Update 7/27/21: A New Jersey Superior Court vacated charges against Andrea Dick for violating Roselle Park’s obscenity ordinance. ACLU-NJ Executive Director Amol Sinha called it an “uncomplicated case,” and that the ordinance infringed upon Ms. Dick’s “fundamental rights protected by the First Amendment.”
By Soraya Ferdman
A municipal judge ordered a New Jersey woman to remove “Fuck Biden” banners from her front yard on the grounds that they violated the town’s anti-obscenity ordinance.
Andrea Dick, 54, is a passionate Trump supporter who lives with her mother in Roselle Park, a town in central New Jersey. She is apparently one of the few Republican residents in her area, and recently decided to express her opposition to President Biden by hanging signs outside her mother’s home, including three signs with the F-word.
Soon after she hung the banners, residents started to complain to the town’s mayor. The home is about a block away from an elementary school. In June, a borough code enforcement officer informed Ms. Dick that her signs violated the town’s anti-obscenity ordinance and ordered her to remove them from her lawn.
Under the ordinance, individuals cannot “knowingly photograph, act in, pose for, print, sell, offer for sale, give away, exhibit, publish or offer to publish or otherwise distribute or pander, make, display or exhibit any obscene material, communication or performance or other article or item which is obscene within the Borough.”
The statute defines obscenity as material that “appeals to the prurient interest; depicts or describes in a patently offensive way sexual conduct as hereinafter specifically defined, or depicts or exhibits offensive nakedness as hereinafter specifically defined; and lacks serious literary, artistic, political or scientific value.”
When she refused to remove the banners, the officer sent her a court summons.
Ms. Dick appeared in court on July 15th, where she was ordered to remove the “Fuck Biden” signs or face $250 in fines a day. According to The New York Times, which obtained an audio copy of the hearing, Judge Gary A. Bundy told Ms. Dick to find ways to express her political opinions without using profane language.
“Freedom of speech is not simply an absolute right,” Judge Bundy said in an oral decision, “the case is not a case about politics. It is a case, pure and simple, about language. This ordinance does not restrict political speech.”
The order did not apply to the banners that said “Biden Sucks” and “Don’t Blame Me[,] I Voted For Trump” because they did not contain cuss words.
Judge Bundy’s ruling would appear to conflict with Cohen v. California (1971), a case that considered the use of the F-word to express strong opposition to the draft during the Vietnam War.
Cohen involved a young anti-war protester, Paul Cohen, who walked into a courthouse with a jacket that said “Fuck the Draft” on the back. He was arrested and charged with violating a California statute that prohibited “maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct.” As in the case of Ms. Dick’s banners, the state argued that the charge was not based on Cohen’s political stance against the Vietnam War, but on the words he chose to express his political view. Also similar to Ms. Dick’s case, the police pointed to the fact that there were young children in the courthouse who could be harmed by reading Cohen’s jacket.
But the Supreme Court rejected the state’s argument, among other reasons, because a person’s word choice can indicate not only their political position but the strength with which it is held.
“[M]uch linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated,” the court wrote.
Another element that links these two cases is the use of obscenity laws to censor profane speech. Indeed, obscene language is one of the few categories of speech that is not protected under the First Amendment. But this exception applies to erotic language, such as the graphic depiction of sex or genitals, not cursing or crude words.
Though “fuck” can be used to refer to intercourse, neither Cohen nor Ms. Dick uses the word for that purpose. The court explained this difference in Cohen:
“This is not, for example, an obscenity case. Whatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket.”
The Court in Cohen also said that banning speech on the basis of offensiveness provides government officials with too much discretion. Laws prohibiting offensive speech are “inherently boundless,” the Court ruled.
“Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. 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.”
Ms. Dick appealed the municipal court’s decision with the help of the American Civil Liberties Union of New Jersey. On July 27, the Superior Court Law Division vacated the charges against Ms. Dick.
In response, Amol Sinha the Executive Director at the ACLU-NJ, issued the following statement.
“The First Amendment exists specifically to make sure people can express strong opinions on political issues – or any other matter – without fear of punishment by the government. Today’s decision confirms that our position was correct: Roselle Park had no grounds to issue fines for a political sign and the town’s use of its obscenity ordinance infringed upon fundamental rights protected by the First Amendment. It was an uncomplicated case.
This type of policing and silencing of speech has historically disproportionately impacted marginalized New Jerseyans and cannot go unchecked. Today’s decision is a victory for our client and for all New Jerseyans who have the right to express themselves freely under the First Amendment.”