Free Speech

$250/Day Fine for Displaying "Fuck Biden" Sign at Home Dropped, Thanks to ACLU of N.J.

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Rebecca Panico (NJ.com) reports:

Roselle Park voluntarily dismissed its case in Superior Court on Tuesday against a borough homeowner who hung anti-President Biden flags with the f-word on her fence.

The American Civil Liberties Union of New Jersey was representing the homeowner, Patricia Dilascio, and her daughter, Andrea Dick, in their appeal to Superior Court in Union County. A municipal court judge earlier this month ruled the homeowner had violated a local obscenity ordinance and ordered them to remove the signs with the f-word—or else pay a $250-a-day fine.

Glad to hear it; I copy below what I wrote about the case two weeks ago.

[* * *]

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. If he really wanted to get under a the left’s skin these days, rather than f*ck Biden as a main go-to sign, he’d have “The 2020 presidential election was rigged” or something. And you know what, obscenity wouldn’t be a problem, from him at least.

    1. Nah. We’d just snicker and say “another Trump nut.”

      Last week I was driving in West Texas and passed a car whose owner had spray painted all over the car “the election was stolen” “Trump won overwhelmingly” and other similar comments. Not only was I not pissed off; I giggled about it for most of the rest of the day.

      1. Regardless of the nonchalance, that response is kinda proving my point.

        1. I don’t see how that proves your point, but whatever.

          1. Of course it proves his point! You have to remember that the response you wrote and what made it through his eyeballs and into his brain are not only not necessarily the same, they aren’t even necessarily related to each other.

      2. Then you are in the minority, my friend.

        I would refer to the “it’s okay to be white” scandal, where sheets of computer paper with the most inoffensive phrase possible was considered and responded to like it was hate speech

        1. the most inoffensive phrase possible

          You know how Prof. Bray just posted something at the VC this week which could be boiled down to, “Context matters”? Well, context matters.

          1. There’s a context in which it’s not okay to be white?

            1. There is a context in which saying “It’s okay to be white” is not intended as an innocuous observation. But you knew that, and were just being a wiseass.

              1. Then you admit there is also a context in which saying “It’s okay to be black/brown/yellow/red” is hate speech.

              2. “There is a context in which saying “It’s okay to be white” is not intended as an innocuous observation.”

                The only context I’m aware of that the phrase is used in is to bait authoritarians into behaving as if they don’t believe it’s OK to be white, and it’s been remarkably successful at that.

                Of course, many of these folks are the same folks that offer trainings on how to be less white, or teach children that whiteness is a deal with the devil.

            2. “There’s a context in which it’s not okay to be white?”

              When mom comes in and asks, “who’s made this mess playing with the typing correction fluid? Was it you?”

        2. Ben, I’m not familiar with the scandal to which you refer so I will take your word for it that the facts are exactly as you report then. What does that have to do with either a fuck Trump or a fuck Biden sign, which is what we were actually discussing?

          And this is an example of the worst aspect of what aboutism. Your what aboutism isn’t even on point to what we were actually discussing. But if you can find something that someone on the other side did that’s bad, that’s enough for you.

          Jesus, is what aboutism and changing the subject really all you guys have?

      3. “Nah. We’d just snicker and say ‘another Trump nut.'”

        Doing that already.

  2. One needs to remember, in New Jersey the Municipal Court Judge is appointed by, and removable by, the governing body of the municipality. So, the judge who wrote the opinion that justified the fines knew his seat on the bench depended on remaining in the good graces of the local PTB.

    Many years ago, I had the opportunity to read the transcript of a municipal governing body meeting’s executive session, where the pending reappointment of the municipal judge was discussed. The first question among the governing body’s members was “does he support the police?” [Satisfied the incumbent did, they reappointed him.]

