A Cycling & bikes forum. CycleBanter.com

Go Back   Home » CycleBanter.com forum » rec.bicycles » Techniques
Site Map Home Register Authors List Search Today's Posts Mark Forums Read Web Partners

Riding a Bicycle Isnąt Protected Expression for First Amendment Purposes



 
 
Thread Tools Display Modes
  #31  
Old August 20th 13, 12:35 AM posted to rec.bicycles.tech
Jay Beattie
external usenet poster
 
Posts: 4,322
Default Riding a Bicycle Isn?t Protected Expression for First Amendment Purposes

On Monday, August 19, 2013 7:49:49 AM UTC-7, Frank Krygowski wrote:
On Monday, August 19, 2013 8:41:33 AM UTC-4, Duane wrote:





I wonder if there is any single place in North America where cycling is


a right.




Bob Mionske's book _Bicycling & The Law_ devotes its first chapter to that question. He cites many legal decisions (up to the U.S. Supreme Court) claiming that a person has a fundamental right to travel, and that a person has a general right to choose his mode of travel.


But a person does not have a constitutionally protected right to travel by bike on a given roadway.

There can be restrictions. If you're operating a vehicle that's obviously got the potential to be deadly, you may be required to get training and obtain a license; and if you've shown that you lack the sense to refrain from using that vehicle when drunk, you can lose that license. But those restrictions don't have much to do with riding a bicycle. Bicycling rights go back to the years before 1900.


What rights were those? Early laws were primarily prohibitory (early Oregon law):

"it shall be the duty of any person or persons
running or propelling a bicycle over the public
highways or streets in this State, to bring the said
bicycle to a stop within one hundred yards of
any person or persons going in the opposite
direction with a team or teams, and remain
stationary until said team or teams have passed by."


While there are, no doubt, lawyers who would argue against Mionske (isn't that what lawyers are all about? ;-) I think anyone interested in such legal questions should at least skim through Mionske's book.


The right to travel does not include the right to travel by a particular mode. Miller v. Reed, 176 F.3d 1202, 1204-06 (9th Cir. 1999) (stating that governmental "burdens on a single mode of transportation do not implicate the right to interstate travel"). There are really old state cases talking about the "natural" or "fundamental" right to bike or horse or walk, etc., but they're pretty meaningless in light of modern statutes and case law. State police power includes the power to regulate bicyclists, i.e., require licenses, registration and limit or eliminate the use of bicycles in certain places, notably highways. Even in the 1890s, courts were upholding bicycle bans:

"We do not suppose that it could be seriously disputed that it is competent to the Legislature, in the exercise of its police power, and general right to regulate the use of the highways of the State, to restrict, and even forbid, the use of such vehicles as bicycles or tricycles on the highways, if they in fact be dangerous to the general travelling public. All individual rights are more or less subject to limitations and restrictions in their exercise, in the interest and for the protection of society generally; and if it be true that such vehicles as bicycles or tricycles are dangerous on the public highways, it would seem necessarily to follow that the Legislature may reasonably restrict their use, rather than subject the public at large to the risk of danger in the enjoyment of a common right. And if such restriction may be made and enforced with respect to a common highway generally, a fortiori may it be made and enforced with respect to a bridge, such as that described in the evidence in this case. Indeed, it is a settled principle, that it is the obligation to the public of those entrusted with the duty of maintaining and governing the use of the public highways, to make and keep them as free of danger to the general public as can reasonably be done."

Twilley v. Perkins, 26 A. 286, 287-288 (Md. 1893)

Bicyclists "rights" did not come along until the vehicle codes were given a more expansive reading to include bicycles as vehicles. These rights were not constitutional but were created by statute. Sure, you could argue that entirely banning bicycles is unconstitutional, but probably not based on the "right to travel." And I'm not going to bother coming up with a constitutional argument because no one is threatening to entirely ban bicycles.

-- Jay Beattie.


Ads
  #32  
Old August 20th 13, 03:12 AM posted to rec.bicycles.tech
T0m $herman
external usenet poster
 
Posts: 612
Default Riding a Bicycle Isn?t Protected Expression for First AmendmentPurposes

On 8/19/2013 9:49 AM, Frank Krygowski wrote:
Bob Mionske's book_Bicycling & The Law_ devotes its first chapter to that question. He cites many legal decisions (up to the U.S. Supreme Court) claiming that a person has a fundamental right to travel, and that a person has a general right to choose his mode of travel.


