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Forty years ago, State A passed a series of morality and health laws in response to increased prostitution and drug crimes within the state.
One of these laws, § 45-109, made it “unlawful for any person to display any bumper sticker, sign or writing which depicts obscene language or obscene imagery that is sexual in nature.” Violation of the law constitutes a misdemeanor. The law has rarely been enforced since its passage.
State A has grown considerably in the years since the law’s passage. State A’s large metropolitan areas are now a hub for the gambling and entertainment industries. There are billboards all over the state with advertisements for various casinos and nightclubs, some of which feature women in sexually suggestive poses.
T, a truck driver, regularly passes through State A while making deliveries. T takes a lot of pride in his truck and has spent a great deal of time designing and decorating his rig. The seats have been re-covered in a beautiful, soft leather, and T has added purple lights underneath the front bumper and along its top. T is most fond of his mud flaps, which proudly display the silhouette of a woman with an hourglass body shape. The silhouette is sitting, leaning back on her hands, with her hair being blown back. The image, though not graphic, is sexually suggestive. It was designed by a world-famous street artist.
One day, just as T crosses the state line into State A, a police officer pulls him over. The officer cites T with violating § 45-109 for the imagery on his mud flaps. The officer also threatens to fine T for the violation if T does not immediately remove the mud flaps. Begrudgingly—and in an attempt to keep his delivery on schedule—T chooses to remove the mud flaps with the imagery instead of argue with the police officer.
T, however, cannot shake how horrible he feels after this encounter. He ultimately decides to bring suit against the state, arguing that the application of the law to his mud flaps violates his right to freedom of expression under the First Amendment. The state responds that the expression in question constitutes an exception to the First Amendment. Assume that T has standing to bring the case and that the case is otherwise justiciable in court.