Court Strikes Down Ban on Displaying "Indecent Speech" Where Children Under 17 Can See It

[UPDATE 10/26/22: The Punta Gorda Sun (Elaine Allen-Emrich) reported yesterday that the city will not appeal the decision; thanks to commenter MarkBoyle for noting this.]

The Punta Gorda (Fla.) Code provides, in relevant part, that no-one may "erect, display, [or] wear"

[a]ny sign which contains obscene language or graphics; and any sign containing fighting words or indecent speech which is legible from any public right-of-way or within any public space, and which can potentially be viewed by children under the age of 17. This provision includes signs or flags in or on any vehicle, vessel or on any apparel and  accoutrements.

Sheets was fined $2500 for

wearing a t-shirt with the words "Fuck Policing 4 Profit," holding a flag that read "Fuck Trump," and holding a sign … with a photograph of the Punta Gorda City Council on which the words "R Cunts" was written[;] …

wearing a t-shirt with the words "Fuck the Police" and holding a flag that read "Fuck Biden"[;] …

wearing a t-shirt bearing the words "Fuck the Police"[;] …

wearing a t-shirt bearing the words "Fuck Policing For Profit" and holding a flag that read "Fuck Biden."

Unconstitutional, said Judge Geoffrey Gentile in Sheets v. City of Punta Gorda (filed Sept. 26, 2022):

[T]he Punta Gorda ordinance imposes content-based restrictions on speech and those provisions can stand only if they survive strict scrutiny. Strict scrutiny requires Punta Gorda to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.

In this case Punta Gorda argues only one compelling governmental interest: protection of children, specifically, only children that can read….

At the upper end of the age range, Punta Gorda has not shown that protection of teenagers from widely used words, which have extensive non-sexual usage … protects that age range. There is a much more limited set of children that can be protected than the ordinance covers.

The ordinance is under inclusive and over inclusive. The ordinance prohibits speech that the record reflects was never seen by children. Punta Gorda claims that the limitation to places where children under 17 may see the signs is a narrow limitation. It is not. Children may be present anywhere in Punta Gorda and therefore that term is no limitation at all. The ordinance does not prohibit use of verbal indecency and that is a means of communication that many more children could understand….

Only last year the U.S. Supreme Court ruled that children have the right to freedom of speech, which includes a child publicly using vulgar language. Mahanoy Area School District v. B.L. (2021). In that case, a minor, B. L. posted an image which showed B. L. and a friend with middle fingers raised; it bore the caption: "Fuck school fuck softball fuck cheer fuck everything." The school suspended her from the cheerleading squad and she challenged it [ultimately successfully] all the way to the U.S. Supreme Court….

The court concludes that the ordinance is unconstitutional if applied to the very children Punta Gorda is seeking to protect. How can it be applied to Sheets?

Thanks to Alan Beck for the pointer.

Comments

[Stephen Lathrop]

Well, I'm finally convinced. To prevent pointless coarsening of everything in sight is a compelling government interest. Tailor restrictions to exclude verbal speech, and momentary visual displays, like those carried on signs at demonstrations, but to include permanent or semi-permanent installations, including those on private property which are visible from public rights of ways.

[rloquitur]

Hmm, so someone is constitutionally empowered to wear a "Fuck the Draft" slogan in school, but private parties can't have a "Fuck Joe Biden" sign on their yard? And then how do you deal with sly things like "Fick Buden" or "Let's go, Brandon." Would calling Kamala Harris a "ho" be ok--a reminder of how she got her start in politics.

[David Nieporent]

After 20 years of promoting censorship on The Volokh Conspiracy, Lathrop is finally convinced of the need for even more censorship!

[The original jack burton]

Those who stand against the 2nd Amendment such as Lathrop are quite often against the 1st Amendment also. It is part and parcel of who they are.

[Stephen Lathrop]

Jack Burton — The majority of right-wing commenters on this blog stand against press freedom, and call for government censorship instead. Many of the others seem to have given up any meaningful defense of the 1A as a guardian of the public life of the nation.

