Freedom of speech to speak foolishly…

By Legal Eagle

Continuing on the American theme from Helen’s conference post below, I thought I might mention this amusing First Amendment case, Purtell v Mason. I’ll let Sykes J from the Seventh Circuit of the United State Court of Appeals introduce the story:

The setting is a neighborhood feud. The case features an unsightly, 38-foot recreational vehicle stored on a residential driveway in suburban Chicago, a neighborhood petition drive to force its removal, and a derogatory Halloween yard display erected in retaliation against the neighbors who led the petition drive. An unlucky police officer dispatched to mediate the dispute was sued for his efforts, accused of violating the First and Fourth Amendments. The plaintiffs claimed their Halloween display—wooden tombstones with epitaphs describing, in unflattering terms, the demise of their neighbors—was constitutionally protected speech. They alleged their rights under the First and Fourth Amendments were violated when the officer ordered them to remove the display on pain of arrest. The district court granted summary judgment for the officer on the Fourth Amendment claim but permitted the free-speech claim to proceed to trial. A sensible but probably misinstructed jury returned a verdict for the police officer.

If you click on the link to the judgment, you can see the recreational vehicle which started the dispute in the first place: and it is a monster of a thing. Here is a picture of the tombstones:


As an example, a tombstone referring to a neighbour called John Berka, who lived at 188 Jackson Lane, was inscribed with an “epitaph” as follows:

Old John Burkuh
Said he didn’T give a care
So They buried hiM
aLive uP To his hair.
He couLdn’T breath
So now we’re relieved
Of ThaT NasTy oLd jerk!
~ 1888 ~

All but one of the other tombstones referred to other neighbours who had objected to the presence of the recreational vehicle in the Purtell’s driveway. I have to say that the poems are puerile and very badly written; but I can understand why the neighbours might not have felt comfortable about having to see them for weeks upon end.

The Court concluded that, contrary to the conclusion of the jury, the Purtell’s rights under First Amendment had been breached, but that the police officer was entitled to qualified immunity in respect of his demand for the Purtells to take down the tombstones under threat of arrest, as it was reasonable of him to think that the words might cause a breach of the peace in the circumstances.

At the close of judgment, the Court said:

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. Freedom of speech encompasses “‘the freedom to speak foolishly and without moderation,'”…but it does not follow that every nominal violation of that right is—or should be—compensable. See Brandt v. Bd. of Educ. of City of Chi., 480 F.3d 460, 465 (7th Cir. 2007) (“[D]e minimis non curat lex (the law doesn’t concern itself with trifles) is a doctrine applicable to constitutional as to other cases,” and an award of nominal damages “presupposes a violation of sufficient gravity to merit a judgment, even if significant damages cannot be proved.”). 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.

Very nicely said. As much as we might like to think that this kind of case is something that would “only happen in America”, unfortunately my experience of working in a court tells me otherwise. I never had a case quite as whacky as this one, but I did see some cases proceed where the lawyers for at least one of the relevant parties should have talked sense into their client. Sometimes I saw a judge desperately try to get the parties to see sense on the first day of trial, only for the parties to proceed anyway. To potential litigants – if a judge warns you that your case has little merit: listen! You’re very likely to lose if you proceed.

I recall having a blistering row with a colleague who thought that the role of a lawyer is to represent the client’s view at all times, regardless of how foolish or problematic this view might be. I disagree. I firmly believe that one of the roles of the lawyer as advisor is to “hose down” a client’s more unreasonable expectations, and try to get the client to see sense if possible. It seems that the Court of Appeals agrees.

(Via WSJ Law Blog)


  1. Posted May 16, 2008 at 8:54 am | Permalink

    Nothing substantive to say, just that I’m glad I subscribed to this blog if this post and Helen’s one before it are the type of material you two are going to be posting.

  2. Posted May 16, 2008 at 9:42 am | Permalink

    Many thanks, Laura. We’ll try to keep it up … and I’ll try not to post too many heavy metal YouTube vids 😉

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  1. By Insulting Halloween tombstone display on May 19, 2008 at 5:32 am

    […] to this site, though, apparently. (opinion link fixed now, sorry)(via Bashman). More: WSJ law blog, SkepticLawyer […]

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