"Broke Ass Phone" Wins Right to Have Commercial Sign With Its Name

"Postpositive," not posterior.

|The Volokh Conspiracy |

In Broke Ass Phone v. Boardman Township Zoning Board of Appeals, released yesterday, the Board denied Broke Ass Phone a permit for a sign that contained the business's name. Unconstitutional, said the Ohio Court of Appeals, in an opinion by Judge Gene Donofrio, joined by Judge Cheryl L. Waite:

Appellant's sign is considered commercial speech. Commercial speech is usually defined as speech that simply proposes a commercial transaction. The sign in question here proposes that consumers get their phones repaired at appellant's place of business…. The United States Supreme Court has "afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression." … [Such speech can be restricted if] "seeks to implement a substantial governmental interest," … "directly advances that interest," and … "is no more extensive than is necessary to achieve that interest."

The restriction at issue, Article XII, Section (H)(C)(3), states: "No signs, billboards or advertising device of any kind are permitted which contain statements, words or pictures of obscene, pornographic, immoral character or which contain advertising that is false."

It seems clear that there is a legitimate governmental interest in preventing the township's residents from being exposed to obscene, pornographic, or immoral signs and billboards.

The problem arises here with the word "ass." Does restricting the use of the word "ass" on the Broke Ass Phone sign prevent Boardman's residents from being exposed to obscene, pornographic, or immoral words or statements?

In this case the word "ass" must be viewed in context. It seems clear that the word "ass" as used in the name "Broke Ass Phone" is not at all pornographic.

Thus, we turn to whether it is obscene or immoral. "Obscene" is defined [citing a dictionary] as "disgusting to the senses: repulsive," "abhorrent to morality or virtue," and "containing or being language regarded as taboo in polite usage." "Immoral" is defined as "not moral." And "moral" is defined as "of or relating to principles of right and wrong in behavior."

When we view the word "ass" in context, it is clear that it is neither obscene nor immoral when used on the sign "Broke Ass Phone." In this context, the word ass is not used to describe part of the body and is not in reference to any type of crude or offensive behavior. Instead, the term "ass" when used in a phrase like "Broke Ass Phone," has become commonly used as a slang term to say that the phone is "really" or "badly" broken.

In fact Merriam-Webster's online dictionary contains various similar definitions and uses of the term "ass." For instance: "used as a postpositive intensive especially with words of derogatory implication [as in] fancy-ass" and "often compounded with a preceding adjective [as in] Don't be a smart-ass." Thus, the term "ass" has become somewhat part of an adjective in present-day speech.

Again, the term must be taken in context. Consider if instead of "Broke Ass Phone" the sign referred to the word "ass" as part of the body with some type of lewd or sexual connotation. In this context, the term "ass" could be construed as obscene or immoral. But in the "Broke Ass Phone" context, the sign is simply advertising that the company will fix your "really badly broken phone."

Public notice was given regarding the issue in this case and not a single objection was lodged at the hearing before the board of zoning appeals. Thus, no Boardman Township resident or business owner was offended enough by the use of the Broke Ass Phone sign to bother to voice an objection at the hearing on the matter. And both the director of zoning and development and the assistant director of zoning and development were present at the hearing. Neither the director nor the assistance director presented any evidence of being offended by the sign.

"The State cannot regulate speech that poses no danger to the asserted state interest[.]" The Broke Ass Phone sign poses no danger to the township's interest of preventing its residents from being exposed to obscene, pornographic, or immoral signs and billboards. In this case the use of name Broke Ass Phone on a commercial sign is not obscene, pornographic, or immoral. Simply said, the language used on the sign does not fit into the category of language the restriction was meant to prohibit. Because prohibiting the sign would not advance a substantial government interest, it is unconstitutional to restrict its use….

Judge Carol Ann Robb dissented:

Most people would probably agree that the word "ass" is not by itself pornographic. Thus, the issue is whether that word is obscene or of immoral character. Neither obscene nor immoral character are defined in the zoning resolution. Obscene is commonly defined as offensive or disgusting to the senses. Immoral character is ordinarily defined as evil or bad character.

