Free Speech

"I Eat Ass" Bumper Sticker Might Be Obscene and Thus Constitutionally Unprotected

So holds a district court, concluding that the law is unclear enough that a police officer was entitled to qualified immunity based on his arresting a man for the sticker.

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I reasoned, in part, that the sticker wasn't obscene under the Florida statute, which tracks the Supreme-Court-approved definition of obscenity:

(10) "Obscene" means the status of material which:
(a) The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest;
(b) Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and
(c) Taken as a whole, lacks serious literary, artistic, political, or scientific value.

This couldn't constitutionally apply to Dillon's speech, because to be obscene, expression "must be, in some significant way, erotic," and must tend to arouse "lustful thoughts" or "sexual responses" and not just refer to sexual acts. Hard-core pornography might be obscene, especially if displayed in public; but this sort of vulgar verbal reference to a sexual act is far from hard-core pornography.

Well, "The State Attorney's Office for the Third Judicial Circuit ultimately determined Webb had a valid defense to the charges under the First Amendment and, as such, dropped the charges against him." But Judge Marcia Morales Howard determined that the matter was uncertain enough that the sheriff's deputies who arrested Dillon were entitled to qualified immunity:

Deputy English and Corporal Kirby subjectively interpreted the Sticker as depicting a sexual act and believed that the Sticker violated Florida's obscenity statute. While Webb denies the Sticker was in fact obscene, in interviews he repeatedly acknowledged the sexual nature of his Sticker, albeit couched as an attempt at humor, showing that the notion that an erotic message was more than hypothetical—it could reasonably be viewed as the predominant message being communicated. Indeed, others in the videos similarly acknowledged, both directly and indirectly, that the Sticker described a sexual act. Given this evidence, including Webb's own statements, it is beyond dispute that reasonable officers possessing the same knowledge as Deputy English and Corporal Kirby could have thought the Sticker depicted a sexual act, and as such [was arguably obscene].

{The Court notes there is no inherent conflict between Webb's intention to elicit laughter with his Sticker and it being obscene. The two are not mutually exclusive and Webb's suggestion that his intent to bring about laughter forecloses any argument that the Sticker was obscene is unsupported by case law.}

If the Sticker depicted a sexual act, it would be protected speech under the First Amendment only if it had serious literary, artistic, political, or scientific value. {While Webb presents evidence that the phrase is widely used, such evidence does not mean the phrase has serious literary, artistic, political, or scientific value, see Luke Records (rejecting the notion that the value of a work depends on the acceptance it receives; finding instead expert testimony that a record's music contained oral traditions and musical conventions that had cultural and political significance to be evidence in support of the third Miller element).} However, in such an instance, Deputy English and Corporal Kirby had to make a value judgment on whether the Sticker had such serious literary, artistic, political or scientific value in deciding whether to arrest Webb. Notably, the Eleventh Circuit has recognized that value judgments are inherently difficult to review, which is why law enforcement officers are immune from suit if their value judgments are supported by arguable probable cause…. Here, Deputy English and Corporal Kirby's determination that the Sticker lacked serious value under Florida law was not inherently unreasonable under the circumstances. As such, the Court finds reasonable officers in the same circumstances and with the same knowledge as Deputy English and Corporal Kirby could believe Webb's Sticker was obscene, making it an arrestable offense under Florida law….

[C]iting Baker v. Glover (M.D. Ala. 1991), Webb argues that the constitutionally protected nature of his speech was clearly established because the Sticker merely contained non-obscene, though foul, language. However, this argument fails for two reasons. First, decisions at the district court level, like the one in Baker, are insufficient to clearly establish the law for purposes of a qualified immunity analysis. Instead, "only decisions of the United States Supreme Court, [the Eleventh Circuit], or the highest court in a state can 'clearly establish' the law." Second, the Baker decision is not particularly persuasive because it is distinguishable in important respects. In Baker, the plaintiff had a bumper sticker that read, "How's My Driving? Call 1–800–EAT S***!" [The bumper sticker actually spelled out "SHIT." -EV] … Though the defendants in the case went to great lengths to correlate the consumption of feces with a sexual act such that it would constitute obscenity, the trial court rejected the argument noting that it was "unpersuaded that a facetious message employing a single profane word could be viewed as carrying such an abnormal appeal." In other words, the Baker court found Baker's "EAT S***" bumper sticker was not erotic in nature, and therefore could not be obscene expression falling outside the protection of the First Amendment. {As recognized by the Supreme Court, obscene expression that is not protected by the First Amendment "must be, in some significant way, erotic." Cohen v. California.} The language of Baker's bumper sticker, however, is materially different than the one displayed by Webb such that the Baker decision fails to qualify as "caselaw with indistinguishable facts." …

