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Created: October 18, 2003
Latest Update: October 18, 2003
jeannecurran@habermas.org
takata@uwp.edu

Mud Flaps and Icons:
How the Mud Flaps Came into the Issue

Site Copyright: Jeanne Curran and Susan R. Takata and Individual Authors, October 2003.
"Fair use" encouraged.

When we began our discussion on Naked, the political science club's newsletter, and it's logo, the naked lady of mud flap fame, some of you were taken aback by our reaction to an icon you didn't even recognize. This lecture will familiarize you with the icon and the history through which some of us came to know it.

References:

• Con Law Outline: XII. Pre-Emption

  XIII. Pre-emption----when a state law and fed law are in conflict, fed law trumps due to supremacy clause. But how do we know if there is a conflict??

  1. 3 kinds of federal preemption

     1. express preemtion - sometimes congress will say in the language of the statute that it is preempting the state.
     2. Implied preemption - 2 kinds

        1. field pre-emption - the scheme of federal regulation is so pervasive that its reasonable to think that congress intended to "occupy the field". OR Congress expresses a clear intent that federal law will be exclusive in an area

        2. conflict preemption - compliance with both state and federal regulation is almost impossible, or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of congress. P.374. Feds say you must have curved mud flaps and state says you can only have straight mud flaps. When this happens, state law gets preempted.

     these tend to overlap in practice

  Keys to analysis

  • Congressional intent is the key, but look at both statutes
  • Even where language is express, the scope of preemption is often unclear, and requires a look into what the intent of congress is.
  • Often a presumption that the historic powers of the state are not to be superseded by federal action unless congress manifests a clear unambiguous intent to do so."

  Mud flaps came into constitutional law as states tried to legislate uniform mud flaps. This was one of the lines between state and federal control over which states' rights were fought. Many of us remember the mud flap cases from our study of the law. Many others remember them from the profusion of naked lady icons that inundated our highways.

  Discussion Questions

  1. What does the naked lady symbolize?

  2. How is such an idealized symbol of womanhood harmful to women?

  3. Does making such an icon socially acceptable reflect on the normative expectations of society?

  4. How could we manage to make a place for the sensitivities of women who feel the harm without censorship?

  5. Why is censorship not a satisfactory solution?