Personally Abusive Epitaphs as Fighting Words?

It's not uncommon for people to mix up epitaph, epithet, epigraph, and epigram; I've seen a brief, for instance, which spoke of "personally abusive epitaphs."

The Seventh Circuit, though, has just handed down an opinion which did indeed involve personally abusive epitaphs (though only mock epitaphs). More importantly, the opinion is a pretty interesting elaboration of First Amendment fighting words doctrine, and quite readable, to boot.

Thanks to How Appealing for the pointer.

PatHMV (mail) (www):
With pictures! I love a modern-thinking court willing to do somewhat untraditional things like including pictures in the opinion.

Thanks for the pointer, it's a fun read, and a very sensible opinion. Personally, my favorite line was describing how the altercation culminated in a "chest-butt".
5.14.2008 5:20pm
Does West print pictures it its reporters? I seem to recall seeing facsimiles of documents, but not a picture.
5.14.2008 5:41pm
PatHMV (mail) (www):
I do, however, have to disagree a bit with the court's chastisement of the RV owners for bringing the lawsuit. By the Court's own acknowledgement, they were exercising their constitutional right to speak by putting out the tombstones. To me, their freedom to do so is even more clear than the Court makes it out to be, and the Court should have criticized the district court even more for reaching the erroneous conclusion that their constitutionality was a matter for the jury.

Yet when outsiders called the police in respones to this exercise of their rights, when it was the other person who initiated the physical confrotation (the chest-butting), the police arrested the property owner, not the ones threatening to breach the peace as a result of his display of WORDS on his own property. That was wrong. The police should have protected his property rights and his free speech rights from the threatened breach by the neighbors.

Perhaps a better course of action would have been to remove the signs for the night and then put them back up the next day, discussing the matter with the police superiors before the officer was re-dispatched to the scene, so that a better, more informed judgement could have been made. I certainly empathize with the officer who finds himself dealing with such scenes. But in the end, the officer threatened to take the man to jail for displaying words on his own private property, and that's just not the side of the equation the officer should err on. These cases are tough because I don't want officers doing the best they can in a difficult circumstance to be penalized and held liable for making the wrong call in the heat of the moment, but at the same time, neither should the home-owner in such a situation have to resort to a declaratory judgment or some similar matter to uphold his rights, either.
5.14.2008 5:42pm
Jim Rhoads (mail):
Judge Sykes gratuitous advice to plaintiff's counsel that the suit should never have brought seems to me unwarranted. The Seventh Circuit's opinion essentially agrees with plaintiff that the signs were not "fighting words" but that the officer that threatened plaintiffs with arrest could reasonably have been mistaken about that, and was, therefore, immune from suit.

That is a close case, under any circumstances. I think the court should have given the plaintiff's lawyer a benefit of the doubt equivalent to the one it gave the police officer.
5.14.2008 5:47pm
Jim Rhoads (mail):
I was writing while Pat was posting.

Sorry for the repetition.
5.14.2008 5:48pm
Stephen Aslett (mail):
If this lawsuit were really trivial, one wonders why it took over 13 months for the panel to issue a decision. Procrastination, maybe?
5.14.2008 5:55pm
I don't think the point is the triviality/easiness of the legal issues the court was compelled to resolve once the suit was brought, but triviality of the underlying facts, which might have made more prudent parties find discretion to be the better part of valor.
5.14.2008 6:08pm
I was intrigued by the references to America being "overlawyered" and our legal system being "admired around the world. I don't doubt that she means it, but these would make good soundbites on cable TV or Newsweek if she were ever nominated by a president for something. It sounds a little like the judge is auditioning for Supreme Court, should the fall election turn out her way.
5.14.2008 6:29pm
Her lies the body of Volokh, Eugene
Who was killed for defending something obscene
5.14.2008 7:44pm
I love the pictures.

I have to agree that this suit is pretty trivial because there are no damages here and whatever they're paying the cop in salary can't be enough to officiate this neighborhood spat.

"Pain and suffering" for something like this would have to be nothing. If you can live with an RV on your front lawn and sleep at night then the "humiliation" you feel for being handcuffed for 5 minutes is less than zero.

But I don't know why Judge Sykes is complaining because bs cases (criminal and civil) take up a healthy chunk of the federal docket. This case at least had some humor.
5.14.2008 7:44pm
It would seem that if one is in the 7th Circuit one ought to advise people offended by what others say to physically strike the people saying it. As long as one makes sure to breach the peace, one can plausibly argue that the other side provoked the breach and hence is at fault. But if one makes the mistake of failing respond physically, one loses any ability to hold the side liable, since speech which doesn't provoke a breach of the peace is protected by the First Amendment.

In other words, under this interpretation of Chaplinksky the First Amendment has the curious effect of rewarding people who breach the peace and engage in violence, and punishing people who make the mistake of holding their peace. It makes the most violatile people the most likely to be successful in court. It discourages civility and civilized behavior.
5.14.2008 7:59pm
David M. Wagner (mail) (www):
Here I thought we were talking about REAL epitaphs, albeit insulting ones, like the famous:

Here lies Sir Whatever Whatever, killed by his servant.
Well done, thou good and faithful servant.
5.14.2008 8:10pm
American Psikhushka (mail) (www):
Pretty wacky.

I'm glad "fighting words" doctrine doesn't apply to more serious crimes like Torture, Rape, Slavery, Sexual Assault, Attempted Murder, Extortion, Robbery, etc. Or torts like False Imprisonment, Medical Malpractice, Illegal Human Experimentation, Fraud, etc.
5.14.2008 8:52pm
CDR D (mail):
>>>Here lies Sir Whatever Whatever, killed by his servant.
Well done, thou good and faithful servant.

