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7th Circuit untangles suburban squabble

By David L. Hudson Jr.
First Amendment scholar

A most unusual neighborhood feud involving an RV, tombstone displays and an un-neighborly chest bump has led to a detailed judicial exposition on the fighting-words doctrine and qualified immunity. This case from suburban Chicago with its bizarre set of facts ultimately could find its way to the U.S. Supreme Court.

The case involves Jeffrey and Vicki Purtell’s 38-foot recreational vehicle, which before 2001 was parked in a storage unit. To the consternation of several neighbors, in 2001 the Purtells began parking the RV in front of their Bloomingdale home. Neighbors then petitioned town officials to enact an ordinance prohibiting storage of RVs on residential property. In November 2002, the town passed just such an ordinance.

In October 2002, while the ordinance was still being considered, the Purtells erected an unusual Halloween display — wooden tombstones mocking their petitioning neighbors. Five of the six tombstones featured obnoxious, insulting epitaphs about the neighbors. For example, one tombstone referred to John Berka as “Old John Burkuh,” a “NasTy oLd jerk.”

Several neighbors called the police complaining about the tombstones. On Oct. 18, police officers went to the Purtells’ home and tried to convince Jeff Purtell to remove the tombstones. He refused, but placed duct tape over the names.

On Nov. 6, two officers returned to the Purtells’ home after receiving complaints from Betty Garbarz and Diane Lester, two neighbors who were referred to on tombstones. While the police were there, Diane Lester’s husband, Bob, came over and began to argue with Jeff Purtell. At one point, Bob Lester apparently chest-bumped Purtell.

Officer Bruce Mason separated the two men and threatened to arrest Purtell if he did not remove the tombstones. Purtell refused and Mason handcuffed him. Purtell then relented and agreed to remove the tombstones; Mason removed the handcuffs.

The Purtells then filed a federal lawsuit against Mason, claiming a violation of their free-speech rights and a violation of the Fourth Amendment for the allegedly unlawful arrest of Jeff Purtell. Mason asked the court for qualified immunity, which enables government officials to avoid liability for unconstitutional actions if they did not violate clearly established constitutional or statutory law.

A federal district court judge dismissed the Fourth Amendment argument but allowed the First Amendment claim to proceed to the jury, which returned a verdict in favor of Mason.

The Purtells then appealed to the 7th U.S. Circuit Court of Appeals on both First and Fourth Amendment grounds. Their First Amendment argument focused on the judge’s instructions to the jury.

The instructions said fighting words are not protected by the First Amendment and defined them as words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” This definition comes from the Supreme Court’s initial opinion on fighting words in Chaplinsky v. New Hampshire (1942).

On appeal, the Purtells contended that the trial judge improperly defined fighting words as those that “by their very utterance inflict injury.” According to the Purtells, subsequent case law by the Supreme Court and other courts has established that fighting words must incite an immediate breach of the peace. In other words, speech cannot be fighting words merely because the expression causes someone emotional harm.

Last month, a unanimous three-judge panel of the 7th U.S. Circuit Court of Appeals issued its opinion in Purtell v. Mason. In her May 14 opinion, Judge Diane Sykes wrote that the trial judge erred in giving the jury improper instructions about fighting words and qualified immunity. According to Sykes, the trial judge should have determined whether the words on the tombstone could constitute fighting words.

Sykes noted that later cases have established that fighting words must incite an immediate breach of the peace. “Although the ‘inflict-injury’ alternative in Chaplinsky’s definition of fighting words has never been expressly overruled, the Supreme Court has never held that the government may, consistent with the First Amendment, regulate or punish speech that causes emotional injury but does not have a tendency to provoke an immediate breach of the peace,” she wrote.

Sykes then determined that the messages on the tombstones did not qualify as fighting words because they “were not, in context, the sort of provocatively abusive speech that inherently tends to incite an immediate breach of the peace.”

“These were Halloween decorations, after all,” she wrote, adding that the average person “would recognize the tombstone inscriptions as nothing more than an adolescent attempt at retaliatory ridicule.”

Even though Sykes and her colleagues found that the words on the tombstone were not fighting words, they still ruled in favor of Mason, because unconstitutional government action is just the first step in a qualified-immunity analysis. The next step is determining whether or not a reasonable officer would know he was violating the First Amendment when he punished Purtell for the words on the tombstone.

“Officer Mason’s mistake in thinking he could constitutionally order Purtell to dismantle the tombstone display on pain of arrest was one a reasonable officer might make in this situation,” Sykes wrote.

“First Amendment line-drawing is often difficult, even in hindsight,” she wrote. “Officer Mason’s on-the-street judgment, though mistaken, is entitled to qualified immunity.”

In strong language, Sykes criticized the fact that the conflict resulted in litigation: “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.”

The Purtells’ attorney, John R. Wimmer, said he would appeal the ruling to the Supreme Court.

“Any reasonable person would have known that the signs were directed to the public, not to the particular neighbors,” Wimmer said. “It seemed to me that the 7th Circuit panel was hostile to the First Amendment. I was blown away by the court’s comments that the lawsuit ‘casts the legal profession in a bad light.’”

He added, “The signs go right to the heart of the First Amendment and its protection of political speech. Those signs lampooned the proponents of a law. That is the essence of political speech. The 7th Circuit panel lost sight of how important it is to protect political speech and seemingly tapped into a type of conservative, suburban frustration with rabble rousers.”

Wimmer said he appreciated that the appeals court found the words on the tombstone weren’t fighting words. He noted that “it frustrated me that the lower court judge who heard the case said there was support for the defendant’s position that the words on the tombstones were fighting words.”

James DeAno, Mason’s attorney, said he was pleased with the appeals court’s ruling on qualified immunity.

“I think it is a classic qualified-immunity situation,” DeAno said. “An officer acted in what he believed was the best interests of the community with no time to analyze the vagaries of First Amendment law. While those conversant in First Amendment law, with the luxury of quiet contemplation, would not perceive these words as ‘fighting words,’ the guy standing between the potential combatants might think differently. These neighbors were angry and the plaintiff took every opportunity to provoke them.”

DeAno also questioned Sykes’ concluding remarks about whether this dispute should have resulted in litigation: “First Amendment claimants generally stand on principle and seek a remedy in court. The importance of First Amendment cases can’t be measured by substantial monetary damages. The claim may seem trivial to all but the speaker. But if people are discouraged from seeking redress for First Amendment infringements, the right to freedom of speech will surely weaken.”


4th Amendment ruling could influence First Amendment law

By David L. Hudson Jr. Justices re-examine principle of qualified immunity in Pearson v. Callahan. 01.27.09

Fighting words

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