*1 827 underlying felony, robbery, merged felony armed with the murder conviction. request, Absent a
8. it was error for the trial court to fail to charge jury accomplice testimony.
Judgment All the Justices concur. affirmed. — January 31, Decided 1991 February 22,
Reconsideration denied White, Michael M. appellant. III, Franzen,
Thomas C. Lawler Attorney, Stephen District E. Turner, K. Attorneys, Bowers, Debra Assistant District Michael J. Attorney General, Benjamin A. Woolf, C. for appellee.
S90A1658. v. THE CUNNINGHAM STATE. (400 916) Clarke, Chief Justice. Appellant charged was with violation of OCGA 40-1-4 in that operated he knowing a motor vehicle that it bore containing the happens.” Appellant’s pretrial words “shit motion challenging the constitutionality statute was was denied. He by jury convicted and fined His new $100. motion for trial was de- nied, appeals. he and We find the statute unconstitutional. provides
OCGA 40-1-4 as follows: person owning, No operating, using a motor vehicle in this knowingly state shall affix any part or attach to of such mo- sticker, decal, emblem, tor vehicle device taining profane acts, describing or lewd words sexual excre- tory functions, parts human
Appellant appeals grounds his on the that conviction the statute is unconstitutional it is overbroad and vague and is violative rights speech, press, expression guaranteed of free under the United Georgia States constitutions. He also contends that there was evidence insufficient to sustain conviction under the stat- ute.
Before considering validity question, of the statute in an ex- development subject amination of the law on appropri- analysis ate. begin We our principle with a that: Freedom press, protected and freedom of by which the First are Amend- from infringement by ment Congress, among are the fundamental personal rights protected by and liberties the Fourteenth
828 Griffin, Lovell v. U. S. from invasion state action. 303
Amendment (58 (1938); Chaplinsky Hamp- v. New 444, 666, LE SC 82 568, 766, shire, LE U. S. 571-572 SC rights expression cherished is one the most While freedom Constitution, In Schenck v. it not absolute. established our (1919), Jus- States, 63 LE U. S. United *2 present exception danger” to “clear and Holmes formulated the tice speech stringent protection expression: of most free “The freedom of falsely shouting protect in caus- man in fire a theatre and a would not panic.” ing the Schenck has found that curtailment a Since the Court problems categories of not raise constitutional certain does narrowly Among provided regulating drawn. them are the statutes profane, categories libelous, obscene, the the “the lewd and these are — very by ‘fighting’ insulting ut- which their the words those and injury an breach of the inflict or tend to incite immediate terance peace.” Chaplinsky,
supra explained: 572. As the at Court no has that such utterances are It been well observed part any exposition ideas, and are such essential step slight truth that benefit that social value as a to clearly outweighed by may the social from them is be derived morality. in interest order and fighting profane, lewd, obscene, libelous, words referred The and
Id. injuring Chaplinsky in in the characteristics of to offending have common retaliatory provoke particular tending a audience and a Obscenity: response. generally Bruce, A Com- and See Prostitution Report Pornography, upon Attorney 1987 ment Duke L.J. 123 the General’s (1987). justification profane, regulating The for society. preserve peace fighting lewd, libelous, in words is to the and Profanity, generally Prohibiting Annotation, 5 ALR4th 956. Laws See society endangered peace or lewd the The is not particular Cohen v. Cali- In which is at a audience. word not directed (91 (1971), 1780, the United U. 29 LE2d fornia, 403 S. 15 SC constitutionality Supreme criminal a States Court considered the wearing jacket bearing legend Draft.” “Fuck the conviction prohibited appellant mali- under a statute which The ciously was convicted wilfully disturbing peace conduct. The offensive exceptional did one of Court that the case not involve observed comprehen- may government “deal more in circumstances which simply upon expression sively with certain forms of individual exceptions being showing employed,” ob- these that such a form was upon expression speech, “fighting thrust words” or “distasteful scene unwilling unsuspecting held: The Court Id. at 20-21. audience.” an
829 judgment particularized that, It is . . . our more absent a may compelling actions, not, its reason for the State sistently Amendments, with First and Fourteenth make simple public display single the letter here of this four- involved
expletive offense. criminal Id. at 26.