Mostly, the purported pro-1A advocacy to be found here amounts to nothing more than personal opportunism—with various individual approaches to demanding privileges to libel with impunity, or to appropriate the private property of others for self-aggrandizement. I continue to oppose those benighted approaches.

None of that absolutism is actually defense of the 1A; it more like systemic rot. No system of rights can be absolute and remain internally consistent—still less can such demands co-exist with successful popular self-government.

All my advocacy has been on behalf of diversity of opinion, protected by profusion among a myriad of private publishers who manage outlets for every conceivable point of view. I have also supported personal freedom for anyone to become a publisher. I have said that dozens of times.

You may disagree with everything I say. That does not justify lying about my advocacy.

Among those who comment here, I am also one of the only proactive supporters of originalist use of the 2A. I have long advocated general access to fully automatic weapons by members of well regulated militias. After reading pro-gun advocacy published here to endorse Swiss gun policies, I looked into those, and agreed that to apply the Swiss system here would probably prove workable.

I get that many commenters on this blog insist on 2A absolutism. They are stupid, and they will not get what they demand, or at least not for long. It is not an anti-gun-rights position to oppose the folly to arm everyone unconditionally, or to oppose an ever-escalating civilian arms race toward putting more and more-deadly weapons among the public. More the opposite. To oppose that is a pre-condition necessary to prevent outright gun bans.

Events will prove me as right about that assertion as I have been for years in my insistence that Section 230 would eventually deliver massive public pressure for government censorship of the press. That happened, and so will the gun bans, unless gun rights absolutists either back off their most extreme demands, or fail to carry their present agenda into law.

[SoSoCoCoMoFo]

Although perhaps a good idea, historically, membership in a militia organization was never a pre-requisite to private ownership of militia-type weapons by the people.

[Brett Bellmore]

And that was deliberate, because if it was required, you could effectively end the militia system, render it impossible to raise one in an emergency, just by deciding not to have a militia, and refusing to let anyone not a member own the weapons.

Whereas, if private citizens can own the weapons regardless, train regardless, you can always throw together a militia in an emergency even if the government wanted to make that impossible.

It's insufficiently recognized that civil rights don't exist to facilitate the government doing the right thing. They exist to obstruct the government doing the wrong thing. And have to be interpreted in that light.

[Stephen Lathrop]

SoSoCoCoMoFo — You are perhaps correct. It is incautious to say, "never," in reference to the entire scope of history. But grant your point for the sake of discussion. The point has never been to say expansively what kinds of weapons were historically permitted in society.

That remains a focus of keen interest among gun advocates. But it remains also a distraction from a constitutional argument which cannot be proved by reference to so general a focus.

No competent historian contends that the Militia Clause outlawed any particular kinds of guns, or required militia service to own them, or to carry them. You argue against a point no historical expert has attempted to make.

Nevertheless, your argument is an inherited one. It began as a mistaken and distracting focus of the Heller opinion, which Scalia also disfigured by incompetent historical methods. While exerting himself on that bogus issue, Scalia forgot that his task was instead to prove a different point—not what gun practices existed in society, but instead which gun rights the U.S. Constitution historically supported.

You inherited the bogus argument because Scalia's exertions made such an imposing show of knocking down a historical point which nobody was insisting upon, and which was constitutionally irrelevant. Gun advocates, and a great many lawyers and judges, remain impressed by Scalia's show. What that energetic flummery failed to present was any mention of the lack of historical evidence to show that whatever gun rights there were during the founding era, only one of them—the militia right—finds support in the historical record of the U.S. Constitution.

It remains entirely possible, and indeed, on the basis of the historical record apparently certain, that other gun rights—rights which may have been commonly exercised—either went unprotected by governments—but honored by custom and practice—or were protected by state or local government methods, but not by the U.S. Constitution. To the extent those were the sources of gun rights protections then, they remain historically legitimate sources of gun rights protections now.

