Roselle Park bows out of fight over profane anti-Biden flags
Flags are seen in the parking lot of a campaign rally for Donald Trump on Oct. 16, 2020 in Macon, Georgia. (Photo by Elijah Nouvelage/Getty Images)
Roselle Park has dropped its case against a borough resident who displayed profane anti-Biden flags outside her home, a decision applauded by free speech experts who said town officials were violating the resident’s free speech protections.
The borough’s attorney told a state Superior Court judge in Union County Tuesday that Roselle Park would dismiss the charges it filed against Andrea Dick over the “Fuck Biden” flags at the center of the controversy, according to a report on NJ.com. The borough said the flags violate a local anti-obscenity ordinance.
Constitutional scholars have roundly criticized Roselle Park officials for their targeting of Dick, a Trump supporter. The American Civil Liberties Union of New Jersey last week took up the case on behalf of Dick.
“From a legal standpoint, these cases are pretty simple. The Supreme Court has made it clear that government cannot limit profanity in public,” said Thomas Healy, a law professor at Seton Hall University. “You just cannot give government officials the power to go around punishing people because of the content of their speech.”
Roselle Park, a heavily Democratic Union County borough of 13,500, is one of several New Jersey towns grappling with how to handle profane political displays. In Hazlet, township officials in June used a nuisance ordinance to order a resident to take down a sign similar to Dick’s. A vulgar anti-Biden flag in Rochelle Park in Bergen County had residents calling police, but town officials there let it fly, citing free speech concerns, according to NorthJersey.com.
Public officials cracking down on such messages say they are merely enforcing municipal obscenity or nuisance ordinances. Roselle Park Mayor Joseph Signorello III, a Democrat, said last week residents complained because Dick lives one block from a school and exposed countless young students to profanity.
“Listen, I’m a 33-year-old mayor who has probably cursed more than any sailor in this hemisphere,” Signorello said. “But the ordinance was on the books before I was mayor. We don’t get to pick and choose, as elected officials, where to apply the laws. If I get a complaint that the grass is too long on someone’s lawn, I have to enforce that too. Code enforcement did their job, and the judge ruled in our favor.”
Obscene, or protected speech?
To be considered obscene, material in question must meet three criteria set by the U.S. Supreme Court: it must appeal to an average person’s prurient interest, depict sexual content in a “patently offensive” way and lack serious literary, artistic, political or scientific value.
David Keating, president of the Washington, D.C.-based Institute for Free Speech, said the four-letter word on Dick’s flag “is not considered an obscenity.”
“It’s not obscene,” Keating said. “It’s just not.”
That was established in the 1971 case Cohen V. California, which involved a man who wore a jacket with a profane, anti-draft message into a Los Angeles courthouse, Keating said. The U.S. Supreme Court upheld the man’s right to do so, saying curse words are subjective and “one man’s vulgarity is another’s lyric.”
Swear words are also ubiquitous, Healy added.
“It’s ridiculously implausible to try to remove profanity from the public realm,” he said. “There’s so much profanity out there that police could never arrest everybody engaging in profanity in a public sphere. Everybody in the world would be in jail.”
The only objectionable words that could warrant censure and removal would be those that defame someone or incite people to immediately break the law or commit violence, said Ronald Chen, a Rutgers Law School professor, constitutional scholar and national general counsel for the ACLU. But even those categories of unprotected speech are narrowly defined, he said
“You’d have to literally be threatening someone or inciting someone to get violent, and I’m not sure how you do that on a lawn sign,” Chen said. “And ‘F President Biden’ is not defamatory. It’s simply an opinion that you don’t like President Biden. If you said that President Biden is an ax murderer, I suppose Biden could try to pursue that as defamatory speech.”
Political speech in particular is protected, as established in the landmark 1964 case, New York Times v. Sullivan, which allowed “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials,” said Chris Finan, executive director of the New York City-based National Coalition Against Censorship.
Of the Roselle Park flags, Finan said: “Of course it’s political speech — there are only two words and the president’s name is one of them.”
Healy said the hubbub holds lessons both for judges deciding such cases and public officials and residents navigating how to respond to a neighbor’s eyebrow-raising lawn displays.
“To me, the way you deal with this is you appeal to the person’s sense of decency or community responsibility, and you hope the person responds to that,” he said. “And if they don’t, you just ignore it.”
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