Two women have a First Amendment right to wear buttons with profanity on them at the Georgia State Capitol Building to protest proposed legislation that would restrict the right to abortion, a federal district court has ruled.

Alyson Rubin, an 18-year-old high school senior, and Jennifer Hickey, both were on capitol grounds on March 7, 2019, when they were told by officers to remove their buttons with the following message: “Don’t Fuck With Us Don’t Fuck[,] Without Us.”  The message is followed with a logo of Planned Parenthood.

The women wore the buttons to express their opposition to a bill in the state legislature that would prohibit abortion after six weeks of pregnancy.   

Judge: A political button is speech protected by the First Amendment

The plaintiffs contended that their case is governed by the U.S. Supreme Court’s decision in Cohen v. California (1971), in which the high court reversed the breach-of-the-peace conviction of Paul Robert Cohen, who wore a jacket with the message “Fuck the Draft” into a Los Angeles County courthouse.  In Cohen, the Court ruled that the state could not criminalize certain words used by adults.  Famously, the Court also wrote that “one man’s vulgarity is another’s lyric.” 

On March 14, 2019, U.S. District Court Judge Steve C. Jones of the Northern District of Georgia granted the plaintiffs a preliminary injunction in favor of the plaintiffs in Rubin v. Young.  “Wearing a button with a political message is a form of expression within the protection of the First Amendment,” Jones wrote.

Georgia officials argued the buttons were obscene, but judge disagreed

The state contended that the buttons were obscene and, thus, unprotected by the First Amendment. Under the Supreme Court’s so-called “Miller test” for obscenity in Miller v. California (1973), material to be obscene must (a) appeal predominately to a prurient or shameful interest in sex; (b) depict or describe sexual acftivities in a patently offensive way; and (c) lack serious literary, political, artistic or scientific value.

The judge found that even if the buttons met the first two parts of the Miller Test, they were not obscene because they serious political and scientific value.   

Next, the court examined whether the state defendants could restrict the plaintiffs’ speech in a designated public forum. Because the state engaged in a content-based restriction on speech, the state had to meet strict scrutiny to justify the speech restriction. This meant that the state had to show that banning the buttons advanced a compelling government interest in as very narrowly tailored way.

The state argued that it banned the buttons in order to protect minors, an interest of the highest order. Judge Jones agreed that this was a compelling governmental interest but said that the speech restriction was not narrowly tailored. He reasoned that the restriction was not narrowly tailored because it amounted to a “total restriction on the speech at issue.”

The judge’s ruling ordered that state officials could not “ban the buttons in the publicly accessible areas of Capital Square property.” 

David L. Hudson Jr., a visiting associate professor of Legal Practice at Belmont University College of Law, is a First Amendment attorney and author who has written, co-written or co-edited more than 40 books, including Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Documents Decoded: Freedom of Speech (ABC-CLIO, 2017).