By Bob Mionske
Before I jump into this column, I’d like you to hear from a concerned fellow attorney, Jeffrey Lynne, who recently wrote to me and Loren Mooney, editor-in-chief of Bicycling. Lynne is an attorney in the Ft. Lauderdale office of Akerman Senterfitt. Both Lynne and Akerman Senterfitt were recently recognized by the Florida Bicycle Association as “2008 Citizen Advocate for the Year” for their pro bono work on behalf of the League of American Bicyclistsin securing Florida’s legal obligation to include alternative (”green”) multi-modal transportation facilities in all state roadway reconstruction projects. In addition to his pro bono work, Lynne is also a League of American Bicyclists Certified Instructor, teaching adults of all ages how to safely enjoy cycling across South Florida. Now, having introduced Jeffrey, here’s what he wrote:
Dear Loren and Bob:
I thank you for everything you have done to educate the cycling community on our rights, as well as our responsibilities. Your book is a credit to your dedication to securing our continued existence on the roadways across America.
When reading the June 2009 edition of Bicycling, and the column “First, There Was the Bicycle,“,I was struck by the number of references to our “rights” to use the road. Specifically, you state:
Today, as in the past, our rights to the road are sometimes challenged. Towns occasionally ban bicycles from the roads, despite our rights. Law enforcement fails to protect us, and sometimes, officers even attempt to remove us from the roads— despite our rights. And self-styled vigilantes assault cyclists with their vehicles in deluded efforts to enforce laws they wish existed. Even with these challenges, we exercise our right to the road.
As a fellow advocate for all Florida cyclists, I want to take a moment to express concern that the repeated mantra that we have the “right” to use the road is illusory; that “right” is actually nothing more than a “privilege” that the state can take away from us, without recrimination. Recently, in the Florida case of State v. Wells, 965 So.2d 834 (Fla. 4th DCA 2007), the court reaffirmed what us lawyers all know—limitations on the use of the public rights-of-way do not implicate a fundamental constitutional right and, thus, any such law is not unconstitutional on overbreadth grounds; the right to travel does not encompass a fundamental right to drive, and driving is a privilege rather than a right.
As such, I remain concerned, and have repeatedly expressed as such, that my fellow cyclists’ continued disregard for traffic laws may ultimately lead to the banning of bicycle use—as we currently enjoy it—altogether. Even today, cities are curbing group riding due to the lack of respect the participants often exhibit to other users of the roadway. While some of us view such behavior as civil disobedience, our “right” to use the road is not protected in our state or federal constitutions and therefore our behavior on the roads is not making the point some of us are trying to make (i.e, that bikes belong). By refusing to act maturely and responsibly on the roads, we are eroding our long-standing ”rights” and undermine the hard-earned gains from entities such as the LAB and Bikes Belong. In short, we tend to be our own worst enemies. And sadly, sometimes Bicycling encourages such behavior inadvertently.
Repeated bike-on-car accidents are not winning the hearts and minds of our elected leaders (or our motoring neighbors) that bike safety needs to be elevated to a national dialogue. We must first get our own house in order to ensure that we are not degrading the privilege to use the road for the next generation, and perhaps, get that privilege elevated to a “right”.
All my best,
Jeffrey Lynne, Esq.
Let’s take a look at the issues Lynne’s raising.
