OH Appeals Court Finds That “Broke Ass Phone” Is Not Obscene, May Be Displayed On A Business Sign

This post originally appeared on the Rocky Mountain Sign Law Blog and is reposted with permission. See, https://www.rockymountainsignlaw.com/2019/12/ohio-appeals-court-finds-that-broke-ass-phone-is-not-obscene-may-be-displayed-on-a-business-sign/

In a somewhat entertaining case out of Boardman Township, Ohio, the state court of appeals has ruled that a business called “Broke Ass Phone” may display its sign under the Boardman Township zoning ordinance, which otherwise prohibits obscene or offensive signs.

Broke Ass Phone is a company that specializes in repairing broken smartphones and other devices.  In 2015, the company applied for a sign permit in Boardman to allow the company to post its business sign.  The township zoning inspector denied the permit application, finding that it violated the township code provision prohibiting obscene signs.  The applicant then appealed the decision to the township’s Board of Zoning Appeals.  In 2017, the board denied the appeal.  The company then appealed the denial to the local common pleas court, asserting First Amendment arguments.  The common pleas court affirmed the decision of the zoning appeals board, and the company appealed to the state appeals court.

On appeal, the court applied Central Hudson scrutiny, as the matter involved commercial speech.  The court determined that the speech in question was lawful, non-misleading speech.  And while the court agreed that the township had an interest in ensuring that its residents were not exposed to obscene speech, the court it concluded that the name “Broke Ass Phone” was not obscene, as it was unrelated to pornography and did not offend sensibilities.  As the court observed, “the term ‘ass’ when used in a phrase like ‘Broke Ass Phone,’ has become commonly used as a slang term to say that the phone is ‘really’ or ‘badly’ broken.”  The court also noted that, since no one testified in opposition to the sign at the zoning appeal hearing, it followed that township residents were not actually offended by the sign.  The court then concluded that the prohibition of the sign did not serve the government’s interest in protecting residents from obscene or pornographic material.

Broke Ass Phone v. Boardman Twp. Zoning Bd. of Appeals, 2019 WL 6464131 (Ohio Ct. App. Nov. 15, 2019).