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Profane Flags May be Protected Speech

Free Speech Image
zimmytws/Shutterstock.com
Free Speech Image

By Christopher South

WILDWOOD CREST – For the second meeting in a row, a member of the public addressed the Wildwood Crest Board of Commissioners to comment on profane flags on the beach. 

A resident complained, June 7, that someone brought a flag to the beach that carried a profane and insulting message related to both President Joe Biden and his supporters.  

Maria Crawford said she didn’t care about a person’s politics but resented having to read profane messages on a public beach – or be forced into the position of explaining them to a young grandchild. 

Chris Calderbank, June 21, said he has been complaining about profane flags for at least three years and he had emailed Mayor Don Cabrera just before the June 7 meeting.  

After reading a story in the Herald, he decided to come to the June 21 meeting and speak his mind. 

Calderbank said the flags, such as the one that Crawford described two weeks earlier, were “beyond inappropriate.” 

“I think it’s embarrassing that no one is addressing it,” he said. “I think you need to take a stand on it. This is not somebody with a bumper sticker or a T-shirt… it’s someone coming to a public place with a flag reading F- somebody.” 

“It doesn’t matter who, but wouldn’t you be upset if it said F- plus your name?” Calderbank said. 

Calderbank said there might be related articles to come out in other publications and he felt this could become a bigger embarrassment for Wildwood Crest in general. 

“It’s embarrassing for me, and I really ask you to give it some thought,” he said. 

Cabrera, who said June 7 that it might take the entire summer to come up with a legislative solution, told Calderbank it takes at least two months to create an ordinance, which means it would not go into effect until near Labor Day.  

He referred the matter to Borough Solicitor Ron Gelzunas, who said he would have to do specific research on the matter. He said the borough could ban all flags on the beach, as both Crawford and Calderbank suggested, but added he didn’t know if such a ban would hold up. 

“Perhaps another community has dealt with this,” he said. 

In New Jersey, the Borough of Roselle Park dealt with a related issue in 2021. A woman posted at least half a dozen signs or banners similar to the flag being complained about in Wildwood Crest.  

Roselle Park’s efforts to stop the posting of such signs included fines of $250 per day. The borough agreed to drop the fines after the homeowner appealed in Superior Court. 

A Google search brought up information regarding the U.S. Supreme Court and protected speech as it applies to profanity. The landmark case in this matter is Cohen v. California (1971) in which an individual named Paul Robert Cohen was cited for wearing a jacket bearing the words “F— the Draft.”  

Cohen was cited and given a sentence of 30 days in jail for creating a breach of the peace. The California Supreme Court declined to review Cohen’s conviction by a 4-3 vote, but the conviction was reversed by the U.S. Supreme Court by a 5-4 vote.  

Justice John Harlan, who wrote the majority opinion, said an attempt to “preserve an appropriately decorous atmosphere in the courthouse” was not a sufficient reason to impinge Cohen’s right to free speech. In order to restrict free speech, the words would have to provoke violence. 

A particular word or expression being profane does not rise to the level of speech that can be regulated. Harlan also indicated that Cohen’s “vulgar allusion to the Selective Service System” did not meet the definition of obscene. 

Justice Harry Blackmun, who wrote the dissent in Cohen v. California, referred to “Cohen’s absurd and immature antic” and said it was more conduct than it was speech. He also believed the case should be remanded to the California Court of Appeal.  

Justice Byron White added to the dissent, saying California statute prohibited the “use of any vulgar, profane, or indecent language within the presence or hearing of women or children.” White suggested that one might be disturbing the peace through willful, offensive conduct. 

Two years ago, a woman named Andrea Dick-DiLascio was cited by the Borough of Roselle Park for displaying at least half a dozen signs containing profane messages directed mainly at the president.  

The borough attempted to fine her $250 per day for the signs but withdrew its complaints after the American Civil Liberties Union (ACLU) agreed to represent Dick-DiLascio. 

ACLU senior attorney Alexander Shalom, who was familiar with the Roselle Park case, said, “Generally speaking, the Constitution does not like regulation of speech that depends on what the subject matter is.” 

Shalom said some towns try to prohibit profanity or obscenity in the community, but almost every ordinance contains exceptions for artistic, political, or other exempted material.  

Shalom said it would be plausible that a town could ban a sign with the F-word alone, but not one that carries the name of a political figure, such as Biden. 

“A prohibition on profanity as applied to political speech is particularly suspect,” Shalom said. 

He said the court has recognized that sometimes it’s just not enough to say, as in the Cohen case, “I oppose the draft” or “I oppose the president.” 

“Sometimes profanity is critical to the message,” Shalom said.   

Harlan addressed the matter of the profane message being thrust upon unwilling or unsuspecting viewers, which is what Crawford said in her complaint to the Wildwood Crest Board of Commissioners.  

Harlan said the appearance of a profane message before unwitting listeners or viewers is no justification for banning the messages. He said outside the sanctuary of the home, people might become subject to objectionable speech. 

Harlan continued, “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.”  

The Constitution, he said, leaves the matter of taste up to the individual.  

Harlan concluded that the individuals in the courthouse who might have briefly encountered the message on Cohen’s jacket were not powerless to avoid the situation “simply by averting their eyes.” 

Local attorney Frank Corrado, who is considered something of an expert on the First Amendment, said curtailing speech only because some people find it distasteful can create much more serious problems in society. 

“If the government tries to regulate speech based on the content or viewpoint, it raises substantial First Amendment issues that are difficult to overcome,” he said.    

Contact the author, Christopher South, at csouth@cmcherald.com or 609-886-8600, ext. 128. 

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