Banner for Does a local government ordinance banning the use of obscenities violate the first amendment

By Jay Chatarpaul – July 21, 2021

According to an article on nj.com, Roselle Park Municipal Court Judge Gary Bundy found that Patricia Dilascio, a homeowner, violated a local ordinance by displaying banners in her backyard with the words, “Fuck Biden,” “Socialism Sucks Biden Blows,” “Fuck Biden, Not My President.” Another banner read, “Fuck Biden” with a picture of Donald Trump raising both of his middle fingers. Bundy ordered the homeowner to remove the signs with “profanities”  within a week or face a $250-a-day fine.   Did Bundy’s order violate the homeowner’s First Amendment right of Free Speech?  Most likely.

The First Amendment to the United States Constitution, binding on the states through the Fourteenth Amendment’s Due Process Clause, provides that the government “… shall make no law… abridging the freedom of speech….” Similarly, Article 1, ¶6 of the New Jersey Constitution provides that “[e]very person may freely speak, write and publish his sentiments on all subjects, …[and] [n]o law shall be passed to restrain or abridge the liberty of speech ….”

In Cohen v. California, 403 U.S. 15, 18 (1971), Paul Cohen was observed in a Los Angeles  courthouse wearing a jacket bearing the words “Fuck the Draft, an expression of his discontent against the draft and the Vietnam War.  There were children present in the area where Mr. Cohen was observed wearing his jacket.  Cohen was arrested and charged with violating a local California criminal code which prohibits “maliciously and willfully disturbing the peace or quiet of any neighborhood or person” ‘by [ ] offensive conduct [ ].” He was given 30 days imprisonment. Cohen appealed.

The United States Supreme Court reversed Cohen’s conviction. The Court stated that Cohen’s conviction “quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public.   The only ‘conduct’ which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon ‘speech’ … not upon any separately identifiable conduct….”  As such, the Court stated that “the State certainly lacks power to punish Cohen for the underlying content of the message the inscription conveyed…. Cohen could not, consistently with the First and Fourteenth Amendments, be punished for asserting the evident position on the inutility or immorality of the draft his jacket reflected.” Id. at 18 (citation omitted).

Under the First Amendment, no governmental organization could restrict speech/expression because of “… its message, its ideas, its subject matter, or its content.” United States v. Stevens, 559 U.S. 460, 468 (2010) (quoting Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 573 (2002); see also, Snyder v. Phelps, 562 U.S. 443, 458 (2011)(“’[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.’… Indeed, ‘the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.”(Quotation and citation omitted);  State v. Burkert, 231 N.J. 257, 281 (2017)(“[t]he First Amendment protects offensive discourse, hateful ideas, and crude language because  freedom of expression needs breathing room and in the long run leads to a more enlightened society.”)(citation omitted); Reed v. Town of Gilbert, 576 U.S. 155, 163- 164 (2015)(“ laws that cannot be ‘justified without reference to the content of the regulated speech… are content based on their face, [and must] satisfy strict scrutiny.’”). (citation and quotation omitted).

Content-based Laws

“Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed, supra at 163 (emphasis added); see also, Ashcroft, supra at 660 (content- based regulations are presumptively invalid, and the government bears the burden to rebut that presumption).

Content-Neutral Law

Conversely, “‘[g]overnment regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)(citation and quotation marks  omitted); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984) (“ordinance prohibiting the posting of signs on public property is neutral—indeed  it is silent–concerning any speaker’s point of view.”); Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981) (State Fair regulation requiring that sales and solicitations take place at designated locations “applies evenhandedly to all who wish to distribute and sell written materials or to solicit funds”).

In Reed, , the Court stated that “[a] law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech….In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral.” Reed, supra, at 165-66 (citation and quotation omitted).

Limited Restrictions on Content-Based speech

Certain limited categories of content-based speech are excluded from First Amendment Protection because of compelling state interest. In Stevens, supra at 468-69, which struck down a law banning the making or selling of visual or audio depiction of animal cruelty as violative of First Amendment  free speech protection, the Supreme Court stated that “’[f]rom 1791 to the present,’ … the First Amendment has ‘permitted restrictions upon the content of speech in a few limited areas,’ and has never ‘include[d] a freedom to disregard these traditional limitations”’ including, fighting words, true threats, obscenity, child pornography, defamation, fraud, incitement to violence, and speech integral to criminal conduct.” (Emphasis added).

