Legal News

In Wacky RV Case, 7th Circuit Rules ?Them?s Not Fightin? Words?

By Dan Slater

For LB readers who share our fascination with the First Amendment, consider this novel scenario, extracted from a recent Seventh Circuit opinion:

Jeffrey and Vicki Purtell owned a large RV that they could no longer afford to store, so they parked it in their front yard — much to the neighbors’ annoyance. So the neighbors persuaded the town to adopt an ordinance banning storage of RVs on residential property. The Purtells complied, albeit grudgingly, with the new ordinance, but not before expressing their contempt: In their front yard, they erected six tombstones aimed at their neighbors and described a year of death that corresponded to the respective neighbors’ addresses. For one neighbor, Diane Lesner, a tombstone read:

~1610~
Dyean was Known for Lying
So She was Fried.
Now underneath these daisies
is where she goes crazy!!

When a police officer made a second visit to the Purtells to try to persuade them to take the tombstones down, Bob Lesner (Diane’s husband) arrived home from work and “chest-butted” Jeffrey Purtell. The officer then told Purtell that if he didn’t take the tombstones down he’d be arrested. Purtell complied, and then sued the officer for damages, asserting a First Amendment claim for violation of free speech and a Fourth Amendment claim for arrest without probable cause.

The district court held there was probable cause to arrest Purtell, but sent the issue of whether the speech on the tombstones constituted “fighting words” — in which case they would not be protected — to the jury. The jury decided in favor of the officer, and, today, the Seventh Circuit Court of Appeals upheld the verdict, mostly. The appeals court held that while the words on the tombstones lacked “the sort of severe, personal, and inherently injurious insult” the fighting-words doctrine contemplates, the officer reasonably believed he had the authority to force the tombstones’ removal.

Here’s the opinion, which hearkens back to some classic First Amendment case law, such as Chaplinsky, a 1942 case in which a defendant had been convicted for calling a cop a “damn Fascist” and a “damn racketeer,” and the so-called Skokie case, in which the Seventh Circuit held that a planned march by Neo-Nazis through Skokie, a town with a large Jewish population, was not likely to provoke responsive violence or immediate breaches of the peace, and was therefore protected speech.

All very interesting stuff, of course, for us First Amendment nerds, but doesn’t the underlying spat seem a little, well, puerile? Judge Sykes, writing for the Seventh Circuit, thought so:

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. . . .We take this time 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. . . .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.

LB’ers: What say you on Judge Sykes’s slap-down?

Full post as published by Law Blog - WSJ.com on May 14, 2008 (boomark / email).