Cunningham v. State, S90A1658

• Decision Date: 22 February 1991
• Docket Number: No. S90A1658,S90A1658
• Citation: 260 Ga. 827,400 S.E.2d 916
• Parties: , 59 USLW 2536 CUNNINGHAM v. The STATE.
• Court: Georgia Supreme Court

Page 916

400 S.E.2d 916

260 Ga. 827, 59 USLW 2536

CUNNINGHAM v. The STATE.

No. S90A1658.

Supreme Court of Georgia.

Feb. 22, 1991.

Michael R. Hauptman and Bruce S. Harvey, Atlanta, for cunningham.

Victoria Aronow, Asst. Sol., Patrick H. Head, Sol., and Beverly M. Collins, Asst. Sol., Cobb County Solicitor's Office, Marietta, for the State.

CLARKE, Chief Justice.

Appellant was charged with violation of OCGA § 40-1-4 in that he operated a motor vehicle knowing that it bore a bumper sticker containing the words "shit happens." Appellant's pretrial motion challenging the constitutionality of the statute was denied. He was convicted by a jury and fined $100. His motion for new trial was denied, and he appeals. We find the statute unconstitutional.

OCGA § 40-1-4 provides as follows:

No person owning, operating, or using a motor vehicle in this state shall knowingly affix or attach to any part of such motor vehicle any sticker, decal, emblem, or other device containing profane or lewd words describing sexual acts, excretory functions, or parts of the human body.

Appellant appeals his conviction on the grounds that the statute is unconstitutional in that it is overbroad and vague and is violative of the rights of free speech, press, and expression guaranteed under the United States and Georgia constitutions. He also contends that there was insufficient evidence to sustain a conviction under the statute.

Before considering the validity of the statute in question, an examination of the development of the law on this subject is appropriate. We begin our analysis with a principle that: Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action. Lovell v. Griffin, 303 U.S. 444, 450, 58 S.Ct. 666, 82 L.Ed. 949 (1938); Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).

While freedom of expression is one of the most cherished rights established by our Constitution, it is not absolute. In Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919), Justice Holmes formulated the "clear and present danger" exception to freedom of expression: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." Since Schenck the Court has found that the curtailment of certain categories of speech does not raise constitutional problems provided the statutes regulating them are narrowly drawn. Among these categories are "the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky, supra, 315 U.S. at 572, 62 S.Ct. at 769. As the Court explained:

It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Id. The profane, libelous, lewd, obscene, and fighting words referred to in Chaplinsky have in common the characteristics of injuring or offending a particular audience and tending to provoke a retaliatory response. See generally, Bruce, Prostitution and Obscenity: A Comment upon the Attorney General's Report on Pornography, 1987 Duke L.J. 123 (1987). The justification for regulating profane, libelous, lewd, and fighting words is to preserve the peace in society. See generally, Annotation, Laws Prohibiting Profanity, 5 A.L.R.4th 956.

The peace of society is not endangered by the profane or lewd word which is not directed at a particular audience. In Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), the United States Supreme Court considered the constitutionality of a criminal conviction for wearing a jacket bearing the legend "Fuck the Draft." The appellant was convicted under a statute which prohibited maliciously and willfully disturbing the peace by offensive conduct. The Court observed that the case did not involve one of the exceptional circumstances in which the government may "deal more comprehensively with certain forms of individual expression simply upon a showing that such a form was employed," these exceptions being obscene speech, "fighting words" or "distasteful expression thrust upon an unwilling or unsuspecting audience." Id. at 20-21, 91 S.Ct. at 1786. The Court held:

It is ... our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense.

Id. at 26, 91 S.Ct. at 1788.

Beginning with the seminal opinion of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the Court treated the category of obscene speech differently from the other categories of speech which are not entitled to constitutional protection. The refinement of the Roth standard, set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), is the standard followed today. As the Court stated in Cohen, supra, "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. Roth v. United States, 354 U.S. 476, [77 S.Ct. 1304, 1 L.Ed.2d 1498] (1985)." 403 U.S. at 20, 91 S.Ct. at 1785.

Although the Court arguably retreated from the Cohen opinion in two later cases regarding indecent speech, Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978), and Bethel School District v. Fraser, 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), both of these cases can be distinguished. The most important distinction is the absence of criminal sanctions. Both cases involved narrow fact situations (an afternoon radio broadcast and a school assembly) involving an audience which included minors. In Federal Communications Commission v. Pacifica Foundation, supra, the plurality upheld the F.C.C.'s regulating an afternoon radio broadcast containing repeated "indecent" although not obscene words. 438 U.S. at 729, 98 S.Ct. at 3030. In Bethel School District v. Fraser, the Court upheld the suspension of a student who made a nominating speech containing "elaborate graphic, and explicit sexual metaphor." 106 S.Ct. at 3162. Neither of these cases involved the imposition of criminal sanctions.

Although both the Pacifica Foundation and Fraser, supra, cases are distinguishable from Cohen, supra, they do represent a departure from some of the essential reasoning of Cohen and perhaps a weakening of the notion that obscene speech stands in a category by itself vis a vis the First Amendment. See generally, Cohen, A Look Back at Cohen v. California, 34 U.C.L.A.L.Rev. 1595, 1607-14 (1987). Pacifica Foundation, which involved a George Carlin monologue satirizing society's attitude towards four-letter words, represented a further departure from Cohen. In this case the Court, emphasizing the fact that the radio broadcast has always received the least First Amendment protection of any form of communication, affirmed the FCC's power to regulate even where the use of the words was part of the satire. In other words, the regulation of content as well as form was permitted.

For our purposes, the United States Supreme Court's decision in Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975), is closely analogous to the present case. In Erznoznik the Court considered a statute which banned any movie, slide, or exhibit visible from any public street or public place which showed bare human buttocks, bare human pubic area, or bare female breasts.

[W]hen the government, acting as censor, undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others, the First Amendment strictly limits its power. (Cits. omitted). Such selective restrictions have been upheld only when the speaker intrudes on the privacy of the home, (cit. omitted), or the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure.

Id. at 209, 95 S.Ct. at 2272. Noting that the ordinance discriminated among movies on the basis of content and that the effect of the ordinance was to prevent the showing of movies containing any nudity from drive-in theaters, the Court concluded that "... the limited privacy interest of persons on the public streets cannot justify this censorship of otherwise protected speech on the basis of its content." Id. at 212, 95 S.Ct. at 2274. Even assuming that the ordinance was aimed at the prevention of children seeing the nudity, the ordinance was impermissibly broad since even in regard to children all nudity is not obscene. Finally, if the purpose of the ordinance was to prevent traffic accidents as motorists caught glimpses of nude bodies on a giant screen, the ordinance was invalid since a fleeting glance of nudity from a moving car could not impose a greater traffic danger than many other types of scenes. Therefore, for purposes of traffic regulation the ordinance was underinclusive.

With this background, we turn to the statute in this case. We begin our analysis with the principle that

... most situations where the State has a justifiable interest in regulating speech will fall within one or more of the various established exceptions ... to the usual rule that governmental bodies may not prescribe the form or content of individual expression.

Cohen v. California, supra, 403 U.S. at 24, 91 S.Ct. at 1787. The exceptions, as discussed above, are obscene speech, fighting words, or objectionable...