horn use “can create a dangerous situation by startling or distracting drivers and others.”

Id. (internal quotation marks omitted). Indiscriminate horn use can also “dilute the potency of the horn

as a warning device.” Id.; see id. at 33a-34a (discussing “the entirely common-sense inference that, the

more drivers honk for non-warning purposes, the less

people can rely on the sound of a honk as an alert of

imminent danger”).

4 See generally Fallon, Fact and Fiction About Facial Challenges,

99 Cal. L. Rev. 915, 952 (2011) (explaining that “constitutional

tests such as strict and intermediate scrutiny” can sometimes involve “look[ing] beyond the specific facts of the challenger’s case”

to evaluate whether a statute is facially valid).

6

As the court of appeals recognized, California could

not “achieve [its] interest in traffic safety” in a narrower or less restrictive way. Pet. App. 35a n.12. It

would be quite difficult, for example, for officers in the

field to enforce a law prohibiting honks only where

there is proof that a honk has “distract[ed] other motorists . . . [or] disturb[ed] the peace.” Pet. 26; see Pet.

App. 34a-35a, 167a-169a, 178a-179a. “A law against

distracting honking” would also be “counterproductive

if it discouraged honking to warn others of danger.”

Id. at 35a n.12. In any event, intermediate scrutiny

does not require the State to “adopt the least restrictive or least intrusive means available to achieve its

legitimate interests.” Id. (quoting Ward v. Rock

Against Racism, 491 U.S. 781, 798 (1989)).

For similar reasons, the court of appeals properly

rejected petitioner’s request to invalidate the statute

as applied to all honking that petitioner deems “expressive.” Pet. App. 21 n.6. In petitioner’s view, “expressive horn use includes honks . . . to greet friends

or neighbors, summon children or co-workers, or celebrate weddings or victories.” Id. at 11a (quoting C.A.

Opening Br. 1). Expressive or not, such honking can

be highly distracting or dangerous and “undermine[]

the effectiveness of the horn when used for its intended purpose of alerting others to danger.” Id. at

35a-36a. By banning such horn use, the State did “no

more than eliminate the exact source of the evil it

sought to remedy.” Id. at 36a (quoting Members of

City Council of Los Angeles v. Taxpayers for Vincent,

466 U.S. 789, 808 (1984)).

Judge Berzon would have invalidated “application

of Section 27001 to political protest honking.” Pet.

App. 44a; see id. at 56a. But the majority rightly re-

7

fused to address any such as-applied claim because petitioner “expressly disavowed” it. Id. at 21a n.6. This

Court has repeatedly admonished lower courts to “decide only questions presented by the parties.” E.g.,

United States v. Sineneng-Smith, 140 S. Ct. 1575,

1579 (2020) (internal quotation marks omitted). “In

our adversarial system of adjudication,” courts are to

be “neutral arbiter[s] of matters the parties present.”

Id. (quoting Greenlaw v. United States, 554 U.S. 237,

243 (2008)). Even if the court of appeals had addressed such an as-applied claim, however, it would

have failed on the record here, which demonstrates

that any “non-warning honks” can pose serious risks

to traffic safety. Pet. App. 34a; see also id. at 29a, 34a35a; infra p. 12 (explaining that this case would be a

poor vehicle to address any such as-applied claim).

2. Petitioner’s principal contention is that “[t]wo

aspects of the Ninth Circuit’s decision” conflict with

the decisions of other federal appellate courts and the

Washington Supreme Court. Pet. 11; see id. at 11-32.

That is incorrect. Petitioner’s first alleged conflict is

premised on a distorted understanding of the opinion

below. The second ignores critical differences between

this case and the purportedly conflicting cases.

a. Petitioner first contends that the court of appeals below “split[] from the First, Sixth, and Tenth

Circuits” in “holding that the government needed no

evidence to show Section 27001 furthered its interest

in ‘traffic safety.’” Pet. 12. According to petitioner, the

court below relied on mere “‘common sense’ and speculation.” Id. at 16. As discussed above, however, supra p. 5, the court relied extensively on both common

sense and testimony by the State’s expert witness. Pet.

App. 28a-34a. Drawing on “decades of experience

working for the [California Highway Patrol],” id. at

8

28a-29a, Sergeant Beck testified that Section 27001

“guard[s] against distracting honking” and preserves

the “horn’s usefulness as a warning tool,” id. at 33a.

Petitioner briefly asserts that Sergeant Beck was

not qualified “to present expert testimony on the subject.” Pet. 18. But the district court and the court of

appeals rejected that argument. See, e.g., Pet. App.

30a (citing Daubert v. Merrell Dow Pharms., 509 U.S.

579, 594 (1993)). Petitioner’s dissatisfaction with that

case-specific evidentiary ruling provides no basis for

further review by this Court. None of the decisions

invoked by petitioner in support of the alleged circuit

conflict (Pet. 16-17) address any comparable questions

about the admissibility of expert testimony. See, e.g.,

Cutting v. City of Portland, 802 F.3d 79, 88-92 (1st Cir.

