The 1st amendment protects speech that discloses the content of an illegally intercepted telephone call when that speech was by a person not a party to the interception. Bartnicki v. Vopper, 532 U.S. 514, 121 S. Ct. 1753, 149 L. Ed. 2d 787 (2001). Speech discussing otherwise permissible subjects cannot be excluded from a limited public forum, such as a school, on the grounds that it is discussed from a religious viewpoint. A club’s meetings, held after school, not sponsored by the school, and open to any student who obtained parental consent, did not raise an establishment of religion violation that could be raised to justify content-based discrimination against the club. Good News Club v. Milford Central School, 533 U.S. 98, 121 S. Ct. 2093, 150 L. Ed. 2d 151 (2001). A village ordinance making it a misdemeanor to engage in door-to-door advocacy without first registering with the village and obtaining a permit violated the 1st amendment. Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 122 S. Ct. 2080, 153 L. Ed. 2d 205 (2002). A state, consistent with the 1st amendment, may ban cross burning carried out with the intent to intimidate, but a Virginia statute treating any cross burning as prima facie evidence of intent to intimidate was unconstitutional. Instead of prohibiting all intimidating messages, a state may choose to regulate this subset of intimidating messages in light of cross burnings’ long and pernicious history as a signal of impending violence. Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). Regulation of charitable subscriptions, barring fees in excess of a prescribed level, effectively imposes prior restraints on fundraising, and is incompatible with the 1st amendment. However, any and all reliance on the percentage of charitable donations fundraisers retain for themselves is not prohibited. While bare failure to disclose that information to potential donors does not establish fraud, when nondisclosure is accompanied by intentionally misleading statements designed to deceive the listener, a fraud claim is permissible. Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 123 S. Ct. 1829, 155 L. Ed. 2d 793 (2003). The 1st amendment requires that an adult business licensing scheme assure prompt judicial review of an administrative decision denying a license. An ordinance providing that the city’s final decision may be appealed to state court pursuant to state rules of civil procedure did not violate the 1st amendment. City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 124 S. Ct. 2219, 159 L. Ed. 2d 84 (2004). While a governmental employer may impose certain restraints on the speech of its employees that would be unconstitutional if applied to the general public, the courts have recognized the right of employees to speak on matters unrelated to their employment and to speak on matters of public concern. Because a police officer’s off-duty activities were not related to a matter of public concern and were designed to exploit his employer’s image, they were not protected under the 1st amendment. City of San Diego v. Roe, 543 U.S. 77, 125 S. Ct. 521, 160 L. Ed. 2d 410 (2004). When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for 1st amendment purposes, and the constitution does not insulate their communications from employer discipline. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006). Enforcement of a rule adopted by a statewide membership corporation organized to regulate interscholastic sports among its members that prohibited high school coaches from recruiting middle school athletes did not violate the 1st amendment. There is a difference of constitutional dimension between rules prohibiting appeals to the public at large and rules prohibiting direct, personalized communication in a coercive setting. Bans on direct solicitations are more akin to a conduct regulation than a speech restriction, but restrictions are limited to conduct that is inherently conducive to overreaching and other forms of misconduct. Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S. 291, 127 S. Ct. 2489, 168 L. Ed. 2d 166 (2007). Schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. School officials did not violate the 1st amendment by confiscating a pro-drug banner and suspending the student responsible for it. Morse v. Frederick, 551 U.S. 393, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007). Offers to provide or requests to obtain child pornography are categorically excluded from the 1st amendment. Offers to deal in illegal products or otherwise engage in illegal activity do not acquire 1st amendment protection when the offeror is mistaken about the factual predicate of his or her offer. Impossibility of completing the crime because the facts were not as the defendant believed is not a defense. United States v. Williams, 553 U.S. 285, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008). The free speech clause of the 1st amendment restricts government regulation of private speech; it does not regulate government speech. Although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the free speech clause of the 1st amendment. Pleasant Grove City v. Summum, 555 U.S. 460, 129 S. Ct. 1125, 172 L. Ed. 2d 853 (2009). The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether. Federal law prohibiting corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate is unconstitutional. Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010). While the prohibition of animal cruelty itself has a long history in American law, depictions of animal cruelty are not outside the reach of the 1st amendment altogether. The guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. A federal statute that criminalized the commercial creation, sale, or possession of certain depictions of animal cruelty, which encompassed common depictions of ordinary and lawful activities and required merely that the conduct be “illegal” where the alleged violation took place, was substantially overbroad and therefore facially invalid under the 1st amendment. United States v. Stevens, 559 U.S. 460, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010). A public university may condition its official recognition of a student group, and the attendant use of school funds and facilities, on the organization’s agreement to open eligibility for membership and leadership to all students. In requiring a student religious group, in common with all other student organizations, to choose between welcoming all students and forgoing the benefits of official recognition, a school did not transgress constitutional limitations. The 1st amendment shields groups against state prohibition of the organization’s expressive activity, however exclusionary that activity may be, but a group enjoys no constitutional right to state subvention of its selectivity. Christian Legal Society Chapter v. Martinez, 561 U.S. 661, 130 S. Ct. 2971, 177 L. Ed. 2d 838 (2010). The 1st amendment shielded church members from tort liability for their speech when they picketed near a soldier’s funeral service and their picket signs reflected the church’s view that the United States is overly tolerant of sin and that God kills American soldiers as punishment. Whether the amendment prohibits liability for speech in this type of case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. Snyder v. Phelps, 562 U.S. 443, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011). A state cannot create new categories of unprotected speech by applying a simple balancing test that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test. Without persuasive evidence that a novel restriction on content, such as restrictions on selling or lending “violent” video games to children, is part of a long, if heretofore unrecognized, tradition of proscription, a legislature may not revise the judgment of the American people, embodied in the 1st amendment, that the benefits of its restrictions on the government outweigh the costs. Brown v. Entertainment Merchants Ass’n, 564 U.S. 786, 131 S. Ct. 2729, 180 L. Ed. 2d 708 (2011). Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices and through features distinctive to the medium. That suffices to confer 1st amendment protection. Brown v. Entertainment Merchants Ass’n, 564 U.S. 786, 131 S. Ct. 2729, 180 L. Ed. 2d 708 (2011). The 1st amendment does not permit a public-sector union to adopt procedures that have the effect of requiring objecting nonmembers to lend the union money to be used for political, ideological, and other purposes not germane to collective bargaining. The 1st amendment does not allow a public-sector union to require objecting nonmembers to pay a special fee or dues increase that is levied to meet expenses for the purpose of financing the union’s political and ideological activities that were not disclosed when the amount of the regular assessment was set. Knox v. Service Employees International Union, Local 1000, 567 U.S. 298, 132 S. Ct. 2277, 183 L. Ed. 2d 281 (2012). The federal statute at issue in this case imposed two types of limits on campaign contributions: 1) base limits that restrict how much money a donor may contribute to a particular candidate or committee; and 2) aggregate limits that restrict how much money a donor may contribute in total to all candidates or committees. Base limits were previously upheld as serving the permissible objective of combatting corruption. The aggregate limits do little, if anything, to address that concern, while seriously restricting participation in the democratic process. The aggregate limits are therefore invalid under the 1st amendment. McCutcheon v. Federal Election Commission, 572 U.S. 185, 134 S. Ct. 1434, 188 L. Ed. 2d 468 (2014). A Massachusetts act that made it a crime to knowingly stand on a public way or sidewalk within 35 feet of an entrance or driveway to any reproductive health care facility violated the 1st amendment. Although the act was content neutral, it was not narrowly tailored because it burdened substantially more speech than was necessary to further the government’s legitimate interests. McCullen v. Coakley, 573 U.S. 464, 134 S. Ct. 2518, 189 L. Ed. 2d 502 (2014). Judicial candidates have a 1st amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When a state adopts a narrowly tailored restriction, like the one at issue in this case, providing that judicial candidates “shall not personally solicit campaign funds . . . but may establish committees of responsible persons” to raise money for election campaigns, those principles do not conflict. A state’s decision to elect judges does not compel it to compromise