F- Biden Signs and Free Speech
I know obscenity when I see it and this ain't it.
NJ.com (“N.J. woman must remove anti-Biden F-bomb signs or face $250-a-day fines, judge rules“):
A municipal judge on Thursday ruled that a Roselle Park homeowner’s owner’s anti- President Biden flags including the F-bomb on her fence were obscene and must be removed because they violated a borough ordinance.
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. Patricia Dilascio is the property owner but her daughter, Andrea Dick, had the signs, three of which include the F-word, on display.
“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.
Michael Campagna, an attorney representing the homeowner, argued that standards for obscenity have changed over the years, stating that it was obscene for women to show their knees in the 1920s. He said using the f-word towards someone no longer has a sexual connotation in society and is simply a colloquialism.
So, Dilascio and her daughter are not the classiest women in the state of New Jersey. I’m not a fan of their politics. And, were I their neighbor, I would consider these signs an eyesore and a nuisance. But, rather clearly, this is a violation of their First Amendment rights.
I am dubious of the Constitutionality of § 3-8.1 of the borough code, which states that,
It shall be unlawful for any person, firm, corporation, business association, club, group of individuals or any combination of the aforementioned to knowingly photograph, act in, pose for, print, sell, offer for sale, give away, exhibit, publish or offer to publish or otherwise distribute or pander, make, display or exhibit any obscene material, communication or performance or other article or item which is obscene within the Borough.
In contrast with the wildly unconstitutional (as defined by a number of Supreme Court decisions) definition of obscenity in the article, the actual language in § 3-8.2 is likely fine:
The word “obscene” shall mean any material, communication or performance which the average person applying contemporary community standards existing within the municipality, would find, when considered as a whole:
a. Appeals to the prurient interest;
b. Depicts or describes in a patently offensive way sexual conduct as hereinafter specifically defined, or depicts or exhibits offensive nakedness as hereinafter specifically defined; and
c. Lacks serious literary, artistic, political or scientific value.
The “and” between sections b and c is crucial. But, because of that, Bundy’s ruling that the sign qualifies as obscene is absurd, if not outright moronic. While the fetish and deviant communities are vast, and I am sure that I could, with sufficient effort, find a subreddit where “Fuck Biden” would inspire sexual arousal, I would be willing to bet that the vast majority of community residents in Roselle Park, New Jersey would instead see it as a vulgar expression of distaste for the sitting President of the United States. And, as such, it deserves the highest possible protection from government interference.
Fifty years ago last month, in Cohen v. California, the Supreme Court ruled that a man had the right to wear a jacket emblazoned with “FUCK THE DRAFT” in a state courthouse. Justice Harlan famously declared that “one man’s vulgarity is another’s lyric” and ruled, “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 of this single four-letter expletive a criminal offense.”
The “particularized and compelling reason” in this case seems to be that the house in question is in some proximity to a schoolhouse. According to a previous NJ.com report, “A map of the home shows it is around the corner and down a short, four-home block from the corner of a local elementary school’s property.”
I’m sympathetic to a community instinct to want to protect small children from vulgarity. If Dilascio and Dick were screaming “Fuck Biden” to the children as they walked by, I think the Borough would have a case here (although almost certainly not under their obscenity ordinance). But a static sign is another matter.
Bundy stated in the hearing that parents shouldn’t have to explain to their small children what the “F-word” means as a condition of walking them to school. And, again, I’m sympathetic to that. But, frankly, I’m skeptical that, given the ubiquity of that word in our modern discourse, they haven’t already heard it. And, regardless, that aesthetic ideal is outweighed by the free speech rights of the homeowner.
It’s hilarious that the sign-hanger is surnamed “Dick.”
Agreed. This feels like a case where norms and traditions used to do a lot of heavy lifting.
Really? That definition covers about 95% of everything said on this blog. I guess we all need to just STFU.
Norman Mailer had to substitute the word “fug” for “fuck” in The Naked and the Dead, leading Tallulah Bankhead to say: “Oh, you’re the young man who can’t spell ‘fuck.'”
We have the same little contretemps going on just down Tamiami Trail from us in Punta Gorda, except the wording of the ordinance is clear. It limits the size and number of yard signs or displays and specifically bans vulgar language. Not surprising in that it was passed last month specifically in reaction to complaints about F Biden flags. It’s being opposed by a local activist, displayer of F Biden flags, and head of some very small, and perhaps imaginary, militia group. He organized a protest and predicted a crowd of 500. The local paper estimated the crowd at a dozen, many of whom appeared to be family.
You’re probably right, James, that this is. Violation of free speech, although the Punta Gorda city atty has apparently opined otherwise. But I don’t care. Sometimes the correct response to these supposed outrages against the Constitution is, “meh”.
