Local judges are notoriously bad when it comes to ruling on constitutional matters. This stems from their general unfamiliarity with federal constitutional law, which just doesn’t come up all that often when deciding building code disputes, and their sense that they reflect the conscience of the community they serve. Some are elected, and need the support of their neighbors. Others just agree with their neighbors, that a wink and nod make for a nicer place to live than an ugly adherence to the Constitution.
Let’s be honest. Constitutional rights can get a bit unpleasant. We tolerate the unpleasantness for good reason, but that doesn’t mean we’re happy to have our kids see vulgar signs as they walk to school any more than be told that they should loathe their skin color. And given that every idiot is entitled to free speech, there isn’t a lot you can lawfully do about vulgar signs, right? Not so, says Roselle Park Municipal Court Judge Gary Bundy.
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.
The daughter of the homeowner, Andrea Dick, had three “Fuck Biden” signs on the fence. Clearly, she knows how to persuade people to come to her side with her deep and thoughtful political arguments. But even a Dick is entitled to her First Amendment rights.
“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 argument adopted by the judge, according to the article, is that this was about a vulgar word that was prohibited by local ordinance as obscene based on local community values, which, he concluded, meant you could not put “fuck” on a sign and piss off the neighbors and parents of kids walking by. As wrong rationales go, it’s not half bad. After all, there is no reason to believe that the holding would be any different if the signs read “Fuck Trump” rather than “Fuck Biden.” In that sense, it’s content neutral in that regard.
But use of the word “fuck” has already been specifically addressed by the Supreme Court as a means of political expression, as has obscenity, and its use, vulgar thought it may be and unpleasant as it is for the neighborhood, is protected as explained by Justice Harlan in Cohen v. California, the “fuck the draft” case.
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.
Why then did Judge Bundy ignore clear caselaw from the Supreme Court of the United States to rule that Dick’s sign violated the local obscenity ordinance? Surely it was argued. Surely he knows that as important as he may be as the municipal judge of Roselle Park, New Jersey, the Supreme Court is a bigger deal.
But what Judge Bundy also knows is that there is only so much money, time and attention that Dick is likely to be willing to put into this fight. There are other signs that can express her political views without using the word “fuck.” Maybe her passion will wane when she gets the bill for her legal fees, and discretion will be the better part of vulgarity. Maybe she will give up and let the neighbors, and their kids, live in peace. Maybe.
There was once a time when a civil rights organization might stand up for the rights of a person like Dick, but it’s unclear whether the ACLU would choose to spend its resources and vast wealth to back someone whose sign says “Fuck Biden.” In the alternative, perhaps a libertarian group like the Institute for Justice will take on her cause and make it a federal case. But perhaps she will let it go and Roselle Park will go back to being a little New Jersey municipality without unpleasant words on signs.
If Judge Bundy is wrong and the case is pursued through the years of appeals and collateral litigation that could ensue if the cause is taken up or Dick wins the lottery, the worst that can happen to him is he gets reversed. Big fucking deal. In the meantime, his neighbors appreciate his effort to preclude the vulgarity that makes their life a little less pleasant.