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"The plaintiffs claimed their Halloween display--wooden tombstones with epitaphs describing, in unflattering terms, the demise of their neighbors--was constitutionally protected speech."

"The plaintiffs claimed their Halloween display--wooden tombstones with epitaphs describing, in unflattering terms, the demise of their neighbors--was constitutionally protected speech." The U.S. Court of Appeals for the Seventh Circuit today issued an opinion that begins, "This free-speech lawsuit requires us to determine the present scope of the 'fighting-words' doctrine."

Today's opinion summarizes its holding as follows: "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."

The opinion, written by Circuit Judge Diane S. Sykes on behalf of a unanimous three-judge panel, concludes:

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. . . . 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.

Back in April 2007, I had this post linking to the appellate briefs and the appellate oral argument audio in the case.

Full post as published by How Appealing on May 14, 2008 (boomark / email).