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Free to Flip the Bird

Thu, 02/01/2024 - 09:44


A reminder that we in the United States enjoy a right to say what we please comes from Bay City, Mich., in a free speech matter involving public meetings. Until very recently, Bay City municipal law prohibited anyone from speaking during the public comment period of city commission meetings, from demeaning city officials, officers, or employees, making derogatory comments about any other person, or using vulgarities. FIRE, the Foundation for Individual Rights and Expression, a scrappy free speech organization based in Philadelphia, got in touch with Bay City officials to explain that their rule violated the First Amendment by selectively targeting speech based on viewpoint.

In casually banning public expression that they did not like, officials in Bay City had put themselves up against the heaviest of hitters on the issue. In 2017, the U.S. Supreme Court reiterated that potentially offensive ideas could not be blocked because they might disparage a group or individual. In Matal v. Tam, the justices agreed that “speech may not be banned on the grounds that it expresses ideas that offend.” In Town Hall terms, howling repeatedly and disrupting a meeting by making it impossible to continue could be banned, but calling an elected official a doofus — or worse — was protected by the Constitution.

The 2017 case turned on the question of whether the U.S. Patent and Trademark Office could block a rock band from registering its name as “The Slants” under a 70-year-old federal law that sought to block disparagement of pretty much anyone or anything. The court’s liberal justices added, “With few narrow exceptions, a fundamental principle of the First Amendment is that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys.” In other cases, the court has consistently ruled that public expression of ideas may not be prohibited merely because the ideas are themselves “offensive to some of their hearers.”

Though we do not recommend it under any circumstances, other courts have found that even giving the one-finger salute to police was consistent with the First Amendment. Again in Michigan, a U.S. Court of Appeals judge sided with a driver who sued the police after she was ticketed for flipping the bird to an officer as she pulled away from an otherwise uneventful traffic stop. In the 2019 decision, one of the three-judge panel had this to day: “Fits of rudeness or lack of gratitude may violate the Golden Rule. But that doesn’t make them illegal.” To this we might have added, “Sticks and stones may break my bones, but words will never hurt me.” Schoolyard children get this; it remains an odd commentary on society that so many public officials do not.

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