By: Joseph C. Johnson
On May 5, 2019, Dillon Webb was pulled over by a sheriff’s deputy in Columbia County, Florida, for a sticker that read “I EAT A*S” on the rear window of his truck.[1] Webb was arrested under a Florida obscenity statute after refusing to alter the sticker, and the officers that made the arrest were granted qualified immunity.[2] Similarly, Paul Robert Cohen was convicted under a California obscenity statute in 1971 for wearing a jacket that read “F**k the Draft” in a California county courthouse.[3] However, the Supreme Court of the United States held that a state may not criminalize the public display of an expletive without a specific, compelling reason.[4] On the surface, these two cases appear to ask the same question–whether a state may prohibit the public display of an obscene word or phrase without violating the constitutional rights granted by the First Amendment. So why were the officers in Webb’s case granted qualified immunity while the First Amendment protected Cohen’s jacket from a similar obscenity statute?
In Cohen’s case, the constitutional protection of his speech depended on the context in which he displayed the four-letter word.[5] There, Cohen donned the jacket he had emblazoned with “F**k the Draft” in the Los Angeles County Courthouse corridor.[6] He testified that he wore the jacket “as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.”[7] In its analysis, the Supreme Court found that his jacket’s message was not erotic in nature–that it would not “conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket”–and thus, it was not truly a question of obscenity.[8] The Court reversed Cohen’s conviction for several reasons, the most relevant of which here are (1) forbidding particular words creates a high risk of suppressing ideas, and (2) that “linguistic expression . . . conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well.”[9] This decision illuminated a specific area of speech that the First Amendment protects and warned against government bans on specific words to prevent the expression of unpopular views.[10]
To distinguish Webb’s case involving his window sticker, the United States District Court for the Middle District of Florida focused on the context of his arrest.[11] Sheriff’s deputy English noticed Webb’s sticker at a stoplight and stopped Webb’s vehicle because he believed the sticker to violate Florida’s obscenity statute.[12] Deputy English commanded Webb to remove a letter from the window sticker, but Webb refused to do so under the claim that the First Amendment protection of free speech included his window sticker.[13] Deputy English contacted his supervisor and subsequently arrested Webb and had his vehicle towed.[14] This case boiled down to Deputy English’s belief at the time that his actions were within the state’s power.[15] The District Court found that a reasonable officer in Deputy English’s position could have reasonably believed that Webb’s sticker depicted a sexual act, thus potentially violating Florida’s obscenity statute.[16] This reasonable belief, supported by Webb’s contention that the sticker was sexual in nature, granted qualified immunity to Deputy English and his supervisor.[17] The Court put particular emphasis on the sexual nature of Webb’s sticker, citing this as the reason that it is distinct from similar cases–indeed, using it to distinguish the case from Cohen specifically.[18]
The District Court for the Middle District of Florida held that an officer could have reasonably believed that the sticker was obscene per Florida’s obscenity laws, which was distinct from Cohen’s jacket.[19] On the other hand, Cohen’s jacket was constitutionally protected because it was not erotic in nature despite the expletive on it.[20] As such, a rule regarding public displays of expletives is further illuminated. So long as the message cannot be reasonably interpreted to depict a sexual act or be otherwise erotic in nature, it will be constitutionally protected despite the expletives it includes.
[1] Webb v. English, No. 3:19-cv-975-MMH-JBT, 2021 U.S. Dist. LEXIS 181927, at *2 (M.D. Fla. Sept. 23, 2021).
[2] Id. at *4, *19–21.
[3] Cohen v. Cal., 403 U.S. 15, 16 (1971).
[4] Id. at 26.
[5] Id. at 19–21.
[6] Id. at 16.
[7] Id. at 16 (citing 81 Cal. Rptr. 503, 505 (1969)).
[8] Id. at 20.
[9] Id. at 26.
[10] Columbia University, Cohen v. California, Global Freedom of Expression (Oct. 9, 2021, 3:00 PM), https://globalfreedomofexpression.columbia.edu/cases/cohen-v-california/.
[11] Webb v. English, No. 3:19-cv-975-MMH-JBT, 2021 U.S. Dist. LEXIS 181927, at *2–7 (M.D. Fla. Sept. 23, 2021).
[12] Id. at *2. See Fla. Stat. § 847.011.
[13] Webb v. English, 2021 U.S. Dist. LEXIS 181927, at *3.
[14] Id. at *4.
[15] Id. at *14–21.
[16] Id. at *18.
[17] Id. at *19–22.
[18] Id. at *18–26.
[19] Id. at *26.
[20] Cohen v. Cal., 403 U.S. 15, 20 (1971).