    Then the homeowner here took her appeal to the Superior Court, where the judges are appointed by the Governor with the advice and consent of the Senate. Their jobs are not subject to the whims of the local pols. And the CLU (looking to burnish its image) stepped in. It was plainly obvious the municipal court was way, way wrong – the CLU’s spokesperson was quoted along the lines of “this is an easy case [for our side]”.

    And, I’m sure, the municipal attorney’s opinion letter to the governing body (on whether to fight, settle or dismiss) was persuasive enough (especially now that the CLU was involved) that the mayor authorized dismissal. That the mayor had endured some level of humiliating mockery for partisan trashing the Constitution surely added to the weight in favor of voluntary dismissal. I wouldn’t be surprised if there were phone calls from Trenton – directly or indirectly – telling the mayor to knock it off.

    And, now, the homeowner intends to sue. Looking for a lawyer, maybe.

    What did this episode prove? The a lot of office-holders view their oath to support, uphold and defend the Constitution of the United States and the Constitution of this state as so many magic words required to be incanted as a condition precedent to getting on the sweet, sweet public payroll. And that there’s no limit to the stupid behavior of municipal pols.

    1. Local governments not giving a hoot about the Constitution is actually one reason having the ACLU around is good for society.

      Often times, there doesn’t even have to be a lawsuit. A letter gets the local officials to back down.

    2. A legal opinion on the homeowner’s likelyhood of winning such a suit?

      1. probably not, because this is an eminently losable suit.

      2. She wins on the contention that she was wrongfully prosecuted, but her damages won’t cover the cost of the lawsuit. Plus, it is my understanding, and I could be wrong, that to sustain a malicious prosecution lawsuit for a wrongful non-indictable prosecution, one must show special damages, such as a deprivation of liberty or property, or that one was placed under arrest.

    3. This is a big screed, but there’s no evidence here that this was anything other than garden variety ignorance. Municipal judges in NJ are just random local lawyers who happen to know the right people — not in a big smoke-filled-room political way, but in a small-town-society way — and get a nice part time gig out of it. This particular judge is a real estate lawyer who likely hasn’t thought about the 1A since he graduated from law school 39 years ago.

      1. Perhaps, except the 1st Amendment was raised in defense. One would think that the judge would do a bit of research before completely embarrassing himself. The original opinion reads like the rantings of an ignoramus.

        1. One would think that if one didn’t know that a municipal court judge doesn’t have clerks and doesn’t do research. The jurisdiction of these courts is limited to such things as traffic tickets and local code violations. A complainant speaks, the defendant states his defense, and then the judge announces his decision. It’s like expecting Judge Judy to do legal research before ruling.

          1. According to the original article, it appears that the borough attorney did argue (unpersuasively, and awfully close to the border of frivolity) in favor of finding that the sign was unprotected obscenity:

            Jarrid Kantor, the borough attorney, argued in filings read aloud in court that freedom of speech is not an absolute right since some forms of unprotected speech may be subject to “reasonable limitations.” Kantor implored the judge to consider whether the average person applying “contemporary community standards” would find the signs obscene, which is what the ordinance also states.

            “Mr. Campagna gets to the heart of the issue,” Kantor said. “He says, what’s obscene in the 1800s? What’s obscene in the 1850s? What’s obscene now? What’s obscene then? That’s why there is no defined term.”

            1. This was intended as a reply to DMN’s next comment.

          2. “It’s like expecting Judge Judy to do legal research before ruling.”

            Judge Judy is a television personality. She doesn’t even have to listen to both of the parties! and often doesn’t.

      2. And what would be the municipal prosecutor’s excuse for litigating this case?

        1. Prosecutor? If this is like most smaller NJ towns with which I am familiar, the code enforcement officer acts as a complainant; there isn’t a prosecutor per se. There will be a municipal attorney, but he generally handles things like zoning issues. Checking — yes, that’s what Roselle Park has. A part-time municipal attorney who handles that sort of work for like 25 different towns.

