A woman in Roselle Park Township, New Jersey has gotten into a bit of trouble with the local codes officer and a municipal judge this summer. Her daughter, who is obviously a supporter of Donald Trump, hung some colorful flags on the fence alongside their house. The flags were “colorful” in more than one way, however. They all expressed opposition to President Joe Biden, with a few of them including the F-word. The daughter soon received a visit from a code enforcement officer, who ordered her to take the offending flags down. She ignored the order. Now a municipal judge has given the woman a brief period of time to remove the flags or she will begin racking up $250 per day in fines. The homeowner’s daughter insists that the flags represent protected political speech. (New Jersey Online. Warning: Linked article contains photo including offensive language.)
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.”
The story is complicated by the fact that there may be some politicking of a personal nature going on here. The code enforcement officer testified that she hadn’t even been aware of the flags until she received a call from the Mayor of Roselle Park instructing her to issue a violation to Andrea Dick, the homeowner’s daughter. The Mayor is a Democrat who is running for a state senate seat this year.
Ms. Dick isn’t being charged under any sort of state or federal law. She’s accused of violating a municipal code that bans the display of “obscene material” within the borough. Obscenity standards have been fought up and down our system of courts for a long time and they’re always tricky. But in this case, the borough’s own definition of “obscene” seems to make the prosecution of Andrea Dick complicated to say the least.
The signs in question contain the F-word, as in “Eff Joe Biden.” While that certainly qualifies as crude language, is it obscenity? According to the borough’s definition, obscenity primarily refers to sexually-oriented material of an adult nature. In order to qualify, the material would need to:
- Appeal to the prurient interest
- Depict or describe in a patently offensive way sexual conduct as hereinafter specifically defined, or depicts or exhibits offensive nakedness as hereinafter specifically defined; and
- Lack serious literary, artistic, political or scientific value.
I’m really not seeing how words on flags qualify under that definition. Cursing at an elected official doesn’t come close to falling under the definition of “prurient.” There’s also nothing even vaguely related to sexual conduct or offensive nakedness involved. And they even included a carveout for material displaying serious political value. The flags are clearly delivering a political message (though you can debate the seriousness of it if you wish) and this statute was obviously written with the intention of banning pornography. With that in mind, it sounds like a decent lawyer could knock this charge down.
The fact that the defendant’s house is one and a half blocks from the local school is another matter of interest. If there are school children regularly walking by, I can understand how parents might be offended. But if they’re going to take Ms. Dick to court over this and start charging her hefty fines, they’re going to need to pin a charge on her that will stick. That seems rather dubious in this case.