Tacky yes, obscene no

Monday, October 19, 1998

Two months ago, a state trooper ticketed a Tennessee football fan for his bumper sticker of the cartoon character Calvin urinating on the word ‘Bama. The trooper cited a Tennessee law which prohibits display of “patently offensive” or “obscene” bumper stickers on motor vehicles.

A county judge disagreed, throwing the ticket out last month because, he said, the sticker was not offensive enough to warrant a fine.

But Tennessee’s law remains on the books. According to the statute: “To avoid distracting other drivers and thereby reduce the likelihood of accidents arising from lack of attention or concentration, the display of obscene or patently offensive bumper stickers … is prohibited” and can lead to fine of up to $50. (T.C.A. § 55-8-187)

Ten years ago, before this measure cleared the legislature, the Tennessee attorney general’s office issued an opinion on its constitutionality. The law was constitutional, the attorney general concluded, but it “will not reach bumper stickers that are in extremely poor taste but are not obscene.”

For instance, a bumper sticker with the words “S— Happens” could not be constitutionally prohibited, the attorney general reasoned. He quoted from the U.S. Supreme Court’s 1975 decision in Erznoznik v. City of Jacksonville in which the high court struck down a city law prohibiting the showing of films containing nudity at drive-ins when the screen was visible from a public place.

The high court wrote: “Much that we encounter offends our esthetic, if not our political and moral, sensibilities. Nevertheless, the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection.”

The ‘Bama case is not unique to Tennessee. In Georgia several years ago, an individual was convicted for displaying a “S— Happens” decal on his vehicle.

In Cunningham v. State, the Georgia Supreme Court ruled that a state law prohibiting any bumper stickers or decals “containing profane or lewd words describing sexual acts, excretory functions, or parts of the human body” was unconstitutional.

In First Amendment law, nearly all speech is safeguarded by the First Amendment. The few exceptions include obscenity and fighting words.

The Georgia court determined the law would criminalize a substantial amount of speech that did not fall into the “fighting words” category. “While language on a bumper sticker might provoke outrage,” the court wrote, “the face to face confrontation necessary to trigger the exception allowing regulation of ‘fighting words’ would be unlikely.”

The Georgia high court also reasoned that the law would criminalize a substantial amount of non-obscene expression. “Lewd means, among other things, vulgar, base, evil, wicked, poor, worthless, dissolute, lascivious, indecent, obscene and salacious,” wrote the court.

The Erznoznik, Cunningham and ‘Bama cases demonstrate that there is a legally significant difference between obscene and offensive expression. Only a narrow range of material, even sexual material, qualifies as obscenity. And while obscenity enjoys no First Amendment protection, non-obscene offensive speech receives a significant amount of protection.

The problem that laws like this present, as the opinion in the Cunningham case recognizes, is that “what constitutes lewd or obscene communication is always a complicated question requiring a subjective evaluation.”