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New Jersey Judge Rules Offensive Speech Is Not Protected Speech.

It is safe to say that Andrea Dick of Roselle Park New Jersey is not a fan of President Joe Biden. Dick lives in a home owned by her mother and put up signs on a fence (seen above) that voiced her displeasure with Biden.

Three of the signs contain the “F-word” which offended some people in the town.

The town issued Dick a code violation to remove the signs. When Dick did not comply, the town took her to court where Roselle Park Municipal Court Judge Gary Bundy ordered Dick to remove the signs or face a $250 fine.

Roselle Park Municipal Court Judge Gary Bundy ordered the Willow Avenue homeowner to remove the signs with profanity within a week or face a $250-a-day fine….

“This is not a case about politics. It is a case, pure and simple, about language,” Bundy said. “This ordinance does not restrict political speech. Neither this town or its laws may abridge or eliminate Ms. Dilascio’s freedom of speech. However, freedom of speech is not simply an absolute right. It is clear from state law and statutes that we cannot simply put up the umbrella of the First Amendment and say everything and anything is protected speech.” …

The ordinance prohibits displaying “any obscene material, communication or performance or other article or item which is obscene within the Borough.” It defines obscenity as material that depicts or describes sexual conduct or lacks any serious literary, artistic, political or scientific value.

To look at this, we first need to look at the 1971 Supreme Court case of Cohen v. California.

In that case, Paul Cohen was walking down the hall of the Los Angeles County Courthouse wearing a jacket with the words “F**K THE DRAFT.”

Cohen was arrested, charged and convicted of California Penal Code § 415 which prohibits ‘maliciously and willfully disturb(ing) the peace or quiet of any neighborhood or person * * * by * * * offensive conduct * * *.

The Supreme Court overturned the conviction, saying:

First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? 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.

Additionally, we cannot overlook the fact, because it is well illustrated by the episode involved here, that much 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. Indeed, as Mr. Justice Frankfurter has said, “[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures—and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.”

Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results.

It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense.

Somehow Judge Bundy missed that day in class in law school where the Supreme Court ruled Dick’s signs are protected speech.

The Town seemed to argue that the signs had to go because there was a school in the area and kids might see the signs.

Cohen addresses that as well:

In this regard, persons confronted with Cohen’s jacket were in a quite different posture than, say, those subjected to the raucous emissions of sound trucks blaring outside their residences. Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes. And, while it may be that one has a more substantial claim to a recognizable privacy interest when walking through a courthouse corridor than, for example, strolling through Central Park, surely it is nothing like the interest in being free from unwanted expression in the confines of one’s own home. (emphasis ours)

The town seems to have relied on the definition of “obscene” in their code which reads:

(click for larger image in new tab)

Under that definition, the speech must basically be pornographic, appealing to the “prurient interest” in sex and depicting or describing sexual conduct; the word “fuck” here doesn’t qualify.

Did the town and Judge Bundy really think that Andrea Dick wanted to have sexual intercourse or be intimate with Biden?

Again, from Cohen:

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 town was happy with the decision, of course:

Today was a win for the borough and decency,” Signorello, the mayor, said in a statement to NJ Advance Media. “While we respect the views of our residents, there’s no place for profanity by a school and school children.”

Even the Mayor realizes that the F-word is not obscene saying it was “profanity.”

(Has anyone else noticed how people who wish to suppress the rights of others always say they are doing it “for the kids?”)

Judge Bundy was cavalier in his attitude as well:

The judge, while handing down his ruling and sentencing, rhetorically asked if a balance could be found between the homeowner’s freedom of speech and a mother having to explain what the f-word means to their child. His ruling, he said, only meant that different words should be used to describe disappointment over the presidential election.

“We just had the National Spelling Bee,” Bundy said. “That word was not one of the words that the kids spell out.”

A Municipal Court Judge thinks the government has the right to tell citizens what they “should” say, as opposed to what is protected by the First Amendment?

(For the record, we didn’t hear the words “judge,” “ruling” or “court” at the National Spelling Bee either.)

The Town of Rosella Park is using tax dollars to prosecute a woman for what is clearly protected speech. There is no doubt about it being protected. None. The Judge will be paid for this decision by tax dollars. His staff will be paid as well.

The only people that are having to dig into their own pockets for the defense of the First and Fourteenth Amendment is Andrea Dick and her mother.

Even if they win on appeal (and we believe they will) they will be out thousands of dollars for lawyers, filing fees and court costs.

In essence, they are already being punished for what is legal while the Town Attorney and the Judge get off scott free.

The process is the punishment.

The only “win” going for this right now is the NJ.com says this:

The three signs with the f-word and others remained up Friday morning.

We can only hope that the ACLU or other groups that fight to protect people from having their rights suppressed will come to the aid of Dick and her mother.



2 Responses to “New Jersey Judge Rules Offensive Speech Is Not Protected Speech.”

  1. Percy Veer says:

    As you say the “process” is the punishment. Unfortunately, until that changes elected officials and government will continue to run roughshod over the rights of the individual knowing that they are unlikely to be challenged and even if they are and loose it costs them nothing.

    As these were pro Trump signs in this case I doubt you’ll see any of the so called civil rights groups rushing to her defense. Time will tell but I wouldn’t hold my breath.

    • AAfterwit says:

      Percy Veer,

      Thanks for the comment.

      Until government officials are held accountable for things like this, nothing will change.

      We did a quick search “Judge Gary Bundy” and were surprised to find the number of awards Roselle Park had given him. He is tight with the City Government and one would expect him to recuse himself any time a case that involves the City comes his way.

      He didn’t and he won’t face any blowback either.

      Thanks again.

      A. Afterwit.

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