The 1st Amendment And Truck Decorations
August 5, 2011 by Bob Livingston
Let me be frank: Today’s column will discuss a pending obscenity case. A woman in South Carolina is facing a jury trial for choosing to decorate her truck with an object that the local police chief believes is obscene. The mainstream media would have you believe that, because the decoration in question could be construed as representing a part of the human anatomy, this story is merely funny or weird.
However, I feel that obscenity laws are like the Federal government’s own proverbial gateway drugs: First it makes obscenity laws, then there is systemic censorship, then the Constitution is being rewritten to leave out the 1st Amendment altogether… and that’s the day we wake up in Oceania, having always been at war with Eastasia.
The facts of the case, according to the Fox News article I’ve linked to above, are simple: “On July 5, Virginia Tice, 65, from Bonneau, S.C. pulled her pickup truck into a local gas station with red, fake testicles dangling from the trailer hitch. The town’s police chief, Franco Fuda, pulled up and asked her to remove the plastic testicles. When she refused, he wrote her a $445 ticket saying that she violated South Carolina’s obscene bumper sticker law.”
Tice found a lawyer, and was reportedly going to challenge Fuda in court — until the police chief beat her to the punch: “Fuda says he is pushing for a jury trial and hopes the outcome will clarify the state’s obscenity laws, leaving no room for misinterpretation.”
According to an article for WCSC TV in Charleston, S.C., “The South Carolina code of laws says ‘a sticker, decal or emblem is indecent when it describes, in a patently offensive way… sexual acts, excretory functions or parts of the human body.’”
“Genitalia is offensive,” Fuda said in an interview with the TV station. “As a law enforcement officer, I’ll advise that person if it warrants a citation I’ll issue a citation. As a father, I wouldn’t want my daughter looking at it.”
David Hudson, a 1st Amendment attorney and scholar, told Fox News that Tice could make a good case for challenging the law, because it is “unconstitutionally vague and unconstitutionally [broad], and it violates the First Amendment.”
The United States Supreme Court has an established standard for determining obscenity, called the Miller test, or the Three Prong Obscenity Test, as decided by Miller v. California in 1973. According to the Federal Communications Commission, the test is applied as follows to determine if the given material is obscene:
- An average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest;
- The material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and
- The material, taken as a whole, must lack serious literary, artistic, political or scientific value.
Would the average person in South Carolina find that the decoration in question appeals to the prurient interest, or rather, appeals to or arouses sexual desire? Note, the decoration in question is meant to depict the genitalia of a bull.
Does the decoration in question depict any sexual conduct specifically defined by applicable law? In fact, what laws regarding sexual conduct are applicable here?
Does the decoration lack serious literary, artistic, political or scientific value? This would seem to be a sticking point. After all, what “serious” value does this decoration hold?
In another obscenity-related court case from earlier this year, Brown v. Entertainment Merchants Association, the Supreme Court struck down a California law that prohibited the sale or rental of violent video games to minors — games that the State had found to have no serious artistic value. Part of the court’s opinion read: “Under our Constitution, ‘esthetic and moral judgments about art and literature… are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.’”
Censorship always saddens me, but to see it in South Carolina — a State that has openly displayed its devotion to freedom on many occasions — is quite depressing. I would not decorate my vehicle the way Tice did, but that is my choice.
Remember: The 1st Amendment, when correctly applied, should make us uncomfortable — because it applies to everyone.
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