The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.