@CSK:
Probably apochryphal. No one knows now. Third hand sources.
It sounds like something a witty raconteur imagined as a bon mot and ascribed it to someone.
Saw this yesterday and read a couple of paragraphs, the sign hangers are morons, but this isn’t obscene.
Here in town a local moron, pissed at a planning board decision that allowed property next to him to be subdivided into housing lots, has a big sign on his house F— You followed by thank god for the 1st Amendment.
Ostentatious ignoring and community shunning also works wonders.
Were I her neighbor, I would laugh at her and pity her.
I can defend free speech with best of them, but this is the laziest and lamest example.
Not carrying a sign. Not walking around in a shirt. Not screaming it out. A passive and inert provocation. She’s a sad troll.
I would not be terribly troubled if the ruling was to take down the f-bomb signs. Or not. Either way.
If you want to make a ruckus, make an active personal statement.
OTT house signs and bumper stickers are passive-aggressive bullshit that I easily ignore.
A ascribe a categorical difference between say Black Lives Matter and the pictured Fuck Biden. A Fuck Trump sign is as useless and pointless.
One of these is aspirational in intent. One is just dickish trolling.
OTOH, had Trump succeeded in his coup attempt I would proudly flaunt a Fuck Trump sign or shirt gladly.
But not in front of my house. That would be lame and pathetic.
I wouldn’t be so sure.
Is it a violation of my First Amendment rights if a government ordinance prohbits me from expressing my political opinions using a megaphone at 3:00 AM in a residential neighborhood?
I don’t think so.
Similarly, this may be a nuisance issue, in which case two different rights need to be properly balanced.
Which means, for instance, that it may be fine to stand on a corner holding a “Fuck Biden” sign, but not to permanently display a flag bearing these words.
Something like this wouldn’t strike me as evidently legally unreasonable.
@drj: They have been charged under an obscenity law that’s both unconstitutional according to numerous SCOTUS rulings and that they have rather clearly not met the elements of.
I like signs such as FUCK BIDEN. In less than a second, they’ve saved me from wasting one iota of my life on them.
@James Joyner:
The fact that “obscenity” can be Constitutionally protected speech, doesn’t mean that such obscenity can always be displayed without restrictions.
I am sure, that you don’t believe that it would be necessarily legal to depict visual representations of sexual acts on a fence in a residential neighborhood. In other words, protected speech isn’t always protected regardless of circumstances.
That’s just your interpretation, not least because you’re making a category error:
Sex can also be a tool to denigrate and humiliate. Lots of “jokes” about (prison) rape that do not aim to arouse, but could still be considered “obscene” when “applying contemporary community standards.”
But regardless of whether the obscenity statute is applied correctly (which also depends on existing jurisprudence), the 1A normally doesn’t get to be applied so broadly that this ruling must necessarily be a violation of it.
@Teve: Exactly why I’ve always strongly supported the 1st Amendment, so other people can tell me they are stupid.
And what’s that saying? It’s better to keep your mouth shut and be assumed an idiot, than to open it and remove all doubt.
@de stijl:
We routinely post signs to alert people of potential hazards – “Caution Wet Floor,” “Watch for Falling Rocks,” “Warning High Voltage” and so forth.
I see what these women have done as a public service to the people of Roselle Park, NJ. Nothing says “Beware of Trolls” like a “Fuck Biden” sign.
I saw one of the Fuck Biden flags flying on a car in Charleston, SC a couple of weeks ago. I find the whole thing interesting in the sense that I truly wonder about the mindset that makes the choice to become, as Scott F. says, a public troll. What psychological itch is that scratching?
@Steven L. Taylor:
It’s the need to be significant, and not insignificant.
@Steven L. Taylor:
I think the trolls call it “owning the libs.” That’ll show ’em!
Seriously, these people believe they’re been ignored and silenced by the “elites,” Democratic and Republican, all their lives. They had a taste of power–or so they felt-during the Trump years. Noe they want that back.
@CSK:
It is bizarre and pathetic that they believe they own anyone through actions such as this. It simply hints at how maladjusted and immature they are.
@Steven L. Taylor:
one factor is most prevalent among Trumpers: racial resentment
Whites with diminishing power lashing out? See also: Fuck Your Feelings.
@Sleeping Dog:
Sites such as The Gateway Pundit encourage this. The GP is forever headlining such pieces as “Matt Gaetz Hilariously Owns the Libs” or “Trump Owns the Libs Again–Hilariously.”* Whatever it is, it generally is never even remotely funny.
“Owning the libs” is a phrase I’d like to see expunged from the English language.
*Lucianne.com reposts this GP crapola constantly.
@Steven L. Taylor:
@Michael Reynolds:
Reaction. It’s what they crave. Not actual on the street reaction, but aggressively passive-aggressive drive-by reaction where they believe they are in control.
