It's called the "American rule."

It royally sucks, but it hasn't exactly flown under the radar.

In this case, however, I could see a successful Section 1983 suit. No way qualified immunuity attaches here.

NMW: That's not the half of it. Ever read Radley Balko's blog? One of his recurring themes is innocent people who were injured or killed by police during raids that were botched, at the wrong house, or never should have occurred in the first place, yet the police department and/or city government in question shows no sense of responsibility to make their victims whole, nor are the courts inclined to make them do so.

He also has been blogging extensively on the case of Cory Maye, the most egregious example of this sort of thing.

AK: Ridiculous. If the police cite someone for something that isn't even a crime because the local gov't is too ignorant to know better, that person deserves at least an apology.

If we were talking about someone who was arrested, etc, etc, I doubt you'd feel the same way - and if that's the case, then I submit that all we have here is a difference of degree, not of kind.

Prof. Volokh --

I'm a little confused... what about the prevailing government interest in protecting children's impressionable minds? I mean, you can't display pornography in public, nor can a woman walk around topless.

I'm not being sarcastic; I'm honestly curious about the difference between these examples, since the government interest seems to be the same in all three. (Isn't the interest "enforcing prevailing community standards for decency"?)

Would it be any different if the sticker wasn't political? (Answer to my own question: It seems like the Cunningham v State sticker was apolitical...)

Ok, so you're a troll, AK.

Thanks for clearing that up for us.

AK, commenting on a blog is also constitues an expression of free speech. You are also a part of that group. Have a nice day.

I am truly sorry that by ticketing you, the world now knows that you are incapable of engaging in political debate at a level above that of a retarded child.

The irony of that statement coming from the same person who said the following is remarkable:

Oh, boo-hoo, you slapped a profane bumper sticker on your car and then got ticketed. Cry me a friggin' river. Waa waa waa! You want a bottle, you big baby?

Is it just me or is the comment function not working on the latest Puzzle Blogger post?

Sometimes justice exists outside of the law. Law is a means to justice, not a synonym for it.

This woman got what she deserved, and she's no worse for wear, except we all now know what a tool she is.

Flame on.

Since comments are non-functional on the puzzle post just above, here's the answer: The first letters of the five geographical names (G,F,A,B,C) are, as anyone who grew up in the 60s knows, the chords for "House of the Rising Sun."

BobH, you may be right, but I grew up in the 90s, :-), so I figured he put them in the order of their representation on the periodic table:

Germanium, Francium, Americanium, Berkelium, Californium.

Americanium Americium.

AK:

Thanks for the vivid lesson in why we need the First Amendment, and why we must fight so vigilently to protect it. As much as you (and the DeKalb County police officer) would like to control both the content and means of expression, your totalitarian desires are simply antithetical to our American civil libertarian values enshrined in the First Amendment.

I'm curious to hear about which other features of our foundational document you think are dumb? Should we have kings and queens instead of a president? Please tell us. As you know, us VC readers don't have real jobs, aren't related to or friendly with anyone who does, and for that matter are unlikely to ever meet anyone who does, so we'd really like to know which other constitutional provisions people with real jobs think are dumb so that we can more productively focus our real-jobless efforts in the future.

Dang, I never knew Volokh didn't like cops.

Back to damages: what about punitives?

The general rule in the Fifth Circuit regarding punitive damages in § 1983 cases is that a punitive award may stand in the absence of actual damages where there has been a constitutional violation. Louisiana ACORN Fair Housing v. LeBlanc, 211 F.3d 298, 302-03 (5th Cir.2000); see also Williams v. Kaufman County, 352 F.3d 994, 1015 (5th Cir.2003). Punitive damages, however, may be awarded only when the defendant's conduct “is ‘motivated by evil intent’ or demonstrates ‘reckless or callous indifference’ to a person's constitutional rights.” Williams, 352 F.3d at 1015. “The latter standard requires ‘recklessness in its subjective form,’ i.e. a ‘subjective consciousness' of a risk of injury or illegality and a ‘criminal indifference to civil obligations.” ’ Id.

Is the 11th Circuit different?

(1) She was ticketed under a law that was overturned 16 years ago.

(2) If she can prove it was the "Bush" part that really got her in trouble, she's home.

Alaska Jack:

First, I'm sympathetic (mildly) with parents who don't want their children exposed to material that they find offensive. It's a totally understandable impulse, even for someone with no children like myself.

