Free Speech Is Both

‘Nice’ And ‘Naughty’

To the Editor:

The letters supporting the Uncle Sam display on the Payne property miss the point. Although — or perhaps because — I have taught and practiced First Amendment law for most of my working life, I cannot say for certain whether the display is constitutionally protected. I would need to know more than I presently do about the display’s content and dimensions, and about the town’s zoning regulations.

I do, however, know this. If the display remains in place, it will not be because it is “patriotic” or “nice” (as letter writers have described it). It will be because either the First Amendment protects it, or local zoning regulations allow it, or the town, knuckling under to political pressure, declines to enforce regulations that prohibit it. And, make no mistake about it: if the display remains in place for any of those reasons, the town will also have to accommodate displays that are neither “patriotic” nor “nice” (a statue of Uncle Sam, say, sporting horns and a pitchfork and spearing a figure that represents some third-world or Caribbean country). The First Amendment does not allow the government, or local political majorities, to pick and choose between expression that is naughty or nice. Be thankful for that.

If the letter writers are willing to accept this law of unintended consequences, I shall grant them, at the very least, an understanding of the First Amendment’s core principles. If not, then not.

Martin B. Margulies

Professor Emeritus

Quinnipiac University School of Law

79 High Rock Road, Sandy Hook                              October 22, 2010