        2. “And what would be the municipal prosecutor’s excuse for litigating this case?”

          It’s his job? That’s what they pay him for?

  3. I presume that if “Fuck Biden” is appropriate (And, following the logic of “Cohen,” it is legally fine.), “Fuck all n*ggers” would also be fine.” Or, “N*ggers not welcome in this town.” is also fine. Neither would be considered ‘fighting words,’ after all…not aimed at any particular person or family, no threat of imminent violence (or, any future violence, for that matter), etc..

    I think I might have distinguished Cohen from this case. Cohen was in a public place, where anyone who wanted to avoid having their delicate sensibilities offended could leave that location. But a sign is permanent, in the sense that it’s unavoidable if you live nearby, if your kids’ school bus travels down that road everyday, and so on.

    I think there is no doubt that if this nasty woman had put up signs saying, “Screw Biden” and “Biden won in a rigged election” and “Biden is a terrible president,” then there would have been no controversy at all. I’m not sure I see a constitutional problem with a rule saying, “You can wear a “mobile” banner [eg, t-shirt, jacket, baseball cap] that says really offensive things…even about a particular person. But for stationary signs, it’s okay to bad certain words…even while permitted essentially the same messages to be conveyed using non-banned words.”

    Yes, of course, I *do* understand that “Fuck Biden” is NOT the same message as “Screw Biden.” Certain offensive words carry nuanced extra meaning…that probably why they are “forbidden” or verboten words, after all. And I absolutely believe that people should be free to express their “Fuck Biden” sentiments. Publicly. But, maybe not in every single iteration they want…maybe there can be some limits on the where and when, that will still allow for robust free expression, without forcing our very young kids to look at Fuck, and Shit, and Nigger, and Kike, and Fag on a daily basis?

    I’m not sure I disagree with the court’s decision–I wrote the above off-the-cuff, and I’m open to thoughtful posts changing my mind on this issue. I can’t help thinking that the next series of signs will come from one of this woman’s neighbors, and now the area will get to see all the signs saying, “Fuck Patricia Dilascio” right across the street from (or next door to) Mrs. Delascio. Or “Patricia is a Cunt” or “Patricia is a Bitch.” All fully protected opinions. But, man; I really see neighborhoods going downhill fast…esp when neighborhoods have a mix of religious or political opinions.

    1. “…okay to bad certain words…” = ‘okay to ban…’

      “We need an Edit button.” Request 174. 🙂

    2. Care to estimate how many times “Fuck Trump” was publicly posted?

      1. All you had to do is read reddit to see how vulgar the left is in words or pictures. What makes it more fun is suddenly the pictures sub banned all political pictures post Jan 5

      2. Ed,
        My guess is: Many many times. My analysis is the same. On public streets, I’d give greater latitude to ban those “George Carlin”-type words from permanent signs.

        The old joke about a conservative = a liberal who’s been mugged, may apply to me here. Now that I’ve been buying houses for a few decades and then renting them out, I do spend more time thinking about the character of neighborhoods. So, I guess I have moved away from my “100% free speech absolutist, 100% of the time” position that I held in the past.

      3. Well, there was that one time when some idiot posted it on a website, way back on July 29, 2021.

    3. “I think I might have distinguished Cohen from this case. Cohen was in a public place, where anyone who wanted to avoid having their delicate sensibilities offended could leave that location.”

      People don’t have to go to courthouses?

      I would say that by your own argument this lady has a better claim than Cohen did. It’s a lot easier to go down a different street to school, or to look the other way when the school bus passes, than it is to avoid going to a courthouse if you have business there.

      “I presume that if “Fuck Biden” is appropriate (And, following the logic of “Cohen,” it is legally fine.), “Fuck all n*ggers” would also be fine.””

      The only difference I can see is that the ideas expressed by “Fuck all niggers” are more objectionable than those expressed by “Fuck Biden”. Which gets to the point of Cohen’s statement that

      “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.”