That said, it's inevitable.

More importantly, I doubt that children's pscyhes are so fragile that the occasional, obscene bumber sticker on random cars will manage to overcome a parent's instructions to his or her kids that they shouldn't say [insert tasteless, disapproved of word or words here]. I think in general we're a far sturdier species than we get credit for, even in our youth. Don't get me wrong, I know that traumatic experiences such as divorce, death in the family, etc. are especially difficult for children, but I'd be shocked if anyone recalls when they first saw a "cuss word" on a bumber sticker as a child. In other words, I simply disagree that bumber stickers are the kinds of inputs that meaningfully (much less negatively) impact children. We're talking about a nonexistant harm.

I also don't think that bumper sticker speech is "marginal" -- I'm comfortable calling strippers marginal under the First Amendment, but an overtly political sticker voicing dissent and disagreement with the present administration? Not so marginal, in my view. I've never put a bumper sticker on my car, but I'd guess that (at least some) people who do paste political messages on their vehicles take the things they say in those stickers pretty damn seriously. Maybe you think it's marginal only in the sense that there are alternative methods for conveying your views, but is that really true? How else could your average, impecunious, bush-bashing slob communicate his disapproval to so many of his fellow citizens in an equally effective manner?

I'm really unsure why allowing this sort of coarseness in public discourse (or the policy of permitting public places generally to be trashed) is wise public policy.

Cohen addresses the worse public policy of letting the police decide what's decent &what's not.

More to the point, "public policy" might support an established church or the quartering of soldiers in our homes, but the Bill of Rights trumps public policy.

My department issues us a sheet that has information on common traffic charges ("common" here includes, among other things, not having floor mats in certain vehicles). These kinds of guides are common among police officers, and they are not always updated and modified well. Wouldn't surprise me if this officer was working off one of these.

Everybody knows somebody who has been ticketed for some false infraction.

I once pulled over a woman who had rocketed past a number of stopped cars by driving on the shoulder, in order to bypass a traffic knot. She thought that was a false infraction, too. The traffic courts, like the jails, are full of Innocent Men.

Anyway, note the conclusion of the article:

She has not removed the bumper sticker in question, or six other mostly politically oriented decals on her car. "I used to think that one person could not make a difference," said Grier. "Now I'm beginning to think one person can, and should. We shouldn't be afraid to stand up for what we believe in."

I wouldn't worry about "making her whole" for her $100 ticket, improper though it was. She seems to be relishing her role as the martyr for free speech. Don't lose too much sleep over her.

I wouldn't worry about "making her whole" for her $100 ticket, improper though it was. She seems to be relishing her role as the martyr for free speech. Don't lose too much sleep over her.

Great. I'm happy to know our police officers think it's of little concern when improper tickets are given to those with the nerve to think they can relish their free speech rights.

Breakthrough -

No need to be reasonable about it.

- Alaska Jack

Oh, please. What does that even mean?

This woman got a traffic ticket. She believed it was issued improperly, and she was right. She prevailed in court, as well she should have. And since she's evidently the type who feels the need to post her opinions on her bumper ("six other mostly politically oriented decals"), she is probably enjoying the attention/vindication more than a bit.

This is of little concern. If the case had come out the other way, it might be worrisome. But it is possible to believe both that the officer shouldn't have issued the ticket, and that this isn't the sort of thing to inspire great concern about making her "whole".

Uh - it means what it says, and it appears your reading skills could use some work. She hasn't even been to court yet (so no, she did not "prevail in court"), so she still needs to be "made whole". And for some reason you seem to think it is relevant whether she has one, or seven, or a thousand bumper stickers, or whether she is "the type" (whatever that means) to post her opinions (which you bizzarely presume is making her enjoy this); sorry, Johnny Law, it is not of your concern.

anderson, write a book explaining that Judge Posner is wrong, and that the law exists independently of sound policy. But I probably won't be persuaded.

frankcross, I have a car and driver. It would be unusual for me to see a bumper sticker, since I don't look at the road. I also note that a bumper sticker of this nature would not be permitted by the typical homeowners' association, and that our receptionist most definitely will not permit people to enter the premises with t-shirts reading "F--- the draft."

