How Not to Share Halloween With Your Neighbors

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Explore:  Free Speech Halloween

With Halloween almost upon us, I thought I’d take time to definitively answer that most commonly asked Halloween question: To what circle of hell do the people who give apples and dental floss to trick-or-treaters go?  That one’s easy — they go to Ptolomaea in the Ninth Circle, doomed to be covered by ice for all eternity along with the rest of the people who betrayed their guests.

It looks like I’ve got some room left, so let’s go after the second most commonly asked Halloween question: Can I put fake gravestones with my neighbors’ names on them in my front yard after they petition the city to enact an ordinance requiring me to remove my 38-foot RV from my driveway?  Of course!

As one of my favorite court decisions explains, Jeff and Vicki Purtell parked their RV in their driveway after hard times forced them to remove it from the storage facility they had been renting (the RV above is the actual RV at issue).  Their neighbors, who pretty clearly do not include RV-loving Supreme Court Justice Clarence Thomas, complained and eventually spearheaded an effort to ban the storage of RVs on residential property.  With Halloween in the air, the Purtells responded like any of us would by erecting fake gravestones with their neighbors’ names on them (the actual gravestones are pictured below), along with strangely-capitalized poems describing their respective deaths.  My favorite: “BeTTe wAsN’T ReaDy, BuT here she Lies Ever since thAt night She DieD, 12 Feet deep in this trench … Still wAsn’T Deep enough For thAt wenches STench!”  (There’s no word on whether Bette’s stench could in fact penetrate 12 feet of dirt.)

The police were initially able to mediate a compromise, with the Purtells agreeing to put duct tape over the neighbors’ names.  But, you ask, did the duct tape inevitably fall off?  Did this cause the neighbors to complain again and cause the police to come out to the house to broker another peace deal?  While the cops were there, did a neighbor and Jeff Purtell get into an argument on the front lawn which culminated in them “chest-butting” each other?  Did the police then handcuff Purtell when he refused to remove the gravestones?  And finally, did the Purtells sue the police officer on the grounds that he violated their constitutional right to free speech?  If you guessed yes, yes, yes, yes, and yes, you’re right and really good at this game.

Ultimately, the court held that the gravestones were constitutionally protected speech, but the officer avoided liability because he was reasonable in believing that the gravestones weren’t protected speech.  And although this turned out to be one of my favorite cases, the court’s sign-off indicates that the three-judge panel wasn’t as thrilled as I was to see this case litigated:

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. 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.