I grew up under the tutelage of a bi-polar parent.
I understand itching to have it out BAM but not wanting to come out and say it out loud to your face. Experientially, I despise that behavior. If you mean to say something to me then fucking say it. Do not expect me to pull it out of you. I will not. Tired of that shit for life.
Passive sign display without personal commitment itches me hard and deep. Away with that shit!
The scumbags likely won the wing nut lottery — there will doubtless be a gofundme page to collect money for lawyers and “trauma.”
The first amendment concerns don’t bother me. Or rather, I think it’s good that these scumbags have to learn about it and defend it, and I hope the ACLU doesn’t decide to help out. Let Nazis defend their own rights…
@Gustopher:
Do you think Ms. Dilascio and Ms. Dick (pause to snicker) would accept help from a Commie outfit such as the ACLU?
@Teve:
It’s a pity that his voters haven’t figured out that Trump’s bigotry extends to them. He loathes anyone who isn’t himself. Even those who worship Trump fall out of favor with him as soon their interests are no longer his.
@Gustopher:
I hope they do. This is a slam dunk case on appeal. There are multiple cases like this each year–and I mean just like this; flags, the F word, a political context, private property but with a public view. Half the towns and villages that try this shit are turning their ire on liberals, not just “nazis.” The judge has ignored established case law going back half a century, and an appeals court should be given the opportunity to publicly ridicule his decision.
@drj: There’s case law on this that’s literally half a century old. The law is unconstitutional and the judge is a moron.
@Gustopher: @Scott F.: As @Neil Hudelson implies, this is hardly a phenomenon limited to Trumpers or the right. There were plenty of Fuck Trump, Fuck Bush, and even Fuck Reagan signs out there. It’s coarse and unneighborly but it’s established as within the bounds of protected speech.
This seems like an extremely clear case of Judge Bundy being an idiot. A quick google search turns up Cohen v California, 1971, where
That seems like a more convincing argument than having a sign on display, frankly, since Cohen was wearing his speech and walking around with it.
And, @drj, I think the key legal difference with your example is that you can be reasonably asked to broadcast your opinion at a different time of day. In Dick’s case, there isn’t a reasonable recourse for expressing her opinion. If she moves it out of public view, she’s being censored, and it’s an undue burden if she has to remove it from view during specific times to avoid children walking past. Your political opinion would need to be specifically relevant to the the middle of the night somehow (arguing against sleep deprivation as a means of interrogation, for example) to be protected specifically *at that time*. IANAL and all that.
@James Joyner:
I appreciate the signaling regardless of affiliation. A troll is a troll.
I have nothing but ill will for Trump, but there’s no benefit to being so publicly crass. I call for Trump’s indictment in public spaces, while I like to save the more vitriolic expressions for friends.
@Neil Hudelson: if it gets up to the Supreme Court, sure, the ACLU should step in. But for basic legwork slam dunk cases that just need a bit of process hassle, let the Nazis do the work of defending Nazis.
Fuck Nazis.
@Michael Reynolds: Dead on.
I think one dynamic here with this sort of thing is the experience of “you can’t stop me”. You do something that you know is kind of out-of-bounds, and yet nobody can stop you from doing it. It makes you feel powerful.
@Scott F.:
Certainly a pity, but not in the least surprising. Trump is a con man with one schtick: 1) present as a business genius, 2) find a mark that wants to play with the big boys, 3) pretend that he views them as an equal, that they are in this together and together they are movers and shakers who know how the world works, 4) imply, but never put in writing, that they will make money on the scheme if Trump makes money, i.e that interests are aligned and that a famous business genius is going to put all his massive resources behind it, 5) do absolutely nothing to make the scheme work but instead drain the mark for every dime they have.
He successfully transferred this scam into politics. And proved to the world that there are it least 74M marks in the US.
I must be a dickish troll because my truck is a rolling anti trump, anti conservative, anti evangelical, anti insurrectionist bill board.
Funny you should say that, because they are convinced that that is exactly what DEMs have done with Biden.
How?
As for the original subject of the post, it seems pretty cut and dried. A municipality can’t prohibit this. A homeowners group, for better or worse, could.
@de stijl:
“One is just dickish trolling.”
Well, really. What did you expect from someone whose last name is…Dick?
@OzarkHillbilly:
A wise person asked me what was I for. Angry me had to sit and have a think. Angry me was an asshole.
In the honey vs. vinegar debate, I am pro-honey.
@James Joyner:
It’s nice and all that you refer to Cohen v. California, but the applicable legal standard appears to be Miller v. California (1973).
§ 3-8.2 of the borough code is pretty much the Miller test – which is still valid precedent.
