Riding a Bicycle Isn’t Protected Expression for First Amendment Purposes

From Damon v. Huckowicz (D. Mass. Aug. 9, 2013):

Consistent with his view that bicyclists have the right to use public roads in the same manner as motorists, Plaintiff, since the Summer of 2005, often rode in the center of the travel lane. He also believes that this practice is often safer than riding closer to the shoulder of the road because motorists approaching from behind will notice him earlier, “perceive [him] as relevant and be able to react earlier if [he is] in a prominent position.” Thus, if there was more than one lane in the same direction, Plaintiff “almost always” rode in the center of one of the lanes, usually in the right lane.

Plaintiff had a number of confrontations with motorists while riding in this manner on Route 9…. Plaintiff was also pulled over by Hadley police on several occasions for riding his bicycle in this manner on Route 9….

Plaintiff also claims that riding his bicycle was “a form of political expression that is protected by the First Amendment” and that, by interfering with this expression, Defendants violated his First Amendment right to free speech. While, as described below, Plaintiff’s claim is creative, the court concludes, as Defendants argue, that Plaintiff was not engaging in expressive speech.

The Supreme Court has rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Rather, it “has focused on the context in which the conduct took place, asking ‘whether [a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who [perceived] it.’” The simple act of riding a bicycle, without anything more, cannot reasonably be understood to convey Plaintiff’s particularized and overwrought message: “a statement of love for the planet, of independence, of caring for the future, of our need to stop our addiction to carbon burning fuels, among other things.”

Even assuming, however, that Plaintiff’s bicycle-riding could be considered an act of expressive speech, which the court does not, there is nothing in the record to indicate either that the statute upon which [Officer] Kuc relied to pull Plaintiff over or his application of the statute to Plaintiff was impermissibly aimed at restricting speech. Plaintiff might have been expressing his “world view” by riding his bicycle, but that does not exempt him from having to comply with the state’s traffic laws.

Seems right to me. Note also that, under the Court’s decision in Rumsfeld v. FAIR, riding a bicycle with a T-shirt expressing your views also wouldn’t be protected expression (though wearing the T-shirt would be). Even though this might make readers understand the bicycle rider’s message, conduct is expressive for First Amendment purposes only if “[t]he expressive component of [the] actions is … created by the conduct itself [and not] but by the speech that accompanies it.”