Demon Rum and the Dirty Dance: Reconsidering Government Regulation of Live Sex Entertainment After California v. LaRue. Diel & Salinger. 1975 WLR 161.
Constitutional Law—Schools & School Districts—Reasonable Corporal Punishment by School Official Over Parental Objection is Constitutional. Splain. 1976 WLR 689.
Procedural Due Process in Public Schools: The “Thicket” of Goss v. Lopez. Ransom. 1976 WLR 934.
Constitutional Law—Due Process—Administrative Law—Impartial Decisionmaker—Authority of School Board to Dismiss Striking Teachers. Gallagher. 1977 WLR 521.
Constitutional Law—Due Process—Property Interest—Government Employment—State Law Defines Limitation of Entitlement. Jensen. 1977 WLR 575.
When Roles Collide: Deference, Due Process, and the Judicial Dilemma. Buchmeyer. 2019 WLR 1589.
Conscience Shocking in the Age of Trump. Farnsworth. 2020 WLR 805.
miscellaneous
An adult bookstore has no right to protect the privacy rights of its customers in a public, commercial establishment. City News & Novelty, Inc. v. City of Waukesha, 170 Wis. 2d 14, 487 N.W.2d 316 (Ct. App. 1992). A narrowly drawn anti-cruising ordinance did not violate the right to assemble or travel. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 507 N.W.2d 163 (Ct. App. 1993). The right to intrastate travel, including the right to move about one’s neighborhood in an automobile, is fundamental, but infringements on the right are not subject to strict scrutiny. Cruising ordinances, reasonable in time, place, and manner, do not violate this right. Brandmiller v. Arreola, 199 Wis. 2d 528, 544 N.W.2d 894 (1996), 93-2842. A father who intentionally refused to pay child support could, as a condition of probation, be required to avoid having another child, unless he showed that he could support that child and his current children. In light of the defendant’s ongoing victimization of his children and record manifesting his disregard for the law, this condition was not overly broad and was reasonably related to the defendant’s rehabilitation. State v. Oakley, 2001 WI 103, 245 Wis. 2d 447, 629 N.W.2d 200, 99-3328. Banishment from a particular place is not a per se violation of the right to travel. There is no exact formula for determining whether a geographic restriction is narrowly tailored. Each case must be analyzed on its own facts, circumstances, and total atmosphere to determine whether the geographic restriction is narrowly drawn. Predick v. O’Connor, 2003 WI App 46, 260 Wis. 2d 323, 660 N.W.2d 1, 02-0503. In order for a putative biological father to have the necessary foundation for a constitutionally protected liberty interest in his putative paternity, he would have to have taken affirmative steps to assume his parental responsibilities for the child. Randy A.J. v. Norma I.J., 2004 WI 41, 270 Wis. 2d 384, 677 N.W.2d 630, 02-0469. Parental status that rises to the level of a constitutionally protected liberty interest does not rest solely on biological factors, but rather, is dependent upon an actual relationship with the child where the parent assumes responsibility for the child’s emotional and financial needs. Stuart S. v. Heidi R., 2015 WI App 19, 360 Wis. 2d 388, 860 N.W.2d 538, 14-1487. Personhood Under the Fourteenth Amendment. Samar. 101 MLR 287 (2017).
Domestic Relations—Putative Father’s Right to Custody of His Child. 1971 WLR 1262.
