Free Speech

$250/Day Fine for Displaying "Fuck Biden" Sign at Home

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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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  1. I seriously doubt that the creator of that sign seriously intends for anyone to attempt sexual intercourse with the President so I agree that the “describes sexual conduct” element of an obsenity charge is pretty obviously missing here. And I find it incomprehensible that anyone could consider this anything other than political speech. Whether the political value is “serious” is a judgement that I don’t think the courts are allowed to consider. In short, I think the homeowner may be in for a windfall when they win their eventual malicious prosecution suit.

    1. And I find it incomprehensible that anyone could consider this anything other than political speech.

      Really? Any consideration for time, place and manner, and how it might affect meaning? Put that display on the side of your barn somewhere rural, and you probably have it right, it’s political. Put it on a fence across the street from a suburban elementary school and it raises questions about sanity, and maybe dangerous anti-social tendencies.

      Note that I make that judgment based on time, place, manner, and not on political content. Put Trump’s name in for Biden’s, and the argument would be the same.

      In the second instance, in the suburbs, would it be reasonable to force the neighbor next door, who has his house on the market, to take the hit to value which that display would reasonably be expected to deliver, whether the name being attacked was Trump’s or Biden’s?

      I suppose you could argue to the contrary, that any prospective buyer is entitled to the warning about a neighbor’s disordered state of mind, but that seems farther outside the court’s purview than deciding the question on the basis of actual monetary damage.

      Maybe a better approach would be a regulation on the size and number of political signs, but libertarians probably don’t like that one either.

      By the way, I don’t think, “Fuck the Draft,” on a jacket is at all comparable as a public imposition to the sign display depicted. Exposure to the jacket will be transient and occasional, at worst. Political meaning dominates every other interpretation of the jacket.

      The yard display is not as clear cut. For neighbors and their visitors, it will be unavoidable. Obscene meaning peeks out obtrusively from, “Socialism SUCKS BIDEN BLOWS.” “FUCK BIDEN AND FUCK YOU FOR VOTING FOR HIM,” has overtones of personal threat which are completely absent from, “Fuck the Draft.”

      I suggest Mr. Justice Harlan’s analysis is a bit too lah, de, dah, to connect with the facts shown in this case. Not sure I wouldn’t go along with Harlan anyway, but I don’t think it is as clear cut as you say, Rossami.

      1. You really want to be in control of other people’s speech, don’t you.

        1. In every context, he comes down on the less speech side. Every one.

      2. Maybe we don’t just cancel people’s speech because we think they MIGHT be a danger? Maybe we reserve punishment for people who ACTUALLY harm other people? Maybe we step back and realize that even if your pop psychiatric evaluation of this guy is true, punishing him and making him take down the signs might actually be MORE likely to make him lash out?

        Also “would it be reasonable to force the neighbor next door, who has his house on the market, to take the hit to value which that display would reasonably be expected to deliver” Yes. Yes it would. Because any value a person creates for their neighbor by keeping their house in some hypothetical ideal state is value that they created and therefore the neighbor has no claim on in the first place.

      3. What if the sign instead said “I support Biden”? Would you still say that TPM considerations could make it illegal? How about if it were just an American flag? Or as I see all the time in the city I live in a Mexican flag? How about a yard sale sign? Would all of those be subject to the same time, place, manner restrictions?

      4. You say you are not concerned with the politics of the message. But you surely realize that you are urging a content-based restriction. It would not devalue a neighbor’s property if it said, “Support Biden.” Its placement by an elementary school would not be problematic for you if, again, it said, “Support Biden.”

  2. He could always change it to “Fuck Biden and fuck Judge Bundy”

    1. How many holders of Fuck Trump signs have been fined $250/day? Despite the lying judges protest, the decision is political oppression.

    2. Of course the judge enjoys absolute immunity….

      Why? because he says so.

      1. Well, he and the Supreme Court.

  3. [Quoting NJ.com] “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* [emphasis added] lacks any serious literary, artistic, political or scientific value.”

    According to the link, the ordinance says “and,” not “or.”

    If it said “or,” that would cause some additional constitutional litigation, on top of what the municipality has on its hands now.

  4. It’s municipal court in NJ. I’d be more surprised if the judge got it right.

    1. Yeah; these are not the people who graduated in the top 90% of their law school classes.

  5. Less-than-tolerant, less-than-modern, imperfectly educated, reason-averse citizens with evidently limited vocabularies, poor taste, and positions on the wrong ends of the culture war and history have rights, too.

    1. We agree, you do have rights, Artie. Even though your bigotry would cause you problems in the real world.

      1. How is that ‘liberals are the real bigots’ argument working out for racist, gay-bashing, misogynist, xenophobic clingers, buckeup? Is that the one that is going to reverse the tide of the culture war and finally make you guys competitive in national elections?

