Tennessee court rejects First Amendment challenge to motorcycle-helmet law

Thursday, October 29, 1998

Tennessee's motorcycle-helmet law does not violate motorcyclists' free-expression rights under the First Amendment or the free-speech provision of the state constitution, the Tennessee Court of Criminal Appeals ruled recently.

The case grew out of an incident in July 1996 in which more than 50 motorcyclists were cited by state troopers for not wearing helmets while riding in a funeral procession in Putnam County for a fellow member of Concerned Motorcyclists of Tennessee.

Thirteen motorcyclists sought a jury trial on the charges. After a judge acquitted one cyclist, the jury found the 12 remaining cyclists to be in violation of the law. The law provides that: “The driver of a motorcycle, motorized bicycle … or motor-driven cycle and any passenger thereon shall be required to wear a crash helmet of a type approved by the commissioner of safety.”

The defendants challenged their convictions, claiming the statute was unconstitutional because it violated their free-expression and privacy rights.

The defendants claimed their refusal to wear the helmets was a show of respect for the deceased and communicative conduct protected by the First Amendment and the free-speech provision of the state constitution.

The state did not contest that the refusal to wear helmets was communicative conduct, but argued that the statute served an important governmental interest in safety which was unrelated to the suppression of free expression.

The criminal appeals court assumed that the defendants' conduct was “sufficiently expressive” to merit First Amendment review. The court applied the U.S. Supreme Court's four-part test in the 1968 case United States v. O'Brien.

The O'Brien test applies to governmental regulations that relate to conduct which has both speech and non-speech elements. Such a regulation passes constitutional review if:

  • “It is within the constitutional power of the government.”
  • “It furthers an important or substantial government interest.”
  • “The governmental interest is unrelated to the suppression of free expression.”
  • “The incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”

Applying the O'Brien test, the appeals court determined the state had the power to protect its citizens and that the statute served the important governmental interest of “protecting the safety of motorcyclists as a class.”

Next, the court found that “the state interest of protecting the safety of its citizens is unrelated to the suppression of free speech.” The court wrote: “Certainly, it is beyond dispute that the statute requiring helmets is content-neutral, as it has no relation to speech or other forms of expressive conduct, nor does it seek to suppress expression as its purpose.”

Finally, the court found that the regulation was necessary to further the government's interest in safety, writing: “The state interest of protecting the safety of motorcyclists on public roadways would indeed be less effective without a regulation requiring the cyclists to wear protective headgear.”

John Herbison, attorney for the motorcyclists, said: “I was encouraged that the court seemingly accepted the proposition that the gesture of not wearing helmets was expressive conduct. However, I respectfully differ with the court's application of the O'Brien test.

Herbison said that “it was the gesture — the particular means of expression — that was being punished.”

Associate Solicitor General Daryl Brand, who handled the case for the state, was out of the office until Monday and unavailable for comment.

Herbison said he would most likely file an appeal to the Tennessee Supreme Court on behalf of his clients.