public confidence in their integrity. The 1st amendment permits such restrictions on speech. Williams-Yulee v. Florida Bar, 575 U.S. 433, 135 S. Ct. 1656, 191 L. Ed. 2d 570 (2015). A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of animus toward the ideas contained in the regulated speech. An innocuous justification cannot transform a facially content-based law into one that is content neutral. Because strict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based, a court must evaluate each question before it concludes that the law is content neutral and thus subject to a lower level of scrutiny. Reed v. Town of Gilbert, 576 U.S. 155, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015). A speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter. In this case, the town sign code singled out specific subject matter for differential treatment, even if it did not target viewpoints within that subject matter. Ideological messages were given more favorable treatment than messages concerning a political candidate, which were themselves given more favorable treatment than messages announcing an assembly of like-minded individuals. That is a paradigmatic example of content-based discrimination. Reed v. Town of Gilbert, 576 U.S. 155, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015). But see City of Austin v. Reagan National Advertising of Austin, LLC, 596 U.S. ___, 142 S. Ct. 1464, 212 L. Ed. 2d 418 (2022). A speech regulation is content based if the law applies to particular speech because of the topic discussed or the idea or message expressed. A regulation that targets a sign because it conveys an idea about a specific event is no less content based than a regulation that targets a sign because it conveys some other idea. Reed v. Town of Gilbert, 576 U.S. 155, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015). When government speaks, it is not barred by the free speech clause from determining the content of what it says. That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech. Thus, government statements and government actions and programs that take the form of speech do not normally trigger the 1st amendment rules designed to protect the marketplace of ideas. As a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. Walker v. Texas Division, Sons of Confederate Veterans, Inc., 576 U.S. 200, 135 S. Ct. 2239, 192 L. Ed. 2d 274 (2015). Based on the historical context, observers’ reasonable interpretation of the messages conveyed by Texas specialty plates, and the effective control that the state exerts over the design selection process, Texas’ specialty license plates constituted government speech. Drivers who display a state’s selected license plate designs convey the messages communicated through those designs. The 1st amendment stringently limits a state’s authority to compel a private party to express a view with which the private party disagrees. But here, just as Texas could not require a group to convey the state’s ideological message, the group could not force Texas to include a Confederate battle flag on its specialty license plates. Walker v. Texas Division, Sons of Confederate Veterans, Inc., 576 U.S. 200, 135 S. Ct. 2239, 192 L. Ed. 2d 274 (2015). With a few exceptions, the U.S. Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate. When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity, the employee is entitled to challenge that unlawful action under the 1st amendment and 42 USC 1983—even if the employer makes a factual mistake about the employee’s behavior. A discharge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake. Heffernan v. City of Paterson, 578 U.S. 266, 136 S. Ct. 1412, 194 L. Ed. 2d 508 (2016). A North Carolina statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites, violated the 1st amendment. A fundamental principle of the 1st amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. To foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of 1st amendment rights. Packingham v. North Carolina, 582 U.S. 98, 137 S. Ct. 1730, 198 L. Ed. 2d 273 (2017). Minnesota’s political apparel ban lacked objective, workable standards required for a reasonable content-based restriction on speech in a nonpublic forum and therefore violated the 1st amendment. Minnesota Voters Alliance v. Mansky, 585 U.S. ___, 138 S. Ct. 1876, 201 L. Ed. 2d 201 (2018). Under Illinois law, if a public-sector collective-bargaining agreement includes an agency-fee provision and the union certifies to the employer the amount of the fee, that amount is automatically deducted from a nonmember’s wages. No form of employee consent is required. This procedure violates the 1st amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their 1st amendment rights, and such a waiver cannot be presumed. Janus v. AFSCME, 585 U.S. ___, 138 S. Ct. 2448, 201 L. Ed. 2d 924 (2018). The free speech clause of the 1st amendment constrains governmental actors and protects private actors. To draw the line between governmental and private, the court applies the state-action doctrine. Under that doctrine, a private entity may be considered a state actor when it exercises a function “traditionally exclusively reserved to the state.” Operation of public access channels on a cable system is not a traditional, exclusive public function. In