N.J. woman must remove anti-Biden F-bomb signs or face $250-a-day fines, judge rules

[mahatmakanejeeves]

Hat tip, Popehat

Yeah that doesn’t sound right, plus the judge is invoking like three speech tropes

Link to tweet

This goes back to Thursday, so it's not LBN.

Union

N.J. woman must remove anti-Biden F-bomb signs or face $250-a-day fines, judge rules

Updated Jul 17, 2021; Posted Jul 16, 2021

By Rebecca Panico | NJ Advance Media for NJ.com

Editor’s note: This story contains a photo that features profanity.

A municipal judge on Thursday ruled that a Roselle Park homeowner’s owner’s anti- President Biden flags including the F-bomb on her fence were obscene and must be removed because they violated a borough ordinance.

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. Patricia Dilascio is the property owner but her daughter, Andrea Dick, had the signs, three of which include the F-word, on display.

“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.”

{snip}

Roselle Park Mayor Joseph Signorello III, a Democrat who is running for state Senate in Union County, previously said the home is close to a school and angered some residents. But Dick repeatedly said she would not remove the signs since they are political speech protected by the First Amendment.

{snip}

The homeowner has 20 days to appeal the decision to Superior Court. Campagna did not respond to a request for comment and a man who answered the door at the property Friday morning said “she’s not home.”

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

Local journalism needs your support. Subscribe at nj.com/supporter.

Rebecca Panico may be reached at [e-mail].

Andrea Dick is right. The signs are political speech protected by the First Amendment.

Go ahead and alert. Then give this some thought:



Source: https://blog.library.gsu.edu/2012/03/23/secularists-descend-upon-d-c-for-reason-rally/

Fri Jan 25, 2019: Johns Hopkins to buy Newseum building in D.C. as journalism museum plans to relocate

{edited to add this full disclosure:} IANAL

[hlthe2b]

1. There are free speech exceptions...

Categories of speech that are given lesser or no protection by the First Amendment (and therefore may be restricted) include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, and commercial speech such as advertising. Defamation that causes harm to reputation is a tort and also an exception to free speech.

I'm as pro-civil liberties as any on DU, but it is simply not true that there was no basis for the judge's decision.

Arguably this COULD (and apparently WAS by the homeowners' group) construed as obscenity and incitement to lawless action. The judge apparently agreed.

It is a fine line and you can disagree, certainly, but I haven't seen ACLU pick this up (as they have marching rights for KKK and other disdainful examples) so, we shall see.

[mahatmakanejeeves]

2. Good morning. Thank you for writing.

DU had a big thread about these signs a month or so ago. I'm going to try to find it.

I'd make some popcorn, but it's not even 8:00 a.m. yet.

Thanks again.

Oh, here we go. The thread came up right away.

Thu Jun 3, 2021: Homeowner Refusing to Remove 'F*** Biden,' Pro-Trump Flags Faces $500-a-Day Fine

[mahatmakanejeeves]

3. From the thread at Popehat:

Lawyersplaining Jersey Justice. Municipal judges are appointed by the municipality and are part time. They preside over traffic court and misdemeanors. The appointment is a 3 year term. Not surprised a municipal judge upheld an unconstitutional as applied ordinance .

Link to tweet

[sl8]

4. From the borough obscenity ordinance:

From https://ecode360.com/35328682 [emphasis added] :

[...]

§ 3-8.2 Determination of Obscenity.

[1980 Code § 152-2]The word "obscene" shall mean any material, communication or performance which the average person applying contemporary community standards existing within the municipality, would find, when considered as a whole:

a. Appeals to the prurient interest;

b. 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

c. Lacks serious literary, artistic, political or scientific value.

[...]

Aside from the constitutionality, I'm not sure why it doesn't fit the "political" exception. Maybe the judge didn't consider it seriously political.

[sanatanadharma]

5. Congress shall make no law...

...does that say a local borough can not?

[mahatmakanejeeves]

7. Reed v. Town of Gilbert

(Reed v. Town of Gilbert (pdf), 135 S. Ct. 2218 (2015)).

https://www.supremecourt.gov/opinions/14pdf/13-502_9olb.pdf

[sl8]

8. The 1st Amendment has been fully incorporated.

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm

[mahatmakanejeeves]

10. Thank you for posting this link. NT

[mahatmakanejeeves]

6. Sign Ordinances and the First Amendment

Sign Ordinances and the First Amendment
Published: June 14, 2021

This content conveys general information. Do not use it as a substitute for legal advice. Any attorney general opinions cited are available from the League’s Research staff.

First Amendment principles

The First Amendment protects signs as speech, and as a result courts closely review attempts to regulate signs. In 2015, the U.S. Supreme Court decided a seminal case that changed how courts review the validity of sign ordinances (Reed v. Town of Gilbert (pdf), 135 S. Ct. 2218 (2015)).

Prior to this decision, courts generally presumed sign ordinances were valid and considered the intent behind the adoption of the ordinance. They would only strike down ordinances where they found evidence that the city “adopted (the sign regulation) to suppress speech with which the government disagreed.” This is commonly known as content-based speech.

