                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 06-3176
JEFFREY R. P URTELL and V ICKI A. P URTELL,
                                                Plaintiffs-Appellants,
                                  v.


B RUCE M ASON, in his individual capacity,
                                                 Defendant-Appellee.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 04 C 7005—Amy J. St. Eve, Judge.
                          ____________
        A RGUED A PRIL 4, 2007—D ECIDED M AY 14, 2008
                          ____________


  Before K ANNE, W ILLIAMS, and SYKES, Circuit Judges.
  S YKES, Circuit Judge. This free-speech lawsuit requires
us to determine the present scope of the “fighting-words”
doctrine. The setting is a neighborhood feud. The case
features an unsightly, 38-foot recreational vehicle stored
on a residential driveway in suburban Chicago, a neigh-
borhood petition drive to force its removal, and a derog-
atory Halloween yard display erected in retaliation
against the neighbors who led the petition drive. An
unlucky police officer dispatched to mediate the dispute
2                                                 No. 06-3176

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 per-
mitted the free-speech claim to proceed to trial. A sensible
but probably misinstructed jury returned a verdict for
the police officer.
  We affirm. Summary judgment on the Fourth Amend-
ment claim was properly granted. At the moment of arrest,
the neighbor-combatants were engaged in a noisy argu-
ment over the tombstones, culminating in a “chest-butt.”
This provided probable cause to arrest for disorderly
conduct. The First Amendment claim need not have been
tried. The tombstone inscriptions, although insulting,
cannot be considered fighting words as that doctrine
is presently understood. The display was, accordingly,
protected speech. But the officer’s mistake about the
scope of the plaintiffs’ constitutional right to ridicule their
neighbors was one a reasonable officer might make in
this situation. He was therefore entitled to qualified im-
munity.


                       I. Background
  Jeffrey and Vicki Purtell owned a large recreational
vehicle—38 feet long and 12 feet high—and for a while
stored it at a rental-storage facility. In 2001, however, they
No. 06-3176                                                3

fell on hard financial times and parked it on the driveway
of their home in the Village of Bloomingdale, Illinois. There
it sat for more than a year. Here is a picture:




  The Purtells’ neighbors were unhappy but tolerated the
presence of this eyesore, at least initially. Their patience
eventually wore thin, however, and they complained to
the Village of Bloomingdale. There was little the Village
could do because the Purtells were not violating any
existing laws.
  Several of the neighbors then took matters into their own
hands and started a petition drive urging the Village to
adopt an ordinance banning homeowners from storing
RVs on their property. This effort was ultimately success-
ful. In late November 2002, the Village Board enacted an
ordinance prohibiting the storage of RVs on residential
property.
  The Purtells eventually complied with the ordinance
and moved their RV, but not before making a crude
4                                              No. 06-3176

retaliatory statement to their complaining neighbors. While
the RV ordinance was still under consideration by the
Village Board, the Purtells erected six wooden tombstones
on their front lawn. It was mid-October and Halloween
was coming, but the tombstones were not mere seasonal
decorations; they carried a message for the neighbors
who had pressed for the RV ordinance. Five of the six
tombstones referred to a specific complaining neighbor
followed by a short inscription describing the neigh-
bor’s death.
  To be more specific, each tombstone was about three feet
tall, and they were placed about five feet from the side-
walk, facing the street. Here is a picture of the display:




The tombstones were inscribed with epitaphs, in doggerel
verse, directed at the neighbors who had petitioned for the
RV ordinance. All but one referred to particular neighbors
by name and specified a year of death corresponding to the
No. 06-3176                                          5

neighbor’s street address, plus one additional number.
For example, a tombstone referring to John Berka, who
resides at 188 Jackson Lane, was inscribed 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 ~

 The remaining tombstones read as follows:

                         ~ 1610 ~
              Dyean was Known for Lying
                    So She was Fried.
              Now underneath these daisies
                is where she goes crazy!!
                         ~ 1680 ~
                      Roses are red.
                     Violets are blue.
                There’s stiLL some space
                    Waiting for you!
6                                        No. 06-3176