      1. It probably would have been more convincing to do what the judge here did, and just ignore Cohen.

      2. People don’t have to go to courthouses?

        I mean, I do, but I’m a lawyer. Very few other people do. And virtually all of them adults.

        I would say that by your own argument this lady has a better claim than Cohen did. It’s a lot easier to go down a different street to school, or to look the other way when the school bus passes, than it is to avoid going to a courthouse if you have business there.

        Except it wasn’t posted in the courthouse. It was on a guy’s jacket. Except for the handful of people in the hallway at one particular time that this guy was in there, they would not see it. Whereas if you live on the street, you — and the kids who live on the street — can’t just “go down a different street.”

        I think her free speech rights prevail, but I think her case is much weaker than Cohen’s.

        1. “I mean, I do, but I’m a lawyer. Very few other people do. And virtually all of them adults.”

          1. The non-lawyers in courthouses aren’t there for fun.

          2. She’s on her own property.

          3. Kids hear “fuck” all the time. Usually from each other.

          1. “3. Kids hear “fuck” all the time. Usually from each other.”

            Maybe yours do. But you’re generalizing from there to all the other ones, whose parents refrain from cussin’ around their kids.

          2. “2. She’s on her own property.”

            If she posted the signs facing inward, towards her own property, so that nobody could read them unless they were on her property, then nobody would have a complaint about what’s written on the signs. If two people have sex on their front lawn, is “but we were on our own property a defense against the public lewdness charge? If someone entertains themselves by making obscene phone calls, is “but I called from my own house” a valid defense?

            When (not if) some person comes and vandalizes her signs, I hope they do it with paintball guns because A) I wouldn’t want them to have to trespass on the property and B) using a regular old, lead-broadcasting gun might get somebody hurt.

        2. Erznoznik resolves this case even if Cohen doesn’t. The neighbors to the drive-in couldn’t go down another street. But they could avert their eyes.

        3. “People don’t have to go to courthouses?

          I mean, I do, but I’m a lawyer. Very few other people do. And virtually all of them adults.”

          I made a number of trips to the courthouse, because I was involved in a lengthy custody dispute with my ex-wife. Which meant that my daughter made a number of those trips to the courthouse with me.
          Every year, she’d file a petition to rehear the custody matter, and every year, I’d get re-assigned sole custody. When things didn’t go her way at on of those, she told the judge to “bite her”, which DID get the clerk to push the little button that makes all the sheriff’s deputies come running to the courtroom.

    4. “I’m not sure I see a constitutional problem with a rule saying, “You can wear a “mobile” banner [eg, t-shirt, jacket, baseball cap] that says really offensive things…even about a particular person. But for stationary signs, it’s okay to bad certain words…”

      One practical problem is that just moves the question to ‘how long can I park my van before the sign on it changes from mobile to stationary’. I know I have seen ‘billboard trucks’ with commercial messages parked in prominent locations, presumably because there is some restriction on signs.

  4. In this particular case, the question was not whether there might be an ordinance drawn to prevent the homeowner’s behavior (who knows?). The question was whether she’d violated a specific obscenity ordinance, to which apparently the answer is “obviously not.”

  5. SMH….Only in the People’s Republic of NJ. 🙂

  6. Will nobody think of the poor children, whose eyeballs might be damaged from reading 4-letter words?
    Not the adults, obviously, it’s too late to save them, but the poor little dears who have never seen the word “fuck” printed out.
    I have an 8-year-old niece who has to ask her mother “is that a bad word?” when watching movies.

    1. I know you are being sarcastic, but my wife called the police when anti-abortion protesters were hanging around a clinic with signs with pictures of ripped up babies, because kids would see it.

      They said there was nothing they could do.

      So there’s much worse protected out there than fuck.

      I wonder if someone saw it, passed out from shock, and died hitting their head. Wasn’t there a lawsuit against Maxim or FHM or some men’s mag where a teen girl did just that when seeing a horrid picture?

