You still haven’t demonstrated the concept of obscenity applies here, as Proof by Repeated Assertion isn’t a valid basis for legal reasoning.
For example, anti-choice groups can create gory billboards without problem, so saying Piss Christ is over the line is rather bizarre.
What you’re saying is that cities can request you do things. Fine. Don’t confuse that with the concept of “obscenity”, which has a rather specific and narrow definition under the law, and is very obviously not in play here.
That may be the problem; I’m using “obscenity” only in the loose term of “bad language,” and not in some hyper-formal legalistic sense that only a lawyer can comprehend. I wish someone had tried to make this clear earlier.
The only point I have here is that the city can make you take signs down, whereas they cannot govern the content of the material inside your store. If “obscene” isn’t the right word, then “dirty” may be. Whatever the fuck.
The point is that it’s not that cut and dry. Community standards are a changeable concept and there’s nothing particularly explicit about “Piss Christ”. Communities might try to remove a sign with that, but it’s the courts that have final determination about what is allowed.
You can’t just throw words like “obscene” and “dirty” around in a legal context and not expect to be called on it.
Did the bookstore actually change their name voluntarily? If not, did the city compel them to do so?
My (very rudimentary) research suggests Grounds for Murder was opened at least by 1989, and existed under that name for a decade or more, closing in 1999 while still using the same name. Asking them to change the name is an altogether different thing than compelling them to do so, and I haven’t seen any evidence for the latter, although you have repeated the former multiple times now.
Under Miller v. California, 413 U.S. 15 (1973)., all three of these must be true for something to be obscene and thus bannable without infringing free speech rights:
Unless someone can come up with an actual court ruling saying this, I don’t accept it as given. A city can ban obscenity, if it fits the three-part definition above. It can outline time, manner, and place restrictions so long as they don’t regulate the content of speech. I doubt very much that if tested in court, a city ordinance banning a sign advertising sale of “Piss Christ” would hold up.
Let me put my part of the question/debate on hold for a while, until I hear back from my City Council Member. I’ve just emailed them to ask, and I’ll get back and bump this when they answer. If ten days go by and they don’t answer, I’ll note that.
ETA: Acesnray: I think your cite refers to private speech, not commercial speech, which can be regulated differently. What you refer to involves such things as censoring movies or books. But commercial signage, visible from public sidewalks, is under a different regulatory regime.
ETA Again: In any case, the other part of the question has definitely been established: the city can force you to pay a fee to put up a business sign, at least of certain kinds. Maybe not “Yard Sale Tuesday,” but the big sign over the front of the store saying “Jake’s Wedding Photography.” The First Amendment does not mean that the city can’t make you pay a fee for the right to put that sign up.
I’m not sure I would trust a city council member’s expertise on a constitutional issue, but I suppose it’ll be interesting to see.
Commercial speech is a type of private speech. It’s not really a different regulatory regime. It’s within the same general regime, but the government has a little more flexibility to set standards. However, First Amendment free speech rights still apply. There are some ways in which the government can get away with restrictions on commercial speech that it can’t get away with on pure political speech.
However, there is still a limit. Under *Central Hudson Gas & Electric Corp. v. Public Service Commission *, unless the speech is illegal or fraudulent, then the governmental restriction must be no more than is necessary to directly advance a substantial governmental interest.
In the specific case of “Piss Christ,” you also have the issue that it is advertisement of an artistically expressive work, which is protected a higher level than pure commercial speech. It’s not clear at all to me that if you got this issue in front of the Supreme Court that the city regulation would survive. Unless someone can show me a pretty close case that says otherwise, I would guess that the city would find it difficult to maintain.
That doesn’t make any sense. The EM spectrum is regulated because it’s a limited resource and has to be - if two people were broadcasting on the same frequency 2 blocks away from each other, they’d interfere with each other to the point of uselessness. But if I put up a sign on my building, it in no way interferes with your ability to put up a sign on your building.
One of the examples I cited was a limit on the use of the name of a crime in a business name. “Grounds for Murder” bookstore was made to change their name. But no one would be prohibited from publishing a book or making a movie titled “Grounds for Murder.”
I think it’s a “freedom from exposure to unwanted information” affair. Just as signs can be limited as to size and placement, so they don’t infringe too much on the public, so the public has a right not to have “Piss” in their face. (And if people disagree on “Piss,” then certainly religious or race-based hate slogans, which, again, would be permitted in books, but not on signage. Exempli most decidedly non gratia.)
