Karen Fonseca is a 46-year-old resident of Fort Bend County, Texas. She does not like President Donald Trump, and pretty much has the same feelings toward all the people in the county who voted for Trump. She expressed her displeasure with the president and his supporters by installing a sticker on the rear window of her pickup truck that read in large bold letters “Fuck Trump” and in smaller letters below “Fuck You for Voting for Him.”
Primer
The sticker is not going to garner Ms. Fonseca any creative writing awards, but she scores an A+ for ingenuity in “freedom of expression.”
Diverse Fort Bend County is not a “Trump-friendly” county as evidenced by Hillary Clinton’s nearly 7-point margin of victory in the county over Trump in the November 2016 presidential election.
Ft Bend County Sheriff Needs Primer on US Constitution
But, according to Fort Bend County Sheriff Troy Nehls, a Republican Army veteran who became sheriff in 2012 and was reelected in 2016, not everyone in the county is pleased about Ms. Fonseca sentiments toward the president and his supporters.
Those taking offense about the sticker thought it was not only vulgar but obscene and had the potential to corrupt the moral values of their young children who read the sticker and exclaim, “what does ‘Fuck Trump’ mean, daddy.”
Sheriff Nehls, who is eying an opportunity at a run for Congress (with so many Republicans in the state retiring), read the political tea leaves associated with the sticker. He took to the sheriff’s Facebook page with this post:
“I have received numerous calls regarding the offensive display on this truck as it is often seen along FM 359. If you know who owns this truck or it is yours, I would like to discuss it with you. Our prosecutor has informed us she would accept Disorderly Conduct charges regarding it, but I feel we could come to an agreement regarding a modification to it.”
Republican Sheriff Snubs Freedom of Speech
Sheriffs Nehls told the local press that because of the volume of calls he had received about the sticker, he became concerned that the sticker might create a confrontation on the county’s roadways, so he decided to take his concerns to Facebook.
That didn’t work out too well for the sheriff—he received thousands of phone calls, emails, and even text messages from people all over the country complaining about his attempt to suppress free speech.
Ft. Bend Prosecutor Joins in on Attack on Constitution
And as for the prosecutor who was so constitutionally-challenged that she accepted the disorderly conduct charge suggested by the sheriff, her boss, Fort Bend County DA John Healey stepped in and declared that Fonseca’s sticker did not meet the conduct necessary to bring a disorderly conduct charge in the State of Texas.
In effect, DA Healey told his own assistant DA and the sheriff that they both needed a primer in First Amendment speech and Texas misdemeanor law.
And for those Trump supporters who were offended by Fonseca’s sticker, here is what the U.S. and Texas constitutions say about the First Amendment:
The First Amendment of the U.S. Constitution states that “Congress shall make no law … abridging the freedom of speech, or of the press, or the right to the people peacefully to assemble.”
Article I, section 8 and 27 of the Texas Constitution protects the “liberty to speak, write or publish … opinions on any subject,” and “the right … to assemble.”
Offensive Speech Protected by Constitution
So how does Fonseca’s “sticker fit into this constitutional scheme?
David L. Hudson Jr. is an imminent First Amendment scholar. Writing a piece for the First Amendment Center in 2003, Hudson pointed out that profane bumper stickers can sometimes lead to a law enforcement citation. He cited a 1999 Florida case in which a woman’s bumper sticker that read ‘Fuck you, you fucking, fuck” resulted in a law enforcement citation. The charge, however, like the one contemplated against Fonseca, was dismissed by the district attorney.
Hudson also pointed to a Georgia case in which a driver had a bumper sticker that read “Shit Happens” that led to him being charged under a state law that prohibited bumper stickers from describing “excretory functions.” He was convicted and fined $100. The Georgia Supreme Court, however, reversed his conviction, finding that “the peace of society is not endangered by the profane or lewd which is not directed at a particular audience.”
The Georgia court relied upon a 1971 U.S. Supreme Court decision that reversed the “breach-of-the-peace” conviction of a young man who wore a jacket into a courthouse with an emblem that read “Fuck the Draft.”
Citizens Have a Right to Express Themselves
Hudson summed up his bumper sticker article with this conclusion:
“Citizens have a right to express themselves in a variety of ways. Bumper stickers represent a popular, inexpensive and sometimes humorous way to express viewpoints on an endless range of subjects. But as the cases mentioned above demonstrate, bumper stickers with profanity will occasionally lead to a citation or arrest. Profanity may be a form of protect speech but it often raises the ire of government officials. The First Amendment provides a great deal of protection for offensive speech and it is unlikely that state bumper-sticker citations, at least as applied to private citizens, would withstand a constitutional challenge.”
Offensive Speech Alone Not Criminal
The Texas disorderly conduct statute offers only two possible avenues in which Fonseca could have been charged with the offense.
Through the display of her “Fuck Trump” window sticker, she knowingly and intentionally “(1) use[d] abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tend[ed] to incite an immediate breach of the peace; or (2) [made] an offensive gesture or display in a public place, and the gesture or display tend[ed] to incite an immediate breach of the peace.”
In addition to the obvious constitutional problems with charging this political speech as disorderly conduct, the statement simply does not satisfy the elements of the offense. DA Healey summed it up this way, “[t]he elements of the crime of disorderly conduct are not met. That the obscene or vulgar language depicted or uttered tends to incite an immediate breach of the peace. I don’t believe it does, nor did a select group of prosecutors in my office who reviewed the matter.”
Our constitutional and legal concerns about Sheriff Nehls’ hardline position in this case aside, we note that it is unlikely the sheriff or any of the Trump supporters would have been offended in the slightest had Fonseca’s sticker used the exact same language with “Hillary” or “Obama.”
Right-wing nuts and virulent Trump supporters in Texas have long displayed confederate flags on the bumpers of their vehicles along with offensive stickers featuring President Obama or Hilary Clinton. All admittedly offensive, but all clearly constitutionally protected political speech.
And that’s just what Karen Fonseca was doing—expressing her political thoughts about a president who is extremely offensive and has raised the ire of modern thinking people with his blistering, bigoted rhetoric, offensive comments about women and long history of sexual harassment. And he has earned every bit of it…