Does the judge apply this test correctly? Honestly, I don’t know (especially since the first two prongs of the Miller test rely on community standards rather than a single national standard), but he is obviously not relying on an patently unconstitutional law, as you claim.
Really, you should at least get the applicable jurisprudence right.
@drj:
Joyner jumped to that conclusion rather quickly.
As to outcome, I slightly favor the homeowner because future ramifications towards *actual* protest rather than this turtled up passive-aggressive bullshit might be negatively impacted.
I could understand the opposite too.
A carried sign and a static sign are different and maybe different rules apply. IANAL.
The fact it affixed and currently unavoidable to neighbors. I do not know enough.
@de stijl:
I think this is a very valid concern.
@drj: I’m aware of Miller. As noted in the OP the key is AND. it’s a three prong test and this simply doesn’t meet any but the last, least significant, prong.
@James Joyner:
The word “simply” does an awfully lot of work in that sentence.
Again, the Miller test is as follows:
First prong depends on community standards, second prong on state law, and only the third on national standards.
If I’m guessing, you’re not exactly overly familiar with Roselle Park community standards or New Jersey state law, so there’s no way for you to make that claim.
The only thing that we can reasonably know is that these flags do meet the third prong of the Miller test – which means that there is at least a possibility that we’re dealing with unprotected speech.
(Hence, I’m not sure what you mean by “As noted in the OP the key is AND.” This, in fact, undermines your point – as this is one of the things that actually opens up the shown flags to legal scrutiny.)
Also, “appealing to the prurient interest” involves more than answering the question “Do I get a boner?”
For this, you don’t have to look further than the second prong of the Miller test: “Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions…”
Sucks to be me, I’m all asshole all the time. Not really, but I’ve lost patience with the alternative facts existence, and where ever I go, I’m going to tell them they are full of it. I’m not going to change their minds, nothing I could ever say would.
But I feel like just being a voice for reality here in MAGA land is a discomfort for them. I’m the burr under the saddle, the nagging little doubt troubling their perfect little utopia. I’ve been doing it ever since Ferguson, and while I was certain I would lose some glass in my truck or have it shot up when I left it at a river access, that hasn’t happened yet. What has happened is the innumerable people who have sidled up to me, or stopped at my truck or honked and waved at an intersection or just quietly commented while waiting in line that they appreciated my truck/hat/t-shirt.
All my life, I wanted to fit in and yet I never could. From an early age I was afflicted with a physical malady I hid from the world (nothing serious but it was disfiguring). I was the black sheep of the family, always doing the wrong thing, never looked upon with favor by my father. I was the hood in the smoking area, the person my classmate’s parents warned them about. I did have a few friends, a very few. Most I’ve lost touch with, but I am still in touch with a few miscreants who are dearer to me now than they were then. I went to a school reunion once. Sat off by myself waiting for someone I recognized to show up. By the time they did I was enjoying the furtive looks and whispered comments way too much to out myself and end the “long distance run around.” I had no idea I was such a frightening individual.
All of which just brings me to this: Most people want to fit in. That was a choice I never had. I got used to not fitting in and now I am the asshole who pisses everybody off. I still want to fit in, I always will I guess, but after 63 years I know I never will and I’m long past trying.
It turns out a lot more folks are glad I don’t than I would have ever thought.
@OzarkHillbilly:
Carry on. Be fucking you. Fuck yeah. Party hard.
I don’t retract the honey statement, but you know who you are and have come to an arrangement you like. Yes, fucking, yes!
Thanks for sharing that. Best thing I’ve read this year.
Be you, motherfucker! (I can’t figure out how to devilhorns emoji). Imagine devilhorns here.
@drj:
Prurient refers to “excessive sexual interest”. I think that would fail.
When you hear “Fuck Biden” does anyone think about “ shameful or morbid interest in nudity, sex, or excretion”? Does anyone even think of sex?
@drj: As @Teve (Not to mention the OP) notes, this fails the first two prongs. The third prong doesn’t lower the bar. Rather, it raises it. It only applies if the first two prongs are met (the ‘and’) and then says that it’s STILL not obscene if there is any redeeming value.
@Teve:
Possibly. But much depends on whether the judge reasonably found that the disputed communications (i.e., flags) were also aimed at elementary school children.
The (federal) DoJ says:*
Basically all I’m saying is that if one looks at the correct precedent – Miller (and all related jurisprudence) rather than Cohen – it is far from immediately obvious that the judge’s ruling is “outright moronic” as per the OP.
And I’m not even touching the question whether it would be desirable if the ruling were upheld on appeal.
*See also the judge’s remarks at sentencing:
@James Joyner:
The three prongs of the Miller test are cumulative – i.e. all three prongs must be met. Failing any one of them, doesn’t matter which one, is enough to fail the test.