from the [same-decal-but-with-Tennessee-in-back-and-driver-in-front] dept
The problem with bad laws (well, ONE problem) is they'll need to be enforced at some point. Legislators pass laws out of fear, boredom, or a desire to look busy. They'll pass laws to push personal agendas and closely-held beliefs. They'll pass laws in response to bizarre tragedies so unique they can't be found in expanded actuarial tables or at the behest of favored industry leaders. Every so often, they'll even pass laws citizens are demanding. But far too often, they'll just pass laws because they're legislators and it's right there in the job description.
They'll pass laws with zero regard for enshrined rights or their consitutents' civil liberties… like this Tennessee law which almost seems constitutional if no one examines it too closely. (via Adam Steinbaugh)
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, window signs, or other markings on 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).
The catch here is offensive speech can still be protected speech while obscenity cannot. The state attorney general's office felt the law was perfectly consititutional, even as it was amended further to prevent the showing of "obscene or patently offensive movies" in vehicles if the content could be viewed outside of the vehicle. (My apologies. I have no idea what incident prompted this amendment, but I would imagine it would involve another driver or passerby being shocked, shocked! at the content being viewed by another driver in their own car.)
It even believes this law is constitutionally-sound despite paragraphs it included in its recommendation that clearly show this law actually ISN'T constitutional.
The Supreme Court has held that the police powers of the state permit the regulation of the display of obscene materials, including movies, and established the following test for judging whether material is obscene: (1) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
As the AG clearly stated in 2004, it could regulate obscenity. What it can't do is regulate mere offensiveness. It has to hit a pretty high bar to do so. The question is: does this window decal clear that bar?
This is why laws should be carefully crafted. This decal was applied to a man's car by his brother as a joke. And it's clearly a lowbrow parody of all those stick figure family decals, but for those who are more interested in the act of procreation.
A Metro police officer apparently didn't like the decal. Luckily, the Metro police had the (bad) law on its side. And a hint of Nuremberg in its press statement.
Channel 4 reached out to Metro police who said they don't make the laws, they simply enforce them.
It's not a law that needs much enforcement, fortunately.
Since 2011, Metro police have only cited four other people with violating the state's obscene sticker law.
Actually, this indicates that it's a law that's very selectively enforced. With enough imagination, a great many bumper stickers and decals could be considered offensive. This law allows police officers to make that call subjectively. With the fine being $50 and the end result usually a fix-it ticket, no one's going to protest the unconstitutional law too loudly. Until they do.
Daniel Horowitz has taken up the driver's case. Horowitz is hoping to block [PDF] the law's enforcement until the court can rule on its constitutionality. The law certainly doesn't play nice with the First Amendment. Horowitz's restraining order motion [PDF] points out the parodic stick figure decal is protected speech as it's neither obscene nor patently offensive.
It does not, for example, display genitalia or any vivid portrayal of an ultimate sex act. It certainly does not display bestiality. And, in fact, the only indication that the stick-figure cartoons depicted in Mr. Owens’s bumper sticker are engaging in sex at all comes from the context offered from the description: “Making My Family.” See Exhibit B. Consequently, the notion that Mr. Owens’ stick-figure cartoon is even theoretically on par with “the ‘hard core’ types of conduct suggested by the examples given in Miller” is fantastical, and no reasonable fact-finder is likely to find otherwise.
The parodic nature of the decal only adds to its free speech value.
Rather than portraying his family, it indicates instead that he is in the process of “making [his] family,” and it displays two cartoon stick-figures engaged in that process. Id. Consequently—its crass nature notwithstanding— Mr. Owens’ sticker is a humorous and highly effective parody of “family stickers,” and it carries serious First Amendment value as a result.
With this filing, the state will likely be forced to confront its speech-hindering law. Dismissing the charges isn't going to dismiss the lawsuit and belated attempts to remove the plaintiff's standing aren't going to gather much judicial sympathy. This is why laws need to be crafted with an eye on the unintended consequences as well as their compliance with the Constitution. Doing otherwise results in litigation, which forces taxpayers to pay for the privilege of having to comply with unconstitutional laws -- and this is on top of the money they pay their representation to hopefully not screw things up TOO MUCH while in office.