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The 1st Amendment and the Zombie Nativity Scene

Posted: Thursday, December 25, 2014 | Author: Robert A. Bianchi

Robert Bianchi appeared on Fox News’ America’s HQ to discuss the 1st Amendment and its application the Zombie nativity scene in Ohio.

By Robert A. Bianchi, Esq.:  This is an interesting 1st Amendment case that deals with Freedom of Expression.  In it, the local authorities have tipped their hat that they are upset with the homeowner’s Zombie nativity display which our Supreme Court has for decades stated extends to symbols, art, and other forms of communication beyond verbal speech. The town now says that they are not controlling his right to free speech, but rather, enforcing local town ordinances about what can be put on lawns and where things may be placed on a lawn.

These cases are not unique.  Cases of towns attempting to use local ordinances to “chill” free speech are many.  It has unsuccessfully been used to prevent candidates from placing lawn signs to promote typically a person going against an incumbent, to cases where “art” is seen as ugly or offensive and they want to use local ordinances to justify removing it.

The matter will be pretty easy to determine once the facts are in.  What we know now is that the town does not like the message of a Zombie Nativity scene.  And, that will not be a good fact for them as their disdain is well documented. Additionally, they will have to show why it was that this ordinance was not enforced with long-standing violations of a similar nature, albeit not one where town officials were offended by the message.  The town better have a better explanation than the one they advanced publicly, that is, that there were simply too many violations for them to address, but somehow this homeowner was the sole unfortunate person to get ticketed.  I would bet that this is the one of a few tickets they recently issued, not due to manpower issues, but because the homeowner would not take off of his lawn hat they considered offensive content when they requested him to do so.

Our Supreme Court has solidly pronounced time and time again, that free speech may be offensive and outright distasteful.  But, when government attempts to “chill” free speech, it must have a “compelling” interest and it must be very narrowly evenly applied to all cases.  In this case, the government’s position is without merit under this standard.

As I stated in the Fox News story, if I were the town attorney I would be sitting down with the mayor over a cup of coffee and telling him that they are about to enter into a major problem, as the facts are pretty clear already.  This citation and police action was over free speech content, and the facade that it was over enforcement of a local ordinance was merely an ill-conceived subterfuge to cover up their unconstitutional actions and intent.

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