Beginning opinion States, the seminal of Roth United 354 (77 1498) (1957), 1304, S. U. SC LE2d treated the Court category speech speech differently categories from protection. entitled constitutional refine standard, ment v. California, of the Roth set forth Miller 413 U. S. 419) (1973), today. SC 37 LE2d is the standard followed supra, Cohen, “[w]hatever As the Court sary stated else neces give power prohibit rise to the States’ broader obscene ex expression way, pression, significant be, in such must some erotic. (1957).” States, Roth v. S. United 354 U. arguably opinion the Court from the Cohen retreated regarding speech,
in two later
indecent
Federal Communica
cases
Foundation,
Comm.
tions
from some of the essential of Cohen and a weaken ing speech category of the notion that in a stands itself vis generally Cohen, á vis the A First Amendment. See Back at Co Look (1987). hen v. California, 34 L. U.C.L.A. Rev. 1607-14 Pacifica satirizing George monologue Foundation, which involved a Carlin so ciety’s represented words, attitude towards four-letter a further de parture emphasizing Court, In from Cohen. the the fact that case always the radio has least Amendment broadcast received the First protection any power communication, form FCC’s of affirmed the regulate part satire. In even where the use of the words was of the permitted. regulation form was words, as well as the content other Supreme purposes, Court’s decision the United States For our City Jacksonville, 422 U. S. 205 Erznoznik v. present 125) (1975), closely analogous In to the case. LE2d any movie, which banned Court a statute
Erznoznik the considered public place public slide, from street or or exhibit visible pubic area, buttocks, female human bare human bare showed bare breasts. government, acting censor, [W]hen undertakes selec- speech
tively public from some kinds of on the shield the they ground others, the First are more offensive than that strictly power. [Cits.] Such selective limits its Amendment speaker upheld only intrudes when the have been restrictions degree captivity privacy home, [cit.], or the of the on the makes it unwilling impractical for the viewer auditor exposure. avoid Noting among movies on at 209. the ordinance discriminated
Id. the basis of content and vent ters, that pre- that the effect of the ordinance was any nudity showing containing from thea- drive-in movies privacy persons that “the limited interest of the Court concluded pro- public justify censorship of otherwise on the tected streets cannot assuming its Id. at Even on the basis of content.” seeing prevention of children that the was aimed ordinance nudity, impermissibly regard to since even in ordinance was broad nudity Finally, purpose if ordi- children not obscene. all caught glimpses prevent nance nude bodies on traffic accidents as motorists was to giant screen, invalid since a fleet- a the ordinance was impose greater glance nudity moving ing car could not from pur- many types danger Therefore, for of scenes. traffic than regulation poses was underinclusive. traffic the ordinance background, We this case. With this we turn to statute begin analysis principle our with the justifiable
. . . has interest most situations where the State *4 speech regulating in ous established mental bodies fall one more of the vari- will within or
exceptions govern- ... the usual rule that prescribe indi- the form or content of expression. vidual exceptions, supra above, California, Cohen v. at 24. as discussed objectionable speech, fighting in the words, are obscene cap- protected, presence persons or a such as minors who should be specific particular importance unsuspecting
tive,
holding
Of
audience.
supra,
some
absence of
California,
of Cohen
compelling
criminalizing
public display
reason, a statute
of a four-
expletive
letter
is unconstitutional.
considering
overbroad,
whether the statute is
we must deter-
constitutionally protected
ifmine
it “reaches a substantial amount of
547) (1990).Finally,
Miller,
conduct.” State v.
