"For those citizens without wealth or power, a bumper sticker may be one of the few means available to convey a message to a public audience.” — Judge Myron H. Thompson in Baker v. Glover

We’ve all seen them — we may have even seen one we find quite offensive. They cover ever imaginable topic from rock bands to environmental causes to religion to philosophy to sports. People often convey their political viewpoints in blunt fashion with bumper stickers, from the anti-Bill Clinton messages “Clinton Lewinsky” and “Impeach Clinton” to the President Bush-bashing sticker “Hail to the Thief.” Other bumper stickers parody more common messages. For instance, “My kid beat the crap out of your honor student” parodies the more mainstream “My child is an honor student.”

The First Amendment protects a great deal of offensive expression. No less an authority than the U.S. Supreme Court has said that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable” 1 and “the fact that protected speech may be offensive to some does not justify its suppression.” 2

Criminal charges
Even though offensive speech receives protection under the First Amendment, many incidents have occurred in which law enforcement officials have cited individuals for the content of their bumper stickers.

The usual incident occurs with bumper stickers that contain profane language or pictures. For example, in 1999, a Florida woman was cited for her sticker, “Fuck you, you fucking fuck.” The charges against Laura Elizabeth Barron were eventually dropped.

In Georgia, James Daniel Cunningham was cited for having a bumper sticker bearing the words “Shit Happens” on his car. Prosecutors charged him under a state law that read:

"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."

A jury convicted Cunningham of violating the statute, and he was fined $100. Cunningham took his case to the Georgia Supreme Court, contending that his conviction was invalid because the law was unconstitutional.

The Georgia Supreme Court agreed with Cunningham, writing: “The peace of society is not endangered by the profane or lewd word which is not directed at a particular audience.” The state high court relied heavily on the U.S. Supreme Court’s 1971 ruling in Cohen v. California. In that decision, the high court reversed the breach-of-the-peace conviction of a young man who wore a jacket bearing the words “Fuck the Draft” to a courthouse.

The Georgia high court said Cohen stood for the principle that a state may not criminalize “the public display of a four-letter expletive” in the absence of some compelling reason. The state of Georgia argued that the statute was necessary to shield minors from harmful speech. The Georgia court rejected that argument in its 1991 decision State v. Cunningham, writing: “The audience of observers of bumper stickers is not made up primarily of minors or other persons of delicate sensibilities.”

The court concluded, however, by quoting a statement attributed to Benjamin Franklin: “Everything one has a right to do is not best to be done.”

Truck driver Wayne Baker's bumper inspired a similar legal tangle. A commander with the Alabama Department of Public Safety stopped Baker on the highway and warned him that his bumper sticker — “How’s My Driving? Call 1-800-2-EAT SHIT!” — violated a new Alabama obscenity law. That law provided: “It shall be unlawful for any person to display in public any bumper sticker, sign or writing which depicts obscene language descriptive of sexual or excretory activities.”

The officer told Baker to remove the sticker or face punishment. Baker agreed to scratch out the offending language. The truck driver then filed a federal lawsuit, charging that the obscenity law violated his free-expression rights.

U.S. District Judge Myron H. Thompson agreed with Baker, finding that his bumper sticker was not obscene under the law. Obscenity refers to a narrow range of hard-core sexual materials. In its 1973 decision Miller v. California, the U.S. Supreme Court laid out the following guidelines for determining when material is legally obscene:

• Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest.
• Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
• Whether a reasonable person would find the material lacking serious literary, artistic, political or scientific value, taken as a whole.

These guidelines are referred to as the prurient-interest, patently offensive and serious-value prongs. In his 1991 ruling in Baker v. Glover, Judge Thompson explained that the truck driver’s bumper sticker had serious value:

"Baker’s bumper sticker is also protected speech under the First Amendment because it has serious literary and political value. Although surely not a likely candidate for a literary prize, Baker’s bumper sticker has serious literary value as a parody of stickers such as ‘How’s My Driving? Call 1-800-2 ADVISE.’ It and other similar bumper stickers can be compared in many respects to riddles, puns, and proverbs in that they are very short, usually a line or two, and concise in their message. As the Supreme Court has observed, ‘one man’s vulgarity is another’s lyric.’ Baker’s sticker has serious political value as a protest against the 'Big Brother' mentality promoted by such other bumper stickers that urge the public to report the indiscretions of truck drivers."

The state argued that even if the sticker wasn't obscene for adults, it should be considered harmful to minors. Thompson rejected that argument as well, noting that harmful-to-minors laws also exempt material that has serious literary and political value.

Despite the Cunningham and Glover decisions, a few states still have laws on the books prohibiting offensive or obscene bumper stickers. For example, Tennessee has the following law:

"To avoid distracting other drivers and thereby reduce the likelihood of accidents arising from lack of attention or concentration, the display of obscene or patently offensive bumper stickers, window signs, or other markings on a motor vehicle which are visible to other drivers is prohibited and display of such materials shall subject the owner of the vehicle on which they are displayed, upon conviction, to a fine of not less than two dollars ($2.00) nor more than fifty dollars ($50.00). T.C.A. Sect. 55-8-187."

Tennessee's attorney general issued an opinion in 1988 that the then-bill was constitutional as long as it applied only to bumper stickers that met the legal definition of obscenity. The opinion concludes: “The display of a bumper sticker with the words "s..t happens" on it does not appear to involve any of the circumstances that permit speech to be limited or regulated by the state. Consequently, such items cannot be constitutionally prohibited.” See Tenn. Op. Atty. Gen. No. 88-44.