Given the definitions stated above, the word "ass" can qualify as obscene. While some people do not find the word offensive, there are many reasonable people within the community that do find the word offensive. The BZA was within in its power to deem the word offensive.

Furthermore, I disagree that we have to view the word in context and when doing so, that indicates the name "Broke Ass Phone" cannot be found as a matter of law to be either obscene or immoral. If context was all that was necessary, then if the company's name was "Fucked Up Phone" that would be sufficient to require that name to be allowed on a sign as commercial speech. Similar to the phrase "broke ass," the phrase "fucked up" also means "badly" or "really" broken.

Moreover, Appellant did not meet its burden given the standard of review. It provided no evidence that the word "ass" in its name is not offensive. It was Appellant's burden to demonstrate the word "ass" as used in its name was not offensive. It could have submitted evidence through affidavits or testimony from residents that it did not find the name offensive. However, no such evidence was offered. Instead, it relied on the absence of objections at the public hearing. The absence of objections does not necessarily mean the name was not offensive….

I think the correct analysis would have been that, even if "Ass" is viewed as offensive (because it's a mildly vulgar reference to a butt), that would not be a basis for restricting otherwise protected speech, including commercial speech. As the Court held in Bolger v. Youngs Drug Prods. Corp. (1983) (a case involving contraceptive advertising),

[O]ffensiveness [is] "classically not [a] justificatio[n] validating the suppression of expression protected by the First Amendment. At least where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression" [citing, among other cases, Cohen v. California, "the Fuck the Draft" case].  We [have] specifically declined to recognize a distinction between commercial and noncommercial speech that would render this interest a sufficient justification for a prohibition of commercial speech.

And if this reminded you of Todd Levitt, Badass Lawyer (though his First Amendment issues were different from this one)—well, you're not alone.

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  1. Barbara Streisand called and wants her lawsuit back.

  2. I also wondered about “fuck.” Fuckin’ Good Coffee quite clearly conveys that “The coffee you buy here will be extremely tasty.” and nothing to do with any message regarding the way mommy and daddy give each other special hugs.

    The “context matters” approach is problematic. It seems that a sign for “Anal-Retentive Therapist” would be fine, while a sign across the street for “Anal Sex Toys” would not. (Nor, presumably, would a sign for “Anal-Retentive Sex Toys.)

    What about “The Slants Record Store”? What about “The Slants Chinese Restaurant”? If it’s okay to have a Niggaz Wit Attitude hip hop store, is it also okay to have a Niggaz Suck store? Or even a Niggaz Unwelcome store?

    I keep looking for a bright-line rule. But it’s easy to think of a dozen counter-examples where I think the “right” ruling would go the opposite way. I find this a *really* confusing and incoherent area of law . . . at least when it comes to local enforcement of zoning/advertising laws.

    1. (I assume that it was not necessary to explicitly state the “Arrested Development” Analrapist reference.)

    2. There’s a real good and practical bright line:government butt out,let the public decide by patronizing or boycotting the store. In extreme cases, the public would probably deface or burn down the store.

      Any store named Niggaz Wit Attitude would probably lose some customers and gain others in equal amounts initially, with further business depending entirely on their actual customer satisfaction and word of mouth. Any store named Niggaz Suck would probably lose too much business to make up for the little they gained.

      Real simple. Let the investors choose the name, and let customers choose (or not choose) the business.

      1. And in the most extreme obscene cases, where most of the public is disgusted and wishes the store would burn down, the store owner would probably find it hard to get insurance, and the public might burn the place down, or steal the signs, or otherwise make the business unprofitable.

        It’s not at all hard. Just get government out of social problems. It’s none of their business.

        1. Actually, the government would have an obligation to protect the store against vandalism.

          That’s required both under the Heckler’s Veto doctrine and the equal protection clause.

          But your milder market hypotheticals- that people just won’t patronize a store with an offensive name- seem correct to me.

          1. Of course the government is obligated to protect the store, but only in the general sense, ie, to investigate crimes after the fact. I suspect drive-by vandalism, possibly including shooting and Molotov cocktails, might happen in the most extreme cases, and be pretty hard to track down. Adding their own security guards and video systems would just make them even more unprofitable.

