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Tuesday, July 27, 2021

"Fuck Biden" summons dismissed; now what?

A New Jersey Superior Court vacated obscenity charges against Andrea Dick after Roselle Park withdrew the summons.

So now what?

• Do Dick and the ACLU bring a § 1983 action for damages and/or for an injunction prohibiting future enforcement of the obscenity ordinance as to signs? The mayor and city attorney struck a defiant tone. The mayor decried the "sad reality" that the city cannot regulate decency. The city attorney insisted the original decision was correct but that "the continued attention garnered by the inappropriate display and the escalating costs to the taxpayers of continuing to litigate the matter causes far greater harm to the borough, as a whole, than good.” In other words, the city continues to argue that these signs violate its obscenity ordinance, suggesting both the possibility of future enforcement (perhaps when the nation is no longer paying attention) and the need for the deterrence that comes with an action even for minimal damages and attorney's fees.

• The Times reports on similar stories elsewhere in the U.S. Punta Gorda, Florida (on the Gulf Coast) enacted an indecency ordinance and is considering whether to issue a summons to a resident displaying a similar "Fuck Biden" sign. Punta Gorda appears smart enough to realize that profanity is indecent rather than obscene, so it is using the right legal theory. But a proper ordinance does not change that profanity is protected speech and so cannot be banned in most contexts.

• Roselle Park plans to amend its code to limit the amount of signage people can have in their property, although the mayor said the rules would not be retroactive and would not affect Dick's signs. It will be interesting to see what the township comes up with. City of Ladue v. Gilleo emphasized that one's home is a special medium that creates a unique message. Depending on the scope and details of the proposed ordinance, the city's interest in controlling visual clutter may not be sufficient to overcome the unique interest in speaking from one's own home.

Posted by Howard Wasserman on July 27, 2021 at 09:32 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink

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