Gaining the Right to the Road
In “First, There was the Bicycle,” I briefly summarized the 19th century campaign to gain the right to the road. This campaign was waged by the League of American Bicyclists, then known as the League of American Wheelmen, and backed by the financial resources of Col. Albert Pope, the founder of Columbia Bicycles. The campaign was based on a two-pronged legal strategy, directed towards the courts and legislatures of the states. In the 19th century, cyclists were often faced with discriminatory laws that restricted their use of the road. For example, Topeka, Kansas passed an ordinance prohibiting cyclists from riding on city sidewalks, and ostensibly, “across the Kansas river bridge.” When cyclists were arrested for violating traffic laws that restricted their use of the roads, Col. Pope provided the financial backing to appeal those convictions to the highest state courts—and those appeals resulted in decisions holding that bicycles are “vehicles,” and that cyclists have the same rights and responsibilities as other vehicle operators. Thus, when a cyclist named Swift was arrested in Topeka, Kansas for riding across the Kansas river bridge, he appealed his conviction to the Kansas Supreme Court. The Court reversed Swift’s conviction, commenting in its 1890 Swift v. City of Topeka decision that:
Each citizen has the absolute right to choose for himself the mode of conveyance he desires, whether it be by wagon or carriage, by horse, motor or electric car, or by bicycle, or astride of a horse, subject to the sole condition that he will observe all those requirements that are known as the ‘law of the road.’ This right of the people to the use of the public streets of a city is so well established and so universally recognized in this country that it has become a part of the alphabet of fundamental rights of the citizen. While the tyranny of the American system of government very largely consists in the action of the municipal authorities, this right has not yet been questioned or attempted to be abridged. There can be no question, then, but what a citizen riding on a bicycle in that part of the street devoted to the passage of vehicles is but exercising his legal right to its use, and a city ordinance that attempted to forbid such use of that part of a public street would be held void, as against common right.
Similarly, in 1889, the Supreme Court of Indiana’s decision in Holland v. Bartch held that
Although but few courts have passed upon and defined the rights of persons riding on an propelling or driving bicycles, yet such as have, have unanimously placed them upon an equality and governed by the same rule as persons riding or driving any other vehicle or carriage, and we think this is the proper rule to adopt.
Simultaneously, the League was lobbying the state legislatures for the passage of laws establishing the rights of cyclists. The first such statute was the 1887 law passed by the New York legislature, declaring bicycles to be carriages,
and all persons by whom bicycles, tricycles, and said other vehicles [propelled by manumotive or pedomotive power] are used, ridden or propelled upon the public highways of this state, shall be entitled to the same rights and subject to the same restrictions in the use thereof as are prescribed in said Revised Statutes in the cases of persons using carriages drawn by horses.
From the historical context of these early cases and legislation, there’s no question that the right at stake was the right to use the roads. There’s also no question that the courts and legislatures were establishing that rights come with responsibilities. This was intentional. Because bicycles were so new to the roads, nobody really knew what laws, if any, applied to bicycles—and that was a recipe for chaos, as hordes of cyclists took to the streets with no regard for the laws, custom, or the rights of others. By recognizing the legal rights of cyclists, the courts and legislatures brought them within the legal system; with their newly acknowledged right to use the road, came the corresponding duty to observe the rights of others, and the duty to obey the applicable laws.
But is that right to the road really a “right,” or is it instead a “privilege,” as Lynne has argued? It’s an interesting point. The language devised by judges and legislators in the 19th century is essentially the same as the language describing the legal status of cyclists today, so if the right to the road was indeed a right then—and 19th century courts made it clear that they were discussing a right (see, for example, the Swift v. City of Topeka decision above)—it should also be a right today. Of course, that doesn’t necessarily demonstrate that cyclists have a “right” to the road. After all, it’s been well-established by the courts that motorists have only a privilege, and not a right to use the roads—and yet in 1890, the Kansas Supreme Court held that
Each citizen has the absolute right to choose for himself the mode of conveyance he desires, whether it be by wagon or carriage, by horse, motor or electric car, or by bicycle, or astride of a horse, subject to the sole condition that he will observe all those requirements that are known as the ‘law of the road.’
Rights and Privileges(
Since then, obviously, the law has changed. In 1973, for example, the Supreme Court of Washington held that “there is no constitutional right to a particular mode of travel.” Why the change? Driver’s licenses. When the Kansas Supreme Court held that the right of travel included the right to choose the mode of travel, no state required that drivers be licensed. In fact, the first state law requiring all drivers to pass an exam before receiving a license took effect in July of 1913, in New Jersey. Gradually, every state since then has mandated that drivers be licensed. And corresponding with those requirements, beginning in 1920, and continuing over the course of the next 30 years, courts began to hold that driving is not a right, as it had previously been viewed, but a privilege that the state may revoke. Today, that view is universal. Consider, for example, the Florida case that Lynne has cited. In that case, State v. Wells, an appellate court in Florida observed that
courts have held that the right to travel does not encompass a fundamental right to drive…and that driving is a privilege rather than a right.
