Zack Jenio
Last week, local news regarding a political scarecrow at Pullen Park made the front page. After Pullen’s scarecrow festival Sept. 28th, a scarecrow was left standing in the park with a white t-shirt that said “Dump Trump” on it. The Pullen Park staff received a complaint from a local patron stating that “We feel [it] is politically divisive, and shouldn’t be part of any public display at a park for children,” and the staff responded by promptly removing it afterwards.
This interaction so close to home brings forward the ongoing, constitutional jurisprudence of the applications of the First Amendment, or freedom of speech, in different contexts. In other words, the actions by the park staff present the question of what is the limit of NC citizens’ right of free speech and what is not recognized or protected by the First Amendment. However, in this case, the small political art piece did not violate the free speech laws and should not have been taken down in response to the patron.
First and foremost, Pullen Park is a public park in Raleigh, North Carolina, and this type of free speech, i.e. the use of artwork, falls under symbolic speech. This means that this specific case of free speech falls under symbolic speech on public property. Symbolic speech often does not need a permit; granted, it does not obstruct regular activities on public property or utilize illegal methods such as graffiti or trespassing, which the art piece did not use, as it was presented (most likely) from the festival.
According to a report by Kathleen Ann Ruane, a legislative attorney for the Congressional Research Service, free speech is not protected if it utilizes obscenity, child pornography, or fighting words and true threats. The scarecrow of question did not contain any of those exceptions. Moreover, freedom of speech is generally protected when involving public figures as long as it does not slander the figure or discuss private matters as decided due to Hustler Magazine, Inc. v. Falwell (485 U.S. 46, 56 (1988)).
However, various other supreme court hearings have added more specific restrictions of free speech based on circumstances, one of which being ‘speech harmful to children.’ Understanding that this event was advertised for families, this argument that the speech was too harmful for the environment can be applied by those opposing the scarecrow. Although I agree that the setting for a political piece like this seemed very awkward and out of place, it was not constitutional for the park staff to remove the scarecrow.
One might think this symbolic speech on public property is not allowed because of General Statutes § 163-274, specifically clause 7, where it is illegal to produce any derogatory content to affect the candidate’s chances of nomination or election; however, this set of Class 2 misdemeanors is based on the case of State v. Petersilie (334 N.C. 169, 432 S.E.2d 832 (1993)) where the creator of the symbolic speech was involved with the election as another candidate. All of the clauses are specific to “any primary or election in [North Carolina]” and since the content is not relevant to a North Carolina candidate, the scarecrow is still under the creator’s constitutional rights.
Understanding all of the above information, the scarecrow falls under constitutional rights for the freedom of speech at Pullen Park. It isn’t important which side of the political spectrum this symbol supports; if it was a scarecrow that said to dump a specific democratic candidate, it would still be valid and protected. But it is important to recognize this because the scarecrow, however well or not well executed it was, initiates political conversation that is crucial for our society to progress.
Civil discourse is crucial for our society to interact and communicate at a time when political parties are not communicating or interacting with each other as much and polarization on both sides has led to a larger political divide. Symbolic speech and free speech allows ideas to be discussed and for both sides to share their opinions in order to come to a deeper understanding of all perspectives for the topics at hand.
With the 2020 election coming up soon, more symbolic speech, protests and other free speech activities are bound to appear in the Raleigh community. The protection of our First Amendment is crucial to have proper conversations about politics in our country, and Pullen Park is no exception. As long as the activities do not fall outside of the exemptions and restrictions of the First Amendment, politics like this should be allowed in Pullen Park.