Bob -

Fair point; I misread the article, and had the impression from the initial post that this was a settled case. I stand corrected. I therefore amend my statement: given the precedent in place, I expect her to prevail in court, as well she should. As for the bumper stickers, seven is an unusually high number, isn't it? No matter what their political slant, the underlying message is "Look at me!" People with that mindset frequently derive satisfaction from playing the martyr.

Lakhim -

True, but on the other hand, enforcing a minor county ordinance against obscene signs that is apparently still on the books doesn't necessarily constitute "frivolous harassment". In a system like ours, where local laws, state statutes, and court decisions overlap and sometimes contradict one another, such mistakes are unfortunate, but inevitable.

My principal in high school was a real Dick Head. I mean his name was Richard Head, but all the students called him Dick. I guess that cop would have ticketed him if he wore a nametag. Dekalb county has a fair amount of crime this cop could be fighting, although I'm sure its safer to ticket some middle aged woman whos politics you don't like.

Everybody knows somebody who has been ticketed for some false infraction.

That's nothing. I recall an officer telling me once he'd stopped me because the lightbulb in my license plate holder had burned out. He was a bit nonplussed when I pointed out that my car did not have lights in a license plate holder, nor for that matter a license plate holder at all. (The plates are merely bolted to the bumper).

It didn't bug me, however. The real reason he stopped me was because I was driving around slowly in a residential neighborhood late at night, peering at the houses. I was looking for a "FOR RENT" sign I'd seen earlier, but of course he didn't know that. He was just scoping me out, 'cause his instincts said something didn't add up.

Well, fair enough. That's the kind of thing that keeps neighborhoods safe. We had a little talk, I explained what I was doing, who I was, and then he was cool. But no doubt he kept one eye on me until I'd driven off, and that, too, is OK by me.

God help us if we ever try to replace the judgment of a man on the scene with some rigid written algorithm of when you can and cannot inquire whether a stranger is up to no good. Might as well be governed by computers at that point.

I understand that the speech is protected, and I even agree that it should be protected. I understand that her actions will not cause the republic to crumble any more than littering, spitting in the street, or failing to pick up the leavings of ones dog. I am not inherently opposed to profanity. In fact, I pride myself on using it rather well. She has used it in a crude, intrusive, persistent way that has no regard for context. Eugene may be correct that she is "owed" an apology, but as I tried to indicate above, I hope it is as insincere as possible. I can understand wanting the officer to be rebuked or the council voted out for not knowing the law. I can not understand any genuine sympathy of her.

First of all on the Judge Posner thing. Of course there is one sense in which the constitution doesn't trump considerations of public policy. So long as you are a consequentialist (and it seems absurd to me not to be one) if you are a SC justice and guaranteed (god tells you) that you can make a deciscion with better overall consequences (no harms through precedent/respsect for law) of course you are obligated to make that deciscion. However, this simply isn't the interesting question. The interesting question is whether seeming to treat the law in a policy influenced fashion leads to better consequences..

In particular people are psychologically very bad at seeing the benefits of far off, abstract and remote consequences but very good at seeing immediate harms/benefits. Since it is really easy to see who is being hurt when people are allowed to critisize the soldiers, make racist comments etc.. but very hard to see the long term harm in allowing the government to outlaw racist comments, especially since those comments are factually wrong and don't make any usefull points. The reason I am an absolutist about the first ammendment is because the long term benefit to happiness and better deciscion making that we gain by allowing relatively free speech can only be protected by convincing people especially judges that there is an absolute legal requirement that should be followed regardless of policy consequences.

Also the right to free speech is most important when it is the most rude/offensive/disliked speech. The democratic process can guarantee the speech rights of majority groups, the first ammendment is needed to guarantee the speech rights of people saying very unpopular things. Since it is so important that we don't suppress the unpopular position those times it happens to be right and not make people feel repressed we let nazis march through jewish towns and let racists speak on national TV (or at least we did).

Surely if making minority parents explain to their kids about the people who hate them because of their skin color is a worthwhile price to pay to let people advocate a totally worthless and bancrupt view just so we establish a good precedent there shouldn't be any doubt about the worth of explaining to your kid some sexually suggestive bumper sticker.

Anderson,

I'm a law clerk in the Eleventh Circuit and you are right. This plaintiff has a solid claim for punatives. The more I look at it, this potential 1983 case appears to be a very lucrative one. I wonder whether she has already hired an attorney?