A flag with a prominent expletive displayed across from Orchard Mesas Middle School prompted questions from residents about whether that was allowed within the city of Grand Junction.
A resident in Orchard Mesa is displaying a flag with a four-letter-word in reference to the current President of the United States, but that is constitutionally protected speech, City Attorney John Shaver said.
Shaver said the city does not have an ordinance prohibiting certain words from being displayed on flags or signs within the city. He said, in a statement, that the U.S. Supreme Court ruled in a 2015 case that content, based regulation of signage is impermissible.
“Accordingly, even if the city had an ordinance, which it does not, that ordinance would be unconstitutional,” Shaver said.
The city did a comprehensive update of its sign code in the wake of that Supreme Court ruling. Shaver said it does have some regulations regarding the size and location of signage in the city, but not on content.
There is also a Supreme Court decision dating back to the 1970s that Shaver said protects offensive speech.
“Additionally, there is another U.S. Supreme Court decision, Cohen v. California, that in my opinion protects the right of the owner of the sign and/or flag to display the same,” Shaver said. “The Cohen decision is often referred to as the ‘F___ the Draft’ case and it stands for the proposition that unpopular or indecorous speech is generally protected.”
Shaver said there are exceptions to the Cohen decision, notably the “fighting words” exception. However, those need to be directed at an individual and would lead to an “immediate breach of the peace.”
Overall, Shaver said the Constitution’s First Amendment gives significant protections to speech. “Among other things the First Amendment protects the right of the people to speak against the government and while the message of the sign and flag are shocking and offensive to some, the right to display those messages is well established,” Shaver said.