Taboo display (cont.)

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A little while back, I noted that postcards with FUCK on them were coming to me through the mail with no interference. I added that

for some time now I've been noticing bumper stickers (locally) with FUCK and SHIT on them (FUCK BUSH, rather than the Spoonerized BUCK FUSH, for example), so apparently you can display taboo vocabulary in public (in certain places) without getting in trouble with the law.

That was badly phrased; something like "without getting in trouble with authorities" would have been better.

I understood that public displays of taboo vocabulary (as well as uttering the words in public) have been constitutionally protected in the U.S. for some time. Several readers have reminded me of this; Eugene Volokh (professor of law at UCLA) gave the most detail:

this is the logical outgrowth of Cohen v. California, 403 U.S. 15 (1971), which held that the First Amendment protected the right to wear a jacket saying "Fuck the Draft."  Cohen actually wore the jacket in a courthouse, though not in a courtroom, so the right to display vulgarities probably extends even there, though it's possible that the government might ban vulgarities on clothing inside its own buildings if it wrote the ban narrowly enough (the law in Cohen was not so narrow).

This famously doesn't extend to broadcasting (see FCC v. Pacific Foundation), but continues to extend to displays of the word on public streets, in public parks, on privately owned billboards (assuming the property owner is fine with it), and the like.  Thus, for instance, in Cunningham v. State, 260 Ga. 827 (1991), the Georgia Supreme Court struck down a statute banning vulgarities on bumper stickers, citing Cohen.

Returning to your postcard question, it's possible that the post office might be able to ban profanity on post cards; I don't know what the statutes say, nor do I know of any lower court constitutional caselaw on the subject.  (I'm pretty sure there are no Supreme Court cases discussing this.)  But this would stem from the government's power to control the post office that it runs, not any general power to ban vulgarities in public.

A larger point here is that even behavior that is legally protected can bring you to the attention of authorities (police officers, in particular, but also postal officials) interested in curtailing this behavior.

Faced with public display or utterance of vulgarities, the police can speak sternly to the offender, possibly even threaten the offender with a charge of disturbing the peace (if the police think they could argue that the behavior was disruptive). Faced with taboo vocabulary on postcards, postal officials could simply refuse to deliver them, leaving it to the sender to sue. But informal means of  control can achieve a lot.

To see how these things can work, consider police activity in the very upscale community of Atherton, California, as reported in the "Police Blotter" column in the Palo Alto Daily News (and discussed in a 2002 paper of mine, the handout for which is available here). One of the notable features of the Atherton police blotter is the high number of “suspicious person/vehicle/circumstances” reports: residents call in about things that rouse their suspicions, and the police go to investigate, interviewing the people responsible for the suspicious activities (if they can find them). These activities are almost never potentially illegal, but the attention the police give to such reports (and the publication of them in PADN) serves to encourage people to stay "where they belong" in Atherton (and to discourage outsiders from even entering the town).

Here's a sampling of these reports, as given in my 2002 handout:

11/17/01: “Suspicious person asked resident for an interview for a communication class.”

11/21/01: “Someone in a 1999 white Subaru hatchback was watching passers-by.”

11/24/01: “Suspicious man walking toward El Camino Real out of a driveway.”

12/1/01: “8:40 a.m.:  Suspicious person staring at a house.”

12/3/01: “A man with scruffy facial hair and wearing a flannel shirt was seen in the area. Caller is afraid he may be trying to break into someone’s property.  Police checked the area.”

12/8/01: “4:56 p.m.:  Suspicious person driving up to someone’s driveway.”

12/12/01: “A UPS truck had been parked in a vacant lot for the past hour with no driver inside.  The driver was out helping another UPS truck with deliveries.”

12/14/01: “5:02 p.m.:  Suspicious white van driving slowly through neighborhood.”

12/18/01: “4:52 p.m.:  A suspicious man was walking around carrying a balloon.”

12/21/01: “12:55 a.m.:  Suspicious vehicle.”

12/22/01: “3:51 p.m.:  Suspicious circumstances of someone leaning against a fence and squatting.”

2/11/02: “9:10 p.m.:  A white Ford van drove by a house earlier and took pictures of the residence.  The perpetrator may have taken the pictures to place on greeting cards with nasty words of board members and CEOs’ houses.”

On other occasions, the reports are of people sitting in cars or trucks — who usually turn out to be contractors eating lunch.

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