Critically, the Court does not have to determine whether Webb's Sticker was in fact obscene for qualified immunity to apply. And, the Court makes no such finding here. Rather, Webb's burden was to show that at the time of his arrest it was clearly established that his Sticker was constitutionally protected speech, i.e. not obscene. The lack of any case even closely on point dooms Webb's effort to make that showing. On this record, the undisputed facts establish the Sticker could be interpreted by the parties and others as describing a sexual act. If interpreted to refer to a sexual act, the Sticker is arguably obscene and unprotected by the First Amendment. The lack of comparable case law and the fact that the obscene nature of the Sticker is debatable is precisely why Webb's argument that he had a clearly established right fails….

I don't think this is right; obscenity is limited to "hard-core pornography," and it's hard for me to see how a short vulgar description of sex such as "I eat ass" would qualify. Still, Judge Howard wears the robe and I don't.

NEXT: Sheriff Violated First Amendment by Ordering Teen to Take Down Post Saying She Had COVID

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  1. I’ve never tried donkey meat myself, but the internet is full of recipes: https://www.poderecasale.com/en/stewed-donkey-meat/

    1. But surely you’ve eaten sausages or hot dogs. You think they throw anything away?

    2. I’ve never eaten any ass meat either. You have to admit the thought of it is disgusting. Revolting, even.

      It is said here in the South that both the raccoon and ground hog are southern culinary delicacies, but I never tried either of them and wouldn’t.

      Very few southerners eat parsley but most to them do eat p****.

      A man killed an unusual animal during the fall deer hunt, and he brought it out of the gamelands in the back of his pickup. At checkout the game warden pulled up the canvas and looked at it and exclaimed “Why, you’ve killed a redneck!”

      “Can you eat ’em?” the hunter asked.

      “Oh, yeah,” said the game warden, “but they’re hell to clean.”

      1. I’d try donkey if it was offered. What’s disgusting is possum. I feel queasy even looking a live one.

        1. Italy and China seem like the places to go for donkey, as Martinned alluded to.

          https://en.wikipedia.org/wiki/Donkey#Use

          I’ve had horse raw and zebra cooked. Both are delicious! No donkey so far, but I suppose I’ll give it a shot if I’m ever in China or Italy some day.

          PS: Your nym doesn’t quite check out on this topic.

      2. Well, in parts of PA (and elsewhere), scrapple is a delicacy. That’s said to sometimes contain pig rectums. I enjoy scrapple now and then, even though it’s not very kosher.

    3. Many people eat offal as well.

  2. My favorite bumper sticker of all time probably is “If you can read this sticker, you are too fucking close”. Vulgar? Yes. Constitutionally protected? Honestly I have no idea. Awesome? Yes.

    Also a trucker I passed had “Practice socialism distancing” which is a line I might use from now on.

    1. “Run, Hillary Run” sticker, on the front bumper.

    2. Here in the South I recently saw a bumper sticker with which I do not altogether disagree. It went something like this:

      “Help prevent inbreeding. Ban country music.”

    3. “Jesus is coming. Look busy.”

    4. “I’m good in bed. I don’t fall out.” I pondered the double entendre for miles.

  3. The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest;

    The average person, when confronted with such a bumper sticker, would think “That guy is trying to offend people”, not “How erotic!”

    Also, I notice an “Obstruct without violence” charge which is wholly supported by the “probable cause” section. There’s not even a *bad* argument to be made there.

    1. It was “resist without violence”; which is impossible.

      1. Run or even away. Resisting without violence.

        1. “or even walk”

      2. I can resist you and not use violence in doing so…

        I am also likely to get the crap beaten out of me if I try.

    2. The average red blooded gun loving American Patriot would note that jew muscle cop arresting citizens for sole purpose of rule of jew tyranny is the issue at hand. Remove a letter, change the color of your t shirt, cut your hair, get in the box car, take a shower, have some zyklon b.

      Cop needs to be fired for thinking he can arrest a citizen for failing to comply with thin blue thug censorship. Jews will destroy anything and everything for the sole reason of being a jew.