This is out of date. US citizens no longer have any effective rights,
since the executive can without judicial review indefinitely imprison or
even have summarily killed any person simply by declaring him/her an
unlawful combatant.

--
T0m $herm@n
  #33  
Old August 20th 13, 05:24 AM posted to rec.bicycles.tech
Frank Krygowski[_2_]
external usenet poster
 
Posts: 7,511
Default Riding a Bicycle Isn?t Protected Expression for First Amendment Purposes

On Monday, August 19, 2013 7:35:41 PM UTC-4, Jay Beattie wrote:
On Monday, August 19, 2013 7:49:49 AM UTC-7, Frank Krygowski wrote:

Bob Mionske's book _Bicycling & The Law_ devotes its first chapter to that question. He cites many legal decisions (up to the U.S. Supreme Court) claiming that a person has a fundamental right to travel, and that a person has a general right to choose his mode of travel.


But a person does not have a constitutionally protected right to travel by bike on a given roadway.


True. Also true for every other means of travel, even including walking.

There can be restrictions. If you're operating a vehicle that's obviously got the potential to be deadly, you may be required to get training and obtain a license; and if you've shown that you lack the sense to refrain from using that vehicle when drunk, you can lose that license. But those restrictions don't have much to do with riding a bicycle. Bicycling rights go back to the years before 1900.




What rights were those? Early laws were primarily prohibitory (early Oregon law):


And early motoring laws were also primarily prohibitory. I imagine everyone here has heard of early laws stating that a motor vehicle must be preceded by a man walking with either a flag or a lantern, to warn others.

And yet, you'll note that your statement, Jay, does not really dispute mine.. Again, laws and decisions stating bicyclists' rights do date to before 1900.

While there are, no doubt, lawyers who would argue against Mionske (isn't that what lawyers are all about? ;-)


QED! ;-)

I think anyone interested in such legal questions should at least skim through Mionske's book.


And that is still true.

- Frank Krygowski
  #34  
Old August 20th 13, 05:33 AM posted to rec.bicycles.tech
Jay Beattie
external usenet poster
 
Posts: 4,322
Default Riding a Bicycle Isn?t Protected Expression for First Amendment Purposes

On Monday, August 19, 2013 9:24:55 PM UTC-7, Frank Krygowski wrote:
On Monday, August 19, 2013 7:35:41 PM UTC-4, Jay Beattie wrote:

On Monday, August 19, 2013 7:49:49 AM UTC-7, Frank Krygowski wrote:




Bob Mionske's book _Bicycling & The Law_ devotes its first chapter to that question. He cites many legal decisions (up to the U.S. Supreme Court) claiming that a person has a fundamental right to travel, and that a person has a general right to choose his mode of travel.




But a person does not have a constitutionally protected right to travel by bike on a given roadway.




True. Also true for every other means of travel, even including walking.



There can be restrictions. If you're operating a vehicle that's obviously got the potential to be deadly, you may be required to get training and obtain a license; and if you've shown that you lack the sense to refrain from using that vehicle when drunk, you can lose that license. But those restrictions don't have much to do with riding a bicycle. Bicycling rights go back to the years before 1900.








What rights were those? Early laws were primarily prohibitory (early Oregon law):




And early motoring laws were also primarily prohibitory. I imagine everyone here has heard of early laws stating that a motor vehicle must be preceded by a man walking with either a flag or a lantern, to warn others.



And yet, you'll note that your statement, Jay, does not really dispute mine. Again, laws and decisions stating bicyclists' rights do date to before 1900.



While there are, no doubt, lawyers who would argue against Mionske (isn't that what lawyers are all about? ;-)




QED! ;-)



I think anyone interested in such legal questions should at least skim through Mionske's book.




And that is still true.


I prefer primary sources and not popular books. I skim through federal and state case law on Lexis. I don't need to read "Bicycling and the Law" when I can read "The Law."

-- Jay Beattie.