I,2Slavery prohibited. Section 2. There shall be neither slavery, nor involuntary servitude in this state, otherwise than for the punishment of crime, whereof the party shall have been duly convicted. I,3Free speech; libel. Section 3. Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libel, the truth may be given in evidence, and if it shall appear to the jury that the matter charged as libelous be true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. free speech
A city can validly prohibit picketing private homes when the subject of the picketing has no relationship to any activity carried on there. City of Wauwatosa v. King, 49 Wis. 2d 398, 182 N.W.2d 530 (1971). A journalist has a constitutional right to the privilege not to disclose sources of information received in a confidential relationship, but when such confidence is in conflict with the public’s overriding need to know, it must yield to the interest of justice. The state need not affirmatively demonstrate proof of compelling need or lack of an alternative method of obtaining the information sought when the crimes involved and the prevention of repetition of those crimes constitute a compelling need. State v. Knops, 49 Wis. 2d 647, 183 N.W.2d 93 (1971). Only that portion of an obscenity ordinance defining obscenity in Roth-Memoirs terms is unconstitutional, and the remainder is a viable, effective ordinance when supplemented by the Chobot, 61 Wis. 2d 354 (1973), obscenity definition as augmented by the “community standards” definition. City of Madison v. Nickel, 66 Wis. 2d 71, 223 N.W.2d 865 (1974). Prohibiting the solicitation of prostitutes does not violate the right of free speech. Shillcutt v. State, 74 Wis. 2d 642, 247 N.W.2d 694 (1976). When a radio talk show announcer was fired for allowing talk show guests to slander minorities, the announcer’s right of free speech was not infringed. Augustine v. Anti-Defamation League of B’nai B’rith, 75 Wis. 2d 207, 249 N.W.2d 547 (1977). When the record did not indicate that a tenant union provided inadequate, unethical, or complex legal advice to tenants, the tenant union’s information service was protected by free speech guarantees. Hopper v. City of Madison, 79 Wis. 2d 120, 256 N.W.2d 139 (1977). The public’s right to be aware of all facts surrounding an issue does not interfere with the right of a newspaper to reject advertising. Wisconsin Ass’n of Nursing Homes, Inc. v. Journal Co., 92 Wis. 2d 709, 285 N.W.2d 891 (Ct. App. 1979). Setting procedures to determine whether a journalist may properly invoke privilege to prevent disclosure of confidential sources. State ex rel. Green Bay Newspaper Co. v. Circuit Court, 113 Wis. 2d 411, 335 N.W.2d 367 (1983). News gatherers have no constitutional right of access to disaster scenes beyond that accorded the general public. City of Oak Creek v. King, 148 Wis. 2d 532, 436 N.W.2d 285 (1989). Commercial speech is protected by the 1st amendment. The government must show that a restriction directly advances a substantial interest for it to be constitutional. City of Milwaukee v. Blondis, 157 Wis. 2d 730, 460 N.W.2d 815 (Ct. App. 1990). A sentence based on an activity protected by the 1st amendment is constitutionally invalid, but when a sufficient link to criminal activity is shown, the activity is no longer protected. State v. J.E.B., 161 Wis. 2d 655, 469 N.W.2d 192 (Ct. App. 1991). Although music is accorded a presumption of being protected speech, an ordinance prohibiting all unreasonable noise was not an unconstitutionally vague encroachment on free speech. City of Madison v. Baumann, 162 Wis. 2d 660, 470 N.W.2d 296 (1991). An employee’s free speech rights were not violated when the employer’s need for confidentiality and discipline clearly outweighed the employee’s interest in disclosing confidential information. Barnhill v. Board of Regents, 166 Wis. 2d 395, 479 N.W.2d 917 (1992). The 1st amendment rights of inmates are subject to limitation and regulation. Interception and withholding of inter-inmate correspondence was reasonable. Yoder v. Palmeri, 177 Wis. 2d 756, 502 N.W.2d 903 (Ct. App. 1993). Whether a restriction on nude dancing is overbroad depends on whether the ordinance is targeted at curbing only harmful secondary effects of exotic clubs. Fond du Lac County v. Mentzel, 195 Wis. 2d 313, 536 N.W.2d 160 (Ct. App. 1995), 94-1924. The state’s power to ban the sale of alcoholic beverages under the 21st amendment includes the lesser power to ban nude dancing on premises where alcohol is served. Schultz v. City of Cumberland, 195 Wis. 2d 554, 536 N.W.2d 192 (Ct. App. 1995), 94-3106. A zoning ordinance that did not set aside any area where an adult bookstore would be allowed was impermissible. Town of Wayne v. Bishop, 210 Wis. 2d 218, 565 N.W.2d 201 (Ct. App. 1997), 95-2387. A public nudity ordinance will meet a challenge that it is facially overbroad if it is drafted in a manner that addresses the secondary effects of adult entertainment without suffocating protected expression in a real and substantial manner. Lounge Management, Ltd. v. Town of Trenton, 219 Wis. 2d 13, 580 