      1. Yeah, but we’re cute when we’re little.

        1. Everyone complains about the weather, but the Rothschilds do something about it.

          1. I understand that mentioning this theory can get me invited to all sorts of dialogue meetings – where presumably there will be free food. What do (((you))) say?

            https://www.israelnationalnews.com/News/News.aspx/243651

      2. Pavel, please grow up.
        You have the occasional good thought, but you throw so much nonsense trying to be “hateful” that it’s annoying.

        You aren’t even acting like a racist. You are acting like a cartoonish buffoon of a villain. No. You’re acting like the guest character imbecile that the cartoonish buffoon of a villain is insulted to be compared to.

    3. “The average person, when confronted with such a bumper sticker, would think “That guy is trying to offend people”, not “How erotic!””

      Hmm, I’ll admit my first thought was sexual – offensive and sexual, but sexual. Not “eat my ass” which would be seen as offensive I think and not a literal invitation.

  4. Take a Sharpie and add a “B”…problem solved.

    1. “Bi eat ass”? Not sure that really helps….

      1. There’s two other spots you could put the B

        I beat ass
        or
        I eat Bass

        1. Only one logical place for a capital “B”, at the beginning.

          1. Adding “Chilean sea b” with a Sharpie might make it MORE controversial than the original statement. 😉

          2. Unless of course, the whole original phrase on the bumper sticker is in all caps.

  5. How about how ridiculous it is to actually arrest someone for speech even if it is obscene…..how about just writing him a ticket and letting him go on his way?? Police reform: You can only arrest someone for a crime that if convicted would result in incarceration….

  6. A jewish play on the goy. Making a fuss over eating ass, but parading around BIDEN number stickers? Which is more offensive? Which is unconstitutional?
    You got it, BIDEN and his jewish administration is unconstitutional.

  7. I love the third paragraph of the arrest report: “Their just words.”

    1. Yeah, I saw that. So does the cop think the guy was so illiterate that he managed to misspell something while speaking, or does the cop simply not know grammar?

      The officer also describes the statement more than once as “derogatory”. Does… does this officer not know the difference between “derogatory” and “obscene”? Does he actually know the meaning of *either* word?

  8. I am reminded of a routine contractual dispute on ‘South Park’..

  9. If the obscenity argument against the license plate doesn’t work, maybe the plaintiffs can sue the car-owner for false advertising. The depositions should be, at least, fun.

  10. The decision makes no logical sense to me (with the usual caveat, as EV notes, that I’m not wearing the robes in this case). There were 2 completely separate actions the cop(s) took.
    1. The cop pulled over the car, and gave a ticket. That’s one thing…and I think it’s not crazy to give the cops the benefit of the doubt here. I might have found bad faith, but okay…I’m feeling generous towards law enforcement, so immunity on this first situation.
    2. BUT…the cop then gave Dillon the option of removing one letter or being arrested (I think this is right…the cop writing up the summary is pretty illiterate and it’s not 100% clear what happened. You should not write, “I allowed X to happen.” when you really mean, “I allowed D the option of doing X or being arrested.”). The cop’s own summary of events mention that Dillion specifically mentions the first amendment. No matter how stupid or ill-trained a cop is; he or she always can call a supervisor, and explain, “I just gave a ticket to a driver for a bumper sticker that says ______.” This driver keeps mentioning something about some first amendment. Have you heard of this before? What is a first amendment and does amendment thingie mean or not mean that I can’t arrest a guy if he refuses to alter a bumper sticker that says ______?”

    I think that #2 is beyond the pale. (Or, as this cop would have written it up, “Beyond the pail.”) The thought that someone was actually *arrested* for this, in 2021, is hard to wrap my head around. EVEN for someone like me who might give some slack for stupidity re the initial stop and the actual b.s. ticket.

    1. I agree. We should give some leniency on whether this falls under obscenity law because no one can know every aspect of law in perfect detail. This sort of marginal situation is why we have qualified immunity.

      However, the subsequent arrest was just a pointless power trip. Even if the cop was correct that it was obscene, this in no way justified an arrest.

  11. “[T]he fact that the obscene nature of the Sticker is debatable is precisely why Webb’s argument that he had a clearly established right fails….”

    The fact that it’s debatable clearly established that it does not appear that the average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest. I’m pretty sure the average person, sans stick up its ass, would find it funny.

  12. If this is appealed I suspect the District Judge will be the recipient of one or more benchslaps from the 4th Circuit.

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