         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!
                 ~ 1690 ~

           Here Lies Jimmy,
         The OlD Towne IDiot.
    MeAn As sin even withouT his Gin.
       No LonGer Does he wear
        that sTupiD Old Grin. . .
           Oh no, noT where
           they’ve sent Him!
                ~ 1690 ~

          OLd Man CrimP was a
         GimP who couldn’t hear.
      SLiced his wife from ear To ear
        She died. . .He was Fried.
          Now They’re TogeTher
            again side by side!
                 ~ 1720 ~
No. 06-3176                                              7


                 CrysTy wAs misTy-eyed
                    The DAy she DieD
                   AXE to the HeAD. . .
                No DoubT She wAs DeAD.
              Now There’s no more comPlain’n
                  Even When iT’s rain’n!
                         ~ 1860 ~

These inscriptions referred to neighbors Diane Lesner,
Betty Garbarz, James Garbarz, and a neighbor who owned
a crimping shop. The “misty-eyed Crysty” referred to on
the sixth tombstone was fictional; Jeff Purtell said he
included this one to “balance out” the display.
  The Purtells’ neighbors were upset by the tombstone
display, and several called the Bloomingdale Police
Department to report that they felt intimidated by it and
wanted it removed. On October 18 police officers were dis-
patched to the neighborhood and attempted to persuade
Jeff Purtell to take down the tombstones; he refused, but
agreed to cover the names with duct tape.
  Halloween came and went, and still the tombstones
remained. The simmering tension in the neighborhood
eventually came to a boil on November 6, 2002, when the
police were called because the duct tape had fallen off the
tombstones and the names were visible again. Officer
Bruce Mason and another officer went to the neighbor-
hood to try once more to mediate the dispute. They spoke
with Betty Garbarz and Diane Lesner, who told the officers
they felt threatened by the display, which they saw as a
means for Purtell to vent his anger over the dispute about
his RV. The officers then went to the Purtell residence and
8                                               No. 06-3176

met with Jeff Purtell, explaining the depth of his neighbors’
reaction to the tombstones. Purtell agreed to reapply the
duct tape and came outside to do so. While he was reap-
plying the tape, Officer Mason asked him to take the
tombstones down altogether. Officer Mason told Purtell the
neighbors wanted him arrested because they felt threat-
ened by the display. Purtell said that was not his intent.
  While Officer Mason and Purtell were talking on the
Purtells’ front lawn, Bob Lesner, the Purtells’ next-door
neighbor and husband of Diane Lesner (the subject of one
of the tombstones) arrived home. He came onto the
Purtells’ front lawn and began arguing with Jeff Purtell
about the display. Tempers flared, a shouting match
erupted, and Lesner chest-butted Purtell. After Officer
Mason separated the men, he told Purtell if he did not
agree to remove the tombstones, he would be arrested
for disorderly conduct. Purtell again refused and was
momentarily handcuffed. At that point, he rethought his
options and relented, saying he would rather take the
tombstones down than be arrested. Officer Mason removed
the handcuffs, and Purtell dismantled the tombstone
display.
  The Purtells then sued Officer Mason for damages under
42 U.S.C. § 1983, asserting a First Amendment claim for
violation of their free-speech rights and a Fourth Amend-
ment claim for arresting Jeff Purtell without probable
cause. Officer Mason moved for summary judgment on
both counts, arguing that the arrest was supported by
probable cause and he was entitled to qualified immunity
because the speech on the tombstones was unprotected
under the “fighting-words” doctrine. The district court
granted the motion in part, holding there was probable
cause to arrest Purtell for disorderly conduct, but con-
No. 06-3176                                                 9