Whether in Florida, or any other state, these cases always involve a driver who is challenging the power of the state to suspend or revoke the driver’s license—typically resulting from a DUI conviction, or, as was the situation in the Florida case, because the driver was arrested for street racing.
What’s really remarkable here is the shift in thinking from the Kansas court’s 1890 opinion that “every citizen has the absolute right to choose for himself the mode of conveyance he desires…” The right to travel is an ancient right; it was acknowledged in the Magna Carta:
It shall be lawful to any person, for the future, to go out of our kingdom, and to return, safely and securely, by land or by water…
562 years later, the right to travel was recognized in the Articles of Confederation, but when that document was replaced by the Constitution, the right to travel was not enumerated in the Bill of Rights. Nevertheless, the right has been acknowledged in courts since the early 19th century. Thus, by 1890, the Kansas court well understood that the right to travel is a fundamental right; in the 20th century, that right continued to be affirmed by the courts:
The constitutional right to travel from one State to another, and necessarily to use the highways and instrumentalities of interstate commerce in doing so, occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.” United States v. Guest (1966).
It has even been held in some jurisdictions that the right to travel is not just a right to travel between the states, but a right to travel within a state:
It would be meaningless to describe the right to travel between the states as a fundamental precept of personal liberty and not to acknowledge a correlative constitutional right to travel within a state. King v. New Rochelle Housing Authority(1971).
Even though the right to travel is universally recognized by the courts, it has also clearly been somewhat restrained by the legislatures since 1890, as evidenced by numerous cases holding driving to be a privilege, rather than a right.
Can the legislatures do that? Can they restrain a fundamental constitutional right like the right to travel? The answer is a qualified yes. No right is absolute; even fundamental rights, such as the right to freedom of speech, may be restrained to some degree without violating the constitution. As Justice Oliver Wendell Holmes observed in 1919,
The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.
However, restraints of fundamental rights are subject to scrutiny from the courts. Relatively few restraints have been placed on the right to travel; nevertheless, the right is not absolute. It is limited to the right to use the public highways for travel; the right to travel does not include the freedom to trespass on private property (unlike in Scandinavia, where the freedom to roam—even across private property—is an ancient right.). The right to travel is also restrained by the traffic laws. This was so even in 1890, before the advent of licensing requirements; as the Kansas Supreme Court held:
Each citizen has the absolute right to choose for himself the mode of conveyance he desires…subject to the sole condition that he will observe all those requirements that are known as the ‘law of the road.’
Finally, the right to travel does not include the right to choose a mode of travel that is licensed by the state. This has been repeatedly affirmed in courts across the country, including the Florida case that Lynne cited. And this brings us to Lynne’s assertion that
the court reaffirmed what us lawyers all know—limitations on the use of the public rights-of-way do not implicate a fundamental constitutional right and, thus, any such law is not unconstitutional on overbreadth grounds; the right to travel does not encompass a fundamental right to drive, and driving is a privilege rather than a right.
I think that this analysis is only partially correct. The Florida court observed that courts have held that, “The right to travel does not encompass a fundamental right to drive,” and that, “Driving is a privilege rather than a right.” Therefore, the court reasoned, the statute at issue could not be unconstitutional on “overbreadth” grounds,
because overbreadth is not implicated where a statute does not affect a fundamental constitutional right.
By “overbreadth,” the court meant a law that is worded so broadly that it prohibits not only constitutionally unprotected behavior, but also constitutionally protected behavior. What the Florida court was saying is that because driving is a privilege, rather than a fundamental right, the constitutionality of laws regulating driving cannot be challenged based on an argument that the law is “overbroad.”
