Do You Have 1st Amendment Right to Do a Burnout?

06/11/2012 @ 10:03 am, by Jensen Beeler23 COMMENTS

Do You Have 1st Amendment Right to Do a Burnout? Marisa Miller Harley Davidson burnout ad 635x762

Choosing to forgo a legal career and instead blog about motorcycles for a living, I of course have to comment on an interesting case that is about to hit a federal court in South Carolina, which concerns whether motorcyclists have a constitutional right to perform a burnout on their motorcycles. Before we all have a collective eyeroll on legitimizing squidly behavior on city streets, consider the central fact of this case is that the behavior in question was not preformed on a public road, but instead on private property.

The issue here stems from a biker hangout know for its burnout competitions, as Suck Bang Blow of Murrells Inlet, South Carolina found its permit for hosting biker parties to include an interesting outright ban on motorcycle burnouts for the 2012 rally season. This differs a bit from previous years, as past permits from Horry County simply limited the hours and locations that such activities could occur (from noon to 9pm, at the back of the building).

Calling the noise from the burnouts a nuisance, the county has banned all burnouts within its borders, stating it has the right to do so under state law (presumably that reasoning stems from basic nuisance analysis in tort law). SBB disagrees however, and after winning an emergency injunction, has taken the case to federal court. Arguing that burnouts are a protected form of speech that display male machismo (our words, not theirs), the biker bar hopes that federal judges will find that the act of performing a burnout is an action protected by the First Amendment of the United States Constitution.

This case is incredibly interesting, as it isolates the performance of a burnout away from the the typically associated endangerment of others. That is to say, burnouts on public roads will always remain illegal, regardless of First Amendment concerns, because of the danger they pose to other motorists, pedestrians, property, etc. However, performing the burnout on private property removes the usual balancing act between free speech and public safety, at least as far as the government’s enforcement of reckless driving ordinances are concerned.

While the Supreme Court has often carved out exceptions to the First Amendment, as it relates to the safety of others (creating the now defunct “clear & present danger” analysis of the law), the Court has been resistant to doing the same to cases that center around the nuisance of the speech. While Court jurisprudence regarding “time, place, and manner” would likely have upheld Horry County’s regulation of the burnouts through its permits time restrictions, the outright banishment of the act could very easily come afoul with the law.

I doubt many motorcyclists would argue that some form of speech or expression is not occurring when one performs a burnout on a motorcycle, though many riders above the age of 12-years-old might find the communication being conducted to be base and/or annoying, and thus chooses to refrain from such activities. But, just as clothing can be viewed as an extension of one’s persona, a motorcycle too can be viewed as an extension of an individual’s personality, and it can be a tool through which he or she expresses him or herself (I would argue that this is the primary reason many motorcyclists ride motorcycles in the first place).

Taking that logic one step further, we have the entire stunting-focused segment of the motorcycles industry, which through photos, videos, and live performances has made an art form out of slipping the back wheel of a motorcycle around on private property. If that doesn’t qualify as art under the purview of the First Amendment, when something like pornography does, then I don’t know what qualifies under the definition of the word anymore. Though, under Horry County’s perspective, that act too (the burnout, not the porn) would be illegal.

We have long upheld in our legal system that citizens have the right to freely express themselves and their opinions, despite the existence of public sentiment that goes counter to that message. While there is a strong public policy decision to be made in favor of reducing public nuisances, First Amendment speech jurisprudence has often upheld the “nuisance” of unpopular demonstrations, citing that the right of the body politic to openly express and share its ideas is a greater ideal to uphold.

As such, prohibiting a behavior on a motorcycle, that does not have a public safety element to its rationale, but simply a rationale of public nuisance, is something I find rather disturbing as a citizen and as a motorcyclist. Further diminishing the County’s argument is the fact that there are a number of alternatives to the ban that would be far less restrictive than the banning of a particular type of speech. Horry County has already touched on one of those alternatives in the past, giving SBB and other biker bars set hours in which they can perform burnouts. Another alternative could include a decibel noise restriction, which would balance the rights of those within earshot of the bars (but not participating), with those within the bar’s property (who are more likely to be the intended recipients of the act).