  #35  
Old August 20th 13, 03:46 PM posted to rec.bicycles.tech
Frank Krygowski[_2_]
external usenet poster
 
Posts: 7,511
Default Riding a Bicycle Isn?t Protected Expression for First Amendment Purposes

On Tuesday, August 20, 2013 12:33:13 AM UTC-4, Jay Beattie wrote:
On Monday, August 19, 2013 9:24:55 PM UTC-7, Frank Krygowski wrote:

On Monday, August 19, 2013 7:35:41 PM UTC-4, Jay Beattie wrote:


On Monday, August 19, 2013 7:49:49 AM UTC-7, Frank Krygowski wrote:


Bob Mionske's book _Bicycling & The Law_ devotes its first chapter to that question. He cites many legal decisions (up to the U.S. Supreme Court) claiming that a person has a fundamental right to travel, and that a person has a general right to choose his mode of travel.



But a person does not have a constitutionally protected right to travel by bike on a given roadway.




True. Also true for every other means of travel, even including walking.


There can be restrictions. If you're operating a vehicle that's obviously got the potential to be deadly, you may be required to get training and obtain a license; and if you've shown that you lack the sense to refrain from using that vehicle when drunk, you can lose that license. But those restrictions don't have much to do with riding a bicycle. Bicycling rights go back to the years before 1900.


What rights were those? Early laws were primarily prohibitory (early Oregon law):


And early motoring laws were also primarily prohibitory. I imagine everyone here has heard of early laws stating that a motor vehicle must be preceded by a man walking with either a flag or a lantern, to warn others.


And yet, you'll note that your statement, Jay, does not really dispute mine. Again, laws and decisions stating bicyclists' rights do date to before 1900.


While there are, no doubt, lawyers who would argue against Mionske (isn't that what lawyers are all about? ;-)


QED! ;-)


I think anyone interested in such legal questions should at least skim through Mionske's book.


And that is still true.


I prefer primary sources and not popular books. I skim through federal and state case law on Lexis. I don't need to read "Bicycling and the Law" when I can read "The Law."


My "at least skim Mionske's book" was really intended for the others (non-lawyers) who were interested in questions on cyclists' rights.

However, IIRC you've said that Mionske, in addition to being a fellow lawyer, is a friend of yours. I'm surprised you haven't at least skimmed the book for those reasons alone.

I taught mechanical engineering for decades. If a friend and fellow engineer wrote a book on the engineering of bicycles, I'm sure that I'd read it.

- Frank Krygowski
  #36  
Old August 20th 13, 05:41 PM posted to rec.bicycles.tech
Jay Beattie
external usenet poster
 
Posts: 4,322
Default Riding a Bicycle Isn?t Protected Expression for First Amendment Purposes

On Tuesday, August 20, 2013 7:46:53 AM UTC-7, Frank Krygowski wrote:
On Tuesday, August 20, 2013 12:33:13 AM UTC-4, Jay Beattie wrote:

On Monday, August 19, 2013 9:24:55 PM UTC-7, Frank Krygowski wrote:




On Monday, August 19, 2013 7:35:41 PM UTC-4, Jay Beattie wrote:




On Monday, August 19, 2013 7:49:49 AM UTC-7, Frank Krygowski wrote:




Bob Mionske's book _Bicycling & The Law_ devotes its first chapter to that question. He cites many legal decisions (up to the U.S. Supreme Court) claiming that a person has a fundamental right to travel, and that a person has a general right to choose his mode of travel.






But a person does not have a constitutionally protected right to travel by bike on a given roadway.








True. Also true for every other means of travel, even including walking.




There can be restrictions. If you're operating a vehicle that's obviously got the potential to be deadly, you may be required to get training and obtain a license; and if you've shown that you lack the sense to refrain from using that vehicle when drunk, you can lose that license. But those restrictions don't have much to do with riding a bicycle. Bicycling rights go back to the years before 1900.




What rights were those? Early laws were primarily prohibitory (early Oregon law):




And early motoring laws were also primarily prohibitory. I imagine everyone here has heard of early laws stating that a motor vehicle must be preceded by a man walking with either a flag or a lantern, to warn others.




