First Amendment Clinic defends driver's right to fly anti-Biden flags

It’s hard to miss the giant white pick-up truck adorned with huge red, white, and black flags rolling down the streets of the tiny fishing town of Grand Isle, Louisiana.  Especially when those red, white, and black flags say “F*** BIDEN” (without the asterisks).  And also F*** everyone who voted for him.

Certainly, the Grand Isle police didn’t miss it.  In fact, police pulled over and ticketed the driver seven times for his “offensive” and “obscene” display. 

And when the driver, Ross Brunet, a contractor from nearby Cut Off, La., successfully fought the first four tickets in court on the ground that his speech was not obscene, the town council passed an ordinance tailored to the purpose:  banning flag-sized displays of “offensive and vulgar” words on a moving vehicle.

Now Brunet is heading back to court, but this time as a plaintiff in a lawsuit asserting that the First Amendment protects his right to use even rude and offensive language to express his political views.

The lawsuit, filed this week in federal court in New Orleans, argues that “Brunet was engaged in protected speech in flying his flag with political messages” and that town officials were targeting him because of the content of his speech.

Brunet is represented in the suit by Tulane Law School’s First Amendment Clinic.

“The barrage of traffic stops, tickets, and required court appearances over Mr. Brunet’s flags are a clear violation of his First Amendment right to freedom of speech,” Clinic Director Katie Schwartzmann said. “His flags are protected by the Constitution.”

The case is a modern replay of a landmark U.S. Supreme Court case from 1971, in the fever-pitch of the Vietnam War era, upholding the right of an anti-war protester to display the same vulgar expletive on his jacket in the hallways of a public courthouse.  In that case, Cohen v. California, the protester was charged with disturbing the peace by his “offensive conduct” in a public place for displaying “F*** the Draft” on his clothing (again, without the asterisks).

The Supreme Court held that the expletive, however crude or provocative, was protected political speech and could not be prohibited on the grounds that it was “obscene” or a violence-inducing “fighting word.”  The Court conceded that the vulgarity would be crude and offensive to many, but found that a higher constitutional principle was at stake:

“The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours,” the Court wrote.

“To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve.” 

Brunet, in his own representation, brought the Cohen case to court to show the trial judge.

If the Cohen case reflected the tumult of the Vietnam era, Brunet’s case reflects the tumult of the modern partisan divide.

“Citizens should be able to express their political views, even those that some find vulgar or offensive,”  Schwartzmann said.  “Free speech is a cornerstone of our democracy. Courts have repeatedly upheld the right to controversial and unpopular speech.”

The case has been a lesson in advocating for free speech for clinic students too.  It has been prepared and will be litigated by third-year student attorneys in the law clinic, under the supervision of Schwartzmann and Stanton Fellow Virginia Hamrick. Students participated in all stages of the preparation for the lawsuit, including client interviews and research and drafting, and will be handling all upcoming briefings and arguments, under faculty supervision.