cluded that material factual issues precluded a ruling on
qualified immunity on the First Amendment claim.
  The case was then tried to a jury. At the close of evidence,
the Purtells orally moved for judgment as a matter of
law; the judge took the motion under advisement. The
court had decided to submit the question of whether
the speech on the tombstones constituted fighting words
to the jury, but the parties disagreed over the proper
language for the fighting-words jury instruction. Their
dispute centered on whether the definition of fighting
words should include words that “by their very utter-
ance inflict injury or tend to incite an immediate breach
of the peace”—the classic formulation from Chaplinsky v.
New Hampshire, 315 U.S. 568, 572 (1942)—or ought to be
limited to words that are inherently likely to incite an
immediate breach of the peace. The Purtells argued that
including speech that merely “inflicts injury” in the
definition of unprotected fighting words could not be
justified under more recent First Amendment case law.
The district court disagreed and instructed the jury as
follows:
      Let me explain what speech is protected by the First
    Amendment to the United States Constitution. Insofar
    as this case is concerned, any and all speech is pro-
    tected by the First Amendment to the United States
    Constitution except what is referred to in law as
    “fighting words.” In law, “fighting words” are abusive
    words or phrases (1) directed at the person of the
    addressee, (2) which by their very utterance inflict
    injury or tend to incite an immediate breach of the
    peace, that is, words that are likely to provoke a vio-
    lent reaction, and (3) play no role in the expression of
    ideas.
10                                              No. 06-3176

The jury returned a verdict in favor of Officer Mason. The
district court subsequently denied the Purtells’ Rule 50
motion and entered judgment in favor of Officer Mason.
The Purtells appealed.


                       II. Analysis
  The Purtells contend the district court’s jury instruction
defining fighting words misstated the law. They also
challenge the denial of their Rule 50 motion, arguing that
the inscriptions on the tombstones were fully protected
speech under the First Amendment, not fighting words as
that doctrine has evolved. Both arguments depend on
whether speech that merely “inflicts injury”—as distinct
from speech that “tends to incite an immediate breach of
the peace”—may properly be regarded as fighting words
under the Supreme Court’s post-Chaplinsky case law. The
Purtells also contend that summary judgment on the
Fourth Amendment claim was improper. Officer Mason
defends the summary judgment, the jury instruction,
and the verdict. He argues in the alternative that he
should not have been subjected to trial at all because he
was entitled to qualified immunity; this determination
also turns on the proper legal standard for fighting words.
  There is considerable merit to the Purtells’ argument
about the current reach of the fighting-words doctrine
(more on that later). However, we agree with Officer
Mason that this case should not have been tried. Qualified
immunity “shields government officials against suits
arising out of their exercise of discretionary functions ‘as
long as their actions could reasonably have been thought
consistent with the rights they are alleged to have vio-
lated.’ ” Jones v. Wilhelm, 425 F.3d 455, 460 (7th Cir. 2005)
No. 06-3176                                                    11

(quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)).
The doctrine of qualified immunity is broad, protecting
“all but the plainly incompetent or those who knowingly
violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
Qualified immunity leaves “ ’ample room for mistaken
judgments’ by police officers.” Payne v. Pauley, 337 F.3d
767, 776 (7th Cir. 2003) (quoting Malley, 475 U.S. at 343).
This case involves just such a reasonable mistake.


A. Qualified Immunity Standard
  Whether a government official is entitled to qualified
immunity is a legal question for resolution by the court,
not a jury. Hunter v. Bryant, 502 U.S. 224, 228 (1991); Hughes
v. Meyer, 880 F.2d 967, 969 (7th Cir. 1989); Jones v. City
of Chicago, 856 F.2d 985, 994 (7th Cir. 1988). Qualified
immunity “ordinarily should be decided by the court long
before trial,” Hunter, 502 U.S. at 228, “because ‘[t]he
entitlement is an immunity from suit rather than a mere
defense to liability,’ ” id. at 227 (quoting Mitchell v. Forsyth,
472 U.S. 511, 526 (1985)). The doctrine protects public
officials “from undue interference with their duties and
from potentially disabling threats of liability.” Harlow v.
Fitzgerald, 457 U.S. 800, 806 (1982); see also Borello v. Allison,
446 F.3d 742, 746 (7th Cir. 2006) (“Qualified immunity
protects a defendant from liability as well as from the
burden of standing trial. For that reason, courts should
determine as early on in the proceedings as possible
whether a defendant is entitled to qualified immunity.”).
  Qualified-immunity claims are determined by reference
to the two-part inquiry established in Saucier v. Katz, 533
U.S. 194, 201 (2001). First, the court “must consider . . . this
threshold question: Taken in the light most favorable to
12                                                  No. 06-3176

