Here, we have some fairly draconian land use laws. If a city lot is zoned “residential”, then it must be used as a residence, not a commercial business. By commercial business I mean something like a corner market or a bakery.
However, we can run a business from our residence, among other things there cannot be anything about the business visible from the street and any sign has to be less than two square feet. The purpose of these laws is to maintain the residential nature of the neighborhood. No attempt is made to restrict the speech itself, other than what normal limits there are.
The way it’s bopping around in my head is that a sign or ad advertising a business is no longer individual free speech, but commerce. Commerce is most definitely regulated by the government. Now a person within that store might wear a “piss Christ” t-shirt or something and that wouldn’t be censorable by the government. Am I in the right ballpark?
The US Constitution does not define the phrase “freedom of speech”, but the context seems to suggest the freedom to express opinions, up to and including criticism of the government. I don’t see how that applies to anyone having the right to advertise a commercial business. It’s not the same thing at all.
Here in Eugene, Oregon, local laws say you need a sign permit for such signs, whether attached to a building or free-standing. There are limits about how big the sign can be, and exceptions for certain kinds of signs such as “additional parking in rear”.
What strikes me as odd is that there’s a limit on political signs for elections, such as “Vote yes on measure 93”. The law restricts such yard signs to no more than six square feet and they can only be put up within 90 days before the election. Now, THAT seems like stepping on the toes of freedom of speech, since it directly relates to petitioning the government for a redress of grievances. FWIW, the law is only enforced if someone files a complaint and there are literally hundreds of illegal signs all over town which remain up because no one has complained yet.
But I don’t see why the government has to let you advertise your business at all, let alone allow you to do it for free. If a hypothetical town wanted to ban commercial advertising signs entirely, they could do it. But they’d still have to allow billboards complaining about the law itself.
No. The Supreme Court has held that commercial speech is still protected by the First Amendment. There is currently a debate over whether that protection is less strict than for non-commercial speech, but even the less strict version is still quite protective (it is similar to the test for when gender discrimination is legal).
There are also some fine points. A signage license fee may be required to be paid for the major illuminated sign that goes over your door – “Joe’s Haberdashery” – but it is very unlikely that they would charge you for putting up lesser signs – “1/2 Off sale all Thursday” – “Help Wanted” – “Lost Dog.”
But even in the auxilliary signage, if you use an obscene term, and someone complains, an inspector or regulator could come along and make you change it.
I do not know what would happen if someone complained to the regulators about one of the clerks/proprietors in the store wearing a shirt that had an obscenity. I would have to guess that a regulator could make them change it, as it partakes of an official “public” or “commerce” form of speech. I also bet that no regulator is going to bother himself to fuss with anything that darn minor!
I suspect a lot of these fall in the same category as schools limiting their pupils’ freedom of speech. the law is only valid until someone gets angry enough and spends enough money to take it through the court system.
Indeed. And unlike school speech codes, which get litigated by both right (FIRE) and left (ACLU) pretty regularly, sign codes don’t get litigated that often. It is common to discover municipal sign codes that are still being enforced that violate 20-year-old Supreme Court decisions. As I said above, this area of law is surprisingly complicated. The NY State guidance to municipalities on sign regulations is 70 pages long.
Obscenity, as currently defined under the Miller test, must meet a three-part test:
Under contemporary community standards, an average person would find the work, when taken as a whole, appeals to “prurient interest”;
The work depicts or describes sexual conduct in a patently offensive way; and
The work, when taken as a whole, lacks serious literary, artistic, or scientific merit.
That’s a different definition than the grammarian’s definition of an obscenity such as “piss,” and nothing you’ve quoted or cited proves that the mere words “piss Christ” would qualify under current federal jurisprudence as obscenity. Do you have such a cite?
That is the test for *sexual *obscenity. If there is such a thing as non-sexual obscenity (which is presumably what Piss Christ would be alleged to be), that would not be the test. It is an open question whether non-sexual obscenity is (still) a category. Many commentators think obscenity is now pretty much limited to sexual content involving or marketed to minors. In US v. Stevens, the Supreme Court addressed whether the obscenity exception could apply to depictions of violence against animals (they held that it could not). And while they didn’t come out and fully say it, the strong implication is that attempts to use the obscenity exception to censor non-sexual speech are probably going to fail.
The colloquial term “obscenity,” however, may encompass both the technical legal term “obscenity” and the legal term “indecency.” The scope of the government’s ability to regulate commercial indecency is also pretty hazy. It is probably limited to control of the public airwaves, but that is not well-settled either.
In short, and not to beat a dead horse, this stuff is complicated. There are few areas of the law that are more murky.
The problem here is that the three-part test you cite doesn’t apply to public signage. It’s a different issue.
What I’m saying here (and backed up with a cite) is that the First Amendment doesn’t cover public signage the same way it protects books, newspapers, correspondence, and the like. If someone complained, and a regulator decided the sign was obscene, he could make the store manager take it down, something that doesn’t apply (for instance) to this BBS. The moderators here can tell us not to use the word “piss,” but no government regulator can.
For a sign in front of a store, that protection doesn’t exist. The regulator can say, “Take that sign down.” A judge, and a series of appeals, and the Supreme Court, could all weigh in on it, and overrule the regulator. But that hasn’t happened yet, so, at this point in time, I’ve done my due diligence.
As a practical matter, the zoning authority can enforce a ban on whatever they want. If you object, the burden is on you to convince a court that your constitutional rights have been violated. Courts enforce a law as written, up to the point that the court hears arguments that the law is unconstitutional and rules accordingly, and even that may then have to be pursued in appeal.
There must be some sort of scatological obscenity category? Similarly for gore? At a certain point some of this would violate community standards, words like “shit”, or worse, photographs? I would imagine advertising Piss Christ reproductions could fall into that category.
I’m reminded of some warped logic that suggested some states enacted laws against abortion clinics within X miles of a school on the pretext that protesters carrying graphic images of aborted fetuses would upset the children. (Think of the children!)
You need to understand that there’s a vast difference between saying “You may not say these things” and “It doesn’t matter what you are saying, you cannot say it this way”.
Freedom of speech doesn’t mean you have the right to write your message on someone else’s forehead; it doesn’t mean you have the right to call a public official multiple times in the middle of the night; it doesn’t mean you have the right to stand up and yell things at a chamber music concert or movie. In the U.S. governments can restrict speech in all kinds of ways, as long as it’s for a legitimate interest (and keeping the town from being blanketed with 10 foot tall campaign signs is a legitimate interest) and doesn’t distinguish among the content of the speech (so they couldn’t say “Only signs for Whig candidates are allowed”).
Size and other practical restrictions would easily be justifiable.
Restrictions on sexually graphic material would also pass I would guess.
However I have serious doubts that a city government could legitimately ban advertising of “Piss Christ.” That’s a direct content-based restriction on speech.
On a public sign, content can be regulated; in this case, on the basis of obscenity. You can’t advertise “fuck nuggets” or a book titled “shit happens” on signs in a public place. A regulator or inspector could come along and tell you to take it down. I also mentioned the limit on business names containing the name of a crime: you can’t open a business called “Murder and Mayhem.”
Here in San Diego, there was a mystery-themed bookstore named “Grounds for Murder.” The city asked them to change the name.
