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Thursday, May 15, 2008

Ind. Decisions - 7th Circuit decides Illinois case on the "fighting words" doctrine

In Purtell v. Mason (ND Ill.), a 24-page opinion, Judge Sykes writes:

This free-speech lawsuit requires us to determine the present scope of the “fighting-words” doctrine. The setting is a neighborhood feud. The case features an unsightly, 38-foot recreational vehicle stored on a residential driveway in suburban Chicago, a neighborhood petition drive to force its removal, and a derogatory Halloween yard display erected in retaliation against the neighbors who led the petition drive. An unlucky police officer dispatched to mediate the dispute was sued for his efforts, accused of violating the First and Fourth Amendments.

The plaintiffs claimed their Halloween display—wooden tombstones with epitaphs describing, in unflattering terms, the demise of their neighbors—was constitutionally protected speech. They alleged their rights under the First and Fourth Amendments were violated when the officer ordered them to remove the display on pain of arrest. The district court granted summary judgment for the officer on the Fourth Amendment claim but permitted the free-speech claim to proceed to trial. A sensible but probably misinstructed jury returned a verdict for the police officer.

We affirm. Summary judgment on the Fourth Amendment claim was properly granted. At the moment of arrest, the neighbor-combatants were engaged in a noisy argument over the tombstones, culminating in a “chest-butt.” This provided probable cause to arrest for disorderly conduct. The First Amendment claim need not have been tried. The tombstone inscriptions, although insulting, cannot be considered fighting words as that doctrine is presently understood. The display was, accordingly, protected speech. But the officer’s mistake about the scope of the plaintiffs’ constitutional right to ridicule their neighbors was one a reasonable officer might make in this situation. He was therefore entitled to qualified immunity. * * *

In closing, a few words in defense of a saner use of judicial resources. It is unfortunate that this petty neighborhood dispute found its way into federal court, invoking the machinery of a justice system that is admired around the world. The suit was not so wholly without basis in fact or law as to be frivolous, but neither was it worth the inordinate effort it has taken to adjudicate it—on the part of judges, jurors, court staff, and attorneys (all, of course, at public expense). We take this opportunity to remind the bar that sound and responsible legal representation includes counseling as well as advocacy. The wiser course would have been to counsel the plaintiffs against filing such a trivial lawsuit. Freedom of speech encompasses “ ’the freedom to speak foolishly and without moderation,’” Cohen, 403 U.S. at 26 (quoting Baumgartner v. United States, 322 U.S. 665, 674 (1944)), but it does not follow that every nominal violation of that right is—or should be—compensable. See Brandt v. Bd. of Educ. of City of Chi., 480 F.3d 460, 465 (7th Cir. 2007) (“[D]e minimis non curat lex (the law doesn’t concern itself with trifles) is a doctrine applicable to constitutional as to other cases,” and an award of nominal damages “presupposes a violation of sufficient gravity to merit a judgment, even if significant damages cannot be proved.”). Not every constitutional grievance deserves an airing in court. Lawsuits like this one cast the legal profession in a bad light and contribute to the impression that Americans are an overlawyered and excessively litigious people.

For more, see this WSJ Blog entry by Dan Slater, headed "In Wacky RV Case, 7th Circuit Rules ‘Them’s Not Fightin’ Words’".

Posted by Marcia Oddi on May 15, 2008 08:40 AM
Posted to Ind. (7th Cir.) Decisions