            The public always has the final say.

            1. Why do you prefer censorship by Molotov cocktail to a system where the government decides, through legal channels, which signs are allowed and which aren’t? Certainly the Molotov cocktail doesn’t have to reflect the views of “the public” — just of one thug. And the Molotov cocktail causes much more possible damage, including to innocent third parties, than does a legal proceeding.

              I can see why we might prefer that the speech not be suppressed either by governmental force (backed by the threat of violence) or by private violence. We might even applaud private nonviolent refusals to patronize, whether organized or just the aggregate of individual, unrelated decisions. But why should we prefer private violence here over governmental decisionmaking?

      2. “Any store named Niggaz Suck would probably lose too much business to make up for the little they gained.”

        Not necessarily, especially in America’s can’t-keep-up — rural or southern — communities.

        Redistricting programs by that name are demonstrably popular in states such as North Carolina, for example, as are voter suppression programs by that name in Georgia.

    3. Since there is no brightline standard for obscene, and “being white is okay” is deathly offensive to a large percentage of under 30s in this country, and their offense is deathly offensive to a large swath of over 30s, I don’t think you’re going to find the kind of clear guidance you’re looking for.

  3. Wow. Glad the Township has the taxpayers money to waste on stupid crap like this…

    https://images7.memedroid.com/images/UPLOADED682/58a45aed84f1a.jpeg

  4. The law is an ass. And sometimes it needs fixing.

  5. I think the correct analysis would have been that, even if “Ass” is viewed as offensive (because it’s a mildly vulgar reference to a butt), that would not be a basis for restricting otherwise protected speech, including commercial speech.

    I completely agree. Although they concern another subject, that’s also the import of the recent trademark cases involving “offensive” trademarks.

    The lessened scrutiny for commercial speech regulations concerns false and misleading speech. It’s a consumer protection doctrine- essentially, while a false campaign ad might receive constitutional protection, or a false statement that one has won military honors, a false advertisement for a product shouldn’t receive it.

    But once we get out of the realm of consumer protections and into other realms, commercial speech should be treated like any other speech. For instance, if a commercial advertisement is prosecuted as an incitement, it should be protected under Brandenburg v. Ohio. If a commercial advertisement is banned on the grounds that it provokes a fight, it has to fall within Chaplinsky.

    And a commercial advertisement may only be restricted based on alleged obscenity if it meets Miller v. California and Paris Adult Theater.

  6. Wow, Carol Ann sounds like a blast at parties….

  7. If you’re looking for a home ceiling fan or a large ventilation fan for an industrial application, the Big Ass Fans company would be your source. Well known in the industry and HQ’d in Kentucky since 1999.

    https://www.bigassfans.com/

    1. I, too, am a big ass-fan.

  8. “‘If the law supposes that,’ said Mr. Bumble, squeezing his hat emphatically in both hands, ‘the law is an ass – an idiot. If that’s the eye of the law, The law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience – by experience.”

    — Charles Dickens, Oliver Twist

  9. ‘Broke ass’ can be legal – – – – –
    Poor donkeys everywhere sigh in relief.

  10. Judge Carol Ann Robb – ” It was Appellant’s burden to demonstrate the word “ass” as used in its name was not offensive. ”

    Mayhaps I’m wrong here, but isn’t the burden of proof supposed to be on the state, or in this case the municipal zoning board? And it seems that they couldn’t actually come up with that proof, other than their own broke ass indignation.

    1. Yes, you are wrong.
      The burden of proof has been shifted to the victim, in order to enrich the state and keep the prosecutors from having to actually prove anything.
      See asset forfeiture et al

      1. Yeah, that sounds about right.

  11. I think we can “credit” David Letterman for popularizing the “A-word” on his late night TV show, viz. huckstering the fictitious product, “Big A** Ham.”
    Note that I consider the “A-word” to be vulgar, crude and offensive because of its association with, well, offensive speech generally used just because it offends others. Deliberately offending people seems to me a good reason to declare some words as unfit for common public usage. I find it reprehensible that such speech is now forced onto the public simply because some people are NOT offended by it.

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