the party asserting the injury, do the facts alleged show
the officer’s conduct violated a constitutional right?” Id.;
see also Wilhelm, 425 F.3d at 460 (citing Saucier, 533 U.S. at
201). If the answer to this question is “yes,” then “the next,
sequential step is to ask whether the right was clearly
established” at the time of the alleged violation. Saucier,
533 U.S. at 201.
   This second inquiry “must be undertaken in light of the
specific context of the case, not as a broad general prop-
osition.” Id. “The relevant, dispositive inquiry in deter-
mining whether a right is clearly established is whether
it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Id. at 202.
As long as “officers of reasonable competence could dis-
agree on [the] issue, immunity should be recognized.”
Malley, 475 U.S. at 341; see also Wagner v. Washington
County, 493 F.3d 833, 837 (7th Cir. 2007). Stated differently,
the “clearly established” inquiry asks whether “in the
light of pre-existing law the unlawfulness. . . [of the
conduct was] apparent.” Anderson, 483 U.S. at 640. The
plaintiff bears the burden of demonstrating the violation
of a clearly established right. Forman v. Richmond Police
Dep’t, 104 F.3d 950, 957-58 (7th Cir. 1997).
  Saucier made it clear that the two steps in the qualified-
immunity determination “must be considered in proper
sequence.” 533 U.S. at 200. This “rigid order of battle” has
been criticized on practical, procedural, and substantive
grounds. 1 See Brosseau v. Haugen, 543 U.S. 194, 201-02 (2004)


1
  The “rigid” order of the Saucier test has been called into
question because, among other things, it forces courts to resolve
constitutional questions unnecessarily when there is no clearly
                                                   (continued...)
No. 06-3176                                                       13

(Breyer, Scalia, and Ginsburg, JJ., concurring) (“a rigid
‘order of battle’ makes little administrative sense and can
sometimes lead to a constitutional decision that is effec-
tively insulated from review”). The Supreme Court re-
cently granted certiorari to consider whether Saucier
should be overruled. Pearson v. Callahan, 76 U.S.L.W. 3510
(2008) (directing the parties to “brief and argue the follow-
ing question: ‘Whether the Court’s decision in Saucier v.
Katz, 533 U.S. 194 (2001) should be overruled?’ ”). In the


1
   (...continued)
established right. Morse v. Frederick, 127 S. Ct. 2618, 2641 (2007)
(Breyer, J., concurring and dissenting) (“Sometimes the rule
will require lower courts unnecessarily to answer difficult
constitutional questions, thereby wasting judicial resources.
Sometimes it will require them to resolve constitutional issues
that are poorly presented. Sometimes the rule will immunize
an incorrect constitutional holding from further review. And
often the rule violates the longstanding principle that courts
should ‘not . . . pass on questions of constitutionality . . . unless
such adjudication is unavoidable.’ ” (citation omitted)); Bunting
v. Mellen, 541 U.S. 1019, 1024-25 (2004) (Scalia, J., dissenting
from denial of certiorari) (identifying Saucier’s procedural and
substantive flaws and pointing out confusion among circuits
about whether the order of the Saucier test is customary or
mandatory); Saucier v. Katz, 533 U.S. 194, 210 (2001) (Ginsburg,
J., concurring); Lyons v. City of Xenia, 417 F.3d 565, 580-84 (6th
Cir. 2005) (Sutton, J., concurring) (describing the practical and
legal anomalies of Saucier’s sequential-question mandate);
Dirrane v. Brookline Police Dep’t, 315 F.3d 65, 69-70 (1st Cir. 2002)
(stating the rigid order of the Saucier test “makes sense
where the issue is whether some abstract right exists[,] . . . [b]ut
it is an uncomfortable exercise where . . . the answer whether
there was a violation may depend on a kaleidoscope of facts
not yet fully developed”).
14                                                  No. 06-3176

meantime, of course, we continue to apply the sequential
approach it prescribed.2


