The First Amendment to the United States Constitution, binding on the states through the Fourteenth Amendment’s Due Process Clause, provides that the government “… shall make no law… abridging the freedom of speech….” Similarly, Article 1, ¶6 of the New Jersey Constitution provides that “[e]very person may freely speak, write and publish his sentiments on all subjects, …[and] [n]o law shall be passed to restrain or abridge the liberty of speech ….”
Under the First Amendment, no governmental organization could restrict speech/expression because of “… its message, its ideas, its subject matter, or its content.” United States v. Stevens, 559 U.S. 460, 468 (2010) (quoting Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 573 (2002); see also, Snyder v. Phelps, 562 U.S. 443, 458 (2011)(“’[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.’… Indeed, ‘the point of all speech protection . . . is to shield just those choices of content that in someone's eyes are misguided, or even hurtful.’”(Quotation and citation omitted); State v. Burkert, 231 N.J. 257, 281 (2017)(“[t]he First Amendment protects offensive discourse, hateful ideas, and crude language because freedom of expression needs breathing room and in the long run leads to a more enlightened society.”)(citation omitted).
In Cohen v. California, 403 U.S. 15 (1971), Paul Cohen was observed in a Los Angeles courthouse wearing a jacket bearing the words “**** the Draft, an expression of his discontent against the draft and the Vietnam War. There were children present in the area where Mr. Cohen was observed wearing his jacket. Cohen was arrested and charged with violating a local California criminal code which prohibits “maliciously and willfully disturbing the peace or quiet of any neighborhood or person” ‘by [ ] offensive conduct [ ].” He was given 30 days imprisonment. Cohen appealed. Id. at 16.
The United States Supreme Court reversed Cohen’s conviction. The Court stated that Cohen’s 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’ … not upon any separately identifiable conduct….” As such, the Court stated that “the State certainly lacks power to punish Cohen for the underlying content of the message the inscription conveyed…. Cohen could not, consistently with the First and Fourteenth Amendments, be punished for asserting the evident position on the … immorality of the draft his jacket reflected.” Id. at 19 (citation omitted).
The Court stated that the states cannot occupy the role of “guardians of public morality… The “State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us…. For, 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. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” Id. at 25.
“Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, 576 U.S. 155, 163- (2015)(“ laws that cannot be ‘justified without reference to the content of the regulated speech... are content based on their face, [and must] satisfy strict scrutiny.’”) (citation and quotation omitted); see also, Ashcroft, supra at 660 (content- based regulations are presumptively invalid, and the government bears the burden to rebut that presumption).
Conversely, “‘[g]overnment regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)(citation and quotation marks omitted); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984) (“ordinance prohibiting the posting of signs on public property is neutral—indeed it is silent--concerning any speaker's point of view.”); Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981) (State Fair regulation requiring that sales and solicitations take place at designated locations "applies evenhandedly to all who wish to distribute and sell written materials or to solicit funds").
Limited Restrictions on Content-Based speech
Certain limited categories of content-based speech are excluded from First Amendment Protection because of compelling state interest. In Stevens, supra at 468-69, which struck down a law banning the making or selling of visual or audio depiction of animal cruelty as violative of First Amendment free speech protection, the Supreme Court stated that “’[f]rom 1791 to the present,’ … the First Amendment has ‘permitted restrictions upon the content of speech in a few limited areas,’ and has never ‘include[d] a freedom to disregard these traditional limitations”’ including, fighting words, true threats, obscenity, child pornography, defamation, fraud, incitement to violence, and speech integral to criminal conduct. ” (Emphasis added).
In Burkert, supra, a local municipal court found the defendant (a correction officer) guilty of harassment by downloading a wedding photograph from a social media website of his co-worker and wife (also a corrections officer) and wrote on the photos, "I know I'm a ***** with a little ****. Don't do the inmates please Laura.” And over the co-worker wife's face were the words, "I wish you had a **** like the inmates." On the second photo, defendant wrote on over his co-workers’ wife face the following: "Fam, I got me another *****."
On appeal to the New Jersey Supreme Court, the local prosecutors contended that "speech or writing used as an integral part of the harassing conduct is not entitled to First Amendment protection. Id. at 269. However, the Court rejected this argument, holding that [t]he language on the flyers, despite its vulgarity and meanness, is constitutionally protected from a criminal prosecution for harassment.”
The Court stated “[s]peech… cannot be transformed into criminal conduct merely because it annoys, disturbs, or arouses contempt….First Amendment protects offensive discourse, hateful ideas, and crude language because freedom of expression needs breathing room and in the long run leads to a more enlightened society…. Outside of the category of obscenity, courts should not play the role of censor by engaging in a weighing of an expression's value or ‘relative social costs and benefits.’ Speech cannot be criminalized merely because others see no value in it. ‘The First Amendment generally prevents government from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed.’” There is no categorical 'harassment exception' to the First Amendment's free speech clause." Id. at 280-281(emphasis added)(citation omitted).
While a state could regulate obscene speech, the speech must in fact be “obscene.”
In Miller v. California, 413 U.S. 15 (1973), the Supreme Court stated that a statute prohibiting obscenity must be limited to “works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” Miller, supra at 24. The Court went on to give a few examples of “patently offensive:” “Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated”; “Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Id. at 25.
Under the above definition, the Court stated that ‘no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.” Id. at 27 (emphasis added).
It appears that no conduct or expression of the homeowner falls into any “obscenity” law that can pass muster under the Constitution. Displaying a banner with the words “**** Biden” or with a middle finger raised as an expression of “****” “Biden” is fundamentally no different than a jacked displayed with the message, “**** the Draft” which the United States Supreme Court ruled was protected speech 50 years ago in Cohen v. California.
The words, as expressed in the banner and displayed by the New Jersey homeowner, were merely words expressing her discontent that President Biden was elected President rather than Donald Trump, which is identical to Cohen. The fact that there are schools around her home, while unpleasant, is not a basis for restriction of free speech, as the Court in Cohen also found that there were children present in the area where Cohen’s “**** the Draft” jacket could be seen.
The New Jersey homeowner's display of the words and expression, while unpleasant to the local government, is a price we must pay in order to exercise our First Amendment freedoms. A nation is not a democracy if it permits only pleasant speech but prohibits speech which it finds distasteful or unpleasant. The fact that the municipal court judge stated that the “case, pure and simple, [is] about language,” further fortifies the argument that the order punishes mere speech (i.e., “language”). The order of the Municipal Court judge appears to be incompatible with the holding in Cohen.
Can Local Government Ban Homeowner From Displaying Political Banners With Curse Words?
A Roselle Park, New Jersey Municipal Court Judge recently ruled that a homeowner violated a local ordinance by displaying various banners in her backyard stating, “**** Biden,” “Socialism **** Biden *****,” “**** Biden, Not My President” Another banner read, “**** Biden” with a picture of Donald Trump raising both of his middle fingers. The Judge ordered the homeowner to remove the signs with “profanities” within a week or face a $250-a-day fine.
Did the order violate the homeowner’s First Amendment right of Free Speech? Most likely.
Did the order violate the homeowner’s First Amendment right of Free Speech? Most likely.
ABOUT THE AUTHOR: Jay Chatarpaul
Jay Chatarpaul is an attorney in Jersey City, New Jersey and practices in the area of employment discrimination and civil rights
Copyright Chatarpaul Law Firm, P.C.
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