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.