By Bill Abatematteo
Justice George Sutherland said, “If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned.” Punta Gorda ignored his advice and created a First Amendment controversy with its new sign ordinance. Let’s take a look why this ordinance is constitutionally flawed.
At their May 19th meeting, City Officials stated the ordinance was content neutral. However, the Supreme Court said in Reed v Gilbert, that if you have to read a sign to determine whether it is prohibited or not, then it is not content neutral, but content based, and such laws are thus unconstitutional, no matter how noble the intentions were. People have been cited after authorities read their signs and determined the words were banned. This ordinance is content based.
The Supreme Court ruled in Cohen v California (1972) that Mr. Cohen had a constitutionally protected right to wear a jacket with the words “F*** the Draft” into a crowded courthouse. The court ruled that no matter how offensive that word was or who saw it, it was constitutionally protected political speech. Absent evidence that he was trying to start a fight or incite a riot, which he wasn’t, they declared that his words couldn’t be suppressed, regulated or made illegal. But that’s exactly what Punta Gorda has done. They criminalized political speech.
Which words? You know, the “indecent ones”. What they exactly are, we don’t know. We can only imagine and guess. And this point is crucial because that is another reason courts prohibit the banning of words, because they too have asked, which ones – who decides – and where does it end?
In Cohen, the Court declared the “F-word” is not obscenity but was simply an emotional expression of protest, thus clearly distinguishing profanity from obscenity. Justice John Harlan famously said, “One man’s vulgarity is another man’s poetry”. So why were code enforcement hearing officers having discussions that a political sign containing the “F-word” was obscenity when Harlan ruled it wasn’t?
The Minnesota Supreme Court stated, “Curses, expletives, and the whole vocabulary of insults are not intended or susceptible of literal interpretation. To attach greater significance to them is stupid, ignorant, or naive”. So why the confusion?
Furthermore, Section 11.4 of the ordinance established the Merriam-Webster Dictionary as the final authority of a word’s meaning. One of its definitions of the “f-word” is vulgarity of a “damning sense”, i.e., to condemn vigorously, publicly object/criticize, or to swear at. So why wasn’t Merriam-Webster used to adjudicate this matter? But in fairness to the hearing officers and enforcement authorities, this is what happens when elected officials make bad law. And that’s why these laws are struck down.
In ruling that government can’t pass laws that prohibit the mere expression and display of speech people find offensive, including vulgarity, Justice Harlan stated, “If you don’t want to look at a word you don’t like – then look the other way”. Punta Gorda needs to read that memo.
On their June 2 meeting, one councilperson noted “while the Sign Code was being drafted to ensure free speech, many individuals perceived it as limiting free speech”. No, it suppresses free speech as determined by the Supreme Court. The Cohen case clearly reaffirmed extra protections that are afforded political speech and hyperbole, including the use of salty language. Yet, instead of protecting the rights of protestors, the City approved an ordinance that was designed to placate those who objected to the display of political speech they didn’t like. Perhaps our officials didn’t see it that way, but that’s what they did.
At that June meeting, another councilperson spoke on the “difficulty of balancing the right to free speech with the public’s desire for civility”. No, it’s not difficult because you have neither the responsibility nor
the authority to control what words people use. Of course we want a civil society, it’s just that government’s role is limited in shaping it. California, in defense of its action likewise thought it was appropriate for government to legislate civility. The court disagreed and said it was not the job of the state to set up a code of etiquette, courtesy or to maintain a suitable level of public discourse.
Several lawsuits are on the horizon. Some City Council members said they are not "backing down". Sadly, it will be us taxpayers, and not them, who will be responsible for these legal fees and settlements. It is so easy to roll the Constitutional dice when you’re playing with taxpayer’s money.
Paul Cohen was given the right to wear a jacket that said, “F*** the Draft” in a crowded courthouse. But anyone who wears that same jacket on the sidewalks in Punta Gorda will be in violation of the law. This is unacceptable. Please explain how a law that is so constitutionally problematic will stand?
Communities and states have been repealing laws that ban speech, but Punta Gorda enacted one despite the many decisions prohibiting such laws. The City Council needs to do what responsible leaders do, i.e., be contrite and admit they made a mistake, and rescind this ordinance so we can put this issue behind us.