Can &quot;obscenity&quot; be used to forbid a political sign? According to a New York Times story &quot;She Hates Biden. Some of Her Neighbors Hate the Way She Shows It.&quot; a woman in the Borough of Roselle Park, N.J has been ordered to take down a political banner because of its &quot;obscene&quot; content under a local law, or face daily fines. While the story does not directly quote the banner, it seems that it says &quot;Fuck Biden&quot; or something close to that. The Mayor of the town was quoted as saying: This is not about politics in any way, ... It’s about decency. The mayor is also reported as saying that the same steps would have been taken if the banner had supported Biden and opposed Trump in similar language. According to a story in NJ.Com: 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. The Judge was quoted in that story as saying: This is not a case about politics. It is a case, pure and simple, about language[.] 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 action was brought under Roselle Park code section 3.8 which provides that: § 3-8.1 Obscene Materials or Actions Prohibited. [1980 Code § 152-1] It shall be unlawful for any person, firm, corporation, business association, club, group of individuals or any combination of the aforementioned to knowingly photograph, act in, pose for, print, sell, offer for sale, give away, exhibit, publish or offer to publish or otherwise distribute or pander, make, display or exhibit any obscene material, communication or performance or other article or item which is obscene within the Borough. § 3-8.2 Determination of Obscenity. [1980 Code § 152-2] The word &quot;obscene&quot; shall mean any material, communication or performance which the average person applying contemporary community standards existing within the municipality, would find, when considered as a whole: a. Appeals to the prurient interest; b. Depicts or describes in a patently offensive way sexual conduct as hereinafter specifically defined, or depicts or exhibits offensive nakedness as hereinafter specifically defined; and c. Lacks serious literary, artistic, political or scientific value. Can a local court in the US validly make such an order, given the protections of the US First Amendment?
In the Vietnam War era case of Cohen v. California 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) the US Supreme court held that the use of the word &quot;fuck&quot; in political speech was protected. As the opinion says: Appellant Paul Robert Cohen was convicted in the Los Angeles Municipal Court of violating that part of California Penal Code § 415 which prohibits 'maliciously and willfully disturb(ing) the peace or quiet of any neighborhood or person' ... On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words 'Fuck the Draft' which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft. In affirming the conviction the Court of Appeal held that 'offensive conduct' means 'behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,' and that the State had proved this element because, on the facts of this case, '(i)t was certainly reasonably foreseeable that such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt to forceably remove his jacket.' ... The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only 'conduct' which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon 'speech,' cf. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), not upon any separately identifiable conduct which allegedly was intended by Cohen to be perceived by others as expressive of particular views ... ... Appellant's conviction, then, rests squarely upon his exercise of the 'freedom of speech' protected from arbitrary governmental interference by the Constitution and can be justified, if at all, only as a valid regulation of the manner in which he exercised that freedom, not as a permissible prohibition on the substantive message it conveys. This does not end the inquiry, of course, for the First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases or to use any form of address in any circumstances that he chooses. ... ... ... this case cannot be said to fall within those relatively few categories of instances where prior decisions have established the power of government to deal more comprehensively with certain forms of individual expression simply upon a showing that such a form was employed. This is not, for example, an obscenity case. Whatever else may be necessary to give rise to the States' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). ... ... While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not 'directed to the person of the hearer.' Cantwell v. Connecticut, 310 U.S. 296, 309, 60 S.Ct. 900, 906, 84 L.Ed. 1213 (1940). No individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult. Nor do we have here an instance of the exercise of the State's police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 295 (1951); Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). ... ... Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. See, e.g., Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). ... .. the issue flushed by this case stands out in bold relief. It is whether California can excise, as 'offensive conduct,' one particular scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary. The rationale of the California court is plainly untenable. At most it reflects an 'undifferentiated fear or apprehension of disturbance (which) is not enough to overcome the right to freedom of expression.' Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 508, 89 S.Ct. 733, 737, 21 L.Ed.2d 731 (1969). We have been shown no evidence that substantial numbers of citizens are standing ready to strike out physically at whoever may assault their sensibilities with execrations like that uttered by Cohen. ... ... we cannot overemphasize that, in our judgment, most situations where the State has a justifiable interest in regulating speech will fall within one or more of the various established exceptions, discussed above but not applicable here, to the usual rule that governmental bodies may not prescribe the form or content of individual expression. ... ... we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? ... ... we cannot overlook the fact, ... that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. ... ... we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be reversed. Thus the Court held that, when used in a political rather than an erotic context, the word &quot;fuck&quot; was protected free speech, not subject to government prohibition, at least under the circumstances of the Cohen case. As the use of this word is farm more publicly acceptable now than it was in 1968 or 1971, It is hard to see how this ruling would change. I would expect a court to overturn the judgement against the woman who posted the banners. Further Information In the Wikipedia Article about the Cohen case it is said that: The Court ultimately found that displaying a mere four-letter word was not sufficient justification to allow states to restrict free speech and that free speech can be restricted only under severe circumstances beyond offensiveness. The ruling set a precedent used in future cases concerning the power of states to regulate free speech in order to maintain public civility. Other important cases cited in the Cohen opmion include: Cantwell v. Connecticut 310 U.S. 296 (1940) in which a man attempting to promote his religious views played a phonograph record to others on a public street. The others found the record offensive, and Cantwell was convicted of a breech of the peace and of soliciting without a license. Te US Supreme Court overturned the conviction in what has become a landmark case. Tinker v. Des Moines Independent Community School District*, 393 U.S. 503 (1969) was a case in which a high-school student was part of a group who decided to wear black armbands to school in protest of the Vietnam War and were suspended from school. It should be noted that the terms of the Borough ordinance closely track the Miller decision, the current Supreme Court case defining obscenity. However that decision requires that to be &quot;obscene&quot; a text or image must be in significant degree sexual -- this is what is meant by &quot;appeals to the prurient interest&quot;. § 3-8.2 (a) of the code (quoted in the question) requires that to be found obscene content must &quot;appeal to the prurient interest&quot;, but it is hard to see how the political signs described in the news stories (and pictured in one of them) so appeal.
This varies depending on the specific law of the state or locality involved. In New York, the word &quot;POSTED&quot;, along with the name and address of the owner is sufficient to notify people not to intrude, and anyone ignoring such a sign is technically trespassing (although, in practice, if such a person leaves the property when asked, did no damage, and appeared honestly ignorant, it is likely that no legal action would be taken). In California, as specified by penal code section 553 (quoted in the linked answer) a sign for this purpose must include: the words “trespassing-loitering forbidden by law,” or words describing the use of the property followed by the words “no trespassing.” in letters at least two inches tall, and follow other specifications in the law. The word &quot;Posted&quot; is neither required nor sufficient, although the law calls land with such signs &quot;posted property&quot;.
No Any such law would violate the US First Amendment as an improper restriction of speech and of the press. If done by the court rather thiygh a law, it would also conflict with 17 USC 105 which says that: Copyright protection under this title is not available for any work of the United States Government Courts have restricted video and still photography of court proceedings, on the ground that the presence of cameras would disturb court sessions and distract witnesses and jurors. But that would not apply to the proceedings of an appellate court.
The only applicable law is the local trespassing law. If he wants, the proprietor can demand that the patron leave, and if the patron does not leave, he can be arrested for trespassing. It uncontroversial that the First Amendment protects racist declarations.
One way in which it holds legal water is that if you use the website in violation of the terms, then you may forfeit your right to take civil action against the company. Analogous language especially regarding the age of the user may protect the site against actions by third party governmental entities (COPPA-like laws), though nothing patently obvious springs to mind (insofar as this deals with firearms and there is also an age 21 restriction both on the web site and in terms of US firearms law, this is not a totally crazy idea). The citation of 18 USC 1030 non-probatively points to an issue which may be disposed of by SCOTUS in US v. van Buren, that knowingly violating the terms of service is a crime (a proposition rejected by lower courts, see US v. Valle). Facebook v. Power Ventures in particular clarifies how &quot;being put on notice&quot; may make such unauthorized access indeed &quot;unauthorized access&quot; in the statutorily-relevant sense. This does not prevent a legally-authorized law enforcement investigation, pursuant to para (f), but if the &quot;violation of TOS = unauthorized access&quot; theory is upheld, it limits how LEOs can legally access the website (and the limitations extend past LEOs). It is a separate and potentially interesting question whether there actually are any legal limits on the investigative powers of the government – if any law enforcement officer has the liberty to investigate anyone they want, with no supervision or requirement of justification, then this would be a rather gaping loophole in their legal strategy. Web pages involve massive copying of copyright-protected data, and the function of terms of use is in part to conditionally grant access to that copyright-protected content. When a person copies protected material from someone's web page having been explicitly denied permission to copy, they run the risk of an infringement lawsuit.
