With the election of President Trump followed by the election of President Biden, a nascent enterprise has emerged. Internet sales of flags and signs emblazoned with a certain 4-letter word conveying a less than polite message about the sitting president and former president have become big business. At the same time, a burgeoning industry of fencing material constructed to appear to give the middle finger to passersby has emerged. With the escalation of purchase and exhibition of items of this type comes complaints and entreaties to the local government to “do something!”
No matter the intensity of public outcry, no matter the community standard for offensiveness, local governments are constrained by the United States Constitution from ordering the “offensive” item removed or punishing the person displaying the item. Certain arguably profane words, in and of themselves, simply cannot be banned under the First Amendment. This is not new. It has been fifty years since the Supreme Court ruled that an individual who wore a jacket bearing the words “F*** the Draft” into a California courthouse could not be convicted under a local peace disturbance ordinance. Cohen v. California, 403 U.S. 15 (1971). Justice John Marshall Harlan II reasoned in Cohen that “while the particular four-letter word being litigated … is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.” Justice Harlan warned that if the Court did not hold otherwise “governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”
Displaying the “F” Bomb—Obscenity or Protected Speech?
Many citizens point out to their local government that the municipal sign code bans signs containing “obscene, indecent or immoral matter” or some words like that. While banning obscenity is within the government’s purview in some cases, Cohen would clearly forbid a municipality from prosecuting sign owners because they displayed an indecent or immoral message. And while obscene signs may be regulated, obscenity in the law pertains to lewd, lascivious, and indecent materials—usually of the sexual nature. The basic guidelines for determining obscenity are: (a) whether the average person, applying contemporary community standards would find that the material, taken as a whole, appeals to the prurient interest, (b) whether the material depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the material, taken as a whole, lacks serious literary, artistic, political, or scientific value. These flags and middle finger fences, as a matter of law, are not “obscene” because they are not erotic.
So, while there are always other factors to look at, this type of speech, vulgar as it may be, is generally protected speech.
Them’s Fightin’ Words!
Prior to Cohen, courts had held that profane words were considered “blasphemous and punishable,” (see, e.g., Chaplinsky v. State of New Hampshire, 315 U.S. 568, 569, 62 S. Ct. 766, 768, 86 L. Ed. 1031 (1942) upholding the conviction of a person for violating a law criminalizing the use of “offensive, derisive or annoying word to any other person who is lawfully in any street” for exclaiming the City Marshall was “a God damned racketeer” and “a damned Fascist” and that “the whole government of Rochester are Fascists”). In the 1940’s there were “certain well-defined and narrowly limited classes of speech” including the “lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words” that could be prevented by the threat of punishment from being published or spoken without raising any Constitutional concerns. These so-called “fighting words”—i.e., such personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction, is used could “cause a breach of the peace.” See, Chaplinsky, at 574.
While technically the Chaplinsky principle that through municipal ordinances the government can proscribe the use of “fighting words” remains in place, the Supreme Court has closely scrutinized such laws on vagueness grounds and set aside convictions as not being within the doctrine. Chaplinsky thus remains legally viable but of little effect. As such, municipal codes containing prohibitions on speech or writing “likely to incite immediate acts of violence” while not unconstitutional per se, may be of little practical value.
Be Smart, Act Carefully, Seek Legal Guidance
City regulations on signage and other expressive speech, to follow Supreme Court pronouncements, must be viewpoint neutral and cannot regulate the content, or message, conveyed. In the end, a municipality taking action to prohibit this type of speech will not be effective, practically, and could lead to a lawsuit against the government seeking to block any action to remove the flag or other offending item and requesting damages and legal fees pursuant to Section 42 U.S.C. 1983 and 1988. Be careful not to act based on the urgency and passion of the complaints. Instead, seek legal counsel before taking any action.