In Burkert, supra, William Burkett and Gerald Halton were corrections officers. Their relationship became strained after Burkert read online comments made by Halton’s wife that Burkert felt insulted him and his family. Angered by the insulting online comments, Burkert retaliated by downloading the Haltons’ wedding photograph from a social media website. Burkert then copied the photograph and made two flyers, writing on the of the flyer over Halton’s face the following: “I know I’m a pussy with  a  little dick. Don’t do the inmates please Laura.” And over Halton’s wife’s face were the words, “I wish you had a cock like the inmates.” On the second flyer, Burkert wrote over Halton’s face the following: “Fam, I got me another whore.”

Halton filed harassment charges against Burkert under N.J.S.A. § 2C:33-4(c), which provides that “a person …commits a petty disorderly person offense if, with purpose to harass another, he… [e]ngages in [a] course of alarming conduct or [ ] repeatedly committed acts with purpose to alarm or seriously annoy such other person.” (Emphasis added).

At trial, Halton testified that he was offended and humiliated by the writing over his wedding photograph. Id. at 265. Burkert admitted to the writings on the flyers and testified that “’he expressed himself through the flyers rather than ‘get physical with the guy.’” Id at 267. The municipal court found Burkert guilty of harassment in violation of N.J.S.A. 2C:33-4(c). The municipal court concluded that the words written on the wedding photos were  “’lewd and obnoxious,’ and that such language would ‘seriously annoy any person, in this case Mr. Halton.’” Id. at 262. (Emphasis added). The Law Division also found Burkert guilty of harassment.

On appeal to the New Jersey Supreme Court, the local prosecutors contended that “speech or writing used as an integral part of the harassing conduct is not entitled to First Amendment protection. Id. at 269. However, the Court rejected this argument, holding that [t]he language on the flyers, despite its vulgarity and meanness, is constitutionally protected from a criminal prosecution for harassment.”

The Court ruled that the words of the harassment statue is vague and overboard, and as such, “gives prosecuting authorities undue discretion to bring charges related to permissive expressive activities. That, in turn, means that the statute—if not more narrowly defined—has the capacity to chill permissible speech.” Burkert, supra, at 280. (Emphasis added).

The Court stated “[s]peech… cannot be transformed into criminal conduct merely because it annoys, disturbs, or arouses contempt….First Amendment protects offensive discourse, hateful ideas, and crude language because freedom of expression needs breathing room and in the long run leads to a more enlightened society. …. Outside of  the  category of obscenity, courts should not play the role of censor by engaging in a weighing of an expression’s value or ‘relative social costs and benefits.’ Speech cannot be criminalized merely because others see no value in it. ‘The First Amendment generally prevents government from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed.’” There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” Id. at 280-281(emphasis added)(citation omitted).

While obscene speech may be regulated, the State does not have unlimited authority to regulate it. Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 682-85, (1968).

In Miller v. California, 413 U.S. 15 (1973), the Supreme Court “confine[d] the permissible scope of such regulation to works which depict or describe sexual conduct.” Id. The Court stated that a statute prohibiting obscenity must be limited to “works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a  patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” Miller, supra at 24.  The Court went on to give a few examples of “patently offensive:” “Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated”; “Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Id. at 25.

Under the above definition,  the Court stated that ‘no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.” Id. at 27 (emphasis added)

In another case, the Supreme Court held that sexual expression which is indecent but not obscene is protected by the First Amendment. Sable Commc’ns of California, Inc. v. F. C. C., 492 U.S. 115, 126 (1989).

From the article in nj.com., it appears that no conduct or expression of the homeowner falls into any “obscenity” law that can pass muster under the Constitution.  Displaying a banner with the words “Fuck Biden” or with a middle finger raised as an expression of “Fuck” “Biden” is fundamentally no different than a jacked displayed with the message, “Fuck the Draft” which the United States Supreme Court ruled was protected speech 50 years ago in Cohen v. California.

The words as expressed in the banner and displayed by the homeowner were merely words expressing her discontent that President Biden was elected President rather than Donald Trump, which is identical to Cohen. The fact that there are schools around her home, while unpleasant, is not a basis for restriction of free speech, as the Court in Cohen also found that there were children present in the area where Cohen’s “Fuck the Draft” jacket could be seen.

Ms. Dilascio’s display of the words and expression, while unpleasant to the local government, is a price we must pay in order to exercise our First Amendment freedoms. A nation is not a democracy if it permits only pleasant  speech but prohibits speech which it finds distasteful or unpleasant. The fact that the municipal court judge stated that the “case, pure and simple, [is] about language,” further fortifies the argument that the order punishes mere speech (i.e., “language”).  The order of the Municipal Court judge appears to be incompatible with the holding in Cohen.

The author of this article is an attorney in Jersey City who practices in the areas of employment discrimination and constitutional rights. While the author is a Democrat and voted for Joseph R. Biden for President of the United States, he firmly believes that the rights guaranteed under the Constitution transcends politics.

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