Baxter reviews legal standing regarding obscenity

BAXTER — The Baxter City Council received a memo regarding the council’s legal standing following a request to regulate indecent words publicly displayed on signs.

And with it, the city is moving forward under direction that profanity on signs or flags is protected speech.

The memo, drafted by Baxter City Attorney Brad Person, was included in the council’s Jan. 18 meeting materials and was drafted in response to a Baxter resident.

The resident brought his concerns to the Baxter City Council Tuesday, Jan. 4, about publicly displaying profanity within city limits.

On Jan. 4, Baxter resident Dr. James Roelofs asked the council to look into regulating profanity displayed within the city — specifically noting a “Trump 2020” flag that included the phrase, “F*** your feelings” — and argued that the First Amendment does not protect all speech.

“Now, my comments are not about political candidates, politics or that sort of thing,” Roelofs said Jan. 4. “It's about the use of offensive language in our community. I feel this language is offensive. Not the public face we want to have in our community.”

Person wrote though it’s true the First Amendment does not protect all speech, the city’s ability to regulate content on private signs is “very restricted.”

City Administrator Brad Chapulis said the city previously looked into a similar situation last year regarding a flag visible from the lake.

“We had previously sought advice from (Person) related to the topic, approximately 10 to 12 months ago,” Chapulis said, in an interview with the Dispatch. “But that was done verbally (and) we wanted to have it in writing so that we would be able to share it with anybody who was inquiring as to the regulation or the ability to regulate the type of sign that was referenced at the council meeting.”

Baxter Mayor Darrel Olson said although the council is unhappy with the words on the flag, they asked Person to write an opinion on the city’s standing and to include the case law that opinion is based on.

“Nobody on the council thinks that this is acceptable,” Olson said in an interview with the Dispatch. “It has caused a lot of parents to have conversations with the kids, long before they were ready to do that, because of it. The bottom line is that — and I gotta believe that the preponderance of our city would feel the same way — that no, this is not acceptable, First Amendment or not, this is not acceptable.”

Olson said he has been surprised by the phone calls he’s received from both sides. One message, in particular, was laced with obscenities.

“I don't think I've ever been talked to like that,” Olson said. “And, you know, that's his right, but that's a person that you're never going to reach, you know, and he thinks it's just fine.”

Both Olson and Chapulis said if the city stood a chance in court they would fight it, but time and time again the U.S. Supreme Court has ruled in favor of the First Amendment.

Olson said he doesn’t want to be misread, or for people to think the council is going to be complacent or the council thinks it's OK.

“We don't,”Olson said. “It's just a matter of how winnable is it.”

Along with citing case law, Person argues that “f***” as a profanity may no longer meet one of the thresholds for regulation. That threshold being, according to today’s standards, whether the word is seen as indecent.

“One could argue the use of the word “f***” meets this prong but I would argue it does not, as swear words are very common in today’s media and culture,” wrote Person.

“I don't think that anyone would disagree in regards to the offensiveness. It is,” Chapulis said. “It does question community decorum, in that context, but it is protected free speech as referenced. And knowing that this has been taken all the way up to the U.S. Supreme Court, really for us to be able to regulate, it’s out of our hands. This is a First Amendment conversation that is on a federal level and not a local level.”