That is, because driving is permitted by the states, through licenses that can be revoked, driving is a privilege extended by the state. However, because most other modes of travel are not licensed, the state cannot “revoke” your ability to travel via those other modes, and thus, unlicensed modes of travel are not “privileges.” Instead, they are modes of travel that fall within the right to travel, and laws that are overly restrictive of those unlicensed modes of travel would be susceptible to overbreadth challenges.
So if cycling is not a privilege, is it a right? That may be an unsettled question. Prior to 1920, the right to travel included the right to choose one’s mode of travel. Since 1920, that right has been steadily eroded. Nevertheless, one possible interpretation of the jurisprudence is that we retain the right to choose our mode of travel for those modes that have not been transformed into privileges.
The future of cycling: A right, or a privilege?
This brings us to Lynne’s central concern:
I remain concerned, and have repeatedly expressed as such, that my fellow cyclists’ continued disregard for traffic laws may ultimately lead to the banning of bicycle use—as we currently enjoy it—altogether. Even today, cities are curbing group riding due to the lack of respect the participants often exhibit to other users of the roadway. While some of us view such behavior as civil disobedience, our “right” to use the road is not protected in our state or federal constitutions and therefore our behavior on the roads is not making the point some of us are trying to make (i.e, that bikes belong). By refusing to act maturely and responsibly on the roads, we are eroding our long-standing ”rights” and undermine the hard-earned gains from entities such as the LAB and Bikes Belong. In short, we tend to be our own worst enemies. And sadly, sometimes Bicycling encourages such behavior inadvertently.
Repeated bike-on-car accidents are not winning the hearts and minds of our elected leaders (or our motoring neighbors) that bike safety needs to be elevated to a national dialogue. We must first get our own house in order to ensure that we are not degrading the privilege to use the road for the next generation, and perhaps, get that privilege elevated to a “right.”
Jeffrey, I share your central concern, although I may disagree with some of your analysis. I believe that cycling is at a minimum an expression of our right to travel, and there is reason to believe that we have retained the right to choose our mode of travel—at least where that mode has not been transformed into a privilege.
However, it is clear from the public discourse that discourteous behavior and disregard of the traffic laws is having a profoundly negative effect on cycling. As you have pointed out, through their negative behavior, cyclists tend to be their own worst enemies.
On the other hand, I disagree that responsibility for “repeated bike-on-car accidents” can be laid at the doorstep of cyclists. Although police data indicate that cyclists are responsible for 80% of all bike-on-car crashes, their data are notoriously unreliable. There’s simply no reliable evidence to indicate that cyclists are any more responsible for crashes than motorists, and there may be evidence to indicate that motorists are actually at fault more often.
Nevertheless, the public mood has soured; exactly how this will impact cycling remains to be seen, but nobody should be fooling themselves into believing that society is powerless to react to their negative behavior. By the early years of the 20th century, automobiles were already widely perceived as posing a danger to the public. As early as 1902, proposals to license drivers—an unheard of regulation of the right to travel—had entered the public discourse as a means of addressing the problem; by 1913, licensing was a reality. Today, proposals to require registration of bicycles and licensing of cyclists have entered the public discourse.
Do the legislatures have the power to regulate bicycling in ways that cyclists would find extremely undesirable, completing the transformation of cycling from a right to a privilege controlled by the state? They have already demonstrated the power to do so once, and that power has been unanimously upheld by the courts. Would the legislatures and the courts do so again? That remains to be seen.
The cyclists of the 19th century fought long and hard to gain the right to the road. As Jeffrey has observed, our negative behavior today threatens to erode the rights we have enjoyed for so long, and which our cycling forbearers fought so hard to gain. If we hope to assure our continuing enjoyment of our right to the road, and to pass that right on to generations of cyclists to come, it will be up to us to get our own house in order, before somebody does it for us.
(Research and drafting provided by Rick Bernardi, J.D.)