B. First Amendment Claim
  The district judge declined to decide whether Officer
Mason was entitled to qualified immunity on the First
Amendment claim because she thought “there [was] a
genuine issue of material fact as to whether [the officer]
acted in an objectively reasonable manner when he asked
Jeffrey Purtell to take down the tombstones.” This was
error. The historical facts were undisputed. Whether
Officer Mason’s actions were reasonable is the second
half of the qualified-immunity inquiry. Whether the
facts established a constitutional violation (the first half



2
  Officer Mason could have immediately appealed the denial
of his qualified-immunity claim. Behrens v. Pelletier, 516 U.S.
299, 313 (1996); Mitchell v. Forsyth, 472 U.S. 511, 524-25 (1985);
Coady v. Steil, 187 F.3d 727, 730 (7th Cir. 1999). That he did not
do so does not preclude us from resolving this appeal based
on qualified immunity. Pearson v. Ramos, 237 F.3d 881, 883 (7th
Cir. 2001) (“Even when there is a right of interlocutory
appeal, a party can wait till the case is over and then appeal,
bringing before us all nonmoot interlocutory rulings adverse
to him. This principle is as applicable to rulings on immunity
as to any other interlocutory rulings.”) (citations omitted);
Kurowski v. Krajewski, 848 F.2d 767, 773 (7th Cir. 1988) (holding
that “a public official may raise questions of immunity on
appeal from a final judgment, even though he bypassed an
opportunity to take an interlocutory appeal”). This principle
permits Officer Mason to raise qualified immunity as an
alternative ground upon which to affirm the judgment in
his favor.
No. 06-3176                                                     15

of the immunity inquiry) requires a determination and
application of the proper legal standard for fighting
words. These were questions for the court, not the jury.
  In Chaplinsky, the Supreme Court identified “certain
well-defined and narrowly limited classes of speech, the
prevention and punishment of which has never been
thought to raise any Constitutional problem.” 315 U.S. at
571-72. “These include the lewd and obscene, the profane,
the libelous, and the insulting or ‘fighting’ words—those
which by their very utterance inflict injury or tend to
incite an immediate breach of the peace.” Id. at 572. The
Court observed that “such utterances are no essential
part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social
interest in order and morality.” 3 Id.


3
  Although some of the Purtells’ neighbors said they felt
threatened by the tombstone display, Officer Mason prudently
did not invoke the “true-threats” doctrine. A “true threat” has
been defined as follows:
    “True threats” encompass those statements where the
    speaker means to communicate a serious expression of an
    intent to commit an act of unlawful violence to a particular
    individual or group of individuals. . . . The speaker need not
    actually intend to carry out the threat. Rather, a prohibition
    on true threats “protect[s] individuals from the fear of
    violence” and “from the disruption that fear engenders,” in
    addition to protecting people “from the possibility that
    the threatened violence will occur.”
Virginia v. Black, 538 U.S. 343, 359-60 (2003) (citations omitted)
(quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992)). Nor
did Officer Mason attempt to defend his order to dismantle the
                                                     (continued...)
16                                                 No. 06-3176

  Although Chaplinsky purported to define fighting words
in the alternative—words that “by their very utterance
inflict injury or tend to incite an immediate breach of the
peace,” id. (emphasis added)—the statute under chal-
lenge in the case had been definitively construed by the
state courts to apply only to speech falling in the latter
category. Noting that “[t]he statute, as construed, does
no more than prohibit the face-to-face words plainly
likely to cause a breach of the peace by the addressee,” the
Court upheld it against a facial challenge. Id. at 573 (“We
are unable to say that the limited scope of the statute as
thus construed contravenes the constitutional right of
free expression.”). The Court then rejected the as-applied
challenge as well. The defendant in the case had been
convicted for calling a law enforcement officer a “damn
racketeer” and a “damn Fascist.” Id. at 569. The Court
held that “[a]rgument is unnecessary to demonstrate that
the appellations ‘damn racketeer’ and ‘damn Facist’ are
epithets likely to provoke the average person to retaliation,
and thereby cause a breach of the peace.” Id. at 574.
Accordingly, the Court in Chaplinsky had no occasion to
elaborate on the “inflict-injury” aspect of the fighting-
words definition it had articulated.
  In later cases, the Court has either dropped the “inflict-
injury” alternative altogether or simply recited the full
Chaplinsky definition without further reference to any
distinction between merely hurtful speech and speech that
tends to provoke an immediate breach of the peace. See
Virginia v. Black, 538 U.S. 343, 359 (2003) (a cross-burning


