VICTORY: On First Amendment grounds, NJ woman’s ‘Fuck Biden’ flags free to fly another day | The Foundation for Individual Rights and Expression

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VICTORY: On First Amendment grounds, NJ woman’s ‘Fuck Biden’ flags free to fly another day

Andrea Dick’s lawsuit proceeds after defeating township’s motion to dismiss — paving the way toward recovery after being ordered to remove political banners criticizing Joe Biden.
A municipal court judge in New Jersey ordered homeowner Andrea Dick to remove banners containing the phrase “Fuck Biden” from her property or face a fine. The decision was widely derided as unconstitutional and the charges were dropped.

A municipal court judge in New Jersey ordered homeowner Andrea Dick to remove banners containing the phrase “Fuck Biden” from her property or face a fine. The decision was widely derided as unconstitutional and the charges were dropped.

What happens when an unstoppable force meets an immovable object? Just ask Andrea Dick, who refused to remove a banner reading “Fuck Biden” and pro-Trump signage from the yard she shares with her mother after her home city of Roselle Park, New Jersey, charged her with obscenity on June 7, 2021, threatening her with daily fines of $250 and her mother with 90 days in jail if they didn’t comply. 

Despite receiving hate mail, experiencing property destruction,  and even finding dog feces smeared on her car after the banners went public, Andrea — and her signs — remained unflappable. 

For standing by her right to let her “fuck” flag fly, she received a summons from the borough for violating an obscenity ordinance and was subsequently convicted in municipal court. However, with representation from the ACLU of New Jersey, she appealed that conviction and won, seeing it overturned by the state’s Superior Court in July of 2021. 

And Andrea didn’t stop there. On March 17, 2022, with the help of her attorney, Randall Peach of Woolson Anderson Peach, and guidance from FIRE, she took the borough to court alleging violations of her First Amendment rights. Now, as her lawsuit proceeds to the discovery phase, she has reason to believe that free speech will prevail as the judge presiding over her case denied in August the borough’s motion to dismiss.

Andrea Dick stands before the banners and flags that led the city of Roselle Park to charge her with obscenity.

Andrea Dick stands before the banners and flags that led the city of Roselle Park to charge her with obscenity

Andrea Dick stands before the banners and flags that led the city of Roselle Park to charge her with obscenity.

“I am really satisfied with the judge’s decision and am looking forward to the next step,” Andrea said, emphasizing the lengthy battle with her township that preceded her lawsuit.

To this longtime resident of Roselle Park, the township’s crusade against the signs feels personal. 

“I have lived in Roselle Park all my life,” said Andrea, and the mayor “just tore my name up.” 

“Between the media calling and coming to my house, the nasty text messages, phone calls and the letters, I felt the township was trying to bully me into taking the signs down,” she told FIRE. “They were trying to take away my freedom of speech.” 

Standing for free expression

Andrea values “the right to express [her] opinion without being censored.” This right, more than the furtherance of a particular political message, is what hangs in the balance in this case — for Andrea, her mother, and everyone else in the township.

“Andrea’s case transcends politics,” said FIRE Litigation Fellow Harrison Rosenthal. “It’s about democratic maintenance, self-governance, and preserving a robust marketplace of ideas.”

But the township doesn’t see it that way. In moving to dismiss the lawsuit, it argued that Andrea lacked standing to sue, claiming that Andrea’s mother, Patricia, as the property owner who received the summons, was the only person harmed by the censorship. It claimed that though Andrea displayed the banners, she could not sue on her mother’s behalf because she — Andrea — was not charged directly. 

But that’s not how the First Amendment works.

When First Amendment rights are at issue, courts relax standing requirements to prevent a broader chilling of free speech. 

When First Amendment rights are at issue, courts relax standing requirements to prevent a broader chilling of free speech. 

In other words, this case cannot be reduced to an either/or situation: Both Andrea’s and her mother’s expressive rights were jeopardized because the speech in question reflects both of their expression. By allowing her daughter to display the signs on her property, Patricia exercised her right to freedom of association — itself a form of speech. At the same time, Andrea’s expression is still her own. 

“The doctrine of relaxed First Amendment standing exists for this very situation,” said Rosenthal. “Andrea’s speech is inextricably bound with Patricia’s expressive association.” 

Understanding this, the presiding judge of the Union County, New Jersey, Superior Court rightly allowed the case to proceed on First Amendment grounds.

From ‘Fuck the draft’ to ‘Fuck Joe Biden,’ the First Amendment protects offensive speech

Having resolved the issue of standing, the court must now focus on one of speaking: namely, Andrea’s expressive right to share her thoughts, in the style she chose to share them, via her banners.

Fortunately for Andrea, what Roselle Park considers obscene, the U.S. Supreme Court does not. To meet the legal standard for obscenity, speech, taken as a whole, must be sexual in nature, patently offensive in its representation of sexual matters, and completely devoid of redeeming social value. Even the most incendiary of the signs meet none of these criteria. 

Further, taste is subjective. As the Supreme Court proclaimed in Cohen v. California, “one man’s vulgarity is another’s lyric” — the government cannot censor speech based on style or taste. Cohen’s relevance to Andrea’s case is all the more prescient because it revolved around the same word, upholding a person’s right to wear a “fuck the draft” jacket in a public courthouse.

Still, Roselle Park Mayor Joseph Signorello — who fueled the controversy from the beginning by alerting a local code enforcement officer about the banners — has repeatedly expressed a desire to see them removed. 

“It’s about decency,” Mayor Signorello told The New York Times in July 2021. 

Andrea noted that the borough said something similar, specifically instructing her to remove the signs with “bad language,” which, to the borough, reflect “bad taste.”

But in this case, “‘fuck’ cannot be classified as obscenity because it is not ‘erotic.’ It’s purely political,” said Rosenthal. “And as the Supreme Court has recognized, ‘core political speech’ lies at the heart of the First Amendment, where its protection is ‘at its zenith.’”

Andrea — and all Americans — have a right to paint with a broad palette, to express the full range of human emotion in order to get their point across.

The word “fuck,” as used to convey a political message, is unfuckwithable for good reason. If government officials were allowed to police the boundary between acceptable and unacceptable speech, partisan bias would undoubtedly inform the rules dictating communication: a recipe for disaster. The ability to share one’s unfiltered thoughts on issues and candidates is essential to the democratic process — to sharing and shaping public opinion — and Americans of all political stripes reserve the ability to fully express those thoughts, particularly within the bounds of their own property.

Further, style is not separate from or secondary to content: It’s an essential part of it. Imagine reading the “Catcher in the Rye” with all the “bad words” omitted, or listening only to the Kidz Bop version of your favorite rap song. Forced changes to style necessarily impact meaning, separating communication from its core purpose. Andrea — and all Americans — have a right to paint with a broad palette, to express the full range of human emotion in order to get their point across.

FIRE’s legal team elaborated on these arguments, among others, in providing background legal assistance to Andrea and her attorney to use in court during the course of the case.

“FIRE’s help was invaluable in responding to the Defendants’ motion,” said Peach. “FIRE’s attorneys are obvious experts on First Amendment law and helped us respond to the lengthy motion to dismiss filed by the Defendants, particularly on the issue of First Amendment standing that was presented in the case.”

As for Andrea, despite the ongoing ordeal with her township, her fighting spirit remains strong. 

As her case moves forward, we hope that her banners — and her First Amendment rights — remain censorship-resistant.

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