ETA: muldoonthief: Your point doesn’t make sense to me, because the scarcity of airwaves is relevant to airwave assignment; what would the scarcity of airwaves have to do with the content of broadcasted material? It only makes sense in my context, of material people don’t want broadcast over “publicly owned” media.
Do you have a cite for the notion that “Grounds for Murder” was in fact made to change their name?
I can’t find such a cite. I have cites that they were open, using that name, as early as 1989, and that they closed, while still using that name, in 1999, with the owner citing retail pressures on independent bookstores (and explicitly NOT citing City Hall). Where is your evidence that they had to change their name?
If Grounds for Murder did not in fact ever change their name (which seems to be the case, although I invite you to submit evidence to the contrary), then that undercuts a a main underpinning to your entire argument.
Did this issue go to a court? Did the court rule on the free speech issue? Absent that, it doesn’t establish the kind of exception you’re asserting.
I’ll go out on a limb and say there’s no such exception to the First Amendment. I welcome any evidence to the contrary.
Think about this a few minutes.
Calvin Klein has billboards with men in tighty-whiteys out in public. Victoria’s Secret does the same, only with women. Despite the existence of people who have strong aversions to the human form, those ads are permitted.
Anti-choice groups can, and have, made billboards with pictures of aborted fetuses on them.
Wikipedia has a whole article dedicated to “Shock Advertisement”, including a number of examples I didn’t mention here. Not once is legal action mentioned in the American examples, and certainly not under the theory you propound, which has no basis whatsoever in American law.
This is a complex area of the law. It might even be somewhat unsettled. However, what you’re saying is just empirically untrue, and the way you’re saying it implies that the very restrictive laws you posit uncontroversially exist. That simply is not the case.
Sorry, can’t cite. I used to shop at that store, and knew the proprietor. They told me this personally.
I also know the people who tried to found the “Medieval Mayhem Society,” a sort of weak-sister SCA spin-off. Same problem: they were denied a DBA license, and were told it was because a business can’t have the name of a crime in its name.
(Now, what’s odd is that Grounds for Murder operated for some years as a business, so they must have been issued a permit to start with. I have no idea what brought them to some other regulator’s attention, but somebody in authority told them they had to change their name.)
So what did she change the name to?
(Incidentally, the records of the California Secretary of State reveal active corporate registrations for, among others:
[ul]
[li]Mayhem, Inc.[/li][li]Mayhem Entertainment, Inc.[/li][li]Chaos, Havoc, and Mayhem, Inc.[/li][li]Blue Murder, Inc.[/li][li]Assault Industries[/li][li]Murder LLC[/li][/ul] )
“Somewhat unsettled,” then, because “Medieval Mayhem Society” was definitely denied a DBA license, and told they can’t have the name of a crime in their name.
I do not remember what Grounds for Murder bookstore changed to; they’re long gone now anyway.
The problem is that you are trying to extract a rule of constitutional law based on your partial knowledge of a small number of anecdotal instances. You can’t do that.
It may just be the fact that the local government actions in these instances were allowed to stand because no one seriously challenged them.
I agree I’m deeply into FOAF territory here. But it would be kinda wrong of me to have even that much and not contribute it.
In the Pit thread about the legality of the Pirate Flag, all I have is that a U.S. Navy Officer once told my uncle he had to take the flag down. Okay, anecdotal and FOAF – but it is non-zero evidence. It may not be preponderant, but, again, if I know even that much (or little!) it would be irresponsible of me not to share it here.
(Also, without the rebuttals given by others, how would I have known it wasn’t the general rule? Without slash2k’s list of businesses with crimes in their names, I would not have known there was countervailing evidence. Sometimes, making mistakes is the only way to learn!)
You’ve gone beyond just presenting anecdotes. You’ve asserted several rules of law that you apparently invented based on those anecdotes.
If I put up a sign along the roadway, in front of my business, that most certainly does interfere with the ability of my neighbor one space father down the road from putting up their own sign, especially if mine is so big that it hides their sign from view. The motorist’s field of vision is definitely a limited resource. Even a sign attached flat to the building itself causes a small interference because it distracts people’s attention, which is also a limited resource. Attempting to drive down a road which is peppered with hundreds of flashing neon signs (for example) would decrease the driver’s ability to drive safely, let alone find the particular address they are searching for.
At least there can be no debate that city regulations govern the size and placement of signage! The San Diego municipal code goes into great detail on how big signs can be, how far they can intrude into public spaces, and so on. Rules restricting the size and placement of billboards along the highway are constitutional. (Would Lady Bird Johnson lie to you?)
This, and the fact that businesses can be made to pay a fee to license their signage surely answers the OP, that the First Amendment does not cover all aspects of signage.