united-states freedom-of-speech first-amendment
Can &quot;obscenity&quot; be used to forbid a political sign?
<p>According to a New York Times story <a href="https://www.nytimes.com/2021/07/20/nyregion/biden-signs-profanity-first-amendment.html" rel="nofollow noreferrer">&quot;She Hates Biden. Some of Her Neighbors Hate the Way She Shows It.&quot;</a> a woman in the Borough of Roselle Park, N.J has been ordered to take down a political banner because of its &quot;obscene&quot; content under a local law, or face daily fines. While the story does not directly quote the banner, it seems that it says &quot;Fuck Biden&quot; or something close to that.</p>
<p>The Mayor of the town was quoted as saying:</p>
<blockquote>
<p>This is not about politics in any way, ... It’s about decency.</p>
</blockquote>
<p>The mayor is also reported as saying that the same steps would have been taken if the banner had supported Biden and opposed Trump in similar language.</p>
<p>According to <a href="https://www.nj.com/union/2021/07/nj-woman-must-remove-anti-biden-f-bomb-signs-or-face-250-a-day-fines-judge-rules.html" rel="nofollow noreferrer">a story in NJ.Com</a>:</p>
<blockquote>
<p>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. Patricia Dilascio is the property owner but her daughter, Andrea Dick, had the signs, three of which include the F-word, on display.</p>
</blockquote>
<p>The Judge was quoted in that story as saying:</p>
<blockquote>
<p>This is not a case about politics. It is a case, pure and simple, about language[.] 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.</p>
</blockquote>
<p>The action was brought under <a href="https://ecode360.com/35328682" rel="nofollow noreferrer">Roselle Park code section 3.8</a> which provides that:</p>
<blockquote>
<p>§ 3-8.1 Obscene Materials or Actions Prohibited.<br />
[1980 Code § 152-1]<br />
It shall be unlawful for any person, firm, corporation, business association, club, group of individuals or any combination of the aforementioned to knowingly photograph, act in, pose for, print, sell, offer for sale, give away, exhibit, publish or offer to publish or otherwise distribute or pander, make, display or exhibit any obscene material, communication or performance or other article or item which is obscene within the Borough.</p>
<p>§ 3-8.2 Determination of Obscenity.<br />
[1980 Code § 152-2]<br />
The word &quot;obscene&quot; shall mean any material, communication or performance which the average person applying contemporary community standards existing within the municipality, would find, when considered as a whole:</p>
<p>a. Appeals to the prurient interest;</p>
<p>b. Depicts or describes in a patently offensive way sexual conduct as hereinafter specifically defined, or depicts or exhibits offensive nakedness as hereinafter specifically defined; and</p>
<p>c. Lacks serious literary, artistic, political or scientific value.</p>
</blockquote>
<p>Can a local court in the US validly make such an order, given the protections of the US First Amendment?</p>

<p>In the Vietnam War era case of <a href="https://www.law.cornell.edu/supremecourt/text/403/15" rel="nofollow noreferrer"><em>Cohen v. California</em> 403 U.S. 15, 91 S.Ct. 1780,
29 L.Ed.2d 284 (1971)</a> the US Supreme court held that the use of the word &quot;fuck&quot; in political speech was protected. As the opinion says:</p>
<blockquote>
<p>Appellant Paul Robert Cohen was convicted in the Los Angeles Municipal Court of violating that part of California Penal Code § 415 which prohibits 'maliciously and willfully disturb(ing) the peace or quiet of any neighborhood or person' ...</p>
<p>On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words 'Fuck the Draft' which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.</p>
<p>In affirming the conviction the Court of Appeal held that 'offensive conduct' means 'behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,' and that the State had proved this element because, on the facts of this case, '(i)t was certainly reasonably foreseeable that such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt to forceably remove his jacket.'</p>
<p>...</p>
<p>The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only 'conduct' which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon 'speech,' cf. <em>Stromberg v. California</em>, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), not upon any separately identifiable conduct which allegedly was intended by Cohen to be perceived by others as expressive of particular views ...</p>
<p>...</p>
<p>Appellant's conviction, then, rests squarely upon his exercise of the 'freedom of speech' protected from arbitrary governmental interference by the Constitution and can be justified, if at all, only as a valid regulation of the manner in which he exercised that freedom, not as a permissible prohibition on the substantive message it conveys. This does not end the inquiry, of course, for the First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases or to use any form of address in any circumstances that he chooses. ...</p>
<p>...</p>
