‘We can’t use the force of law to make them take it down’

FAIRFIELD — The issue of free speech came up during the Fairfield City Council’s meeting Monday.

Fairfield residents John Miller and Doris Slocombe appeared during the public comment portion to register a complaint about some property owners in town flying a flag with an obscenity on it directed at President Joe Biden.

One of the flags is at a home at the intersection of South Sixth Street and West Van Buren Avenue about three blocks north of Pence Elementary School. Miller and Slocombe said they were particularly upset to see such a flag being flown so close to a school, and about a block away from Community Childcare on West Jackson Avenue.

This is the second time this year that a member of the public has brought these flags to the attention of the council. Council member Michael Halley said the issue came up in a recent article in the League of Cities’ magazine.

“It said that unless you interpret the ‘F-word’ as an act of violence, it is protected speech,” Halley said.

Slocombe said she asked why the city of Fairfield couldn’t have an ordinance against obscenity like a city in New Jersey that asked a woman to remove similar signs with an obscenity directed at Biden.

Slocombe shared an article with the council about how a New Jersey municipal judge found that the woman’s signs violated a borough ordinance against obscenities, and ordered her to remove them or face a fine.

However, the woman ultimately prevailed when the city, Roselle Park, dropped its case against her.

Slocombe said she understands the city might not be able to do anything about the flags, but she felt it was important to speak up nevertheless.

“People will drive through Fairfield and think, ‘Wow, they let them fly that here?’” she said.

Fairfield City Attorney John Morrissey said he has researched the issue and consulted with other city attorneys, and said there’s little the city of Fairfield can do to restrict signage on a person’s property.

He said the city might have a case against the property owner if the obscenity were printed on an American flag, and thus could be considered flag desecration, but that is not the case with these particular flags in Fairfield.

Morrissey said the city or school district might succeed in forcing a property owner to move an offensive sign to a portion of their property where it was not visible to “sensitive young minds.”

“There is a point where the court will protect innocent small children, but we wouldn’t be able to eliminate the flag, just relocate it,” Morrissey said.

However, Morrissey said that was probably a stretch in this case since the flag on South Sixth Street is not visible from the school itself.

“I think it’s inappropriate, but we can’t use the force of law to make them take it down,” Morrissey said about the flags. “The neighbors are offended, but we can’t intervene on their behalf.”

Morrissey said the government has limited authority to control what appears on political banners since that is a “highly protected area of free speech.”

In 1969, the U.S. Supreme Court ruled in the case Brandenburg v. Ohio that government cannot punish speech unless it is directed to inciting “imminent lawless action.”

Morrissey said that when this issue of the flags came up earlier this year, Mayor Connie Boyer sent a letter to the homeowner on Sixth Street asking for the flag to be removed, but no action was taken.