Are those weird laws you hear about for real?

Gfactor replies:

Millions of examples of weird laws get thrown around out there, some of which are easy to verify and many of which are not. Obviously it would speed things along significantly if those providing the examples also provided citations to the laws in question, but they only rarely do. And when someone does supply citations, as do Jeff Koon and Andy Powell in their 2002 book You May Not Tie an Alligator to a Fire Hydrant, it tends to demonstrate why the unsourced examples are so tough to track down.

Let’s take as an example the supposed provision that gives the Koon and Powell book its name. The authors first tell us that this law is often said to come from New Orleans. They couldn’t find anything like it there, but with a bit of effort located one from Michigan that fits the bill. This law, however,

(a) isn’t a state law – it’s evidently a local ordinance, applicable only in one city; and

(b) doesn’t say anything at all about alligators. What it says is “No person shall in any manner obstruct the use of any fire hydrant in the city or have, place or allow to be placed any material or thing in front thereof or connect or tie thereto any object, animal or thing.”

So the ordinance does prohibit tying alligators to fire hydrants. It also prohibits tying lions, tigers, bears, or for that matter dogs to fire hydrants, and far from being absurd makes a world of sense: if you don’t want anyone obstructing fire hydrants, make it clear that they shouldn’t be used as hitching posts. Lots of so-called weird laws are like this: entirely reasonable when looked at in full or in context, but capable of being narrowly framed in some specific way that makes them seem silly.

Other weird laws are left over from previous eras. Michigan still has a statute prohibiting blasphemy: “Any person who shall wilfully blaspheme the holy name of God, by cursing or contumeliously reproaching God, shall be guilty of a misdemeanor.” The last person to serve time for blasphemy in the United States was Abner Kneeland in 1838, and though courts have since held that blasphemy laws are inconsistent with the First Amendment, the statute is still there. Reports of weird laws seldom include any indication whether the law is or was – instead they’ll say “an Ohio law says,” and it might be true that Ohio once passed a statute on the topic. But statutes can be repealed or simply ignored as no longer applicable.

Along the same lines are another kind of snicker-inducing legal provision: blue laws.

These laws prohibit certain activities on Sundays, and pretty much no matter what activity they prohibit, it comes out sounding funny. As a 1963 Time article says of such statutes:

You can see the opportunities here for weird-law mischief. A New York Times article from 1909, for example, reported on the enforcement in Missouri of a newly enacted set of blue laws: “The gambling squad,” we’re told, “began a crusade against all games of chance in cigar stores.” The piece goes on to say that two men were arrested for playing a game of chance called “baseball.” Someone determined to drum up weird laws might on this basis assert that it’s illegal to play baseball on Sunday in a cigar store in Missouri. Such a construction is, of course, accurate but misleading; the irrelevant details make the law seem weirder than it is.

Of course, sensationalist reporting is another part of the problem. An example: I saw a headline on a news Web site suggesting that a man had been ticketed for wearing a skirt while operating a riding mower. After reading the article and doing some follow-up I figured out that the problem was not that he was wearing a skirt but that he was showing everyone his crotch in the process. The real story was that Clinton, Louisiana, home of the man in question, has a sagging-pants ordinance, and those often bar exposing one’s undergarments or anything such garments might ordinarily be expected to conceal. So it’s not like the town had a law on the books specifying appropriate garb for doing yardwork.

If you find yourself on the wrong end of an ancient law, you might have a special defense: desuetude. The desuetude defense bars prosecutions based on long-unenforced regulations and laws that are what we call malum prohibitum – wrong because the law says they are – like speeding. Unfortunately, this defense is controversial in every U.S. jurisdiction except for West Virginia. You might also claim selective enforcement, but you’d have to prove “both that the enforcement had a discriminatory effect and that it was motivated by a discriminatory intent.” It’s a hard case to make.

References:

“Blue Sunday,” Time, October 25, 1963: http://www.time.com/time/magazine/article/0,9171,830508,00.html

“Desuetude,” 119 Harv. L. Rev. 2209 [PDF]: http://www.harvardlawreview.org/issues/119/may06/note/desuetude.pdf

Dumblaws.com: http://www.dumblaws.com/

Greene, Hillary, “Undead Laws: The Use of Historically Unenforced Criminal Statutes in Non-Criminal Litigation,” 16 Yale L. & Pol’y Rev. 169 (1997)

Koppel, Niko, “Are Your Jeans Sagging? Go Directly to Jail,” New York Times, August 30, 2007: http://www.nytimes.com/2007/08/30/fashion/30baggy.html?_r=1&oref=slogin

“Louisiana Man Skirts the Law,” Keyetv.com, April 10, 2008: http://www.keyetv.com/content/news/topnews/story.aspx?content_id=0127bc08-c5c1-4396-beb1-086d12087d22

Gfactor

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