Random free-speech items for a weekend morning.
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A municipal court judge in New Jersey ordered a woman to remove “Fuck Biden” lawn signs or face fines of $ 250 per day (unable to post photo, but can be found in the article).* This is an absurd ruling, in which no one– the judge, the town’s attorney, or the reporter covering the story–understands the First Amendment. The town proceeded under its obscenity ordinance, even though: 1) the written word is almost never obscene in modern doctrine; 2) nothing about “fuck Biden” describes sexual conduct because the point of the message is not that this woman wants anyone to have sex with Joe Biden; 3) nothing about this appeals to the prurient interest, as opposed to angry and hostile politics; 3) Cohen establishes that the word “fuck” is protected as a verbal intensifier; and 4) even without Cohen, using the word as part of an anti-Biden message gives it serious political value, removing it from the definition of obscenity.
* The story includes the photo with the signs on full display, then uses “f-word” throughout. We have weird standards.
Everything about this is wrong on the law. The news report paraphrases the ordinance as defining obscenity as “material that depicts or describes sexual conduct or lacks any serious literary, artistic, political or scientific value.” But either this ordinance is facially invalid or the reporter should not be covering courts. Merely describing sexual conduct is not enough; it must do so in a “patently offensive” way that also appeals to the prurient interest. And Miller is conjunctive–it must describe sexual conduct and lack SLAP merit. Again, however, obscenity should not be part of this discussion–Cohen makes clear that profanity as part of a political message is protected.
The woman’s lawyer did not help through his comments to the media, showing that he may not understand what this case is about. He tries to argue the signs are not obscene because obscenity has changed, pointing to how people treated women’s knees in the 1920s. He then railed about burning books and burning people (?!) in Nazi Germany. No mention of Cohen, fuck the draft, or recent cases holding that flipping someone off is protected, all of which is more doctrinally relevant than Nazi book burning. Maybe he is doing a better job in court than outside of it. But it would be nice if the ACLU or someone with the expertise to show the court and the public why this is nonsense were in the mix.
Update: Forgive me for not emphasizing enough the wrongness of the court’s decision and her lawyer’s seeming approach to the case. SCOTUS less than one month ago issued an opinion, binding precedent, saying the following: “And while B. L. used vulgarity, her speech was not obscene as this Court has understood that term. See Cohen v. California, 403 U. S. 15, 19–20 (1971). To the contrary, B. L. uttered the kind of pure speech to which, were she an adult, the First Amendment would provide strong protection.” Anyone believing an obscenity ordinance could apply to these signs, in the wake of that opinion, should be disbarred and/or kicked off the bench.
Two final points. First, this shows why (as one of my colleagues argues) First Amendment should be required or overwhelmingly encouraged. Lawyers qua lawyers should know the First Amendment. And it is important enough that a municipal court judge or suburban township attorney should know the area, however rare it might be that it comes up in their work. Second, this illustrate the point made