With the case not likely to be heard until 2013, we will have to wait a bit longer to see how the issue resolves, but it would not surprise me to see a court actually uphold the right for a motorcyclist to perform a burnout. Okay universe, you win. Now where are my “Burnouts Are Not a Crime” t-shirts?

Source: Myrtle Beach Online

Comment:

  1. Everett says:

    Based on the logic you presented above your t-shirt would read: “Burnouts are not a crime (when conducted on private property, subject to conformance of County noice ordinance sec….)”…you get the idea…

    Sick shirt Bro!

  2. JoeD says:

    More Goobermint intrusion. If a rider wishes to show of their arse, then so be it. I have never seen the use for burnouts though unless a dragstrip was involved. Rather juvenile behavior IMO. (I live in SC)

  3. gebeme says:

    Oohhh… Marisa Miller…

    … Sorry what were we talking about?

  4. Kyle says:

    So I guess there isn’t a drag strip in the county….

  5. SiafaAlvin says:

    @Kyle – dragstrip location ≠ all parking lots. They (like other race tracks) already had to follow specific building codes to make sure that the noise from engines is relatively isolated, don’t they? I think, on a case-by-case basis, there is a legitimate argument that burnouts on private property are still disruptive enough to be considered a nuisance.

  6. ZeitgeistXiii says:

    Maybe they could use stock exhaust? lol

  7. Max says:

    Some of my favorite posts are when you dive into some analysis of “bigger picture” questions of motorcycling. And for the record, I totally agree riding a motorcycle is a form of my own self expression… It also happens to be the *only* convenient way to get around San Francisco.

    Public transportation is seriously sub-par for a city of this caliber. Parking is nonexistent or more expensive than a fancy dinner. Taxis are artificially keeping themselves in high-demand by staying scarce… and Uber, the towncar service, is awesome but also about 1.5 – 2x as expensive as a cab.

    So yes. I endure the risk, the helmet hair, the lack of cargo space for the self expression and for the best way to get around the city :)

  8. Ken C. says:

    I’m all for burnouts as long as they don’t cause physical damage to the roads, deafen me with the noise, or suffocate me with the tire smoke.

  9. Lewis C says:

    Might it not be the case that the powers just don’t like this bar and the people who go there???

  10. Jake says:

    As someone who used to live in Myrtle Beach, and still has good friends there, I knew as soon as I read the first sentence of this post that you were talking about Suck Bang Blow. The bar is pretty well representative of the entire area, delightfully tacky yet unrefined. That’s the charm and appeal of the place. Just like with Myrtle Beach Bike Week, this case is an example of out of state people moving to the area and expecting the long established local people, businesses, and traditions to change to accommodate their preferences. If you can’t handle rowdy bikers a couple weeks out of the year, then don’t move to a place that has a decades long tradition of hosting bike weeks! I truly wish Suck Bang Blow nothing but win in this case.

    Sidenote: Harley’s, being loud and slow, and organized burnouts in bar parking lots really aren’t my thing. I’d probably be the first in line to make fun of that kind of behavior. However, if that’s some people’s idea of a good time and it doesn’t cost me anything more than a once or twice a year inconvenience, let them have their fun.

  11. I suspect it’s only a matter of time before somebody attempting to burgle said establishment sues for hearing loss and wins on the grounds that the owners did not take suitable precautions to protect the hearing of burglars on their property.

    The stupidity of modern North American law (and the opportunistic behaviours that result from it) truly boggles the mind.

  12. Spamtasticus says:

    FYI, the US constitution does not grant us rights, it limmits the federal government’s powers.