3
  (...continued)
tombstones as a reasonable “time, place, or manner” restriction.
See R.A.V., 505 U.S. at 386.
No. 06-3176                                               17

case decided on threat-doctrine grounds in which the
Court quoted the full Chaplinsky test but noted Cohen v.
California’s narrowing of the fighting-words doctrine);
Texas v. Johnson, 491 U.S. 397, 409 (1989) (in throwing out
a flag-burning conviction, the Court dropped the inflict-
injury prong of the Chaplinsky definition and confined
fighting words to those that are “likely to provoke the
average person to retaliation, and thereby cause a breach
of the peace”) (internal quotes omitted); NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 927 (1982) (describing
fighting words as “those that provoke immediate vio-
lence”); Lewis v. City of New Orleans, 415 U.S. 130, 132
(1974) (quoting full Chaplinsky definition but omitting
any reference to the inflict-injury prong); Gooding v.
Wilson, 405 U.S. 518, 524-27 (1972) (same); Cohen v. Califor-
nia, 403 U.S. 15, 20 (1971) (modifying definition of fighting
words to encompass “those personally abusive epithets
which, when addressed to the ordinary citizen, are, as
a matter of common knowledge, inherently likely to
provoke violent reaction”); Terminiello v. City of Chicago,
337 U.S. 1, 4 (1949) (stating speech is protected “unless
shown likely to produce a clear and present danger of a
serious substantive evil that rises far above public incon-
venience, annoyance, or unrest . . . [;] [t]here is no room
under our Constitution for a more restrictive view”); see
also R.A.V. v. City of St. Paul, 505 U.S. 377, 414 (1992)
(White, J., concurring) (“The mere fact that expressive
activity causes hurt feelings, offense, or resentment does
not render the expression unprotected.”).
  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,
18                                                 No. 06-3176

regulate or punish speech that causes emotional injury
but does not have a tendency to provoke an immediate
breach of the peace. See Note, The Demise of the Chaplinsky
Fighting Words Doctrine: An Argument for its Interment,
106 H ARV . L. R EV. 1129, 1129 (1993) (“The jurisprudential
history of the Chaplinsky doctrine has led some commenta-
tors to conclude that the Court has sub rosa overruled the
entire fighting words doctrine, or at least the ‘inflict injury’
prong.”); see also L AURENCE H. T RIBE, A MERICAN C ON-
STITUTIONAL L AW § 12-18, at 929 n.9 (2d ed. 1988) (“The
Court has in effect incorporated the clear and present
danger test into the fighting words doctrine.”); Nadine
Strossen, Regulating Racist Speech on Campus: A Modest
Proposal?, 1990 D UKE L.J. 484, 508-09 (explaining that “the
first prong of Chaplinsky’s fighting words definition, words
‘which by their very utterance inflict injury,’ was dictum”;
the Court has subsequently “substantially narrowed
Chaplinsky’s definition of fighting words by bringing that
definition into line with Chaplinsky’s actual holding”). The
justification for “plac[ing] fighting words outside the
protection of the First Amendment” is not their capacity
to inflict emotional injury—many words do that—but
their tendency “to provoke a violent reaction and hence
a breach of the peace.” Nuxoll ex rel. Nuxoll v. Indian Prairie
Sch. Dist. #204, No. 08-1050, 2008 WL 1813137, at *2
(7th Cir. Apr. 23, 2008).
  We have previously held that speech inflicting psychic
trauma alone—without any tendency to provoke respon-
sive violence or an immediate breach of the peace—does
not lose constitutional protection under the fighting-words
doctrine. Collin v. Smith, 578 F.2d 1197, 1203 (7th Cir. 1978)
(“A conviction for less than words that at least tend to
incite an immediate breach of the peace cannot be justi-
No. 06-3176                                              19