tionally protected speech. prohibits bumper The statute stickers con- taining profane excretory acts, words which describe sexual func- parts body; tions, or of the human lewd words which describe excretory .parts acts, functions, sexual cussed stitutional is of the human As dis- regulation profane above, words has been deemed con- only “fighting regulation in the context of words” or where necessary protect captive audience or minors. The statute simply regulate fighting before us does not words or words directed to captive pedestrian, passenger, audience or minors. The or driver bumper bearing profane who sees a a of sons words is not a member of captive supra. Erznoznik, audience under The audience of observers bumper up primarily per- stickers is not made of minors or other language bumper Moreover, of delicate sensibilities. while on a might provoke outrage, sticker sary the face to face confrontation neces- trigger exception allowing regulation “fighting words” unlikely. provision regulating would be We therefore hold that words stickers reaches a substantial amount of constitutionally protected speech unconstitutionally restricts expression guaranteed by freedom of the First and Fourteenth Georgia Amendments of the United States Constitution Constitution. pro-
2. We consider written, whether the statute as which affects unprotected speech, tected as well as is overbroad. long recognized
It has been that the First Amendment breathing space attempting needs and that statutes re- rights strict or burden the exercise of First Amendment must narrowly represent legislative drawn and a considered judgment particular expression give that a mode has to way compelling society. to other needs of Oklahoma, Broadrick v. 611-12 37 LE2d *5 governmental here, state, the is either interest as offered regu- possible general public protection offense or the from the protected government to is the sen- If interest of the lation traffic. public, overbroad. As writ- the the statute is of members of sibilities criminalizing effect of the ten, display have the absurd the statute could bearing any profanity bumper in combination of a sticker any part referring On the other of the human with words regulation, purpose statute, hand, the is traffic the if of statute the pointed Erznoznik, As out in is underinclusive. like the ordinance you bearing legend appellant, bumper “If the can a sticker counsel read this tracting tiny driving you in is at least as dis- too close” letters are bumper A which is under- sticker at issue here. statute as the Equal problems. may present As the Court said Protection inclusive Erznoznik, in upheld frequently has underinclusive classifi This Court theory legislature that a deal on the sound cations part problem addressing [Cit.] This all of it.
one of a without statutory validity, presumption however, force of has less expres subject on matter when a classification turns the Equal Clause, Thus, not sion. . . . “under the Protection [quoting itself,” from Police Amendment mention First (1972)] Dept. Chicago Mosley, a v. 408 U. S. even regulation of content cannot discriminate the basis traffic unless there are clear reasons
for the distinctions. 215. at only overbroad, its results a
Not 40-1-4 overbreadth OCGA vagueness prevents conforming his to the the citizen’s conduct which Gooding requirement Wilson, U. Cf. S. 518 of the law. 408) (1972); City Macon, 244 Ga. 31 LE2d Smith provisions distinct, one and where 3. Where two of a statute they may provision unconstitutional, is constitutional and the other Chaplinsky, supra If be severed and the statute saved. prohibi- the two statute to be found constitutional we must sever prohibition statute, words on tions excise bumper equate obscene, stickers, and find statute lewd with regulate authority obscene stitutional on speech. basis the state’s question legislature ban ex- can obscene without pression bumper com- sticker, what constitutes lewd on a subjective requiring always complicated question munication is evaluation. We statute in the of this do find that lewd context equal To have to construe lewd means do this we would obscene. Third test. Webster’s the Roth-Miller As defined obscene under Dictionary, International the word lewd is much broader than ob- means, base, evil, wicked, among things, vulgar, scene. Lewd worthless, dissolute, lascivious, indecent, obscene, poor, and salacious. Another reason for our determination that this statute cannot be salvaged by narrowing presence in Georgia construction is the 16-12-80, prohibits display Code OCGA distribution and A exhibiting obscene materials. obscene material statute, prohibited by would be and we will not strain to construe prohibit a second statute to the same conduct.1 *6 unconstitutional, Since we have found OCGA 40-1-4 we need § appellant’s not reach the enumeration of error concerning the suffi- ciency of the evidence in his conviction.
Judgment concur, Smith, J., All except reversed. the Justices P. Bell, JJ., Hunt, J., specially; Weltner and who concur concurs in the judgment only. Justice, concurring specially.
