South Carolina: Attempting to make swearing a felony.

[SirNitram]

FUCK! SHIT! DAMN!

S. 56

STATUS INFORMATION

General Bill
Sponsors: Senator Ford
Document Path: l:\council\bills\ms\7049ahb09.docx

Introduced in the Senate on January 13, 2009
Currently residing in the Senate Committee on Judiciary

Summary: Profanity

HISTORY OF LEGISLATIVE ACTIONS

Date Body Action Description with journal page number
-------------------------------------------------------------------------------
12/10/2008 Senate Prefiled
12/10/2008 Senate Referred to Committee on Judiciary
1/13/2009 Senate Introduced and read first time SJ-98
1/13/2009 Senate Referred to Committee on Judiciary SJ-98

View the latest legislative information at the LPITS web site

VERSIONS OF THIS BILL

12/10/2008

(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 16-15-370 SO AS TO MAKE IT UNLAWFUL TO COMMUNICATE PROFANITY IN A PUBLIC FORUM OR PLACE OF PUBLIC ACCOMMODATION; BY ADDING SECTION 16-15-430 SO AS TO CREATE THE OFFENSE OF DISSEMINATING PROFANITY TO A MINOR AND PROVIDE A PENALTY FOR THE OFFENSE; TO AMEND SECTION 16-15-305, RELATING TO DISSEMINATING OBSCENITY, SO AS TO SPECIFY BOTH ORAL AND WRITTEN PUBLICATIONS; AND TO AMEND SECTION 16-15-375, RELATING TO DEFINITIONS FOR PURPOSES OF MORALITY AND DECENCY OFFENSES AGAINST MINORS, SO AS TO INCLUDE THE OFFENSE OF DISSEMINATING PROFANITY TO A MINOR.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Article 3, Chapter 15, Title 16 of the 1976 Code is amended by adding:

"Section 16-15-370. (A) It is unlawful for a person in a public forum or place of public accommodation wilfully and knowingly to publish orally or in writing, exhibit, or otherwise make available material containing words, language, or actions of a profane, vulgar, lewd, lascivious, or indecent nature.

(B) A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years, or both."

SECTION 2. Article 3, Chapter 15, Title 16 of the 1976 Code is amended by adding:

"Section 16-15-430. (A) It is unlawful for a person to disseminate profanity to a minor if he wilfully and knowingly publishes orally or in writing, exhibits, or otherwise makes available material containing words, language, or actions of profane, vulgar, lewd, lascivious, or indecent nature.

(B) A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be fined not more than five thousand dollars or imprisoned not more than five years, or both."

SECTION 3. Section 16-15-305(A)(3) of the 1976 Code is amended to read:

"(3) publishes orally or in writing, exhibits, or otherwise makes available anything obscene to any a group or individual; or"

SECTION 4. The first undesignated paragraph of Section 16-15-375 of the 1976 Code is amended to read:

"The following definitions apply to Section 16-15-385, disseminating or exhibiting to minors harmful material or performances; Section 16-15-387, employing a person under the age of eighteen years to appear in a state of sexually explicit nudity in a public place; Section 16-15-395, first degree sexual exploitation of a minor; Section 16-15-405, second degree sexual exploitation of a minor; Section 16-15-410, third degree sexual exploitation of a minor; Section 16-15-415, promoting prostitution of a minor; and Section 16-15-425, participating in prostitution of a minor; and Section 16-15-430, disseminating profanity to a minor."

SECTION 5. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.

SECTION 6. This act takes effect upon approval by the Governor.

Sorry for the legalese. I found the bill but no story. Fucking hell!

[General Zod]

Yeah, I'm betting this will never make it out of committee. Fucking South Carolina.

[Alyeska]

When it comes to the law, it is very literal by nature. Unless South Carolina defines exactly what words are swear words, I don't see how this law has any usefulness. I see the courts striking down the law after the first appeal that comes their way.

[General Zod]

When it comes to the law, it is very literal by nature. Unless South Carolina defines exactly what words are swear words, I don't see how this law has any usefulness. I see the courts striking down the law after the first appeal that comes their way.

It doesn't matter if they define it anyway, it's a blatant first amendment violation. It'd get shot down so fast it wouldn't be funny.

[Alyeska]

When it comes to the law, it is very literal by nature. Unless South Carolina defines exactly what words are swear words, I don't see how this law has any usefulness. I see the courts striking down the law after the first appeal that comes their way.

It doesn't matter if they define it anyway, it's a blatant first amendment violation. It'd get shot down so fast it wouldn't be funny.

"Morality" issues have a slightly different track record down south. You might find a sympathetic judge on this issue.

[General Zod]

When it comes to the law, it is very literal by nature. Unless South Carolina defines exactly what words are swear words, I don't see how this law has any usefulness. I see the courts striking down the law after the first appeal that comes their way.

It doesn't matter if they define it anyway, it's a blatant first amendment violation. It'd get shot down so fast it wouldn't be funny.

"Morality" issues have a slightly different track record down south. You might find a sympathetic judge on this issue.

One or two perhaps, at least until someone challenged it in the supreme court (state or otherwise). It's virtually guaranteed this bill wouldn't last for long once virtually any rights movements groups took notice.

[Jaepheth]

This sums up my thoughts on the subject.

[Drooling Iguana]

At least now we'll have another option if we can't figure out how to work the three seashells.

[DPDarkPrimus]

Own a book store? Stock anything with profanity in it? You're in violation.


No fucking way this'll pass.

[General Zod]

Own a book store? Stock anything with profanity in it? You're in violation.

To say nothing of movie theaters with more than G rated films.

[weemadando]

My response, but yeah - this has no chance of passing. It's ridiculous, not only is it blatantly going against the oft-touted CONSTITUTION (but really, when has that stopped America), but as pointed out - it's pretty much perfectly unenforceable.

