Woman Being Prosecuted for Displaying Plastic Testicles on Her Car

No, really. South Carolina bans obscene or indecent bumper stickers and similar “device[s]”, providing that a person may be fined for “operat[ing] a motor vehicle in this State which has affixed or attached to any part of the motor vehicle which is visible to members of the public not occupying the vehicle any sticker, decal, emblem, or other device containing obscene or indecent words, photographs, or depictions.” “Obscene” is defined to follow the First Amendment test for unprotected hard core pornography, so it can’t apply here, because there’s nothing here that appeals to an interest in sex. But “indecent” is defined more broadly:

A sticker, decal, emblem, or device is indecent when:

(1) taken as a whole, it describes, in a patently offensive way, as determined by contemporary community standards, sexual acts, excretory functions, or parts of the human body; and

(2) taken as a whole, it lacks serious literary, artistic, political, or scientific value.

The trouble for the government, though, is that precisely because this is broader than the obscenity test, it punishes speech that is constitutionally protected (vulgarity that has no sexually arousing component, and is thus neither obscene nor even obscene-as-to-minors). The law is thus unconstitutionally overbroad, and thus facially invalid. A rather broader ban on bumper stickers containing “profane or lewd words describing sexual acts, excretory functions, or parts of the human body” was struck down in 1991 by the Georgia Supreme Court. But even this narrower ban is pretty clearly unconstitutional.

Those who want to know more about such matters can read our posts about the anti-car-testicle campaign in various state legislatures and a police crackdown on “patently offensive” bumper stickers in a Tennessee town. Oh, and, according to the Charleston Post & Courier, “The last major flap over the state’s obscene bumper sticker law was in the 1990s, when S.C. Highway Patrol officers were pulling over drivers for decals of the cartoon character Calvin urinating. A Gaffney couple called for a jury trial, the American Civil Liberties Union defended their right to free speech, and a judge dismissed the case.” (Now if they had only called the copyright lawyers …..) Thanks to Thom Peters for the pointer.

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