FreeSpeech and Censorship: Thread

[grarpamp]

https://jonathanturley.org/2021/07/22/new-jersey-woman-triggers-free-speech-case-with-profane-anti-biden-signage/
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
https://www.nytimes.com/2021/07/20/nyregion/biden-signs-profanity-first-amendment.html

New Jersey Woman Triggers Free Speech Case With Profane Anti-Biden Signage

I have previously lamented that we appear to be a nation addicted to
rage. There is no greater example than Andrea Dick, a Trump supporter
who has adorned her yard in Roselle, Park New Jersey with profane
attacks on President Joe Biden. The signage led to a complaint and
ultimately a ruling by Judge Gary A. Bundy of Roselle Park Municipal
Court that she must remove the offending signs. One of the burdens of
being a free speech advocate is that you often must defend the speech
of people with whom you disagree, even despise. This is one such case.
Dick’s signage is juvenile and highly offensive. However, it is also
free speech. Judge Bundy is entirely right in his expression of
disgust but, in my view, entirely wrong in his analysis of the First
Amendment.

Dick’s offensive signs (which can be seen here) include some
comparably mild statements like “Don’t Blame Me/I Voted for Trump.”
However, three include displays of the middle finger or simply “F**k
Biden.” The signs were purchased by Dick, 54, from commercial dealers.
Her lawyer, Michael Campagna, insists that the f-word no longer has a
sexual connotation and is simply a common colloquialism. Indeed,
anyone driving in New York or New Jersey can hear it used as a noun,
verb, adjective, adverb, and even a preposition.

The town’s mayor, Joseph Signorello III, called in a code enforcement
officer who cited Patricia Dilascio (Dick’s mother who actually owns
the house) for violating a Roselle Park ordinance prohibiting the
display or exhibition of obscene material within the borough.

Bundy then gave the owner of property, Ms. Dilascio, a week to remove
three of the 10 signs displayed on the property or face fines of $250
a day.

It does not help that Signorello is a Democrat and Roselle Park voted
overwhelmingly for Biden in 2020. Yet, Signorello insists “This is not
about politics in any way. It’s about decency.” No, it is about free
speech.

Free speech is not protected because it is popular or correct. We do
not need the First Amendment to protect popular speech. Profanity has
long been a part of political discourse in the United States and other
countries. Indeed, it has been found in some of the oldest graffiti in
places like ancient Rome.

Judge Bundy noted that “There are alternative methods for the
defendant to express her pleasure or displeasure with certain
political figures in the United States.” Stressing that there is a
nearby school, Bundy found that the language “exposes elementary-age
children to that word, every day, as they pass by the residence.” He
added that “Freedom of speech is not simply an absolute right” and
“the case is not a case about politics. It is a case, pure and simple,
about language. This ordinance does not restrict political speech.”

It is hard to square that ruling basic principles of free speech.
After all, all speech cases are “about language” to some extent.
Speech can be not just profane, but political and therefore protected.
What Bundy is suggesting is that the state can regulate how you
express opposition to politicians or the government. That makes this
very much “about politics.”

In 1971, the Supreme Court handed down Cohen v. California in which it
overturned the conviction of Paul Robert Cohen for the crime of
disturbing the peace by wearing a jacket declaring “F**k the Draft” in
a California courthouse.  Justice John Harlan wrote that “…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“.

The Court has repeatedly ruled that the use of this word and similar
profanity is protected speech, not conduct subject to government
action. Indeed, the Supreme Court just handed down a ruling in Mahanoy
Area School District v. B.L. in favor of the free speech rights of a
cheerleaders who swore a blue streak, including dropping the f-bomb,
after being rejected for the varsity team. It seems a tad odd that
Dick cannot use this word near a school, but one of the students can
do a virtual profane cheer with the same word and gestures.

The ruling is reminiscent of the ruling of another judge in
Pennsylvania in a case where a Muslim man attacked an atheist who wore
a “Zombie Mohammed” costume on Halloween. The judge dismissed the
charge of criminal harassment against the Muslim and chastised the
atheist instead, declaring such a costume falls “way outside your
bounds of 1st Amendment rights.” Magisterial District Judge Mark
Martin added “It’s unfortunate that some people use the 1st Amendment
to deliberately provoke others. I don’t think that’s what our
forefathers intended.”

He clearly is not familiar with some of our forefathers. Thomas Paine
could not go into a pub without starting a ruckus, if not a
full-fledge riot. And that was often among people who agreed with him.

The ordinance in this case was clearly based on past cases on
pornography like Miller v. California rather than political speech
cases. It prohibits “appeals to the prurient interest” that “depicts
or describes in a patently offensive way sexual conduct as hereinafter
specifically defined, or depicts or exhibits offensive nakedness as
hereinafter specifically defined.” It must also  and “lack[] serious
literary, artistic, political or scientific value.”

The most obvious objection in this case is that this does have
“political value” even if most of us find it offensive. Indeed, what
is most chilling is the application of what was a pornography test to
political speech.

The Miller standard has long been criticized by legal scholars,
including myself, as hopelessly and dangerously vague. The Court has
been mocked for its ham-handed efforts to define pornography. In
earlier cases like Jacobellis v. Ohio, the Court could not even agree
on a clear reason why a porn film was not so obscene as to allow
prosecution. Instead, in one of the most ridiculous statements ever
penned by a member of the Court, Justice Potter Stewart wrote in his
concurrence that “I shall not today attempt further to define the
kinds of material I understand to be embraced within that shorthand
description; and perhaps I could never succeed in intelligibly doing
so. But I know it when I see it.

The First Amendment could not long survive if the same absurd approach
was taken to political speech. Yet, that is what Judge Bundy
effectively did. He did not try to define protected political speech
but simply declared that this is not it.

Dick is the price we pay for free speech.

Fortunately, free speech allows us to respond to bad speech with
better speech. Of course, that does not make this easier for parents
who must deal with their children who walk past Dick’s yard. However,
they may want to start by teaching them not about the meaning of her
speech but the meaning of free speech under our Constitution.