The Volokh Conspiracy

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Free Speech

Let's Go Brandon, Fly Your Anti-Biden Flag

Kokomo officials agree not to enforce ordinance banning “obscene, indecent, or immoral” signs against flag that says “Fuck Biden and fuck you for voting for him.”


From the Order Approving Consent Judgment and Granting Stipulation of Dismissal in Adams v. Miller, signed yesterday by Judge James Patrick Hanlon (S.D. Ind.):

This case involves Brandon Adams's First Amendment challenge to the enforcement of a City of Kokomo ordinance regulating the content of signs. City officials sent Mr. Adams notices ordering him to take down a flag displayed on his property, but Mr. Adams refused to do so. Mr. Adams then filed a motion for preliminary injunctive relief. Before the Court ruled on that motion, the parties reached an agreement to maintain the status quo and then to agreed terms of dismissal of the case. In this order, the Court approves the parties' stipulated dismissal of the case….

Plaintiff Brandon Adams alleged that Mark Miller, Greg Sheline, Tyler O. Moore, Bob Cameron, and the City of Kokomo ("Defendants") violated his right to freedom of speech under the First Amendment to the United States Constitution. Specifically, Mr. Adams alleged that after he hung a flag containing a political message from the side of his home, Defendants ordered him to take it down. As legal authority supporting the demand, Defendants cited a city ordinance that prohibits "signs which contain statements, words, or pictures of an obscene, indecent, or immoral character."

The parties agreed to maintain the status quo, and later filed a Stipulation of Agreed Entry stating that "[t]he City of Kokomo will take no further action against Mr. Adams relating to the flag on his property that says, 'Fuck Biden and fuck you for voting for him.'" The Agreed Entry further states:

Consistent with the United States Supreme Court decision in Cohen v. California, 403 U.S. 15, 18 (1971), the City lacks the power to punish or take any legal action against Adams or any other person for the content of the message on a flag that says, "Fuck Biden and fuck you for voting for him." So long as there is no showing of an intent to incite disobedience or disruption the First and Fourteenth Amendments prohibit the City from punishing, in any way, Mr. Adams or any other person for displaying such a flag….

A consent decree is "a court order that embodies the terms agreed upon by the parties as a compromise to litigation." A "consent decree proposed by the parties must (1) 'spring from and serve to resolve a dispute within the court's subject matter jurisdiction'; (2) 'com[e] within the general scope of the case made by the pleadings'; and (3) 'further the objectives of the law upon which the complaint was based.'"

Here, based on its substance and context, the Court construes the Agreed Entry, dkt. 37, as a proposed Consent Judgment. The Court finds that the proposed Consent Judgment satisfies each of the Local No. 93 factors. First, Mr. Adams's complaint alleging an impending First Amendment violation comes within the Court's subject matter jurisdiction. Second, the Consent Judgment's remedies—prohibiting Defendants from enforcing the sign ordinance against Mr. Adams—come with the scope of the case. Third, the Consent Judgment will further the objectives of the First Amendment by allowing Mr. Adams to continue to express his political beliefs without fear of prosecution under the sign ordinance.

The Court next considers whether the proposed Consent Judgment is "lawful, fair, reasonable, and adequate." … [It is.] It is narrowly tailored to prohibit Defendants from enforcing the sign ordinance against Mr. Adams or any other individual displaying a flag identical to the one displayed by Mr. Adams. Both parties have been represented by counsel throughout the proceedings and agree to the Consent Judgment. And although the Consent Judgment was filed early in the litigation, the record gives no indication that greater discovery would aid in the resolution of this case….

I think the City was wise to settle, because the ordinance is content-based (even if viewpoint-neutral) and clearly unconstitutional, precisely because of Cohen v. California (which held that the First Amendment generally protects vulgarities, such as Cohen's "Fuck the Draft" jacket).