fied under Chaplinsky.”) Collin involved a proposed Nazi
march through the Village of Skokie, Illinois. The parade
would feature members of the National Socialist Party of
America wearing the uniforms of the German Nazi Party
and carrying Nazi flags bearing swastikas. Skokie had a
large Jewish population and was home to many Holocaust
survivors and their families; the potential for severe
psychological injury as a result of the proposed Nazi
parade was conceded. It was also conceded, however, that
the march was not likely to provoke responsive violence
or immediate breaches of the peace. Absent that tendency,
we held the speech in question did not qualify as fighting
words and remained constitutionally protected. Id.
  We see nothing in the Supreme Court’s more recent
iterations of the fighting-words doctrine that would
presage a revitalization of the “inflict-injury” alternative
in the Chaplinsky definition. To the contrary, whatever
vitality it may have had when Chaplinsky was announced,
the “inflict-injury” subset of the fighting-words defini-
tion has never stood on its own. It seems unlikely that
speech causing emotional injury but not tending to
provoke an average person to an immediate breach of the
peace would qualify as fighting words, unprotected by
the First Amendment and therefore capable of being
regulated or punished without raising any constitutional
concern.
  With this understanding of the contours of the fighting-
words doctrine, we proceed to step one of the Saucier
inquiry: whether Officer Mason violated the Purtells’ free-
speech rights by ordering Jeff Purtell to remove the tomb-
stones or face arrest. The jury found for the officer,
having been instructed that all speech is protected except
fighting words, which it was told included words that
20                                               No. 06-3176

“inflict injury” or “tend to incite an immediate breach of
the peace.” As we have noted, it was error to submit this
claim to the jury in the first place, but not because the
facts do not make out a constitutional violation—they
do, notwithstanding the jury’s verdict to the contrary.
   While the tombstones apparently elicited an emotional
response from the Purtells’ neighbors—embarrassment,
anger, resentment, and for some, fear—the messages
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.
It is true their mocking messages were directed at par-
ticular neighbors as well as the passing public. See Hess v.
Indiana, 414 U.S. 105, 107-08 (1973) (speech must be per-
sonally insulting and directed at particular person or
group to be considered fighting words). But the average
person, understanding the full context, would recognize
the tombstone inscriptions as nothing more than an
adolescent attempt at retaliatory ridicule—not the sort
of inflammatory and personally abusive epithets that
tend to provoke a violent reaction.
  As importantly, the tombstones were on display for
weeks without raising any potential for violence or dis-
ruption. Although an actual disturbance is not required
for the doctrine to apply, see Gower v. Vercler, 377 F.3d 661,
670 (7th Cir. 2004), to qualify as fighting words, the
speech in question must have a tendency to provoke an
average person to commit an immediate breach of the
peace. The tombstones did not have that tendency, and
in fact for a long time stood on the Purtells’ lawn with-
out incident, sometimes with the neighbors’ names ob-
scured by duct tape, sometimes not. The neighbors com-
plained to the police, but the scene remained quiet until
No. 06-3176                                             21

