May 18, 2022

POLITICAL FLAG DEEMED OFFENSIVE PROMPTS CITY OF MAUSTON TO ISSUE THREATS OF FINES IN 1ST AMENDMENT VIOLATION ALLEGATIONS  

5 min read

By Huckleberry Ulbricht

The City of Mauston is once again at the center of controversy surrounding the 1st amendment.  Mauston resident and firefighter Richard Hale received a letter from Mauston Zoning Department demanding an offensive flag be removed or fines would be levied every day that the flag remains up.  The flag at the center of debate was a Trump 2024 flag followed with the words F!@# Your Feelings.  Because of the swear word on the flag allegedly receiving a complaint from another citizen The City of Mauston Zoning Administrator Tony Goodman sent out the harsh warning to Mr Hale.

The letter states in part: The flag displaying profanity on your property violates City Ordinance Section 24-35 Public Nuisance-(2) in general.  Any act, occupation, condition or use of property which shall continue for such length of time as to: (C) Greatly offend the public morals or decency; Section 114-258 General Signage Regulation; (a) Prohibited Signs, (10)Signs Containing any obscene, indecent, or immoral matter.

The actual Ordinance Section however is 24-25 and the ordianance spells out what is considered to be a great offense to the public morals or decency.  We will get to that ordinance later in this article.  The issue with the threat of fines every day boils down to what cities are allowed to restrict and what they aren’t.

In the famous landmark case of Cohen V California which went all the way to the United States Supreme Court and was decided on in 1971 settling the issue once and for all.  In that case Paul Cohen was charged for wearing a F!@# the draft on a jacket  in a courthouse in California.

In that case the US Supreme Court ruled that profanity is indeed protected speech.   

Governments can not just ban something because they don’t like the message it conveys.  That is not the purpose of government nor is it within the scope of government authority, regardless of the level of government.  Something that is far to common with local governments is the lack of understanding of how the US and State Constitution prohibits and limits their actions.  Couple that with the fact that laws are ever changing and court cases where decisions are made that invalidates laws and ordinances it often leaves local governments to feel like they can still enforce unconstitutional restrictions without repercussion just because it is still on the books.   This puts taxpayers of the area at risk to shoulder the costs of lawsuits when the government agency enforces ordinances that have been invalidated. 

The ordinance they are citing regarding the public morals and decency are defined in another of the same section area of their City Code. 

(8) Public morals and decency. The following acts, omissions, places, conditions and things are hereby specifically declared to be public nuisances offending public morals and decency, but such enumeration shall not be construed to exclude other nuisances which may offend public morals and decency:

a. Disorderly houses. All disorderly houses, bawdy houses, houses of ill fame, gambling houses and buildings or structures kept or resorted to for the purposes of prostitution, promiscuous sexual intercourse or gambling.

b. Gambling devices. All gambling machines and gambling places as defined in Wis. Stats. ch. 945.

c. Unlicensed sale of liquor or beer. All places where intoxicating liquor or fermented malt beverages are sold, possessed, stored, brewed, bottled, manufactured or rectified without a permit or license as required by this Code, or otherwise contrary to state law.

d. Illegal drinking or drugs. Any place or premises resorted to for the purpose of drinking intoxicating liquor or fermented malt beverages, or for the purpose of consuming drugs or other illegal substances, in violation of state law.

None of these definitions seem to  apply to Mr Hales flag.  Another issue that is found with this section is the declaration that such enumeration shall not be construed to exclude other nuisances which may offend public morals and decency.  This is extremely vague and gives the impression that it allows the government to decide anything it doesn’t like can be restricted.  That is not the case however.  Restrictions on speech must be content neutral.  In other words, regardless of what the message is, so as long as it doesn’t fall into a reasonable time place or manner restriction, it’s not obscene as per the standard handed down by the US Supreme Court and it doesn’t incite violence/panic along with a few other very narrow exceptions, the government has no say.  That includes the City of Mauston. 

While it may be offensive, the 1st amendment protects it.  We always have the option of not looking or listening.  An argument that is often used is the presence of children during the display of public speech or expression.  The presence of children however does not negate or suspend the 1st amendment. 

In Cohen v California Justice Harlan concluded  “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.” Harlan warned that “governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”

There have been concerns raised that this action by the City of Mauston to threaten fines is retaliation for recent problems and actions concerning the Mauston Fire Department. 

There have been jury verdicts in the past regarding 1st amendment violations that have exceeded 2 million dollars.  The actions and repeated violations of the 1st amendment by the City could leave the taxpayers on the hook for any verdicts or settlements against the city.  

We reached out to Mr Goodman of the City of Mauston to inquire if they still intend to pursue their threats of fines if the flag was to be restored.  It was indicated that they would.  When further pressed on their stance in light of the Cohen V California caselaw, for which Mr Goodman was not aware of, Mr Goodman indicated the ball was in Mr Hales court when asked if they would seek legal counsel if the flag was restored.  It was strongly urged to the city that they reach out for legal counsel on the matter.  One thing that was seemingly made  clear is that the threat of fines were content based and was not content neutral.

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