There is little question that Gary Bundy, a municipal court judge in New Jersey, violated the constitutional rights of Andrea Dick this month by ordering her to remove three banners emblazoned with crude messages about President Biden.
The Supreme Court has made clear that the offending word Ms. Dick used in the banners, which she posted on her mother’s fence in Roselle Park, is legal in political statements. It ruled in a famous 1971 case that a draft protester had the right to wear a jacket with a message that one of his lawyers memorably described as “not actually advocating sexual intercourse with the Selective Service.”
Americans, especially judges, have an obligation to know the law. The limits of free speech are subject to debate, but Ms. Dick’s case does not approach those boundaries. She has the right to curse out the president of the United States, and it should not require an appeals court to deliver that news to Roselle Park.
Discomfort with vulgarity is understandable. The word Ms. Dick used is one that this newspaper often avoids publishing. But the decision by a judge in a liberal town to constrain the free speech rights of an outspoken conservative is symptomatic of a troubling trend: a growing sense among many Americans that the United States cannot afford to maintain the full measure of its foundational commitment to free speech.
The strength of First Amendment protections depends on public support. History shows that when faith in the value of free speech is eroded, the freedom is soon eroded, too.
The loss of faith is intertwined with other challenges to the American experiment. Political polarization is straining the ability of Americans to understand each other’s viewpoints, as well as their tolerance for what they cannot understand.
Americans also are losing confidence that their political opponents will play by the same rules, undermining the argument that allowing others to speak is the best safeguard of one’s own right to do so. After right-wing extremists rioted in Charlottesville, Va., in 2017, the American Civil Liberties Union took a step back from its long history of defending the speech rights of extremist groups. It issued guidelines instructing its attorneys that before representing groups whose “values are contrary to our values,” they should consider whether doing so might give “offense to marginalized groups.”
Amid a rise in political violence, especially by right-wing extremists, there is also a growing impatience with the distinction between speech and violence.
Twenty states with Republican-controlled legislatures have invoked the fear of violence as a justification for new laws cracking down on racial justice protests. Florida, Iowa and Oklahoma passed laws granting immunity to drivers who strike protesters. Some of the same states also have recently enacted laws that seek to restrict instruction in public schools about the role of racism in the nation’s history.
There is no comparable effort by elected Democrats to impose legal restrictions on the expression of right-wing views. But it is increasingly common to hear the expression of intolerant views described as violence. Liberals also have sought to exclude viewpoints they regard as offensive from forums including university campuses and social media sites, as in the recent campaign to ban Donald Trump from Twitter and Facebook.
The maintenance, or the restoration, of healthy and sustainable political discourse in the United States requires an uncompromising crackdown on anyone engaged in acts of political violence — and an uncompromising defense of political speech. It is not enough for Americans to feel safe in the public square. Democracy requires that we feel safe while shouting at each other.
This year, Ms. Dick bought a number of anti-Biden banners with messages that range from the G-rated “Don’t Blame Me, I Voted for Trump,” right on up to what Judge Bundy described as words that children are not asked to spell at spelling bees.
In the Supreme Court’s 1971 decision, Justice John Marshall Harlan II, defending the language on the anti-draft jacket, wrote that “one man’s vulgarity is another man’s lyric.”
The truth in that case, of course, is that the word was intended as a vulgarity. It’s a safe bet that Ms. Dick bought the signs because she, too, wanted to offend her neighbors.
She put up the banners in early June. Neighbors complained to the mayor, who called a code enforcement officer who cited Ms. Dick’s mother, the house’s owner, for violating an ordinance that prohibits the display of “obscene material.” The signs stayed up and the town took her to court, where Judge Bundy ordered her to remove three signs or face a fine of $250 per day.
“Today was a win for the borough and decency,” the mayor told NJ.com. “While we respect the views of our residents, there’s no place for profanity by a school and school children.”
The right to free speech must be balanced against other considerations, and the Supreme Court imposes a wide range of restrictions. Americans are not free to libel or to incite violence, to curse on the radio or to hold noisy demonstrations in the middle of the night.
The limits of free speech also are subject to debate. Society’s standards change; the court is fallible. This board strongly disagrees, for example, with the court’s view that corporate spending on political campaigns is a constitutionally protected form of free speech.
But the animating spirit of the First Amendment is that the boundaries of free speech must remain as expansive as possible. The right to hang banners is a small thing, but the value of free speech inheres in acts of individual expression just as much as in grand statements of collective purpose.
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