Is blocking certain people while allowing everybody else to view some content discrimination Yes. and violate anti-discrimination laws Probably not, at least in the US. There is no federal law prohibiting "discrimination" in general. There are specific laws regarding discrimination against certain groups in certain contexts. They would probably not apply to an individual determining who is allowed to view their social media posts. That said, there are some specific contexts where this might be illegal. They would generally involve non-personal use of the account. The courts recently ruled that Donald Trump may not block people on his Twitter account, because he's using it in an official presidential capacity rather than just his individual capacity. Also, racial discrimination in housing is illegal, so if you're selling your house and you block all black people from viewing your house photos, that would probably be illegal as well. Also is not being able to consume information available on a public platform a violation against right to freedom. I'm not sure what you think a "right to freedom" would entail. But I don't think you have the right to demand that a person allow you to access their social media accounts.
This is an open question. California's Unruh Act prohibits discrimination in public accommodations on the basis of political affiliation. This same issue has come up previously, in a case where four neo-Nazis showed up wearing swastika pins at a German restaurant. When they refused to remove the pins, the restaurant called the police to remove them. The Nazis sued the restaurant under the Unruh Act, which prohibits various forms of discrimination in public accommodations (restaurants, hotels, etc.) Although the Unruh Act does not specifically mention discrimination on the basis of political ideology, the California Supreme Court has interpreted its list of classes as describing, not limiting, the classes eligible for protection, which it has also explicitly said include political affiliation: Whether the exclusionary policy rests on the alleged undesirable propensities of those of a particular race, nationality, occupation, political affiliation, or age, in this context the Unruh Act protects individuals from such arbitrary discrimination. Marina Point, Ltd. v. Wolfson, 30 Cal. 3d 721, 726 (1982). Based on these interpretations, the trial court refused to dismiss the Nazis' case against the restaurant, and the parties eventually settled without going to trial. Read commentary about the case here. So it seems clear that the Unruh Act prohibits discrimination on the basis of political affiliation. Because wearing a swastika indicates that you affiliate with the National Socialist German Workers' Party or one of its offshoots, the Unruh Act probably prohibits a business from discriminating against customers on the basis of wearing a swastika. But federal law may pre-empt the Unruh Act. But the problem doesn't end there, because intepreting the law that was creates potential conflicts with federal public-accommodations law, employment law, and the First Amendment. For instance, federal law prohibits the creation of a &quot;hostile environment&quot; in terms of both providing public accommodations on equal terms regardless of race, and in terms of equal employment opportunity regardless of race, color, religion, sex or national origin. Proving a hostile environment can be pretty difficult, but if you could demonstrate that allowing swastikas on premises created a hostile environment for customers or employees, you'd then have a strong Supremacy Clause argument that the Unruh Act can't be enforced to require the admission of swastika-wearing customers. Beyond that, businesses have First Amendment rights on generally the same terms as natural humans. There's a reasonable argument to be made that those businesses, in banning swastikas, are communicating a First Amendment-protected anti-Nazi message, or that they are exercising their right to control who speaks in the forum that they control. If the court were to accept either of those arguments, it would again mean that the Unruh Act probably could not be enforced to benefit those wearing swastikas.
There is no federal prohibition against sexual discrimination in public accomodations. Colorado has an applicable state law, which covers "any place of business engaged in any sales to the public", where "It is a discriminatory practice and unlawful ...to refuse, withhold from, or deny to an individual or a group, because of ...sexual orientation...the full and equal enjoyment of the goods...". No provision exempts lemonade stands. Churches etc. are specifically exempted: "'Place of public accommodation' shall not include a church, synagogue, mosque, or other place that is principally used for religious purposes". Sex discrimination is allowed "if such restriction has a bona fide relationship to the goods, services, facilities, privileges, advantages, or accommodations of such place of public accommodation", an argument that can't reasonably be made in the described case. It is also not obvious that running a lemonade stand is a business (the courts will not admit unsubstantiated Wiki assertions as evidence). It would be relevant to wonder what constitutes a "business" under Colorado law. E.g. is a business license required? In Colorado (US) law, it has not been definitively decided whether there can be a religious exception to the anti-discrimination law. Masterpiece Cakeshop was decided without answering that (the state showed clear religious intolerance in its handling of the case). We do not know how a similar case will be decided: Arlene's Flowers was handed back to the state court with the instruction "do it again" (with nothing more than a mention of Masterpiece Cakeshop). The court cannot establish certain beliefs and practices as "valid religions" (Establishment Clause); the proxy expression that is used is "deeply held belief", which includes atheism. The relationship of the issue to the First Amendment is uncertain.