Since Reed, courts now presume that sign ordinances that restrict speech (either expressly or implicitly) are unconstitutional.

As a result, courts look first to the effect of the sign ordinance — whether the ordinance regulates signs differently based on the content or message of the sign — before conducting their analysis of the constitutionality of the ordinance.

Based on the court’s determination, the court will apply one of two standards of review to the challenged ordinance. One is a content-based standard, the other is a content-neutral standard.

Content-based

If the ordinance draws distinctions based on the message communicated by the sign, the court reviews these ordinances more harshly than if the ordinance regulates signs and their placement without regard to content.

The Reed decision created a two-step analysis to determine if the ordinance restricts speech:

• Does the ordinance language refer to the content or the message of the sign?
• If not, then is there evidence showing the city adopted the regulation specifically because of disagreement (or agreement) with the message expressed by the sign?
• In Reed, the Town of Gilbert’s sign code required permitting for signs, but then listed out categories or types of signs exempt from permitting, including “political signs,” “ideological signs,” and “temporary directional signs.”

The ordinance in Reed also placed different physical restrictions on the separate types of signs.

The Supreme Court found this ordinance to be content-based because the regulation “on its face” looked to the message on the proposed sign to determine how the city would regulate it.

If a court finds the city expressly regulated, or intended to regulate a message or content, then the court applies a more rigorous level of review to those ordinances. This heightened level of review is called “strict scrutiny.” The court will only uphold the ordinance if:

• It furthers a compelling government interest, and
• It is narrowly tailored.

Courts have found few governmental interests represent justifiable “compelling interests.” As a result, in practice, few, regulations survive strict scrutiny.

Content-neutral

For sign ordinances that do not regulate the message or content of signs (commonly called “content-neutral”), courts apply a lower standard of review to the reasonableness of regulations. Courts generally uphold regulations that further a significant government interest, as long as reasonable alternative channels for communication exist. As a result, courts usually uphold ordinances considered content-neutral.

Courts generally uphold regulations that meet the criteria below. They are often referred to as reasonable time, place, and manner restrictions. These ordinances:

• Do not reference the content of the sign.
• Are narrowly tailored to serve a significant governmental interest (rather than compelling interest).
• Leave open ample alternative channels for communication of the information.

To help avoid challenges when adopting sign ordinances, cities should:

• Not regulate based on content.
• Not favor commercial speech over noncommercial speech.
• Further substantial government interests, such as traffic safety or aesthetics, without regulating more than necessary to accomplish their objectives.
• Leave ample alternative channels for communication, such as limiting the size of signs but still allowing signs.

(Advantage Media, LLC v. City of Eden Prairie, 456 F.3d 793 (8th Cir. 2006); Hensel v. City of Little Falls, 992 F. Supp.2d 916 (D. Minn. 2014).)

{snip}

[hlthe2b]

9. I can assure you that courts have upheld those restrictions promulgated by Homeowner's Associations

It is basic contract law and (despite my own decades-long annoyance) the rules, regulations, and restrictions in place when you purchase a property have been upheld.

So, where those are part of the situation, the homeowner is going to lose.

Homeowner's associations can be a blessing and a scourge, but are only as good as those serving and actively overseeing them. Most (like myself) do not want to become involved. This is the price one can pay. The neighborhood one up from mine even requires prior permission to change out your landscaping with so much as a single tree or bush.

[mahatmakanejeeves]

11. Hard to think of a stronger First Amendment position to be in than ...

Dave Weigel Retweeted

Hard to think of a stronger First Amendment position to be in than criticizing the head of state on your own property

Link to tweet

She Hates Biden. Some of Her Neighbors Hate the Way She Shows It.

A local judge ordered a New Jersey woman to take down political banners over obscenity complaints, setting up a First Amendment fight.



Andrea Dick outside her home in Roselle Park, N.J., with one of the political signs a judge said she did not have to remove. Credit...Bryan Anselm for The New York Times

By Ed Shanahan
July 20, 2021

Andrea Dick is a die-hard supporter of former President Donald J. Trump and thinks the election was stolen from him, although that claim has been thoroughly discredited. She does not like President Biden, and that is putting it mildly.

Her opinions are clear in the blunt slogans blaring from the banners outside her New Jersey home: “Don’t Blame Me/I Voted for Trump” and several others that attack Mr. Biden in crude terms. Several feature a word that some people find particularly objectionable but whose use the Supreme Court long ago ruled could not be restricted simply to protect those it offends.

When local officials asked her to take down several of the banners that they said violated an anti-obscenity ordinance, she refused. Now, she is resisting a judge’s order that she do so and pledging to fight it in court on free speech grounds. ... “It’s my First Amendment right,” she said in an interview on Monday, “and I’m going to stick with that.”

{snip}

“Freedom of speech is not simply an absolute right,” {Judge Gary A. Bundy of Roselle Park Municipal Court} added, noting later that “the case is not a case about politics. It is a case, pure and simple, about language. This ordinance does not restrict political speech.” (Nj.com reported Judge Bundy’s ruling on Friday.)

{snip}

Ed Shanahan is a rewrite reporter and editor covering breaking news and general assignments on the Metro desk. @edkshanahan