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02/21/91 JAMES DANIEL CUNNINGHAM v. STATE

February 21, 1991

JAMES DANIEL CUNNINGHAM
v.
THE STATE



Appeal from Cobb County State Court; No. 89M4160; Honorable Robert E. McDuff, Judge.

Clarke, Chief Justice. All the Justices concur, except Smith, P.j., Weltner and Bell, JJ., who concur specially, and Hunt, J., who concurs in the judgment only.

The opinion of the court was delivered by: Clarke

DOCUMENT STATUS: NOT FINAL UNTIL EXPIRATION OF THE REHEARING PERIOD.

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, at 572. 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. 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 ...


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