<p>... this case cannot be said to fall within those relatively few categories of instances where prior decisions have established the power of government to deal more comprehensively with certain forms of individual expression simply upon a showing that such a form was employed. <strong>This is not, for example, an obscenity case.</strong> 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. <em>Roth v. United States</em>, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). ...</p>
<p>... While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not 'directed to the person of the hearer.' <em>Cantwell v. Connecticut</em>, 310 U.S. 296, 309, 60 S.Ct. 900, 906, 84 L.Ed. 1213 (1940). No individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult. Nor do we have here an instance of the exercise of the State's police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. <em>Feiner v. New York</em>, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295 (1951); <em>Terminiello v. Chicago</em>, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). ...</p>
<p>... Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. See, e.g., <em>Organization for a Better Austin v. Keefe</em>, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). ...</p>
<p>.. the issue flushed by this case stands out in bold relief. It is whether California can excise, as 'offensive conduct,' one particular scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary.</p>
<p>The rationale of the California court is plainly untenable. At most it reflects an 'undifferentiated fear or apprehension of disturbance (which) is not enough to overcome the right to freedom of expression.' <em>Tinker v. Des Moines Indep. Community School Dist</em>., 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969). We have been shown no evidence that substantial numbers of citizens are standing ready to strike out physically at whoever may assault their sensibilities with execrations like that uttered by Cohen.  ...</p>
<p>... we cannot overemphasize that, in our judgment, most situations where the State has a justifiable interest in regulating speech will fall within one or more of the various established exceptions, discussed above but not applicable here, to the usual rule that governmental bodies may not prescribe the form or content of individual expression.</p>
<p>...</p>
<p>... we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? ...</p>
<p>... we cannot overlook the fact, ... 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. ...</p>
<p>... 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.</p>
<p>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. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be reversed.</p>
</blockquote>
<p>Thus the Court held that, when used in a political rather than an erotic context, the word &quot;fuck&quot; was protected free speech, not subject to government prohibition, at least under the circumstances of the <em>Cohen</em> case. As the use of this word is farm more publicly acceptable now than it was in 1968 or 1971, It is hard to see how this ruling would change. I would expect a court to overturn the judgement against the woman who posted the banners.</p>
<h2 id="further-information-ymr2">Further Information</h2>
<p>In the <a href="https://en.wikipedia.org/wiki/Cohen_v._California" rel="nofollow noreferrer">Wikipedia Article about the <em>Cohen</em> case</a> it is said that:</p>
<blockquote>
<p>The Court ultimately found that displaying a mere four-letter word was not sufficient justification to allow states to restrict free speech and that free speech can be restricted only under severe circumstances beyond offensiveness. The ruling set a precedent used in future cases concerning the power of states to regulate free speech in order to maintain public civility.</p>
</blockquote>
<p>Other important cases cited in the <em>Cohen</em> opmion include:</p>
<ul>
<li><a href="https://en.wikipedia.org/wiki/Cantwell_v._Connecticut" rel="nofollow noreferrer"><em>Cantwell v. Connecticut</em> 310 U.S. 296 (1940)</a> in which a man attempting to promote his religious views played a phonograph record to others on a public street. The others found the record offensive, and Cantwell was convicted of a breech of the peace and of soliciting without a license. Te US Supreme Court overturned the conviction in what has become a landmark case.</li>
<li><a href="https://en.wikipedia.org/wiki/Tinker_v._Des_Moines_Independent_Community_School_District" rel="nofollow noreferrer">Tinker v. Des Moines Independent Community School District*, 393 U.S. 503 (1969)</a> was a case in which a high-school student was part of a group who decided to wear black armbands to school in protest of the Vietnam War and were suspended from school.</li>
</ul>
<p>It should be noted that the terms of the Borough ordinance closely track the <a href="https://en.wikipedia.org/wiki/Miller_v._California" rel="nofollow noreferrer"><em>Miller</em> decision</a>, the current Supreme Court case defining obscenity. However that decision requires that to be &quot;obscene&quot; a text or image must be in significant degree sexual  -- this is what is meant by &quot;appeals to the prurient interest&quot;.  § 3-8.2 (a) of the code (quoted in the question) requires that to be found obscene content must &quot;appeal to the prurient interest&quot;, but it is hard to see how the political signs described in the news stories (and pictured in one of them) so appeal.</p>