      Damned if you do. Damned if you don’t. Lawyers enyacht either way.

      1. “They said there was nothing they could do.”

        Wow, the cops know the law better than a municipal judge.

        1. Assuming the dialog quoted was accurate. More likely, the actual response is similar to “We don’t feel like wading into that one, so we aren’t going to.”

  7. Well, the ACLU is occasionally useful. One hopes they’ll get back to their original remit.

  8. Seems like either a Constitutional free speech or Tourette’s profane uncontrollable speech defense could have been successfully mounted by the ACLU in this case.

    1. “Tourette’s profane uncontrollable speech defense ”

      This was a sign (actually several signs) posted on a fence. Does Tourette’s create an uncontrollable urge to hang signs with four-letter words?

      1. Pedantry is often uninformed and, worse, miserably unimaginative.

        What I said was for fun, but let’s go ahead and get tangible:

        If I were to post a string of vile epithets to or about you on a virtual internet platform on account of an uncontrollable pique stemming from a disorder, how would that be so different than posting swear words to or about you on signs I tape to a wall?

        1. Miss
          (Since we’re taking this seriously.) If you posted something under the throes of some disorder, I presume you were able to remove it when the symptoms passed.

          (Unless you had posted here at the VC, of course, since this particular singular website gives us zero ability to edit or self-censor after-the-fact, etc. In my limited experience posting stuff on photography websites, Facebook, legal websites…there’s almost always an ability to change or take down what you have previously written.)

          1. Well, you COULD contact the proprietor and ask to have a comment removed.

            1. Fair point. Of course that’s an option. (My guess is that EV and some of the other conspirators who follow comments on their posts would be likely to honor such a request. Other conspirators apparently post and then ignore comments, so a request to them will probably be ignored or will fly under their radar.)

  9. It is important to remember that downscale, bigoted, rage-filled, right-wing misfits still living in a parent’s house past age 50 have rights, too.

  10. “the homeowner, Patricia Dilascio, and her daughter, Andrea Dick”

    Talk about jokes that write themselves.

    1. Andrea? I thought her name was Anita.

  11. What would happen if someone posted “Fuck Hunter Biden’s laptop”? My guess is that “Fuck” would be allowed, but not the rest.

    1. Eric,
      I don’t get it. Why would everything else be disallowed? I’ve seen literally hundreds of posts, Fox News headlines, etc., that have mentioned it.

      Are you making a joke? Or trying to make a serious point? I can’t tell . . . seems like gibberish to me.

      1. Poe’s law in action.

      2. “seems like gibberish to me.”

        Your initial impression is most likely the correct one.

  12. Pretty clearly the right decision on appeal, and a completely clueless and likely expensive decision by the first judge, no matter what your opinion of Biden may be.

    Or how much you would like to engage in sexual intercourse with him, for for that matter.

    Cheers for the ACLU.

  13. Of course, had this house been in a homeowners association, the defendant would have no recourse at all. HOAs can tell you what color your curtains have to be and ban all signs.

    At what point does a HOA become a “government”, subject to 1A and other limitations? My reading of the law seems to be “almost never” but there seem to be some exceptions. For instance, a HOA nearby has rules requiring homeowners to be “Christians”, and the suit against it seems to be getting some traction, although it’s been in litigation for several years now and unclear what the final resolution will be.

    1. “HOAs can tell you what color your curtains have to be and ban all signs.”

      Only if you have ceded this authority to them.

    2. “a HOA nearby has rules requiring homeowners to be “Christians”, and the suit against it seems to be getting some traction, although it’s been in litigation for several years now and unclear what the final resolution will be.”

      The “Prosperity Gospel” and the Trump supporters like to call themselves “Christians”, so this is presumably a low bar to jump over. Just point to the Christmas tree remains every January.

  14. This is clearly a “family values” voter.

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