Police in Covington, Tennessee seem to be trying to crack down on offensive bumper stickers. The only trouble — as best I can tell from press accounts and some WESTLAW searches (and please correct me if I'm wrong), the law they seem to be using doesn't actually cover the great majority of offensive bumper stickers, such as the ones discussed in this TV news account; rather, it only applies to essentially hard-core pornographic ones, a phenomenon that I've never actually seen. As best I can tell, law enforcement thinks that "obscenities" in the sense of vulgarities are covered, but in fact according to the law only "obscenity" and near-obscenity, in the legal sense of "hard-core pornography" (or at least sexually explicit descriptions or depictions) is covered.
The law that seems to be involved is Tennessee Code Annotated, § 55-8-187:
To avoid distracting other drivers and thereby reduce the likelihood of accidents arising from lack of attention or concentration, the display of obscene and patently offensive movies, bumper stickers, window signs or other markings on or in a motor vehicle which are visible to other drivers is prohibited and display of such materials shall subject the owner of the vehicle on which they are displayed, upon conviction, to a fine of not less than two dollars ($2.00) nor more than fifty dollars ($50.00). "Obscene" or "patently offensive" has the meaning specified in § 39-17-901.Here are the definitions from § 39-17-901:
(10) "Obscene" means:"Obscene" is thus hard-core pornography, of the sort that could be banned even for private distribution. "Patently offensive" also refers to sex — "such matters" must refer back to "sexual conduct" in (10)(B) — that is depicted with excessive "candor." So "shit," "damn," and the like are clearly not covered. "Fuck" used as an expression of hostility, without an actual sexual meaning, isn't covered, either. Whatever you might say of "Fuck Bush" / "Fuck Mohammed" / "Fuck You," it's pretty clear that they are not describing or representing sexual conduct "substantially beyond customary lits of candor."
(A) The average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
(B) The average person applying contemporary community standards would find that the work depicts or describes, in a patently offensive way, sexual conduct; and
(C) The work, taken as a whole, lacks serious literary, artistic, political, or scientific value;
(11) "Patently offensive" means that which goes substantially beyond customary limits of candor in describing or representing such matters.
So what's covered? Presumably if you had a hard-core pornographic (obscene) or at least sexually explicit (patently offensive) bumper sticker, the law would apply; and if the bumper sticker wasn't obscene but merely patently offensive, then you might have a First Amendment defense (since the First Amendment protects nonobscene patently offensive speech, but the government might conceivably be able to prevail on the argument that such speech could be restricted in places where children or unwilling adults are likely to be present).
But for the garden-variety vulgar bumper sticker — the sort of bumper sticker that is vastly more common than the sexually explicit ones, and that the police seem to be focusing on — you don't even need to get to the First Amendment analysis. The law just doesn't cover it.
I'm no fan of vulgar bumper stickers. But I think that as between "law enforcement should follow the law" and "people shouldn't be vulgar," I care a lot more about the former.
Thanks to reader Stephen Tapp for the pointer.