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Offensive Bumper Stickers -- and Seemingly More Legal Error on the Part of Law Enforcement:

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:

(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.

"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."

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.

William (mail):
I'm not a law student, so it is entirely likely that I'm missing something important here, but wouldn't a prohibition against "patently offensive" speech that appears in a written form in places with children or unwilling adults be protected by Cohen v. Califoria 403 U.S. 15 (1971)? In the majority decision Justice Harlan went so far as to suggest that "[t]hose in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes." Is there something that makes these bumperstickers different, or am I just missing a more current precedent?
4.19.2006 2:11pm
Eugene Volokh (www):
You're right about most vulgarity, though I should stress again that the Tennessee statute I cite doesn't even purport to suppress most vulgarity. The remaining First Amendment question is whether there's a special rule for sexually explicit material -- not material that's "obscene" and thus unprotected as to distribution among consenting adults, but that's still sexually explicit. Some lower court cases have upheld some restrictions on the public display of such material, generally focusing on the interest in shielding children from it; see this footnote to one of my articles, plus the following footnote.
4.19.2006 2:15pm
SteveW:
Does the statute prohibit bumper stickers that are both obscene and patently offensive, or does it prohibit bumper stickers that are either obscene or patently offensive?

I think "such matters" in 39-17-901(11) refers to the materials listed in 55-8-187.

The odd use of "or" in the last quoted sentence of 55-8-187 also suggests a disjunctive test.
4.19.2006 2:20pm
Frank Drackmann (mail):
In Georgia its not unusual to see Bumper Stickers or front license plates with depictions of the confederate battle flag, or the former Georgia State Flag, which was formed mostly from the former. I'm sure lots of people would find that obscene or pattently offensive.
4.19.2006 3:05pm
Anderson (mail) (www):
What about "Wrap Your Lipstick 'Round My Dipstick"? A sticker I hope not to have to explain to my 10-year-old anytime soon.
4.19.2006 3:18pm
Dave Hardy (mail) (www):
Hmmm... I wonder how you find a bumper sticker with prurient interest appeal, and how you show it "taken as a whole, lacks serious literary, artistic, political, or scientific value"?

Would "Wrap Your Lipstick 'Round My Dipstick" pass muster if it had fine print discussing the value of oral sex in avoiding AIDS and teenage pregnancy?

I suppose this means my plan for marketing bumper stickers reading "Free Hussein," "I cruise with lots of booze," "Dead Cops -- The Price of Freedom," and "Free the Duke 46" are in question.
4.19.2006 5:10pm
Eh Nonymous (mail) (www):
I fondly remember asking my mother what the bumper sticker "Wine Me, Dine Me, Sixty-Nine Me" meant as a small child. I took her explanation calmly.

Attempting to not be too confrontational re. Anderson's comment:

If you don't look forward to explaining that particular piece of offensive but protected speech (lewd, crude, vulgar, but not obscene), then you would probably do well to refrain from explaining such things.

However, that doesn't really protect a child from impinging influences. Unless you filter out television, movies, friends, and strangers as well as your own household.
4.19.2006 5:18pm
Connie (mail):
Will they also be cracking down on trucks with mudflaps depicting a playboy bunny-like curvy silouhette? Those are the ones I find obscene AND offensive.
4.19.2006 7:59pm
Anderson (mail) (www):
I fondly remember asking my mother what the bumper sticker "Wine Me, Dine Me, Sixty-Nine Me" meant as a small child. I took her explanation calmly.

What *was* her explanation? And how old were you? (I'd forgotten those stickers.)

I should explain that I'm close to a First Amendment absolutist, but having kids has made me a little squeamish.
4.19.2006 8:28pm
arbitraryaardvark (mail) (www):
Sec. 19. That the printing presses shall be free to every person to
examine the proceedings of the legislature; or of any branch
or officer of the government, and no law shall ever be made
to restrain the right thereof. The free communication of
thoughts and opinions, is one of the invaluable rights of
man, and every citizen may freely speak, write, and print on
any subject, being responsible for the abuse of that liber-ty. http://www.harbornet.com/rights/tennesse.txt . I haven't reviewed the case law in TN.
4.19.2006 9:33pm
Anderson (mail) (www):
every citizen may freely speak, write, and print on
any subject, being responsible for the abuse of that liber-ty.


Sounds like "no prior restraint, but we'll bust you after the fact"?
4.20.2006 12:36am
llamasex (mail) (www):
Stuff like this is why I like reading the page. Posts about where the law and freedom intersect on a mundane daily basis.

It seems our rights that we have aren't clearly defined to the public, I bet if you polled a majority of people would think having fuck on your bumpsticker would be a crime. I know I did before reading your older posts. So in that regard I wish your page was more popular.
4.20.2006 2:02am
Eugene Volokh (www):
Glad to hear it, llamasex, but I'd steer clear of Tennessee with that account name, if I were you.
4.20.2006 2:59am
ReaderY:
In springtime, and especially when a change in Supreme Court justices is in the air, a young man's thoughts turns to love, especially if the young man is in Southern law enforcement and love is of the illicit and immoral variety that's against a few of the (good old)laws on the (Good) books. Perhaps the good folks down in Tennessee are hoping they'll be able to muster up a good 'ol God-fearin' majority to overrule Cohen v. California and all 'dem other gosh-durn lib---ur---ul 'pinions.
4.21.2006 2:56am