Against that pre-existing backdrop, the Constitution added a right to organize militias, to serve in them, and to own weapons for that purpose. We know that both because the Constitution says it in so many words, and because the historical record at the time of the drafting is full of references to that purpose. And because that record is empty of references to any other purpose.

Had historical references to show those other purposes existed among the constitutional drafting intentions of the founders, they would of course have been key citations, leading all others in Scalia's elaborate but distracting catalogue. History has been ransacked to find such references. They have not been found. And they are not in Heller.

Whatever gun rights you have—and whatever gun rights the SCOTUS says you have—history says they are protected by means other than the U.S. Constitution. If you want to insist otherwise, go ahead and try to make the historical case which Scalia failed to make. I think you would be wasting your time, but maybe you should give it a try. If you did succeed, you would be celebrated for it.

[SoSoCoCoMoFo]

My argument? I merely pointed out that your proposed limitation of the RTKBA to "members of well regulated militias" has no (known) historical support. Feel free to provide it, eh?

[WuzYoungOnceToo]

I look forward to the day (which, I admit, will almost certainly never arrive) when you realize that making your dishonest bullshit more and more verbose does not make it any more convincing.

[WuzYoungOnceToo]

The majority of right-wing commenters on this blog stand against press freedom

You are, as always, completely and utterly full of shit.

[tkamenick]

"To prevent pointless coarsening of everything in sight is a compelling government interest."

No it's not. It's not even a legitimate government interest. Sure sounds like it's YOUR interest, though.

[John F. Carr]

The judge keeps Scalia and Garner's Reading Law near his desk.

[Noscitur a sociis]

As best I can tell, the constitutional analysis is dicta: the holding (which is, I think, correct) is that the shirts and signs didn't actually violate the ordinance at all.

[Drbusybody]

It does seem that Cohen v. California is exactly on point.

The Cohen of Cohen v. California is not the same Cohen of Cohen v. Cowles Media.

[The Margrave of Azilia]

Whatever happened to Cohen?

[The Margrave of Azilia]

Hey, I can answer my own question!

'“I spent years thinking about whether the decision was correct,” he said. “I wasn’t a person who used a lot of profanity and I didn’t think women and children should have had to see that language on the jacket. I didn’t want to be known as contributing to what President Ronald Reagan, whom I admired, called the ‘Filthy Speech movement.’ I mean there were children in that courthouse.

'“However, I came to the conclusion that I agreed with the decision simply because the government shouldn’t be able to decide what speech an individuals can or cannot speak,” he said. “That would be quite a slippery slope.”

'Cohen remains a staunch defender of the Bill of Rights, not only of the free speech but also of the Second Amendment right to keep and bear arms. “The Second Amendment is an important constitutional right,” he says. “It helps to ensure that we have the right to speak freely and other constitutional rights.”'

https://www.freedomforuminstitute.org/2016/05/04/paul-robert-cohen-and-his-famous-free-speech-case/

[shawn_dude]

All the second amendment does in regards to the first (if you ignore the entire militia requirement) is make deadly weapons available to people who wish intimidate others into not speaking.

[SoSoCoCoMoFo]

I hope it didn't take them too long to realize that there was substantially less "armed intimidation" against their freedom of speech a short distance away from the McCloskey's.

[VinniUSMC]

All the second amendment does in regards to the first (if you ignore the entire militia requirement) is make deadly weapons available to people who wish intimidate others into not speaking.

It’s really easy to ignore something that doesn’t exist.

What if people wish to intimidate others into allowing them to continue to speak freely? Or to fuck off of their property?

[Rev. Arthur L. Kirkland]

The link leads to an opinion featuring bizarre typography. Does this occur consequent to some strange formatting issues or instead because this judge flouts convention and writes -- in a professional setting -- like a junior high school tweeter?

[Yes Way, Ted]

Finally these fucking cunts get freedom of speech right.

[rloquitur]

Yes, but the idiots that fined him don't suffer any negative consequences.

[Drbusybody]

LOL, the judge uses the f word spelled out in full 77 times and the c word spelled out in full 10 times. Classy, Judge Gentile.

