Legally Speaking, with Bob Mionske: Is there a right to bike?
By Bob Mionske
Last week, a city commissioner in our town was quoted as saying that“there is no constitutional right for bicycles to use the streets of thiscity—cyclists may ride only at the pleasure of government.”Is he right, or is he just blowing smoke?
Constitutional law is the playground of law professors, not humblebicycle lawyers. Understanding the typical U. S. Supreme Court decisionis about as easy as reading Latin backwards, and usually makes about asmuch sense.The most common deskbook for municipal lawyers says that while “reasonablemunicipal regulations for the public safety may be made concerning theuse of streets by bicycles, it has been held that an ordinance which attemptsto prevent bicyclists from using that part of the part of a street whichis devoted to the use of vehicles is void as against a common right.”But is this just tradition, or is there an established Constitutionalrightto use the road?In a 2003 case, Janan Toma and a companion were cited by the policeof a suburb of Houston for riding in the roadway. The village had a “mandatorysidepath” law on the books, but signs on each of the roads entering thetown read:
Since Texas state law defines sidewalks as part of the roadway, Tomaargued that the signs effectively banned bicycling in the entire village,violating her constitutional right of travel. The judge disagreed, rulingthat the Constitution protected only interstate travel, and that a lawimpinging on travel within one town does not affect movement between states.The right of free travel is one of the oddest provisions of the UnitedStates Constitution. First, while everyone agrees there is such a thing,nobody can actually find it!The Constitution never uses the words “right of travel,” and one federaljudge found that at one time or another, Supreme Court Justices have suggestedseven different provisions of the Constitution that are supposedly thesource of this right. To make things even more complicated, the SupremeCourt has never used the term “right to travel” in the way that you andI do. Instead, it is a shorthand expression meaning “the right to migratefrom one state to another without interference.” For example, laws thatdeny new state residents basic services, assess them higher taxes, or restricttheir employment opportunities have all been held to violate the “rightto travel.”It was not until 1975 that any federal judge examined whether one hasa “right to travel” in the conventional sense of the word. A young manin Middletown, Pennsylvania challenged the town’s nighttime curfew. Thecourt concluded that:
The right of locomotion, freedom of movement, to go where onepleases, and to use the public streets in a way that does not interferewith the personal liberty of others are basic values . . . . One may beon the streets even though he is there merely for exercise, recreation,walking, standing, talking, socializing, or any other purpose that doesnot interfere with other persons’ rights.
In one of life’s little ironies, the most complete evaluation ofthe right to travel came from a series of cases contesting the power ofmunicipalities to prohibit hot-rod “cruising” up and down Main Street onSaturday night. An auto-parts dealer in York, Pennsylvania challenged thattown’s anti-cruising ordinance in 1989. The court determined that:
The right or tradition we consider here may be described asthe right to travel locally through public spaces and roadways. We concludethat the right to move freely about one’s neighborhood or town is indeedimplicit in the concept of ordered liberty and deeply rooted in the nation’shistory.
The judge found the closet analog to the “right to travel locally” to bethe freedom of speech protected in the First Amendment. The decision wasaffirmed by the U.S. Circuit Court of Appeals, and the Supreme Court declinedreview. The right of local travel was at last firmly established—and thiswas less than 15 years ago!But no right is unlimited. As Justice Holmes once said, “Freedomof speech doesn’t give you the right to stand up in a crowded theater andyell ‘Fire!’” More precisely, the Supreme Court has found that while nogovernment can regulate speech based on its content, the “time, place andmanner” of speech can be controlled. Likewise, the right of local travelis also subject to limited regulation:
Nonetheless, the time, place and manner doctrine allows certainrestrictions on speech to survive under less than fully strict scrutiny.If the freedom of speech itself can be so qualified, then surely the unenumeratedright of localized travel can be as well. The right to travel cannot conceivablyimply the right to travel whenever, wherever and however one pleases, evenon roads specifically designed for public travel. Unlimited access to publicroadways wouldn’t result in maximizing individuals’ opportunity to engagein a protected activity, but instead in chaos.
The comparison between the right of localized travel and the freedom ofspeech is an important one. In dozens of cases over the last century, theSupreme Court has held that three elements are essential to the legal regulationof free speech:
The regulation must be necessary to carry out an important public purpose.
The regulation must be no broader than is necessary to carry out that purpose
Ample alternatives must be left open.Do cyclists have a “right to the road”? I believe that they do. You havea right to travel locally through public spaces and roadways. While thegovernment can restrict the freedom of cyclists to use the road, such regulationsmust be necessary, must carry out an important public purpose, must restrictcyclists to an extent no greater than necessary to meet that necessity,and must provide reasonable alternative access to the roadway system. Therefore,any blanket prohibition on cycling would be a prima facie violation ofthe federal Constitution. Finally, keep in mind that many state constitutionshave an explicit guarantee of the right of free travel. These stateshave a duty to provide rights at least as broad as that in the nationalConstitution.In conclusion, I believe the municipal deskbook got it right. Whilea local government may ban bicycling on certain stretches of road or atparticular locations, a citywide bicycle ban would violate the Constitutionalright to travel, even though the city may be hundreds of miles from thestate line. Local mobility is just as protected as intrastate travel.
Bob(research and drafting assistance provided by Bruce Epperson-lawstudent-Nova Southeast University)
Now read the fine print:
Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.
After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).
If you have a cycling-related legal question, please send it to email@example.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.
The information provided in the “Legally speaking” column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.