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I recently saw one of those trucks with flags mounted on them. The usual kind: big truck, 4'x6' flags, usually supporting Don't Tread On Me, Donald Trump, MIA, etc. Or the actual American flag. They are legal by the first amendment and don't cause safety problems for traffic. No problems.

I recently saw a large flag on a giant truck, styled like a "Trump 2020" campaign poster, substituted with the words "F*** BIDEN AND F*** YOU FOR VOTING FOR HIM!". The first word is probably almost a foot tall, obviously visible to everyone. I know people (or at least Americans) wear t-shirts like that everywhere, protected by freedom of speech. The Supreme Court has found vulgar bumper stickers to be also protected by the first amendment. However, bumper stickers and t-shirts are relatively small. This flag is nearly impossible to not see in traffic or in parking lots. Kids clearly see it. It virtually cannot be avoided.

  1. Could that particular flag be considered obscene and not protected by the first amendment?
  2. Because it is a large flag mounted high up, could it qualify as a billboard, such as mobile billboards attached to the side of trucks, which by law would not be able to display the most vulgar swear words?
  3. Could a city outlaw it?

This happened in Idaho.

UPDATE: I added "in Idaho" because I've seen the location question asked several times in questions. I don't mean anything special, positive, negative, different rules, etc. Sometimes an answer will involve quoting a state constitution or statutes. Don't read into "This happened in Idaho" too deeply.

UPDATE 2: However, part (2) of the Miller test refers to as defined by state law. So I guess the question is in general and in this case the specific state of Idaho. Hope that clears it up.

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – feetwet
    Mar 2 at 23:16
  • 1
    The responses have mostly focused on the first half of the statement and whether they are protected as political speech. However, the second half (“AND F*** YOU …”) is equally problematic as most people in most contexts would consider them as “fighting words” and a direct personal insult. Mar 3 at 17:45
  • 2
    Was the word displayed F*** or FUCK?
    – WoJ
    Mar 3 at 20:49
  • Recently read over on Academia.SE that not all swear words are equal academia.stackexchange.com/a/182298/12146 - I had no idea, as I'm not an english speaker. Mar 3 at 23:52
  • It was spelled out in the big capital letters of that flag design. I didn't want to have the question deleted over spelling it out. Mar 5 at 17:40

4 Answers 4

39

The First Amendment controls in the US, so it does not matter if this is Idaho or Berkeley CA. This is clearly an expression of a political viewpoint, which is protected by the First Amendment. Any attempt to suppress a political viewpoint by appeal to "obscenity" or "zoning" or the like will ultimately fail in the courts. The word fuck is not lewd, filthy, or disgusting, and clearly does not constitute "obscenity". There is a test, the "Miller test", for obscenity, that requires all three of these conditions to be met:

(1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’

(2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and

(3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value.

The word fuck is not obscene under this test, especially in this context.

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – feetwet
    Mar 2 at 23:18
  • 12
    The chat discussion includes some disagreement about whether the word in question is in fact obscene. This is evidence that it is not obvious to all readers that it is not lewd, filthy, or disgusting, and it is not clear to all readers that it fails the cited test. One or more citations supporting this analysis would improve the answer; it should at least describe the line of reasoning leading to the conclusion that it fails the Miller test.
    – phoog
    Mar 3 at 7:48
  • 2
    As noted: Cohen v California did specifically address the Combination "Fuck X"
    – Trish
    Mar 3 at 9:25
  • 2
    @phoog I would say that the word in question clearly does meet (2) (that's the literal definition of the word,) but the flag as a whole would clearly fail (3). Whether the message is an intelligent or useful one is another question (which is unrelated to whether or not the First Amendment applies,) but it clearly is a political message.
    – reirab
    Mar 3 at 17:05
  • So even if an obscene words were used, that would be fine provided serious political value? Mar 3 at 19:21
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Let me paint you a picture. It's April 26, 1968. We're in the corridors of an LA courthouse. Paul Robert Cohen is wearing a leather jacket, upon which he has written in white lettering 3 words. Some officer just asked a judge to hold Cohen in contempt of court for the jacket, but that judge refuses. The officer now approaches and arrests Cohen for disturbing the peace in the hallway. The words on the jacket?