In "The Brethren," it is recounted that Chief Justice Burger believed it would be "the end of the Court" if Justice Harlan used the f word even once in his opinion in Cohen.

[Eugene Volokh]

Drbusybody: I think the judge's view is likely that judges should accurately report on the facts of the case, without circumlocution or euphemism, rather than to try to be "classy" under some other measures of "class." (Compare, for instance, State v. Liebenguth (Conn. 2020), or for that matter, just from four days ago, People v. Ramos (Cal. Ct. App.).)

And I'm pretty sure that Justice Harlan's describing the facts of Cohen, to which the word "fuck" was of course central, did not actually mean "the end of the Court."

[Bob from Ohio]

"judges should accurately report on the facts of the case, without circumlocution or euphemism"

Could have been accomplished by one use with [hereinafter "f**k"].

It adds nothing to the opinion to use it 77 times. Our society is vulgar enough.

[Eugene Volokh]

I'm skeptical that 76 f**k's would make the opinion any better. Indeed, since the *s are particularly noticeable, the reader would be more focused on their presence, it seems to me. The main effect it would have, it seems to me, would be to signal to the reader, "I view this word as bad, so bad that I'm not going to repeat it here." Perhaps the judge thought that he instead wanted to signal, "this is a court opinion, where we describe things as they are." (Again, that's what I infer the judges' views in Liebenguth were, both as to "fuck" and as to "nigger.")

[Not Unreasonable]

I wrote an appellate brief for the state quoting one of the co-murderers who bragged multiple times about the “cunt” she killed. Her comments cracked open a cold case. I felt it absolutely necessary to quote her because it showed the intensity of her feelings toward the dead woman.

Two of my three judges were women and I simply referred to the comments generically at oral argument. One of the judges thanked me. It was obvious to me that the judge was bothered by the language. I don’t know if that influenced her vote but it surely didn’t help the appellant.

[Eugene Volokh]

Apropos the question of the sex of the judges, cf. Lehi City v. Rickabaugh (Utah Ct. App. 2021), which quotes the word "cunt" seven times (all quoting the criminal harassment defendant's use of the word); all three judges were women. And this is Utah, not known as a hotbed of vulgarity.

[Drbusybody]

I just checked Cohen V california. The word is used exactly twice in the 13 book page opinion and one of those is in the syllabus. Burger was concerned that Harlan not speak the word in reading the opinion from the bench, and he didn't.

[Scooby]

Fuck Warren Burger.

[Kazinski]

I think the judge was on solid ground, I doubt many children will be reading his opinion.

[Robert]

Obnoxious as it is, I think we're better off having fewer restrictions on speech than more. The price of freedom, etc.

[I Callahan]

Based.

[Stephen Lathrop]

Robert — How obnoxious is it? Assume for the sake of argument you need to sell your suburban house. Next to yours, and also across the street, are neighbors’ lots festooned with giant political signs, steeped in vulgarities, and with pictures of AR-style weapons. Do you think that might affect what price your own home can command? If so, why is that acceptable to you? If not, why not?

More generally, what exactly does society lose if it agrees to eliminate that kind of political advocacy, confining the restrictions within the scope of agreed-upon zoning. Or do you number yourself among the rights absolutists who also think disruptive sound trucks should be an abiding feature of day/night protests in residential neighborhoods? Suppose that is your view, and I decide to take the contrary position, and to support my advocacy by operating several such trucks in the vicinity of your home during the small hours of the morning. Still okay?

[David Nieporent]

More generally, what exactly does society lose if it agrees to eliminate that kind of political advocacy, confining the restrictions within the scope of agreed-upon zoning.

Property rights and freedom of speech.

[Stephen Lathrop]

Nieporent — Thanks for your nonsensical absolutist assertions.

Why doesn't a neighbor whose outlandish and aggressive signs depress your property value figure into the property rights question? Tell us please, would you buy a house next to a neighbor who displayed a modest AR-15 style billboard, and flanked it with vile anti-Jewish slurs, laced with generalized death threats? If not, what should your recourse be if after you buy a new home, your neighbor's yard blossoms forth with those? Nothing at all? After a year or two of living next to that, do you decide you are just screwed, and deserve to be, because America is such a great country?

