Attorneys
Municipal Liability Update:
Bad Neighbors Redefine "Fighting Words" "Hell is other people." –
Jean Paul Sartre, No Exit
What would you do? Your neighbor across the street has parked his 12-foot tall, 38-foot long recreational vehicle on his driveway in your upscale suburban neighborhood for over a year.
So unsightly is this view that you lead a petition drive and propose an ordinance to prohibit such nuisances. Unfortunately, the ordinance failed, and now, your neighbor, intent on exacting revenge, has retaliated against you in the worst imaginable form: Halloween Satire! (Cue creepy Halloween music).
There, directly in front of your house, appear tombstones describing your own demise (and the demise of the other neighbors who supported your petition) in unflattering terms:
"Dyean was Known for Lying
So She was Fried.
Now underneath these daisies
Is where she goes crazy!!"
So, what would you do? You'd wait a week and then call the police. But when the police arrive, you get in scuffle with your vindictive neighbor. The police, realizing that the tombstones are causing the fight, order them removed. Case closed? Wrong!
In Purtell v. Mason, 2008 U.S. App. LEXIS 10360 (7th Cir. May 14, 2008), this exact scenario led to a civil rights lawsuit against the unlucky police officer who was dispatched to mediate the dispute. At issue was whether the order to remove the tombstones violated the tombstone poet's constitutional right to free speech.
The officer argued the tombstone dirges were not constitutionally protected speech (and thus could be ordered removed) because they were "fighting words." He had been taught that "fighting words" were "those words which by their very utterance inflict injury or tend to incite an immediate breach of peace." In other words, the officer's policy manual gave him the classic Supreme Court definition of fighting words. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1948) (emphasis added).
The reason fighting words are not protected speech is that they are likely to provoke a reasonable person to immediate, violent retaliation. That is, fighting words are those words that are so personally abusive, they are likely to result in an immediate breach of the peace. But Chaplinsky said that fighting words also included those words that merely "inflict injury." The officer reasoned that surely, putting the neighbor's name on a tombstone, detailing (in verse) the terms of her death, inflicted some psychic trauma or injury on her, and therefore constituted fighting words.
In Purtell, the Seventh Circuit Court of Appeals held that an emotional injury from the tombstoneslike embarrassment, anger, resentment or fear-was not enough to constitute "fighting words", even though the Supreme Court included it in the definition. The court found that the tombstone verses simply did not tend to cause an immediate breach of the peace, and thus could not be considered fighting words. In fact, the tombstones had been displayed for some time (without incident) before the scuffle and before police ordered them removed. Accordingly, the court held that they did not constitute fighting words, and ordering their removal violated the First Amendment.
Alas, what about the poor, hapless officer? Is he liable for damages for ordering the tombstones removed? No. The court held that the officer was entitled to qualified immunity. In other words, even though what he did technically violated the constitutional rights of the tombstone poetaster, the law under those circumstances was not so clearly defined that the unlawfulness of the officer's conduct would be apparent to a reasonable person.
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Chicago associate Brandon Lemley concentrates his practice in insurance coverage, appeals, and municipal liability. He previously served as a Federal Judicial Law Clerk to Magistrate Judge Roger B. Cosbey of the U.S. District Court for the Northern District of Indiana.