the November episode of shouting and chest-butting
between Purtell and Bob Lesner. Such a belated breach
of the peace cannot be attributed to the words themselves
or used to demonstrate that the speech at issue was
inherently provocative of a violent or “fighting” reaction.
  Because the tombstones did not have an inherent ten-
dency to incite an immediate breach of the peace, they
did not fall within that “narrowly limited” class of unpro-
tected speech defined by the fighting-words doctrine.
Frankly, we doubt whether the words on the tombstones
were strong enough to qualify as words that “by their very
utterance inflict injury”—if that, standing alone, were
enough to constitute fighting words. Considered in
their context, the tombstones did not inflict the sort of
severe, personal, and inherently injurious insult that the
fighting-words doctrine contemplates, however wounded
the Purtells’ neighbors might actually have felt.
  But Officer Mason’s mistake in thinking he could con-
stitutionally order Purtell to dismantle the tombstone
display on pain of arrest was one a reasonable officer
might make in this situation. Although the fighting-
words doctrine has been with us for decades, it has not
been entirely clear (as we have explained) whether
speech that injures but does not incite an immediate
breach of the peace is protected or unprotected. And
Officer Mason reasonably may have misunderstood the
immediacy requirement of the fighting-words doctrine
in the context of this case. He did have a fight on his
hands, and he reasonably believed he had the authority
to force the removal of the irritant in order to keep the
peace. In misapprehending the constitutionally pro-
tected status of the Purtells’ tombstone speech, Officer
22                                                   No. 06-3176

Mason did not violate clearly established rights.4 First
Amendment line-drawing is often difficult, even in hind-
sight. Officer Mason’s on-the-street judgment, though
mistaken, is entitled to qualified immunity.


C. Fourth Amendment Claim
  The district court granted Officer Mason’s motion for
summary judgment on the Fourth Amendment claim,
holding there was probable cause to arrest. See Morfin v.
City of East Chicago, 349 F.3d 989, 997 (7th Cir. 2003) (stating
that existence of probable cause bars § 1983 claim). This
decision was manifestly correct. “Police ordinarily have
probable cause if, at the time of the arrest, the ‘facts and
circumstances within the officer’s knowledge . . . are
sufficient to warrant a prudent person, or one of reason-
able caution, in believing, in the circumstances shown,
that the suspect has committed, is committing, or is about
to commit an offense.’ ” Wagner, 493 F.3d at 836 (quoting
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). The facts
and circumstances are considered as they appeared to
Officer Mason at the time of arrest. Id.
  Officer Mason arrested Purtell after witnessing his
participation in a loud argument with his neighbor that


4
  This conclusion is supported by the Purtells’ inability to point
to a closely analogous case that would be instructive to an
officer faced with this situation. See Forman v. Richmond Police
Dep’t, 104 F.3d 950, 957-58 (7th Cir. 1997) (quoting Powers v.
Lightner, 820 F.2d 818, 821 (7th Cir. 1987)) (stating plaintiff can
meet burden of showing clearly established right by pointing
to “closely analogous cases” decided before the defendants
acted or failed to act).
No. 06-3176                                              23

had escalated to a chest-butt before the officer was able to
intervene to prevent further physical altercation. This
qualifies as disorderly conduct under Illinois law: “A
person commits disorderly conduct when he knowingly . . .
[d]oes any act in such unreasonable manner as to alarm
or disturb another and to provoke a breach of the peace.”
720 ILL. C OMP. S TAT. 5/26-1(a)(1) (2006). That Bob Lesner
was not also arrested is irrelevant. That the focus of the
argument was the tombstones—protected speech—is
likewise irrelevant. We have already held that Officer
Mason is entitled to qualified immunity to the extent the
arrest was related to Jeff Purtell’s exercise of his First
Amendment rights. The mounting public argument
between Lesner and Purtell supplied probable cause to
arrest for disorderly conduct apart from Purtell’s exercise
of free speech. Accordingly, there was no Fourth Amend-
ment violation, and summary judgment on this claim
was appropriate.


                     III. Conclusion
  In closing, a few words in defense of a saner use of
judicial resources. It is unfortunate that this petty neigh-
borhood 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 repre-
sentation 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
24                                               No. 06-3176

encompasses “ ’the freedom to speak foolishly and without
moderation,’ ” Cohen, 403 U.S. at 26 (quoting Baumgartner
v. United States, 322 U.S. 665, 674 (1944)), 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 “presup-
poses a violation of sufficient gravity to merit a judg-
ment, 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 Ameri-
cans are an overlawyered and excessively litigious people.
                                                  A FFIRMED.




                    USCA-02-C-0072—5-14-08