Weltner, I agree aside, the conviction and sentence must be set but would statutory invalidate these on rather than constitutional grounds. provides:
1. OCGA 40-1-4 person No owning, operating, using or in motor vehicle knowingly any part state shall affix or attach to of such mo- sticker, decal, emblem, tor vehicle or other device con- acts, taining or lewd words excre- describing sexual functions, tory parts or of the human “profane Prohibited this statute are or lewd” words that de- acts, excretory functions, body.” scribe parts “sexual or of the human meanings The “profane” of the words and “lewd” are:
(a) Profane:
(i) 1. Manifesting disrespect Deity irreverence or toward the things. sacred 2. religious religious Not or concerned with things; common; Vulgar; secular. 3. & course.2 [Funk opinion personal The writer of this feels constrained to offer note. holding ability proscribe bumper of the court in- removes the state’s question. brings Benjamin volved under the statute in This to mind the statement of Frank- lin: “Everything right one has a to do is not best to be done.” 40-1-4, impose the state does criminal sanctions under OCGA among not mean the exhibitor of such a fellows. The sticker stands blameless his poor exhibition of taste and of others demonstration of lack of concern for the sensibilities position disrespect. position cast the offender of societal This is well deserved. “common,” “vulgar,” particular I doubt that the terms a sufficient and “course” have Dictionary.]
Wagnalls Standard (ii) toward or rather than sacred. Irreverent Common Dictionary.] things. temptuous [Ballentine’s Law sacred vengeance Calling implying Profanity. or divine divine directly employing condemnation, the name with or without Deity. [Id.] (b) Lewd:
(i) debauchery. inciting to lust or 2. 1. Characterized bawdy. Wagnalls ribald; & Obscene; [Funk Standard Dic- tionary.]
(ii) indulgence lust; im- Lewdness: sexual The unlawful respect purity; gross indecency sexual relation. Dictionary.] [Ballentine’s Law (4th
(iii) Dictionary, p. Black’s Law ed. defines including State, [the “lewd”] [Collins “obscene.” word (1981).] App. 680, 681 160 Ga. (i.e., question “profane” “sac- Because the words neither *7 “obscene”), they (i.e., rilegious”) within not come nor “lewd” do Accordingly, proscription § and sen- OCGA the conviction 40-1-4. tence should be vacated. Presiding
I and to that Justice Smith Justice am authorized state join special Bell in this concurrence. February
Decided
Hauptman,
Harvey,
appellant.
Bruce S.
R.
for
Michael
Beverly
Aronow,
Head, Solicitor,
S.
M. Col-
H.
Patrick
Victoria
(343
485)
Comm.,
ity
Hartrampf
SE2d
v. Ga. Real Estate
256 Ga.
to define a crime. See
(1986),
vague.
holding the term “unworthiness” to be
“obscene,”
display
synonymous
agree
I
that
To
“lewd”
with
the extent that
is
prohibited by
exhibiting
be
OCGA 16-12-80.
§
materials would
(62
647) (1908),
State,
App.
Compare
where a statement
SE
Holcombe
5 Ga.
us,
(“You
get
way.”)
pointed
big
rump
was found to
fat
towards
out of the
with the
woman
State,
16-11-39;
vulgar”
S90A1368. STATE. Justice. Benham, plea bar, After the trial court denied his motion to dismiss appellant pled guilty to driving under the influence of alcohol to the (OCGA (a) (1)). extent he was a less safe driver 40-6-391 Pursuant stipulation parties, to a appellant brings ap- entered into this peal in constitutionality which he contests the of OCGA 40-6-391.1 in question
The statute reads follows: (a) person A physical shall not drive or be actual control any moving vehicle while:
(1) Under the influence of alcohol to the extent that it is drive; person less safe for the to
(2) any drug Under the influence of to the extent that it is person drive; less safe for the
(3) any Under the drug combined influence alcohol and drive; person to the extent that it is less safe for the (4) person’s grams alcohol concentration is 0.12 any more driving time within three hours after such being physical in actual control ended.
(b) any The fact person charged violating drug Code section is or has legally been entitled to use a shall not against charge violating constitute a defense however, section; provided, person Code that such shall person not be in violation of this Code section unless such incapable driving safely using rendered as a result of drug person legally other than alcohol which entitled such to use.
Appellant contends
the statute violates the Sixth Amendment
fairly
U. S.
by failing
fully
Constitution
inform the accused
against
Appellant
nature and cause of the
him.
main-
accusation
*8
(b)
mandating guilt
tains that
vague by
subsection
renders the statute
only
safely
incapable
driving
for a DUI defendant
rendered
result of
legal
drug
use of a
other than alcohol.
predecessor
statute was held constitutional
Cargile v.
State,