Public employees
The question becomes more difficult as to whether government employers can regulate the bumper stickers of employees. The U.S. Supreme Court has created a separate body of jurisprudence for public employees, public school students and prisoners. Public employees retain First Amendment rights on the job but government employers have strong interests in maintaining a good, efficient working environment free of disruption. Public employees can assert First Amendment free-speech rights if their speech touches on matters of public concern rather than mere personal employment grievances. The employee then must establish that his or her free-speech rights outweigh the employer’s efficiency interests.

In 1990 in Fire Fighters Association v. Barry, a federal judge in Washington, D.C., ruled that fire department officials had violated the First Amendment rights of several firefighters. The employees had been disciplined for displaying a bumper sticker that read “D.C. Fire Department — It’s Not Just A Job, It’s A Joke Too” on their personal vehicles. A firefighter sold the bumper stickers for $1 each and donated the proceeds to a local hospital’s burn unit. The firefighters created the bumper stickers in response to complaints about the department's fire chief, affirmative-action policy and general morale problems.

The department disciplined employees who had the stickers, citing them for conduct “prejudicial to the Department’s regulation, order or discipline.” The department also cited them for violating a policy stating that decals and stickers “that may be construed as obscene, cause embarrassment, or harassment of members shall not be displayed in or on Fire Department property.”

The federal district court established that the bumper stickers touched on matters of public interest, writing: “The bumper stickers’ message conveys not only personal dissatisfaction, but also a loss of discipline and good order in the Fire Department.” The court then examined the department’s interest in creating operational harmony and efficiency. The city introduced evidence that the bumper stickers created some grumbling at the workplace. This was not enough for the court: “Employee complaints are a regular phenomena in any workplace” and “the court finds nothing to suggest that the grumblings … affected adversely the discipline and good order of the fire department.”

The court went on to rule that the fire department’s bumper-sticker policy was unconstitutional on its face because it was overbroad, vague and viewpoint discriminatory. “Stickers and decals which support the Department’s views are unlikely to be determined embarrassing or harassing to members,” the court wrote.

A federal judge in Missouri reached a similar conclusion in the 1995 decision Goodman v. City of Kansas City. A city regulation limited the political-speech rights of employees. Among the regulations was one providing: “No vehicle displaying a bumper sticker urging the election or defeat of any candidate or political party may be parked in a parking lot controlled by the city.”

The city asserted that this policy served its interest in ensuring to the public a workforce that would operate on an apolitical basis. The city also argued that the policy would prevent the public from misinterpreting the messages on the privately owned vehicles as being officially endorsed by the city.

Applying the public-employee balancing test, the court ruled in favor of the employees. “Here, the city fails to demonstrate that the regulations challenged here address ‘real and not merely conjectural’ harms.” The court also noted that employees have a strong interest in political speech: “The right to express oneself about issues and candidates at election time is an essential part of our constitutional democracy.”

However, not all public employees have prevailed when disciplined for bumper stickers. In the 1976 decision Connealy v. Walsh, a federal judge in Missouri rejected the First Amendment claim of a juvenile-court social worker disciplined for refusing to remove a political bumper sticker from her personal vehicle. The worker put a “McGovern” bumper sticker on her car to express her support for 1972 presidential candidate George McGovern. The chief judge in charge of the juvenile division of the court circulated a memo providing: “No staff member may be involved in any political activities of any sort. That includes bumper stickers. Participation will lead to immediate termination.”

The federal judge sided with the juvenile-court officials, finding that “the Juvenile Court could reasonably conclude that any partisan bumper sticker could result in a material and substantial interference with plaintiff’s duties and that a compelling state interest in promoting the effectiveness of Juvenile Service employees and of the Circuit Court, justified the prohibition of all partisan political bumper stickers.”

The 11th U.S. Circuit Court of Appeals determined in its 1995 decision Ethredge v. Hail that officials at Georgia's Robins Air Force Base could prohibit “bumper stickers or other similar paraphernalia” that could “embarrass or disparage” the commander in chief. Jesse Ethredge, a civilian aircraft mechanic challenged the order after he was ordered to remove his anti-Reagan and anti-Bush bumper stickers that read “HELL WITH REAGAN” and “READ MY LIPS HELL WITH GEO BUSH.” The court showed great deference to evidence from military officials that the sticker “would undermine military order, discipline, and responsiveness.”

The 11th Circuit reasoned that the regulation was viewpoint-neutral because it would apply to bumper stickers supporting or opposing the commander-in-chief. “Indeed, we can well imaging signs or messages that, although intended to be supportive of the President, may (due to a profane nature, for example) embarrass or disparage the President,” the court explained. Military officials also have prohibited bumper stickers displaying the Confederate flag.

Conclusion
Citizens have a right to express themselves in a variety of ways. Bumper stickers represent a popular, inexpensive and sometimes humorous way to express viewpoints on an endless range of subjects. But as the cases mentioned above demonstrate, bumper stickers with profanity will occasionally lead to a citation or arrest. Profanity may be a form of protected speech but it often raises the ire of government officials. The First Amendment provides a great deal of protection for offensive speech and it is unlikely that most bumper-sticker citations, at least as applied to private citizens, would withstand a constitutional challenge. However, the federal courts have painted a much cloudier picture with respect to public employees and bumper stickers.

Notes

1 Texas v. Johnson, 491 U.S. 397, 414 (1989)
2 Carey v. Population Services Int’l, 431 U.S. 678 (1977)