Also, please answer the questions about the sound trucks. I want to see your commitment to 1A absolutism in action.

[David Nieporent]

Why doesn’t a neighbor whose outlandish and aggressive signs depress your property value figure into the property rights question?

Because your "property value" isn't actually your property. The value of one's property can change for many reasons. If an affluent person moves next door to you and improves his property, making the neighborhood more attractive and increasing your property value, you don't owe him compensation just because you benefitted from his efforts. And vice versa.

I would probably not buy the house you describe, no.

If not, what should your recourse be if after you buy a new home, your neighbor’s yard blossoms forth with those? Nothing at all? After a year or two of living next to that, do you decide you are just screwed, and deserve to be, because America is such a great country?

There are many ways to prevent this scenario ex ante.

Also, please answer the questions about the sound trucks. I want to see your commitment to 1A absolutism in action.

Content neutral time, place, and manner restrictions.

[Just Get the Vax Already]

You're right, I would never want to buy a house next door to a Reason commenter

[WuzYoungOnceToo]

Tell us please, would you buy a house next to a neighbor who displayed a modest AR-15 style billboard

I live in a neighborhood (albeit a neighborhood where the lot sizes range from 1-3 acres) where quite literally every home contains firearms, many of which are scary "AR-15 style" rifles, and those facts are openly communicated on a fairly regular basis (and I've never felt safer, nor less worried about my house doors being unlocked). A sign or two in a fellow resident's yard advertising the aforementioned facts regarding armed status, while completely unnecessary, would have no negative impact on anyone's comfort or property values. Indeed, it's conceivable that the latter might actually be slightly enhanced.

[Jarndyce]

"Punta Gorda has not shown that protection of teenagers from widely used words, which have extensive non-sexual usage …"

It is deranged to believe that teenagers are harmed and need to be protected from words with sexual usage (which probably means words referring to sexual activity), even exclusively sexual usage.

[The Margrave of Azilia]

The horse is out of the bottle, the genie has sailed, the ship is out of the barn. Public use of these words is so well-established it would be difficult to root out, and the rooting-out would be entrusted to people who would probably use it as an excuse for political censorship.

Oh, well.

[Jarndyce]

The same goes for younger children as well.

[shawn_dude]

Well, they need to be protected from learning about Heather's two moms or that white people owned slaves, so it should come as no surprise that they need protecting from other words down there in Florida.

[BestUsedCarSales]

I'm reading the latest reports and it's unclear that there are any children under the age of 17 that are able to read. That alone makes this law moot.

[Currentsitguy]

Not trying to be snarky at all, as I am both a 1st and 2nd Amendment absolutist, but it occurs to me if the same standard as Heller was decided on that words in "common use" would most definitely be Constitutionally protected.

[MarkBoyle]

The opinion, which was written by my former partner and occasional Volokh Conspiracy reader Judge Gentile, will NOT be appealed by the city.

https://www.yoursun.com/puntagorda/news/punta-gorda-wont-appeal-freedom-of-speech-case/article_20a3d358-53d2-11ed-9295-4b49a04dff5e.html

[Jerry B.]

Freedom of speech?

[BravoCharlieDelta]

This is throwing a bone to the degenerates so they can continue grooming children in public.

[Darth Buckeye]

Freedom of speech our elites like. Screw the rest of us. And our children.

[Yes Way, Ted]

I do not want to screw your children.

[rloquitur]

? How are you gonna police it? Once "fuck" is gone, then what? How about "Tell Joe to fornicate with himself?"

[Darth Buckeye]

Well, good. I don't have any.

[Yes Way, Ted]

Then maybe you should stop inviting people to screw your children. False advertising and all.

[SoSoCoCoMoFo]

That would be a mistranslation. The original sentiment was obviously a weird expression of gerontophilia.