The Volokh Conspiracy

Does West print pictures it its reporters? I seem to recall seeing facsimiles of documents, but not a picture.

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.

If this lawsuit were really trivial, one wonders why it took over 13 months for the panel to issue a decision. Procrastination, maybe?

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.

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.

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.

>>>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.."

Reading the footnote about Saucier... seems they don't expect it to last. Come to think of it, I don't either.

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]."

From before the cradle to beyond the grave, the court knoweth not boundaries.

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.