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Tuesday, March 18, 2003
According to the Associated Press, Tennessee is considering banning the viewing of pornography in cars, if the images are visible from the outside. Here's the link to Howard Bashman's little note on the law, which also links to the story:

How Appealing

What neither Bashman nor the Associated Press mention is that this is probably unconstitutional. The same issue came up with drive-in movies, when Jacksonville had an ordinance in the 1970's which prohibited drive-ins from showing nude scenes that could be seen by passers-by on the street. The Supreme Court struck down the ordinance, applying the well-established First Amendment doctrine that passers-by who are offended by such things can avert their eyes:

Erznoznik v. City of Jacksonville

Considering that the glimpse of porn from an SUV stopped at a stoplight, through darkened glass and on a tiny screen, is going to be even more fleeting than what was seen on the screen in Erznoznik, I would think the Tennessee law is unconstitutional. (Yes, the Tennessee law might be narrower in applying to "hard-core" porn (though this is not clear from the story), but the holding in Erznoznik has more to do with the principle that expressive activity cannot be entirely suppressed because someone (even a child) might catch a fleeting glimpse of unwanted objectionable material. In any event, a case prior to Erznoznik, Cohen v. California, involved a jacket that was worn in the LA County Courthouse (where children could have been present) and which contained the words "Fuck the Draft". Cohen's conviction was reversed, implying again that it is the ability of the viewer to avert his or her eyes, and not the content of the speech, that is the basis of the First Amendment protection.)

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