And yet, you'll note that your statement, Jay, does not really dispute mine. Again, laws and decisions stating bicyclists' rights do date to before 1900.




While there are, no doubt, lawyers who would argue against Mionske (isn't that what lawyers are all about? ;-)




QED! ;-)




I think anyone interested in such legal questions should at least skim through Mionske's book.




And that is still true.




I prefer primary sources and not popular books. I skim through federal and state case law on Lexis. I don't need to read "Bicycling and the Law" when I can read "The Law."




My "at least skim Mionske's book" was really intended for the others (non-lawyers) who were interested in questions on cyclists' rights.



However, IIRC you've said that Mionske, in addition to being a fellow lawyer, is a friend of yours. I'm surprised you haven't at least skimmed the book for those reasons alone.



I taught mechanical engineering for decades. If a friend and fellow engineer wrote a book on the engineering of bicycles, I'm sure that I'd read it..


I don't know Bob, except that he passed me going up the Newberry climb like I was standing still. I've been litigating cases in Oregon for 26 years and have never encountered him professionally. He doesn't have any reported appellate decisions. Nothing in the trial courts that I can tell. I don't have any reason to believe that he can read or synthesize the law any better than I can. There are also free sources discussing the history of laws relating to bicycles that are peer reviewed, e.g. Academy of Legal Studies in Business American Business Law Journal, Winter, 1998, American Business Law Journal, 35 Am. Bus. L.J. 185, 18799 words, ARTICLE: THE IMPACT OF THE SPORT OF BICYCLE RIDING ON SAFETY LAW, * ROSS D. PETTY; 2011 by the Transportation Law Journal Transportation Law Journal, Fall, 2011, Transportation Law Journal, 39 Transp. L. J. 31, 9714 words, LETTER TO THE EDITOR: Review of The Great Schism: Federal Bicycle Regulation and the Unraveling of American Bicycle Planning (37 Transp. L.J. 73, 2010), John Forester; Transportation Law Journal Transportation Law Journal, Summer, 2010, Transportation Law Journal, 37 Transp. L. J. 73, 25684 words, Article: The Great Schism: Federal Bicycle Safety Regulation and the Unraveling of American Bicycle Planning, Bruce Epperson*;2011 DePaul University DePaul Journal of Sports Law & Contemporary Problems, Spring, 2011, DePaul Journal of Sports Law & Contemporary Problems, 7 DePaul J. Sports L. Contemp. Probs. 149, 10913 words, NOTE & COMMENT: RIDING WITHOUT BRAKES, BREAKING THE LAW? THE CURRENT AND FUTURE LEGAL OUTLOOK ON FIXED GEAR BICYCLES IN THE UNITED STATES, Andrew Resor *, etc., etc.

Fundamentally, though, I don't care about what the law was. I care about the Oregon version of the UVC, City of Portland regulations and the other laws that actually regulate my use of a bicycle. People should read their state VCs and local ordinances -- typically covered in the back of the city's web-site, state driver's manual or in a separate publication. No "expert" help required and no speculation about what local law is or might me. As you know (and we have discussed) Oregon law is significantly different from Ohio law, at least as far as the "impeding traffic" goes -- and some other variations from the UVC.

Land use and local bicycle infrastructure choices also concern me, and I do know the people making those choices, including third-party contractors like Mia Birk at Alta. I think I'm mentioned in her book, but I haven't read that one either. I am reading a book about Eisenhower, though. I haven't found time to finish that last fifty pages.

-- Jay Beattie.
  #37  
Old August 20th 13, 07:09 PM posted to rec.bicycles.tech
Frank Krygowski[_2_]
external usenet poster
 
Posts: 7,511
Default Riding a Bicycle Isn?t Protected Expression for First Amendment Purposes

On Tuesday, August 20, 2013 12:41:23 PM UTC-4, Jay Beattie wrote:
On Tuesday, August 20, 2013 7:46:53 AM UTC-7, Frank Krygowski wrote:

... IIRC you've said that Mionske, in addition to being a fellow lawyer, is a friend of yours. I'm surprised you haven't at least skimmed the book for those reasons alone.



I taught mechanical engineering for decades. If a friend and fellow engineer wrote a book on the engineering of bicycles, I'm sure that I'd read it.