2015) (addressing restriction on certain activity

within medians of city streets without considering any

questions about admissibility of expert testimony). 5

Nor do those decisions otherwise conflict with the

decision below. None involves a restriction on the use

of car horns—or an evidentiary record and justification comparable to those proffered by the State here.

In Cutting, the First Circuit held that the City of Portland failed to justify an “indiscriminate[] ban[] [on]

virtually all expressive activity in all of the City’s median strips.” Id. at 81. The evidence furnished by the

city demonstrated a safety risk at only “a handful of

intersections,” not all medians across the city. Id. at

5 See also Pagan v. Fruchey, 492 F.3d 766, 772-778 (6th Cir. 2007)

(en banc) (same, with respect to ordinance prohibiting the posting

of “for sale” signs on parked vehicles); Brewer v. City of Albuquerque, 18 F.4th 1205, 1245 (10th Cir. 2021) (similar, with respect

to “prohibition on pedestrian presence near highway ramps”); cf.

id. at 1228-1231 (referring to expert testimony without addressing whether it was properly admitted).

9

89 (internal quotation marks omitted). And the city

merely demonstrated that pedestrians could endanger

themselves or drivers when engaging in “disruptive or

inattentive” behavior, not when protesting or otherwise expressing themselves in a responsible manner.

Id. at 90. For those reasons, and because the court

could not identify any “common sense”-based rationale

for the measure like the one recognized in this case,

id., the court held that the city’s ban was “too sweeping” to survive intermediate scrutiny, id. at 92.

In Brewer v. City of Albuquerque, 18 F.4th 1205

(10th Cir. 2021), the Tenth Circuit struck down an ordinance that “prohibit[ed] pedestrians from ‘occupying

roadways, certain medians, and roadside areas’ and

proscribe[d] ‘certain pedestrian interactions with vehicles.’” Id. at 1210 (brackets omitted). As the court

recognized, the government “is ‘permitted to justify

speech restrictions . . . based solely on history, consensus, and ‘simple common sense.’” Id. at 1243-1244

(quoting Lorillard Tobacco Co. v. Reilly, 533 U.S. 525,

555 (2001)). 6 The problem for the city was that the

“evidence it . . . put forward” “undercut[]” any common

sense-based rationale for the measure. Id. at 1244

(emphasis added). Absent any common sense or evidence-based justification, the court of appeals deemed

the measure invalid. See id. at 1245 (describing the

government’s “largely evidence-free” attempt at “establishing [the measure’s] constitutionality”).

In Pagan v. Fruchey, the Sixth Circuit likewise

acknowledged that the government can “justify speech

6 See Fla. Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995)

(“even . . . in a case applying strict scrutiny,” “we have permitted

litigants . . . to justify restrictions based solely on history, consensus, and ‘simple common sense’”) (citing Burson v. Freeman, 504

U.S. 191, 211 (1992)); Pet. App. 32a (similar).

10

restrictions based on history, consensus, and simple

common sense.” 492 F.3d 766, 774, n.6 (2007) (en

banc) (internal quotation marks and ellipses omitted).

But as in Cutting and Brewer, the court concluded that

there was no evidentiary or common sense-based rationale for the restriction at issue—a city ordinance

that prohibited “the posting of ‘For Sale’ signs on cars

parked [on city] streets.” Id. at 772. 7 Far from disagreeing with Cutting, Brewer, or Pagan, the court of

appeals here simply upheld a distinct type of traffic

regulation on the basis of a different evidentiary record and common-sense justification.

b. The second aspect of the decision below challenged by petitioner is the court of appeals’ approach

to the “narrow-tailoring requirement.” Pet. 22. Petitioner does not contest that Section 27001 is contentneutral and subject to intermediate scrutiny. See, e.g.,

id. at i, 13. In petitioner’s view, however, the court of

appeals’ application of intermediate scrutiny departs

from the approach taken by the Washington Supreme

Court and other federal appellate courts. Pet. 24-29.

Petitioner is incorrect.

In State v. Immelt, 173 Wash. 2d 1, 10-13 (2011),

the Washington Supreme Court did not even apply intermediate scrutiny. The court struck down a “content-based” local honking restriction on First

Amendment overbreadth grounds. Id. at 10. Nothing

in that decision suggests that the same result—or

mode of analysis—would be appropriate where (as

here) the challenged measure is content-neutral. See

7 See, e.g., Pagan, 492 F.3d at 774 n.6 (“the alleged harms recited

by the [government] cannot be characterized” as “derive[d] from

common sense” or “as matters upon which there is longstanding

consensus”); id. at 778 (emphasizing that the government furnished no evidence in support of the measure).

11

generally Turner Broad. Sys., Inc. v. FCC, 512 U.S.