And then there is:

"Here lies Lester Moore
four slugs from a .44
No Les, no more.."
5.14.2008 9:27pm
CDR D (mail):
I do love this gem:

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.

No duh?
5.14.2008 10:18pm
Reading the footnote about Saucier... seems they don't expect it to last. Come to think of it, I don't either.
5.14.2008 10:56pm
Bill Poser (mail) (www):
Boy, these city-slickers sure are fussy about "eyesores". That RV is nothing. I guess they've never seen a real truck garden.
5.14.2008 11:47pm
Steven Jens (mail) (www):
I vaguely remember that the Kors and Silverglate book "The Shadow University" quotes some campus speech code which refers to "racial epitaphs," or something like that, which is followed in the book by "[sic, we hope]."
5.14.2008 11:58pm
NickM (mail) (www):
Here lies Gary Gilmore.
No one missed him.

[Not real, but it would be funny.]

5.15.2008 1:35am
Tom952 (mail):
From before the cradle to beyond the grave, the court knoweth not boundaries.
5.15.2008 10:03am
CDR D wrote at 5.14.2008 8:27pm:
Here lies Sir Whatever Whatever, killed by his servant.
Well done, thou good and faithful servant.

And then there is:

"Here lies Lester Moore
four slugs from a .44
No Les, no more.."
Epitaph for a Man from Virginia City
(Kenneth Wiggins Porter)

Cashed in his chips
in '71 --
quicker with cards
than with a gun.
5.15.2008 12:01pm
Free State:
On page 1 the court appears to take judicial notice that the recreational vehicle was "unsightly" and on page 4 that the verse was "doggerel" (or perhaps these were among the aesthetic factual findings of the trial court). Isn't beauty in the eye of the beholder? What legal basis does the court have for finding something officially ugly? "The plaintiffs shall be thrown from the court because they have grossly offended middle-class tastes." Most treehuggers find McMansions unsightly and obscene (and RVs as well), so this entire neighborhood is to some a pantheon of unsightly overconsumption--a full-size RV parked on a tiny McMansion lot was just the perfect illustration of it.

This opinion recognizes and springs from our society's elevation of middle-class tastes to be equal--and rival--of the Constitution. For instances where the two conflict, judges balance between them as competing interests, with the Constitution less compelling.

The plaintiff here may likely be a boor, but a boor with constitutional rights which were stomped upon by police. Many honorable law enforcement officers strive to support and uphold constitutional liberties; there are unfortunately others who need to be educated that they are not demi-gods. Bringing this type of case may be the only peaceful way to do so--the police academy obviously did not.

The neighbors in this dispute view the police as "on their side" instead of upholding the law. The plaintiff is being conciliatory, reapplying the duct-tape under police scrutiny when his neighbors come accost him, chest-butting him on his own property. The police don't restrain the thuggish neighbor, nor order the neighbor off the plaintiff's property. No, they encouraged the neighbors and ordered the plaintiff to remove the signs--a flagrantly unconstitutional order. And Officer demi-god believes he can arrest anyone who declines to submit obediently to his order, regardless of its constitutionality or lawfulness.

In many states, one may lawfully resist by force an unlawful arrest; I am confident it would have ended much uglier had the plaintiff lawfully chosen to do so, likely with an epitaph for the plaintiff, and no punishment for the officer (reasonable again). It may have ended much better for the plaintiff had he simply remained inside his house behind his closed door and politely instructed the police to leave his property, instead of trying to be conciliatory and replace the duct-tape.

The court's message to the police: You are demi-gods.

The court's messages to "citizens":
1. Forget rights, you must not offend middle-class tastes.
2. You should obediently submit to the demi-gods even when they are wrong, despite your rights.
3. The demi-gods are almost never truly wrong, so you will find no relief in the courts.

As for the Fighting Words test (from pages 11 and 12):
1. "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" (citing Saucier).
Answer: Clearly yes.
2. "'[T]he next, sequential step is to ask whether the right was clearly established' at the time of the alleged violation" and "[t]his second inquiry 'must be undertaken in light of the specific context of the case, not as a broad general proposition.'"
Answer: The court on page 21 finds that the epitaphs are not fighting words, under ANY test or definition, so they are protected speech. One might think that makes it a clearly established right, even in this specific context. But no, the reasonable officer might be confused about which test for fighting words applies (even though the court already found that under NEITHER test would these signs constitute fighting words), and the court then emphasizes the "fight" on the scene. Apparently because of the neighbor's chest-butt, the plaintiff can get arrested. The reasonable officer would just be so confused and excited that he would have to arrest somebody; watch out if you're the guy who offends middle class tastes. The court transforms the "clearly established" prong into something useless and unrecognizable. There is nothing more clearly established than the freedom of speech. Police should rightly be careful about whom they arrest, especially for the exercise of a constitutional right.

As for this being a "trivial lawsuit" the case has actually established precedent clarifying the fighting words doctrine in the Seventh Circuit, so the next Officer demi-god cannot now claim the same ignorance and confusion as Officer Mason. If you say it was unclear before, this opinion should remove any doubt. (Why doesn't "ignorance of the law is no excuse" apply to police?)

Opinions that refuse to uphold constitutional rights cast the judiciary in a bad light and contribute to the impression that Americans care more about middle-class tastes than the rule of law.

Do remember: Extremism in defense of liberty is no vice. Even today.
5.15.2008 4:26pm