This is the sign they confiscated. And the brief follows. While the cases cited are Georgia based, the principles stated should apply to every State.
STATE
OF
City of
vs. *
OFFENSE: Obscene Sign
OTIS ONEAL HORSLEY, *
Defendant
*
OBJECTION TO SEIZURE OF GUBERNATORIAL
CANDIDATE’S CAMPAIGN SIGN
COMES NOW Defendant, OTIS ONEAL HORSLEY, and files this Objection to the charge of Obscene Sign in the above captioned case. In support of this motion, Defendant shows the following:
1.
Defendant is charged in the above-captioned cases with the offense of Obscene Sign in violation of Carrollton Ordinance Article II § 74.21 (5) for Citation 98425 and 74-21 a(2)(5)(b)(i) for Citation 107580.
2.
Carrollton Ordinance Article II § 74.21 (5).states in pertinent
part, "No sign shall … contain words or pictures of an obscene, indecent,
or immoral character such as will offend public morals." Carrollton Ordinance Article II § 74.21 (5)
was repealed by Carrollton Resolution 09-2007, § 5, adopted
3.
The
words "any words or pictures of an obscene, indecent, or immoral character
such as will offend public morals" are too vague for any reasonable person
to know whether his or her conduct would be a violation of the law. The Ordinance fails to define "obscene”,
"indecent”, “immoral”, or “such as will offend public morals”. The ordinance fails to provide fair warning
of specific conduct that is unlawful. The
ordinance fails to provide standards for its enforcement. Accordingly, the ordinance should be held void
for vagueness and declared unconstitutional both facially and as applied in the
present case, as that there are no objective standards for the enforcement of
this ordinance.
4.
A
statute is void-for-vagueness when it fails to give a person of ordinary
intelligence fair notice that his contemplated conduct is forbidden by the statute
because such statutes encourage arbitrary and erratic arrests and
convictions. Papachristou v. City of
Jacksonville, 405 U.S. 156 (1972); State v. Johnson, supra; Hall
v. State, 268 Ga. 89 (1997); U.S. Const., Amend. V
& XIV;
5.
Carrollton
Ordinance Article V § 5.04.02 (a)(5) and former Carrollton Ordinance Article II
§ 74.21 (5) both facially and as applied in the present case impermissibly
infringe upon the right to free speech protected by the First and Fourteenth
Amendments to the U.S. Constitution and the Bill of Rights contained in
Georgia's Constitution. 1983
Even
though the Carrollton Ordinance does not define “Obscene”, the State of
The (a) A person commits the
offense of distributing obscene material when he sells, lends, rents, leases,
gives, advertises, publishes, exhibits, or otherwise disseminates to any person
any obscene material of any description, knowing the obscene nature thereof, or
offers to do so, or possesses such material with the intent to do so, provided
that the word "knowing," as used in this Code section, shall be
deemed to be either actual or constructive knowledge of the obscene contents of
the subject matter; and a person has constructive knowledge of the obscene
contents if he has knowledge of facts which would put a reasonable and prudent
person on notice as to the suspect nature of the material; provided, however,
that the character and reputation of the individual charged with an offense
under this law, and, if a commercial dissemination of obscene material is
involved, the character and reputation of the business establishment involved
may be placed in evidence by the defendant on the question of intent to violate
this law. Undeveloped photographs, molds, printing plates, and the like shall
be deemed obscene notwithstanding that processing or other acts may be required
to make the obscenity patent or to disseminate it.
O.C.G.A. § 16-12-80 then defines
“obscene:” (b) Material is obscene
if:
(1) To the average person, applying contemporary
community standards, taken as a whole, it predominantly appeals to the prurient
interest, that is, a shameful or morbid interest in nudity, sex, or excretion;
(2) The material taken as a whole lacks serious
literary, artistic, political, or scientific value; and
(3) The material depicts or describes, in a patently
offensive way, sexual conduct specifically defined in subparagraphs (A) through
(E) of this paragraph:
(A) Acts of sexual intercourse,
heterosexual or homosexual, normal or perverted, actual or simulated;
(B) Acts of masturbation;
(C) Acts involving excretory functions
or lewd exhibition of the genitals;
(D) Acts of bestiality or the fondling
of sex organs of animals; or
(E) Sexual acts of flagellation,
torture, or other violence indicating a sadomasochistic sexual relationship.
6.
I assume that the Court will look at the sign that was confiscated for being obscene.
The second sign cited and confiscated had slightly different wording but the same picture.
It
seems obvious that if the signs that were confiscated excite prurient interest,
as defined by the State, the person so excited is in need of immediate psychiatric
care and probably needs, in addition, a full-bodied, industrial-strength exorcism. In short the person would not fit the
description of the “reasonable and prudent person” in O.C.G.A. §
In fact it is almost inconceivable that a person would be found to react with prurient interest to the sign pictured. But there is no doubt that the ordinary effect on the public, which does not fit the definition of “obscene”, but does create a powerful negative, offended reaction is easily found.
Because that negative reaction is so prevalent, Neal Horsley provides a brochure during his campaign appearances with the sign, and that brochure entitled “Why Parents Hate the Pictures of Dead Babies” is designed to help people see why they react so powerfully negatively to the sign.
The brochure is included as Attachment One.
7.
As the brochure makes clear, the sign is not obscene, it is truthful; but truth that has the power to be so disturbing that it threatens the peace and tranquility of virtually every individual who sees the pictures.
When a nation legalized the slaughter of the least of the human beings created by God, that nation placed itself in the path to destruction. Showing the pictures of the consequences of the legalized slaughter of the least of God’s children is something I can and must do to try stop us on that path to destruction and turn us into a viable path. That is why I am running for Governor of Georgia.
The seizure of the sign in question must be seen in the context of its role as the key message in a candidate for Governor of Georgia. To have a City seize a sign that is critically important to the entire message a candidate stands for is the most egregious violation of the political process imaginable and should be seen to be tyranny in its rawest and most odious and dangerous form.
Movant reserves the right to amend this General Demurrer.
WHEREFORE,
Defendant respectfully requests that this Honorable Court quash the accusation
in the above captioned case and declare that Carrollton Ordinance Article V §
5.04.02 (a)(5) and former Carrollton Ordinance Article II § 74.21 (5) are both
facially and as applied in the present case unconstitutionally vague and
impermissibly infringe upon the right to free speech protected by the First and
Fourteenth Amendments to the U.S. Constitution and the Bill of Rights contained
in Georgia's Constitution. 1983
This _____ day of ___________, 2008.
Respectfully Submitted,
___________________
Otis O’Neal Horsley
Pro Se
(770)838-5940