MILLERTON — The Village Board held a meeting on Monday, March 22, to address recent concerns from residents about a home displaying obscene messages, raising First Amendment issues of how to regulate signs and their content.
The Route 22 residence has a flag outside with the message, “F*** Biden and F*** You For Voting For Him!” that has upset residents including J. Sterling, who said it’s unbecoming for a community that should be welcoming to all, regardless of one’s political views.
The home has flown an upside-down American flag on its property in the past, which also raised concerns with some of the locals at the time. This time, though, Sterling said he brought his concerns to the village for fear of the anger escalating; he was told that four other residents filed complaints as well.
“I advocate for free speech,” Sterling said, “but this is a vulgarity on a main road with both heavy auto and pedestrian traffic, including children.”
Sterling, who acknowledged he is a Democrat, added if the situation were reversed and the offensive flag had targeted former President Donald Trump, he would have felt just as upset and would have still wanted the flag removed.
At the Village Board meeting on March 22, Village Attorney Ian MacDonald spoke about the link between sign laws and First Amendment rights. He explained the rules are very complicated and “there are some things that arguably may not hold up under the current climate.”
The general rule, he said, is that the village’s authority to regulate the content of signs is more restricted than non-content based regulations, and there’s no specific restriction in the village sign law that says a resident can’t put offensive, obscene or profane language in a sign, banner or flag.
After talking with Millerton Building Inspector Ken McLaughlin, MacDonald said there may be ways the village can regulate existing signs even before amending the sign law. He said this will make it clear to anyone in the future that they can’t put offensive, obscene or profane language or images in their signs, flags, billboards and banners. He explained this wouldn’t be a content-based restriction since it would apply uniformly to any sign, and the village wouldn’t be regulating the sign’s content so much as the particular language used.
“To me, it’s a shame that we have to tell people that they can’t put a big sign with an obscenity out on the front of their yard or the front of their house,” Mayor Debbie Middlebrook said, “but I guess that’s where we’re at.”
Trustee Matthew Hartzog asked later if it would be possible to spell out in a resolution certain symbols that Millerton recognizes as symbols of hate speech or the defamation of symbols as partial hate speech, or whether that would be too restrictive. MacDonald said it could make it much more complicated as it describes more of a content-based restriction.
“To say that you can’t restrict content is not entirely accurate,” MacDonald said, “but it is much harder to do that and survive challenges because the bar is set a lot higher where you have content-based restrictions. It’s going to be subject to what’s called ‘strict scrutiny’ in the First Amendment analysis that the court would engage in, so it’s much easier to challenge that than content neutral.
“The proposed local law is more of a content neutral [law] because you’re not restricting the particular content of the sign — you’re saying you can’t use profane language whatever that message is.”
Reminding the board that the First Amendment protects all speech regardless of whether or not it’s offensive, MacDonald noted “what’s offensive to one person may not be offensive to another.”
He added that it may be worth looking at the village’s entire sign code, Section 170-41, as he believes it warrants updating. Furthermore, he said the board could look at it in the context of determining what it wants to regulate, what it has the authority to do and what would be considered content based and non-content based.
Meanwhile, Jody Miller, chair of the Dutchess County Commission on Human Rights, said New York State does not legally define hate speech.
She did say the U.N. Strategy and Plan of Action on Hate Speech does, as “any kind of communication in speech, writing or behavior that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are… based on their religion, ethnicity, nationality, ace, color, descent, gender or other identity factor.”
Back at the meeting, the board unanimously amended the local sign law, prohibiting profane language on any sign, billboard, flag or banner in the village. It then set a public hearing for Monday, April 19, at 6 p.m. via Zoom and on the “Village of Millerton VOM” Facebook page.
Though there were questions at the meeting regarding “hate speech,” Middlebrook later explained that this particular amendment is narrowly defined to address profane language.
She said the sign law will be enforced by the zoning enforcement officer (ZEO) pursuant to the village code, which gives the village the authority to prosecute any violations as misdemeanors in town court with a potential fine of up to $1,000 for each week the violation exists.
“We have advised those that have called the village office with regard to the issue that we are working with the village attorney to address it,” Middlebrook said. “There is a process to be followed and we are following the process.”
Photo by Graham Corrigan
