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

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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