Three years ago, Mayor Dwayne Cole of Munford, Tennessee, used these words to describe the controversial public displays of profane political statements that had stirred national attention. For better or worse, nearly every Constitutional lawyer and scholar in America would likely concur with Mayor Cole. At that time, Munford was just one of many municipalities drawing national focus for their attempts to regulate political yard signs, banners, and flags. The efforts of municipalities to control these potentially polarizing and obscene statements continue to be consistently blocked by a common barrier: the United States Constitution.
Political tension continues to escalate, and many municipalities have sought advice from solicitors over the years to address the challenge of regulating vulgar and profane political statements on signs. However, they often find their options limited due to the political nature of the messages. Efforts to impose restrictions on such signs have frequently resulted in expensive litigation and unfavorable outcomes.
In Tennessee, a federal judge recently ruled that a homeowner had the constitutional right to display a yard sign with profane language criticizing current political opponents (sign reading ‘F*** Em’ Both’). The city of Lakeland fined the homeowner for violating regulations against obscene content on signs, but the lawsuit led to a ruling that the sign was protected under the First Amendment. This case echoes the long-standing legal precedent protecting political speech, showing that despite local governments’ attempts to regulate such expressions, constitutional protections prevail. Pereira v. City of Lakeland, Tennessee et al, 2:2024cv02380, (W.D. Tenn. July 9, 2024).
Similarly, in Pennsylvania, a federal appeals court found that Camp Hill Borough’s ordinance limiting political lawn signs was unconstitutional. The Borough had stricter limits on political signs compared to other types of signs, including telling a resident that their three signs were too many and informing another that their signs could not be up too early before an upcoming election. The court ruled this as a violation of free speech rights. This decision reinforced that municipalities cannot discriminate against political messages, even if their stated aim is to address concerns about traffic safety and aesthetics. Camp Hill Borough Republican Ass’n v. Borough of Camp Hill, 2024 U.S. App LEXIS 11300 (3rd Cir., May 9, 2024).
Authorities in municipalities such as Jackson, MI; Long Beach, NY; Plymouth, CT; ; and Erie, PA have faced similar challenges in recent years when trying to regulate political statements on yard signs. Despite these efforts, the treatment of this issue under the United States Constitution has remained consistent: political statements are protected, even if the sign contains language that many others may consider to be objectionable.
Attorneys representing the sign owners in most of the headline stories derived their arguments from the United States Supreme Court’s landmark First Amendment decision in Cohen v. California. In Cohen, the Supreme Court held that vulgar political statements, although offensive to some, are protected by the First and Fourteenth Amendments to the United States Constitution.
The First Amendment prohibits the federal government from restricting the rights of free speech and free expression of ideas while the Fourteenth Amendment applies that prohibition to state and local governments.
The Cohen Court did hold that the rights of free speech and free expression are not absolute, but even within the government’s limits, political speech and expression are practically unbounded. In Cohen, the Supreme Court held that governments may prohibit speech that is “obscene” or is “likely to provoke violent reaction,” but “an undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Additionally, the Court held that to be regulated as “obscene,” speech or expression “must be, in some significant way, erotic.”
Cohen is still the standard for First Amendment protections against which restraints on private citizens’ political speech are tested, and many attempts to land in the gray area of its interpretation have failed. Courts have even relied on Cohen to strike down local and state ordinances seeking to regulate vulgar and profane political speech reasoned on proximity to schools and exposure to impressionable youth. Alas, even the most noble attempt to recalibrate the public’s moral compass has not been able to overcome the Cohen Court’s opinion that “the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.”
The United States Supreme Court is the highest authority for interpreting the United States Constitution, and its purpose is to preserve the rights of the American people as provided for in the Constitution. Thus, although the thought that such reprehensible speech deserves protection may seem unpalatable, the reason the Cohen decision has withstood the test of time is because of the foundational social and political principles upon which it rests. On more than one occasion, the Supreme Court has opined that the government should not decide who gets a voice in the public forum, nor should it have the power to determine what ideas are or are not acceptable. Instead, the American people have “the right to criticize public men [and women] and measures,” which includes “not only informed and responsible criticism but the freedom to speak foolishly and without moderation,” and that “no other approach would comport with the premise of individual dignity and choice upon which our political system rests.”
Should you have any questions about First and Fourteenth Amendments to the United States Constitution and signs in your community, please do not hesitate to reach out to one of the Municipal Law attorneys at Stock and Leader.
Pereira v. City of Lakeland, Tennessee et al, 2:2024cv02380, (W.D. Tenn. July 9, 2024)
Camp Hill Borough Republican Ass’n v. Borough of Camp Hill, 2024 U.S. App LEXIS 11300 (3rd Cir., May 9, 2024)