Free Speech

Prosecution for Rifle-UC-Rifle Gun Control Sticker

It's apparently happening in Tennessee -- but it's clearly unconstitutional.

|The Volokh Conspiracy |

The sticker appears to be a version of this (UPDATE: see the WKRN story, which I erroneously failed to link to at first):

But of course this is constitutionally protected, given the Court's decision in Cohen v. California (1971) that a jacket bearing the words "Fuck the Draft" was constitutionally protected. Indeed, it's not even barred by the relevant Tennessee statute (Tenn. Code § 55-8-187),

which reads,

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 that 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 [which restates the First Amendment test for obscenity, and defines "patently offensive" as "that which goes substantially beyond customary limits of candor in describing or representing such matters," apparently referring to sexual matters.

The word "fuck" in this context doesn't fall within the First Amendment obscenity test, as the Court recognized in Cohen:

This is not … an obscenity case. Whatever else may be necessary to give rise to the States' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen's crudely defaced jacket.

The same logic applies here; indeed, the Tennessee Attorney General's office has acknowledged (Tenn. Op. Atty. Gen. No. 88-44) that

The [statute] will not reach bumper stickers that are in extremely poor taste but are not obscene [under the Supreme Court's obscenity precedents]. For example, bumper stickers such as "s..t happens," although unquestionably in poor taste, do not meet the constitutional or statutory standards for obscenity because they do not appeal to the purient interest. Consequently, they cannot be banned as obscene.

See also Cunningham v. State (Ga. 1991) ("Shit Happens" bumper sticker constitutionally protected).

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  1. Well, obviously they don’t expect to prevail in court. They’re just planning on the process being the punishment, so as to chill this sort of expression.

    1. Well, there are 1983 suits too.

      This is definitely an outrage. That sticker is fully constitutionally protected. But it’s honestly not going to chill any speech. The gun rights movement is organized and gets its message out, and its members generally know their First Amendment rights.

  2. Cop didn’t like the sticker, or maybe knew the driver and had it in for him, so he pulled him over.
    Sounds like the cousin of New Jersey police using the presence of an NRA sticker on a vehicle as a sorting device, i.e., sees the sticker then finds or conjures up a pretext to pull the vehicle over in the hope there’s a gun inside so he can make a “serious” bust. It was one of those things that was never proven to actually occur because there was no way to get an honest answer from any cop using the sticker’s presence, but it was almost-universally accepted as true.

  3. We do have a right to play stupid games and, when we win, expect to receive properly stupid prizes.

  4. Sex is obscene, but not violence. How American.

    1. Violence is merely vulgar, common and demotic (same root as democrat).

      Bodily functions are obscene.

      1. Fecal matter occurs.

    2. Normal sex is not obscene, but gay sex surely is.

      1. Why, because gay sex appeals to your prurient interest and “normal” sex does not? How about “normal” people engaging in the same sex acts that other-than-“normal” people might engage in?

  5. This sort of thing happens from time to time. Florida man arrested for “I Eat Ass” sticker in his rear window. Fort Bend Cty Texas woman threatened with arrest, and then harrassed by officials, for sticker in her truck’s back window:

    Fuck Donald Trump
    and Fuck You For Voting For Him

    In both cases, no prosecution ensued.

    One would like to think that the right to express such opinions has been clearly established by now, but, the too dumb to commit a tort defense frequently offered by infringing law enforcement officers seems to mostly still prevail.

    Not always in cases about arrest without probable cause, though, as seen in the recent SPRADLIN v. SALCEDO in ND of Georgia and 5th circuit in Adelman v Branch.

  6. Article reports a ticket issued, not clear if there has been a conviction. Predict swift curative amendment by Tennessee legislature. Suggested text of amendment: “nothing herein shall be construed as limiting expressions of opposition to gun control”.

    Tennessee native here. In this state no way even church deacons consider opposition to gun control as being “obscene” . Hope ticketing officer is not fired (or lynched).

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