Court violating first amendment over anti Biden sign

[Eugene Volokh] $250/Day Fine for Displaying “Fuck Biden” Sign at Home

Posted: 16 Jul 2021 02:10 PM PDT

NJ.com (Rebecca Panico) reports (and includes the photo above):

Roselle Park Municipal Court Judge Gary Bundy ordered the Willow Avenue homeowner to remove the signs with profanity within a week or face a $250-a-day fine….

“This is not a case about politics. It is a case, pure and simple, about language,” Bundy said. “This ordinance does not restrict political speech. Neither this town or its laws may abridge or eliminate Ms. Dilascio’s freedom of speech. However, freedom of speech is not simply an absolute right. It is clear from state law and statutes that we cannot simply put up the umbrella of the First Amendment and say everything and anything is protected speech.” …

The ordinance prohibits displaying “any obscene material, communication or performance or other article or item which is obscene within the Borough.” It defines obscenity as material that depicts or describes sexual conduct or lacks any serious literary, artistic, political or scientific value.

But Cohen’s wearing his “Fuck the Draft” jacket was protected speech, and it’s hard for me to see how the signs here are anything but. To quote Justice Harlan’s opinion in Cohen ,

First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

Additionally, we cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated. Indeed, as Mr. Justice Frankfurter has said, “[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures—and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.”

Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results.

It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense.

On top of that, if the news story is correct that the defendant was being prosecuted solely under the “obscenity” ordinance, that ordinance just doesn’t apply here: It defines “obscene” using the normal legal definition, rather than the lay definition that often covers vulgar words. Under that definition, the speech must basically be pornographic, appealing to the “prurient interest” in sex and depicting or describing sexual conduct; the word “fuck” here doesn’t qualify; to quote Cohen again,

Whatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. It cannot plausibly be maintained that this vulgar allusion to the Selective Service System [or, in this case, to President Biden -EV] would conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket.

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I personally don’t think people should display signs in public with “Fuck Biden” or “Fuck whoever”. There definitely needs to be a line drawn when it comes to what is acceptable.

I also don’t think a person of average intelligence would consider this sign sexual in nature.

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Celebrities with millions of followers probably should not have broadcast videos of a decapitated head of Trump, called for his assassination, or made music videos with him being assassinated.

Yet it was all allowed. Pardon the public for not being too concerned with Joe Blow putting signs up in his yard about how disgusted he is with a highly compromised pedophile pretending to play White House.

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You can think that all you want. I agree it is in poor taste. But the government cannot ban it that much is clear.

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Wow, that’s a terrible ruling.

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Most places have public decency laws. Displaying profanity would violate that.

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Such laws can only ban obscenity which this is not (legally it means sexually purient not profanity). You should read the post. This has long been decided by the courts. You can’t ban the word fuck in public. This will be overturned if appealed. Like this is the actual ordinance in question, fuck does not even qualify and, if it did, it would be unconstitutional:

The ordinance at issue prohibits homeowners from displaying “any obscene material, communication or performance or other article or item which is obscene within the Borough.” “Obscene” is defined as “any material, communication or performance” that would be considered as appealing to “prurient interest,” that describes or depicts sexual conduct, and that lacks any “serious literary, artistic, political or scientific value.”

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Like the OP literally details controlling supreme court precedent that a man could not be punished for wearing “fuck the draft” in public. The caselaw could.not be more on point.

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"If you can’t say “fuck”, you can’t say “Fuck the government.”

I guarantee there are minutes of a City Plan* meeting or whatever where the city attorney flat out tells the panel it’s an unconstitutional ordinance & unenforceable fine that will ultimately cost the city a pile in legal fees, & they pass it anyway, gambling that they will have moved on to bigger & better offices by parlaying the public perception by the time the piper comes for payment.

*Change “city” to “county”, “municipality”, whatever as needed.

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These people who have that stuff up are stupid fucking idiots. I dont want my son reading that.

Honestly I have zero respect for anyone who is that obsessed with politics.

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Lol at the Biden Blows sign.

This guy is awesome!

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I think its a little bit low brow, but I have seen multiple “fuck trump” bumperstickers and signs in windows here(california) and nobody said shit.

That dyke judge can go fuck herself.

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The ordinance is facially constitutional as written as it defines obscenity in line with supreme court precedent. The issue is the prosecutor and judge thinking they can apply it to the mere word fuck.

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I don’t disagree but, again, the government cant force her to take it down.

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Fair. TLDR error on my part.

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“Don’t blame me I voted for Trump” is protected free speech. However, using foul language probably isn’t.

Well since it is ordinance enforcement you might be right in a way anyhow that it was doofuses on that council that allowed it to be enforced this way. I think that’s how most code enforcement works.

Absolutely is. Did you read what I posted?

I’ve been at hundreds of local meetings where they ignored the attorney they were paying for advice so they could grandstand & graduate. Was entirely focused on relating that experience rather than reading the details of this particular case.

Just let me take the L on this one; OG dickheads love to claim I’m impossible; they could use a counterfactual every now & then.

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It certainly should be knocked out on appeal if it goes that far, because the case law is crystal clear. But we live in clown world - nothing is crystal clear anymore.

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