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

1 6 0
25.09.2021

Free Speech

Eugene Volokh | 9.25.2021 2:38 PM

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........

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