You can keep ObamaCare, the Commerce Clause, and the Tenth Amendment. As far as I’m concerned, truck nuts are the only constitutional game in town.
Threshold question: If it’s okay to ban these things as indecent symbols of American culture at its seediest, can we also ban The Waffle House?
On July 5, Virginia Tice, 65, from Bonneau, S.C. pulled her pickup truck into a local gas station with red, fake testicles dangling from the trailer hitch. The town’s police chief, Franco Fuda, pulled up and asked her to remove the plastic testicles.
When she refused, he wrote her a $445 ticket saying that she violated South Carolina’s obscene bumper sticker law.
The South Carolina code of laws reads, “a sticker, decal, emblem, or device is indecent … in a patently offensive way, as determined by contemporary community standards, sexual acts, excretory functions, or parts of the human body.”…
[Tice’s lawyer] will argue whether these large, red, plastic testicles are “really an accurate depiction of a human body part.”
Believe it or not, this isn’t an easy legal question in the abstract. It’s difficult for a state to ban expression as “obscene” under Supreme Court precedent — and “indecent” and “obscene” aren’t the same thing — but the Court will give legislatures a bit of leeway so long as they’re not too aggressive. E.g., this famous case, in which a plurality of the Rehnquist Court found that a state could require strippers to wear pasties and G-strings in order to make them comply with a general ban on public nudity. If South Carolina demands that truck nuts be covered by truck jock straps, presumably they’re good to go. The question is, is the current statute too aggressive by providing for an outright prohibition? Law prof and First Amendment expert Eugene Volokh says yep, the law’s dead on arrival. The problem isn’t the “contemporary community standards” element of the statute — presumably truck testicles are A-OK with South Carolina juries — but the fact that it doesn’t meet the Supreme Court’s test for obscenity. To be “obscene” for First Amendment purposes, a form of expression has to appeal to the viewer’s prurient interest, i.e. be sexually arousing. And no one’s getting aroused by truck nuts. Except maybe regulars at The Waffle House.
One of Volokh’s commenters offers this meditation on the latest threat to free speech: “First they came for the Truck Nutz, and I said nothing because my truck had no nuts.” Exit question: How many of the HA faithful have their F-150s fitted out in vehicular testicular style? Be honest.