Fuck the Draft

This was the start of the court battle of Cohen v California. The case ended in front of the SCOTUS in the 1971 period. It's holding is clear:

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 of this single four-letter expletive a criminal offense. Pp. 403 U. S. 22-26.

The word fuck is, since that holding, explicitly free to be used to criticize the government, and it is explicitly banned to make that word a criminal offense. It is not obscene.

Do you want to know more?

I strongly suggest to listen to Ken "Popehat" White on this case.

Another follow-up listen would best be the way how the word obscenity ended up being defined legally. To say it short: it's not just the word "fuck" but the Jacobellis holding is better describable as I know it when I see it. Miller later replaced that.

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  • But young children are less likely to be present to see that word in a courthouse hallway than outside in public.
    – phoog
    Mar 3 at 7:50
  • 4
    @phoog the "young childen" argument holds no water, as Cohen held that the jacket was protected in all circumstences.
    – Trish
    Mar 3 at 8:05
  • or rather: the "young children could see it" is not enough to ban explicit political language, but is enough to ban pornography. The 'particularized, compelling reason' is a very high bar.
    – Trish
    Mar 3 at 9:20
  • if the court did not consider an argument because the argument was not advanced before it, a subsequent court can decide a subsequent case differently. Nowhere does Cohen say "in all circumstances." To the contrary, it says "absent a more particularized and compelling reason for its actions," which leaves open the possibility that protecting young children from the language might be such a particularized compelling reason. Unless a court has explicitly found that it could never be such a reason, the argument remains open.
    – phoog
    Mar 3 at 12:11
  • @phoog Profanity in itself can't be banned under the first amendment. It takes the special circumstances of schools to ban them (See Fraser), fighting words or indecent speech on broadcast (see Pacifica Foundation), but on the street or on public places by adults, the argument had been brought and rejected in both Cohen and Fraser.
    – Trish
    Mar 3 at 13:51
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I must agree with the answer by user6726. But I want to call specific attention to a US Supreme Court case that is exactly on point, Cohen v. California, 403 U.S. 15 (1971)

I think it only appropriate to quote that Vietnam War era decision somewhat extensively here. In that case, Justice Harlan wrote for the court:

This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance.

The facts upon which his conviction rests are detailed in the opinion of the Court of Appeal of California, Second Appellate District, as follows:

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.

...

(403 U. S. 18) 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 (1931), not upon any separately identifiable conduct which allegedly was intended by Cohen to be perceived by others as expressive of particular views but which, on its face, does not necessarily convey any message, and hence arguably could be regulated without effectively repressing Cohen's ability to express himself. Cf. United States v. O'Brien, 391 U. S. 367 (1968). Further, the State certainly lacks power to punish Cohen for the underlying content of the message the inscription conveyed. At least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished for asserting the evident position on the inutility or immorality of the draft his jacket reflected. Yates v. United States, 354 U. S. 298 (1957).

...

(403 U. S. 19-21) [A]s it comes to us, 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. [emphasis added] 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 (1957). It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen's crudely defaced jacket.

This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called "fighting words," those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). 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, 310 U. S. 309 (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 (1951); Termniello v. Chicago, 337 U. S. 1 (1949). There is, as noted above, no showing that anyone who saw Cohen was, in fact, violently aroused, or that appellant intended such a result.

Finally, in arguments before this Court, much has been made of the claim that Cohen's distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant's crude form of protest. 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 (1971). While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, e.g., Rowan v. Post Office Dept., 397 U. S. 728 (1970), we have at the same time consistently stressed that "we are often captives' outside the sanctuary of the home and subject to objectionable speech." Id. at 397 U. S. 738. The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. [emphasis added] Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.

...

[403 U. S. 24-25] The constitutional right of free expression is powerful medicine in a society as diverse and populous a ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. See Whitney v. California, 274 U. S. 357, 274 U. S. 375-377 (1927) (Brandeis, J., concurring).

... We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. That is why "[w]holly neutral futilities . . . come under the protection of free speech as fully as do Keats' poems or Donne's sermons," Winters v. New York, 333 U. S. 507, 333 U. S. 528 (1948) (Frankfurter, J., dissenting), and why, "so long as the means are peaceful, the communication need not meet standards of acceptability," Organization for a Better Austin v. Keefe, 402 U. S. 415, 402 U. S. 419 (1971).

