Commercial Speech Continues to Test the Limits of What Is Obscene, Immoral, or Subject to State Regulation
A few months ago, my partner, Gerald McDonald wrote an article cautioning that potentially vulgar speech may quickly be materializing in much more prevalent commercial applications. The subject of Jerry’s article involved vulgarity in trademark registration, but a recent decision from the Seventh District Court of Appeals illustrates a context which may bring the issue much closer to home for most.
In Broke Ass Phone v. Boardman Township Board of Zoning Appeals, 2019-Ohio-4918 the issue before the Court of Appeals was whether or not the Board of Zoning Appeals had erred in prohibiting Broke Ass Phone Company from replacing its commercial street sign in front of its business. The case involved the interplay between Broke Ass Phones right to use its legally registered and legally trademarked name with Boardman Township’s zoning resolution which sought to regulate obscene word or words of immoral character. The Court’s analysis focused on the fact that Broke Ass’s sign would be considered commercial speech. Commercial speech is protected from unwarranted governmental regulation, but the key is “unwarranted governmental regulation.” In an effort to analyze this the Court looked at whether the zoning restriction sought to implement a substantial government interest. While the Court held that there was legitimate governmental interest in preventing the Township’s residents from being exposed to obscene, pornographic or immoral signs, at the end of the day the Court found that the word “Ass” was neither obscene in context, nor immoral. Although there was a vigorous dissent, the Court held that the State could not regulate speech that posed no danger to the asserted State interest and therefore held that it was unconstitutional to restrict its use.
Municipalities should take note of the analysis this employed by the Seventh District’s decision, as well as the Seventh District’s comments on the evidence that the Court would have expected to have seen submitted in a case like this. For business owners the case provides another example of, and possible support, to push the envelope in this context.
If you have any questions, please don’t hesitate to contact Michael W. Sandner at Pickrel, Schaeffer & Ebeling Co., L.P.A. to review or discuss.