I don't know Bob, except that he passed me going up the Newberry climb like I was standing still.


Ah, my mistake then. I thought you said you knew him personally.

Fundamentally, though, I don't care about what the law was. I care about the Oregon version of the UVC, City of Portland regulations and the other laws that actually regulate my use of a bicycle.


That's fine, if your scope is just that: what governs _your_ use of a bicycle. I tend to be interested in bicyclists' rights in general, so I read a bit further afield.

People should read their state VCs and local ordinances -- typically covered in the back of the city's web-site, state driver's manual or in a separate publication.


I agree, people should read those. But a caution: I've been made aware of quite a few instances where the websites, the driver's manuals, etc. have contained serious errors. One of the most common is for those secondary sources to claim that a bicyclist must ride as near to the right as _possible_, rather than as _practicable_. The former would imply bumping along in the gutter. Mionske discusses the differences between the two, and the implications, on page 57.

A similar misinterpretation contributed to my (or rather, our) being stopped by an Idaho state highway patrolman. He very loudly said we were not allowed to ride two abreast. Some very, very careful discussion on our part (my daughter and I) got him to show us the traffic law manual he had with him, in which it was stated that bicyclists may not ride _more_ than two abreast. He eventually had to agree - but it shows that even a cop in a car with a manual is not necessarily a valid secondary source.

No "expert" help required and no speculation about what local law is or might me. As you know (and we have discussed) Oregon law is significantly different from Ohio law, at least as far as the "impeding traffic" goes -- and some other variations from the UVC.


Mionske concentrates on the UVC, but acknowledges that many (or most?) states have their own variations.

But I think that for the average cyclist, "expert" help is still quite valuable. In Ohio, Steve Magas (who worked with Mionske on that book) distributes cards with brief, one-sentence summaries of state bike laws. Locally, we've had similar information printed on bike maps. Really, that's all that most cyclists are willing to read, and it's usually all that they really need. The actual laws are generally at a reading level that most folks find uncomfortable. (Including Idaho State Highway Patrolmen, apparently!)

Land use and local bicycle infrastructure choices also concern me, and I do know the people making those choices, including third-party contractors like Mia Birk at Alta. I think I'm mentioned in her book, but I haven't read that one either. I am reading a book about Eisenhower, though. I haven't found time to finish that last fifty pages.


I'm frequently told by my family that I need to read more fiction. Having just plowed through a 600+ page novel (IOW reading about fictional people's problems), I'm ready to go back to reading factual stuff. And several books in my stack have to do with bicycling rights, infrastructure, etc. It interests me, and helps with the advocacy work I do.

- Frank Krygowski
  #38  
Old August 21st 13, 03:35 AM posted to rec.bicycles.tech
T0m $herman
external usenet poster
 
Posts: 612
Default Riding a Bicycle Isn?t Protected Expression for First AmendmentPurposes

On 8/20/2013 11:41 AM, Jay Beattie wrote:
Land use and local bicycle infrastructure choices also concern me, and I do know the people making those choices, including third-party contractors like Mia Birk at Alta. I think I'm mentioned in her book, but I haven't read that one either. I am reading a book about Eisenhower, though. I haven't found time to finish that last fifty pages.


Does the book cover his post-war extermination of approximately 1
million German POW?

--
T0m $herm@n
 




Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

vB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Forum Jump

Similar Threads
Thread Thread Starter Forum Replies Last Post
For entertainment purposes only. gagtape Unicycling 13 August 22nd 07 12:31 PM
Cervelo et al. not to be protected by Canada Sandy Techniques 4 August 14th 06 01:11 AM
Lords debate on helmet amendment (long) Just zis Guy, you know? UK 17 December 2nd 05 05:25 PM
What unicycle for all purposes? Learner Unicycling 19 September 2nd 05 06:52 PM
UK Libel Law & Freedom of Expression B Lafferty Racing 14 February 15th 05 05:40 PM


All times are GMT +1. The time now is 10:06 PM.


Powered by vBulletin® Version 3.6.4
Copyright ©2000 - 2024, Jelsoft Enterprises Ltd.
Copyright ©2004-2024 CycleBanter.com.
The comments are property of their posters.