N.W.2d 156 (1998), 96-1853. Obscenity is, and has been, an abuse of the right to speak freely on all subjects under the state constitution. The breadth of protection offered by the Wisconsin Constitution in the context of obscenity is no greater than that afforded by the 1st amendment. County of Kenosha v. C&S Management, Inc., 223 Wis. 2d 373, 588 N.W.2d 236 (1999), 97-0642. When an ordinance regulates 1st amendment activities, the government normally has the burden of defending the regulation beyond a reasonable doubt, but when prior restraints are concerned and the government action at issue is the review of an applicant’s qualifications for a business license, the city does not bear the burden of going to court to effect the denial of a license, nor does it bear the burden of proof once in court. City News & Novelty, Inc. v. City of Waukesha, 231 Wis. 2d 93, 604 N.W.2d 870 (Ct. App. 1999), 97-1504. Unfiled pretrial materials in a civil action between private parties are not public records and neither the public nor the press has either a common law or constitutional right of access to those materials. State ex rel. Mitsubishi Heavy Industries America, Inc. v. Circuit Court, 2000 WI 16, 233 Wis. 2d 1, 605 N.W.2d 868, 99-2810. Only a “true threat” is punishable under statutes criminalizing threats. A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, 99-1924. But see Counterman v. Colorado, 600 U.S. ___, 143 S. Ct. 2106, 216 L. Ed. 2d 775 (2023). Purely written speech, even if it fails to cause an actual disturbance, can constitute disorderly conduct, but the state has the burden to prove that the speech is constitutionally unprotected “abusive” conduct. “Abusive” conduct is conduct that is injurious, improper, hurtful, offensive, or reproachful. True threats clearly fall within the scope of this definition. State v. Douglas D., 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, 99-1767. Although the 1st amendment prohibits law enforcement officials from prosecuting protected speech, it does not necessarily follow that schools may not discipline students for such speech. Like law enforcement officials, educators may not punish students merely for expressing unpopular viewpoints, but the 1st amendment must be applied in light of the special characteristics of the school environment. Schools may limit or discipline conduct that for any reason materially disrupts classwork or involves substantial disorder or invasion of the rights of others. State v. Douglas D., 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, 99-1767. Application of the disorderly conduct statute to speech alone is permissible under appropriate circumstances. When speech is not an essential part of any exposition of ideas, when it is utterly devoid of social value, and when it can cause or provoke a disturbance, the disorderly conduct statute can be applicable. State v. A.S., 2001 WI 48, 243 Wis. 2d 173, 626 N.W.2d 712, 99-2317. A county public assembly ordinance that contained a 60-day advance filing requirement, a 45-day processing time period, a prohibition against advertising, promoting, and selling tickets before a license was issued, a required certification by the zoning administrator, and a license fee in excess of $100 per application was not narrowly tailored to achieve a significant government interest and violated the 1st amendment free speech guarantee. Sauk County v. Gumz, 2003 WI App 165, 266 Wis. 2d 758, 669 N.W.2d 509, 02-0204. The exception to protection for “true threats” is not limited to threats directed only at a person or group of individuals, nor is it limited to a threat of bodily harm or death. State v. Robert T., 2008 WI App 22, 307 Wis. 2d 488, 746 N.W.2d 564, 06-2206. In this case, supervisory conditions limiting the defendant’s internet use were not unconstitutionally overbroad and did not impermissibly infringe the defendant’s 1st amendment rights when the conditions were crafted to provide protection for the public, and the defendant had a history of violating similar conditions. The circuit court could reasonably conclude that the defendant’s prior violations of internet conditions raised significant concerns about the need to protect the public and children in light of the defendant’s convictions for using a computer to facilitate a sex crime, child enticement, sexual assault of a child, and child abuse. State v. King, 2020 WI App 66, 394 Wis. 2d 431, 950 N.W.2d 891, 19-1642. The name change prohibition in s. 301.47 (2) (a) does not implicate the right to free speech by infringing expressive conduct. The 1st amendment right to free speech does not encompass the power to compel the state to facilitate a change of a legal name. Producing one’s legal name is properly understood as conduct subject to government regulation, not speech. State v. C.G., 2022 WI 60, 403 Wis. 2d 229, 976 N.W.2d 318, 18-2205. Discussing free speech and the state’s campaign finance law in light of Buckley, 424 U.S. 1 (1976). 65 Atty. Gen. 145. A flag misuse statute was unconstitutional as applied to a flag hung upside down with a peace symbol affixed when the context imbued the display with protected elements of communication. Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974). Campaign expenditure limitations unduly restrict political expression. Contribution limits impose serious burdens on free speech only if they are so low as to prevent candidates and political committees from amassing the resources necessary for effective advocacy. Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). Reversed in part. Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010). See also McConnell v. Federal Election Commission, 540 U.S. 93, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003); Randall v. Sorrell, 548 U.S. 230, 126 S. Ct. 2479, 165 L. Ed. 2d 482 (2006); Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (2007); McCutcheon v. Federal Election Commission, 572 U.S. 185, 134 S. Ct. 1434, 188 L. Ed. 2d 468 (2014); Federal Election Commission v. Ted Cruz for Senate, 596 U.S. ___, 142 S. Ct. 1638, 212 L. Ed. 2d 654 (2022). A board of education may not prevent a non-union teacher from speaking on a bargaining issue at an open meeting. City of Madison Joint School District v. WERC, 429 U.S. 167, 97 S. Ct. 421, 50 L. Ed. 2d 376 (1976). The 1st amendment prohibited the prosecution of a newspaper for publishing confidential proceedings of a commission investigating judicial conduct. Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S. Ct. 1535, 56 L. Ed. 2d 1 (1978). The 1st amendment does not guarantee the public’s or media’s right of access to sources of information within government control. Houchins v. KQED, Inc., 438 U.S. 1, 98 S. Ct. 2588, 57 L. Ed. 2d 553 (1978). The press and public have no constitutional right to attend a pretrial suppression hearing when the defendant demands a closed hearing to avoid prejudicial publicity. Gannett Co. v. DePasquale, 443 U.S. 368, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979). A public utility had the free speech right to enclose with bills inserts discussing controversial issues of public policy. Consolidated Edison Co. of New York v. Public Service Commission, 447 U.S. 530, 100 S. Ct. 2326, 65 L. Ed. 2d 319 (1980). For restrictions on commercial speech to stand a constitutional challenge, the restriction must not be more extensive than is necessary to serve the government’s interests. Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980). A statute that prohibits placing unstamped mailable matter in any box approved by the U.S. Postal Service does not violate the free speech clause. U.S. Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 101 S. Ct. 2676, 69 L. Ed. 2d 517 (1981). An ordinance that placed substantial restrictions on billboards other than those used for onsite commercial advertising violated the free speech clause. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981). A public university that provided a forum to many student groups but excluded religious student groups violated the principle that state regulation of speech should be content neutral. Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269, 70 L. Ed. 2d 440 (1981). There are constitutional limits on the state’s power to prohibit candidates from making promises in the course of an election campaign. Some promises are universally acknowledged as legitimate, indeed indispensable, to decisionmaking in a democracy. Brown v. Hartlage, 456 U.S. 45, 102 S. Ct. 1523, 71 L. Ed. 2d 732 (1982). A school board’s discretion to determine the contents of school libraries may not be exercised in a narrowly partisan or political manner. Board of Education v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982). The government’s substantial interest in maintaining the park in the heart of the capital in an attractive condition sustained a regulation against camping or overnight sleeping in public parks. Free speech was not denied. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984). A school district did not violate the free speech clause by disciplining a student for giving an offensively lewd and indecent speech at a school assembly. Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986). School administrators may exercise control over style and content of student speech in school-sponsored activities as long as control is reasonably related to “legitimate pedagogical concerns.” Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988). The 1st amendment prohibits employment decisions concerning low-level public employees from being based upon political patronage. Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990). A public indecency statute barring public nudity and requiring dancers to wear pasties and G-strings did not violate the right of free expression. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991). Press freedom does not confer a constitutional right to disregard promises that would otherwise be enforceable under state law. A possible promissory estoppel action for breaching an agreement to keep a source confidential was not barred. Cohen v. Cowles Media Co., 501 U.S. 663, 111 S. Ct. 2513, 115 L. Ed. 2d 586 (1991).