... while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

Additionally, we cannot overlook the fact, because it is well illustrated by the episode involved here, 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. ... Indeed, as Mr. Justice Frankfurter has said,

[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures -- and that means not only informed and responsible criticism, but the freedom to speak foolishly and without moderation.

Baumgartner v. United States, 322 U. S. 665, 322 U. S. 673-674 (1944).

By the way, according to The Brethren Then chief Justice Burger (who had dissented) urged Justice Harlan not to quote the word "fuck" when formally reading the opinion from the bench, but Harlan felt it would be conceding that the word was unacceptable in a political or legal context, and so he read the opinion uncensored, and I have quoted that passage unaltered here.

The opinion in Cohen mentions "fighting words", then generally considered not protected by the First Amendment. (Some comments on this thread have also mentioned fighting words.) That position has since Cohen changed somewhat.

The LII page "Fighting Words", after reviewing variosu court decisions on the subject, reads:

In R.A.V. v. City of St. Paul (1992), the Supreme Court found that the "First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed." Even if the words are considered to be fighting words, the First Amendment will still protect the speech if the speech restriction is based on viewpoint discrimination.

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  • More elaborate than my point to Cohen, but Cohen is pretty much the case for this pattern after all.
    – Trish
    Mar 2 at 21:37
  • Did Cohen consider the state's interest in protecting young children from exposure to the word? If not, has any other of the court's decisions addressed that question?
    – phoog
    Mar 3 at 7:52
  • @phong In the Cohen Opinion there was specific mention that "women and children" were present, and that the stae had urged that the protection of "unwilling or unsuspecting viewers" was a significant state interest, which the Court found insufficient to justify the prosecution. I don't believe hare was mention of an enhanced interest in protecting children. None of the other cases on the issue that I have read addressed that issue, most add little to Cohen. Mar 3 at 14:22
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A prohibition directed specifically at this would probably fail for first amendment reasons. However, the first amendment does allow content-neutral restrictions on speech. If a locality has a law against large vehicle displays, courts would look at whether it advances a legitimate government interest (e.g. avoiding displays that restrict visibility, or preventing safety hazards in the event of a collision), does not unduly burden speech (in this case, courts would probably find that people have plenty of other methods of expressing discontent with Biden), and is applied evenly without respect to any speech communicated by it (if the driver can show that the law on its face, or through its enforcement, targets particular types of speech, rather than the mere fact of a large physical object blocking driver visibility, the law would be found unconstitutional).

4
  • I rather doubt that a law banning flags in the back of a pickup for "visibility" reasons would pass muster in a court. If that were truly a significant danger, then we'd have banned semis and dump trucks long ago. (That is, if a non-rigid 4'x6' flag were really a dangerous visibility block, then a 53' x 13.5' rigid one would be completely unacceptable.)
    – reirab
    Mar 3 at 17:12
  • @reirab: Such trucks have wide-angle (convex) mirrors to help rear visibility. If the pickup does not have those mirrors, visibility would be a valid reason to ban flags (regardless of their content).
    – DrSheldon
    Mar 3 at 21:29
  • @DrSheldon Not really. The flags are still smaller than, say, the side of a minivan, which does not have particularly large and/or wide-angle mirrors. It's quite doubtful that any legitimate safety concern exists and courts would likely take an extremely skeptical view of any such argument in light of the First Amendment concerns at play. While I'd agree that such flags are tacky and annoying, I rather doubt that any legitimate safety concern exists (and tacky and annoying are generally not sufficient government interests to overcome First Amendment issues.)
    – reirab
    Mar 3 at 22:17
  • If the truck was headed north and strong winds blew west to east, the flags could cover the rear window and block the right-side blind spot. The bottom of the right-side view mirror would show what's under the bottom of the flag. The driver also may not be able to look over their shoulder to see the right-side blind spot like you need to when you change lanes. Trucks are allowed to have blocked rear-view mirrors, but side-view mirrors must remain clear. Mar 16 at 14:17

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