        1. No one is saying that all ‘liberals are the real bigots’ – we’re saying that you are the real bigot.

          1. ” No one is saying that all ‘liberals are the real bigots’ ”

            You must be new here, so welcome!

            You seem somewhat dense and uninformed, too.

    2. Arite. Youe personal insults are offensive. You need to pay $250/day until you retract them.

      1. I am sure AK saves enough on rent by living in his mom’s basement that $250/day would be easy enough for him to come up with. If you count Monopoly money, that is.

    3. Many long term readers would describe your comments and diatribes to be exactly what you described. Look in a mirror and don’t cast stones when you have built a crystal palace of impudence and intolerance.

      1. I neither like nor appease bigots. That seems to rile many fans of the Volokh Conspiracy.

  6. Not to mention the word has become far more common since that case was decided in 1971 50 years ago, the year before George Carlin started doing his “Seven Dirty Words” routine.

  7. Would it have been OK in Roselle Park, NJ if the sign said “Fuck Trump”?

    1. No, because it would have been too mild.

    2. That is totally different. An absolutely unrelated case because, um, reasons.

  8. How does a judge miss 50 years of development from “mostly free” to “pretty much completely free” on this issue?

    1. HOW DARE YOU ASK!

      He’s a JUDGE! Absolute Master of his domain!

  9. The woman who lives in this house (she’s 55; the property is owned by her parents) and posted the signs complains that people have left voicemails for her she describes as “very inappropriate.”

  10. Let’s see how quickly the ACLU rushes to this homeowner’s defense.

    1. If they do, they’ll issue a press release about their long and proud history of defending Nazis and Klansmen.

      1. In response to Republican press releases lauding a long history of defending Confederate monuments, race-target vote suppressors, superstitious gay-bashers, immigrant-hating sovereign citizens, and other elements of the bigoted clingerverse?

  11. Perhaps the sign is misunderstood.

    E.g.,

    On a toilet stall at my college, someone wrote, “Fuck all Americans!” Underneath that, someone else wrote, “If you hate Americans, get the hell out of the country!” And underneath that, the first guy wrote, “I didn’t say I hated them — I said I wanted to fuck them.”

  12. ‘ It defines obscenity as material that depicts or describes sexual conduct or lacks any serious literary, artistic, political or scientific value.’

    Errr, Fuck Biden seems predominantly political to me. And he might seriously mean it.

  13. maybe Cohen was wrongly decided

    1. I think it was.

      The Jehovah’s Witnesses children who refused to salute the flag were brave and sincere. (Minersville School District v. Gobitis, 1940.) Paul Robert Cohen was just an immature jerkoff. Stevens, whose death is memorialized by Josh today, pointed out that no idea requires profanity to express.

      1. It’s not “Congress shall make no law abridging the freedom of mature, well-articulated speech…”

  14. So “Corn Pop and the Ho have got to go” sign would be fined? boorish and crude for sure but its your opinion which you can have on your property. Unless threatening physically someone, I don’t see how the Italian American Citizen could be fined…its called liberty buddy

    1. Tip: Prof. Volokh has expressed disapproval of use of the terms “boor” and “boorish” at this blog, at least when used with respect to conservatives.

      (This information could be useful to those wishing to avoid the wratch of the Volokh Conspiracy Board of Censors.)

  15. No. Cohen was right and this judge is wrong. I’m a strong supporter of Biden, but it’s bewildering to me that any judge could screw up an easy case like this. I think a lot of people, apparently including Judge Bundy, have trouble with the use of the word “fuck” in a public place.

  16. 1-A is a wonderful thing.

    This could only happen in the People’s Republic of NJ. 🙂

  17. Playing devils advocate, Cohen reads:
    Held: 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.

    One could, I suppose, argue that since this is a civil penalty instead of criminal, the fine could theoretically hold. This would of course fall apart on fuller reading of the decision where it says he could not be punished.

    The signs are stupid and cringy, but they should appeal and prevail in their right to be stupid and cringy.

  18. Under FCC v Pacifica, this language would be “indecent” as opposed to “obscene”. According to that ruling, the FCC may regulate indecent material, but may not prohibit it outright. Obscene material has no first amendment protection (or at least it didn’t in 1978) so it may be prohibited outright.

    It’s possible that the municipality could pass a law that regulates indecent material that would pass constitutional muster. But the law in question as I read it does not, and since this sign is not obscene the homeowner should win on appeal.

    And it really doesn’t matter whom she is encouraging others to fuck.

  19. I think the bigger issue is how pathetic your life must be to hang up signs like these (or any for/against a politician.)

  20. The woman who hung these signs was named Andrea Dick. As Scott Greenfield wrote, even a dick is entitled to free speech.

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