622, 642, (1994) (“regulations that are unrelated to the

content of speech are subject to an intermediate level

of scrutiny . . . because in most cases they pose a less

substantial risk of excising certain ideas or viewpoints

from the public dialogue”). 8

The other three decisions cited by petitioner (Pet.

27-29) merely recognize that laws sometimes fail intermediate scrutiny if the government has “too readily

forgone options that could serve its interests just as

well” as the challenged measure. McCullen v. Coakley, 573 U.S. 464, 490 (2014) (emphasis added). In

Cutting, for example, the First Circuit faulted the government for failing to “try . . . or adequately explain

why it did not try” less restrictive alternatives that

would “achieve [its] interests” in protecting pedestrians and drivers from distracting activity on the medians of city streets. 802 F.3d at 91 (quoting McCullen,

573 U.S. at 495); see Brewer, 18 F.4th at 1246 (similar); Reynolds v. Middleton, 779 F.3d 222, 231-232 (4th

Cir. 2015) (similar with respect to prohibition of solicitation on county roadways).

Here, by contrast, the alternatives identified by petitioner would not “achieve California’s interest in

traffic safety.” Pet. App. 35a n.12; supra at p. 6. Petitioner’s assertion that “[t]here were numerous regulatory alternatives that California could have tried”

(Pet. 29) is belied by expert testimony, see, e.g., Pet.

8 Immelt’s analysis is also incomplete. Cf. Immelt, 173 Wash.2d

at 15, 28-29 (Madsen, C.J., dissenting). The court merely considered whether the law’s scope was justified in light of the government’s “interest in protecting residents from excessive and

unwelcome noise.” Id. at 11 (majority). The court nowhere considered the substantial interests in traffic safety addressed by the

court of appeals here. See, e.g., Pet. App. 27a-34a.

12

App. 167a-170a, and by the “near-nationwide consensus on the need” to prohibit horn use when unnecessary for alerting others to danger, id. at 33a; see id. at

34a-35a (“we discern no plausible means by which California could permit non-distracting honks while prohibiting distracting honks”).

3. Petitioner also urges the Court to grant review

on the ground that this case is “critically important.”

Pet. 37; see id. at 32-38. But petitioner overstates the

legal and practical implications of the decision below.

For example, petitioner argues that “[i]f the decision below is allowed to stand, everyday Americans

engaging in a core form of political expression . . . run

the risk of criminal prosecution.” Pet. 37. As discussed above, however, the court of appeals “declined

to consider” whether Section 27001 can validly be applied to “political honking—‘specifically, honking in

response to a political protest.’” Pet. App. 21a-22a n.6;

see supra at pp. 3-4, 6-7. Any concerns about applications of the statute to “political protest” honking, cf.

id. at 47a-52a (Berzon, J., dissenting), should be addressed (if necessary) in a future case where those concerns are properly raised.

Petitioner is also wrong in asserting that the decision below “epitomizes . . . concerns” (Pet. 35) expressed by certain legal scholars that courts have

“watered down” intermediate scrutiny (id. at 32). One

of the referenced scholars wrote on this subject nearly

four decades ago, asserting that this Court and other

federal courts have applied intermediate scrutiny “in

a toothless manner, producing a standard of review

that in practice resembles mere rational basis scrutiny.” Schauer, Cuban Cigars, Cuban Books, and the

Problem of Incidental Restrictions on Communications, 26 Wm. & Mary L. Rev. 779, 787 (1985); see Pet.

13

34-35. That claim is difficult to square with modern

decisions striking down a range of laws on intermediate-scrutiny grounds—including the four federal appellate decisions on which the petition heavily relies. 9

In any event, in this case—the only case in which petitioner is presently seeking review—the court of appeals correctly applied the requirements of

intermediate scrutiny. See supra at pp. 5-6, 7-8.

Finally, petitioner emphasizes that “[a]t least forty

other states and the Uniform Vehicle Code provide

similar prohibitions on non-warning honking.” Pet.

37. But in the absence of any genuine disagreement

in the lower courts on the validity of such laws, see supra at pp. 7-12, that consideration weighs against certiorari, not in favor of it. This Court is generally loathe

to call into question the constitutionality of laws that

“virtually every State has enacted.” Nev. Comm’n on

Ethics v. Carrigan, 564 U.S. 117, 125 (2011); cf. San

Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 44

(1973) (“maintenance of the principles of federalism is

a foremost consideration . . . [when] this Court examines state action”).

9 See, e.g., McCullen, 573 U.S. at 490-497; Sorrell v. IMS Health

Inc., 564 U.S. 552, 557 (2011); supra at pp. 8-10, 7-12 (discussing

Cutting, Brewer, Pagan, and Reynolds).

14

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

THOMAS S. PATTERSON

Senior Assistant Attorney General

SAMUEL T. HARBOURT

TERESA A. REED DIPPO

Deputy Solicitors General

PAUL STEIN

Supervising Deputy Attorney General

SHARON L. O’GRADY

Deputy Attorney General

January 22, 2024