  13. MikeD says:

    @Spamtasticus:

    That right there, yes…what u just said……..SOLID GOLD my man, SOLID GOLD.

    I couldn’t have said it better myself even if i wasted every and each single cell on my brain.

    As to the whole burn out thing……….aahh, what to say…im sure i would be pissed too if it were done next to my house during sleep hours or in a “too often” basis…

    I think thats why they took down the local bike night on FudRocker’s parking lot that i suspect was just a little too close for its own good to a “very influencial(read WEALTHY) neigborhood and some of the “loaded” folks greased the local police hands and……………Just saying.

  14. @Jake & @Spamtasticus – good stuff.

    I suspect the increasingly restrictive laws in SC against bikers would also target dyno days?

  15. Gritboy says:

    There is no right to being a prick, but doing a burnout on private property, so long as it DOES NOT violate a noise or pollution ordinance shouldn’t be an issue. Almost all motorcyclist are hooligans to some small extent, though some of us prefer not to piss off our own neighbors. That said, most people I’ve seen doing a burnout (save for a an at event) can barely ride their bikes around a corner, so my opinion of them is low already.

  16. RJ says:

    After reading all the opinions and thinking about it I’m just burned out man…… *rim shot

  17. Racetrack Style says:

    not that dyno days (or burnouts at a bar) are my thing but i could see those behind the laws trying to include the dyno too.

  18. Smiler says:

    To the casual observer, courts arguing whether burnouts are legal or not is the pinnacle od stupidity and waste of public finances. It appears that the land of the free is less free that we all thought.
    At the 2010 World Ducati Weekend the whole street was blocked in the town with endless people doing burnouts. Each time a car stopped it was rocked left to right, the prettier the occupant the more enthusiastic the rocking.
    Several people even managed to burst tires. The Police simply made sure no one was hurt in the process.
    Most places I have been to regulate it on the basis of bei g a bit of fun, as long as no one gets hurt and it is not done at 3am.

    Is that really a Harley burn out or oil being sprayed on to the exhaust! It is however a brilliant photo and as usual a well reasoned, informative and insightful article from A&R.

    Sorry to sound like a typical European but really.

  19. Grant Madden says:

    Been racing for more than 20 years but been doing burnouts since I got my first bike more than 30 years ago.Never meant no harm to anyone,not all of my bikes have been noisy and infact most have complied with the sound limits set for race tracks of 91 db.Noise is a nuisence which is easy to control but the urge to smoke up the back wheel is not so easy to suppress.Did a burn out at the funeral of a friend who died racing at the IOM.Did no harm to anyone and used a bike with standard exhaust so aside from the smoke there was no disruption to anything.Signed my initial G on the street outside my home with my back tyre on my GSX1100.Is that not self expression?Cant think of anything more self expressive than that!
    Not just freedom of speech but freedom of self expression.Seems that some people have lost sight of the real meaning of freedom.Moytorcycles have always represented freedom.Dont let them take away your freedom!!

  20. Grant Madden says:

    Motorcycles…should read what I wrote before pressing that submit thing really!!

  21. Dave says:

    Sounds like the real issue is noise. Noise ordinances are in effect all over the USA. Your rights do not include annoyance to others. I’m really surprised that more towns don’t ban bike rallies where most participants seem to have loud or straight pipes on their bikes.

  22. Spamtasticus says:

    If I had to listen to loud pipes day in and day out from my home or office I would find a way to quiet them. One way, or another. I own 4 motorcycles 3 of which are race only. The street legal bike is an R1200GS ADV with a stock pipe that is very quiet. I never even turn on the other three while home out of respect to my neighbors. Just imagine the same scenario with someone else making the hyper loud noise just not with bikes. Maybe with Bieber songs or some other moronic sound you would rather not hear day in and day out. If they move the burnout comps to an industrial zone then more power to them.

  23. twat says:

    Gotta love first world problems. That is why I do a majority of my riding in third world countries.