[Spyder]

My response, but yeah - this has no chance of passing. It's ridiculous, not only is it blatantly going against the oft-touted CONSTITUTION (but really, when has that stopped America), but as pointed out - it's pretty much perfectly unenforceable.

Deadwood should win a prize for the most eloquent use of "Fuckin' Cocksuckers." When the lines are in context they make it sound so poetic.

[Kanastrous]

It doesn't matter if they define it anyway, it's a blatant first amendment violation. It'd get shot down so fast it wouldn't be funny.

It would hopefully get shot down so fast that it would be very funny.

[Darth Wong]

Why are we so certain that the first amendment protects public swearing? Isn't that up for interpretation? If the first amendment MUST be interpreted that way, then why haven't all the obscenity laws been stricken from the books?

[General Zod]

Why are we so certain that the first amendment protects public swearing? Isn't that up for interpretation? If the first amendment MUST be interpreted that way, then why haven't all the obscenity laws been stricken from the books?

George Carlin's infamous seven words routine pretty much set the precedent as far as public swearing goes. I'm not sure if any other obscenity laws have been challenged to the same degree though.

[weemadando]

Why are we so certain that the first amendment protects public swearing? Isn't that up for interpretation? If the first amendment MUST be interpreted that way, then why haven't all the obscenity laws been stricken from the books?

I don't think that one would trump the other in a case of someone standing on a street corner and shouting: "Fuck yourself in your arses you shit-sniffing cunts!"

But I am almost certain that the first amendment would trump an obscenity law in the case of people trying to ban books, movies, publications etc on the grounds that they have naughty words.

[andrewgpaul]

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Doesn't say anything about the South Carolina General Assembly doing it.

edit; my mistake - the provisions of the 1st amendment have apparently been taken to include state governments too. Never mind.

[Rogue 9]

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Doesn't say anything about the South Carolina General Assembly doing it.

edit; my mistake - the provisions of the 1st amendment have apparently been taken to include state governments too. Never mind.

Indeed. In any case:

The General Assembly shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the government or any department thereof for a redress of grievances.

Most state constitutions, including South Carolina's, have an article of rights closely copying that of the Bill of Rights.

[Eulogy]

Fucknig hell, if this piece of shit passes there will be be no fucking way any bastard will remain on the shitty streets for long. Not to mention that the bastards in charge will need thousands more acres just to house all the bitches this law would create.

What a shitty law.

[Simplicius]

The last I heard, the "community standards" doctrine was still the most current bit of SCOTUS jurisprudence on obscenity.

That said, this is a really lousy piece of legislation, and if it is zealously applied in the public forum (as opposed to 'public forums' populated by non-mainstream social groups) there will be a stink raised over it.

[CmdrWilkens]

edit; my mistake - the provisions of the 1st amendment have apparently been taken to include state governments too. Never mind.

The reason why is worth noting:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Every federally protected right must be protected by the states.

[The Vortex Empire]

Easily fucking shot down by the motherfucking 1st Amendment. Fucking goddamn piece of shit South Carolina.

Seriously, what happened to people following the Constitution?

[Darth Wong]

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Doesn't say anything about the South Carolina General Assembly doing it.

Doesn't say anything about making an exception for materials deemed "obscene" either, but I don't see anyone striking down those obscenity laws.

[Mayabird]

South Carolina got rid of a Blue Law preventing stores from opening before 1:30 PM on Sundays in 2007. Liquor was only allowed to be sold in airline-size bottles until 2006. Also Bob Jones University is in the state. We're not exactly talking about the most intelligent, progressive people here.

There are three possibilities about the origins of this bill:
1) Assuming the sponsors have some brains and wiles, it could be a ploy to smear their opponents as immoral, since they were against the bill, thus, in the TV ads, they were supporting profanity!
2) The sponsors are stupid. Also they are part of a movement to bring back the Blue Laws in their full ol' timey force. This movement does exist in SC but I don't know how strong or supported it is. It might just be a few nuts who make enough noise once in a while to get attention. Hard to say, but this is one of the few stupid things I actually did not experience in my shittastic (georgia) hometown.
3) The sponsors are just really stupid. Full stop.

[CmdrWilkens]

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Doesn't say anything about the South Carolina General Assembly doing it.

Doesn't say anything about making an exception for materials deemed "obscene" either, but I don't see anyone striking down those obscenity laws.

Because obscenity law mostly stems in part from powers related to commerce. In those cases the matter of obscenity becomes a "mixed question" of both fact and law where the juge must review both the material in question and the reason why the law might apply to the given case. In turn judges have a huge back history of cases from which the basic doctrines of reviewing the usefulness of a law (in terms of the purpose it serves the government and society at large) versus the intrusion into the lives of citizens. In the case of obscenity laws promulgated under commerce powers the law is one essentially about regulating commercial transactions and the courts have general held more expansive government powers. Yes it spills over into non-commercial obscentiy laws (mostly because if commercial obscenity can be restricted why not private obscenity) but at the same time the defenition of "obscenity" remains so vague as to become a matter of extensive review which, in turn limits the application of such laws.

This law attempt to regulate non-commercial personal expression of speech which would be subject to a very strict review. Could someon argue their way towards this being legal? I'm sure its possible but the odds are stacked against it so I rather suspect this would not pass a Constitutional Review (for 1st Amendment, 8th Amendment, and possibly some SC Constitutional reasons). The thing is that it creates a huge penalty for something which is generally accepted by society at large and where the harm to the government or people by allowing it to continue is not readily evident while infringing upon speech. The case isn't a slam dunk but the case for striking this down if it passes would be a pretty strong one.