operating the public access channels, the plaintiff in this case was a private actor, not a state actor, and therefore was not subject to 1st amendment constraints on its editorial discretion. Manhattan Community Access Corp. v. Halleck, 587 U.S. ___, 139 S. Ct. 1921, 204 L. Ed. 2d 405 (2019). The special characteristics that give schools additional license to regulate student speech do not always disappear when a school regulates speech that takes place off campus. However, three features of off-campus speech often distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech. Those features diminish the strength of the unique educational characteristics that might call for special 1st amendment leeway. Mahanoy Area School District v. B.L., 594 U.S. ___, 141 S. Ct. 2038, 210 L. Ed. 2d 403 (2021). A rule that holds that a regulation cannot be content neutral if it requires reading the sign at issue is too extreme an interpretation of U.S. Supreme Court precedent. A city regulation of signs that advertise things that are not located on the same premises as the sign or that direct people to offsite locations, known as off-premises signs, is facially content neutral and therefore is not subject to strict scrutiny under the free speech clause of the 1st amendment. City of Austin v. Reagan National Advertising of Austin, LLC, 596 U.S. ___, 142 S. Ct. 1464, 212 L. Ed. 2d 418 (2022). When a government does not speak for itself, it may not exclude speech based on religious viewpoint; doing so constitutes impermissible viewpoint discrimination. In this case, the city’s program that allowed private groups to request use of the flagpole outside city hall to raise flags of their choosing did not express government speech. As a result, the city’s refusal to let the applicants fly their Christian flag based on its religious viewpoint violated the free speech clause of the 1st amendment and did not raise an establishment of religion violation. Shurtleff v. City of Boston, 596 U.S. ___, 142 S. Ct. 1583, 212 L. Ed. 2d 621 (2022). The expressive activity of a high school football coach who knelt at midfield after games to offer a quiet prayer of thanks during a period when school employees were free to attend to personal matters and while students were otherwise occupied was protected by the free exercise and free speech clauses of the 1st amendment, and the establishment clause did not require or allow the school district to single out the coach’s private religious speech for special disfavor. The establishment clause does not compel the government to purge from the public sphere anything an objective observer could reasonably infer endorses or partakes of the religious. Kennedy v. Bremerton School District, 597 U.S. ___, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022). True threats of violence are outside the bounds of 1st amendment protection and punishable as crimes, but the 1st amendment still requires proof that a defendant has some subjective understanding of the threatening nature of the statements. A mental state of recklessness is sufficient. In a true-threats case, a state must show that the defendant consciously disregarded a substantial risk that the defendant’s communications would be viewed as threatening violence. Counterman v. Colorado, 600 U.S. ___, 143 S. Ct. 2106, 216 L. Ed. 2d 775 (2023). If a state law forbidding businesses from engaging in discrimination when they sell goods and services to the public is used to compel an individual to create speech the individual does not believe, that course violates the free speech clause of the 1st amendment. In this case, the parties stipulated that the plaintiff sought to engage in expressive activity by designing wedding websites, and thus the state could not force the plaintiff to convey messages inconsistent with the plaintiff’s belief that marriage should be reserved to unions between one man and one woman. 303 Creative LLC v. Elenis, 600 U.S. ___, 143 S. Ct. 2298, 216 L. Ed. 2d 1131 (2023). Generally, the 1st amendment protects a person from being removed from public employment for purely political reasons. However, exemptions from the patronage dismissal ban are allowed on the theory that a newly elected administration has a legitimate interest in implementing the broad policies it was elected to implement without interference from disloyal employees. Pleva v. Norquist, 195 F.3d 905 (1999). With one exception, the university’s system, as required by Southworth, for distributing compelled fees collected from university students to student groups that delegates funding decisions to the student government was subject to sufficient limits. Southworth v. Board of Regents, 307 F.3d 566 (2002). A regulation prohibiting the sale of liquor on the premises of adult entertainment establishments is constitutional if: 1) the state is regulating pursuant to a legitimate governmental power; 2) the regulation does not completely prohibit adult entertainment; 3) the regulation is aimed at combating the negative effects caused by the establishments, not the suppression of expression; and 4) the regulation is designed to serve a substantial governmental interest, is narrowly tailored, and reasonable avenues of communication remain; or alternatively the regulation furthers substantial governmental interests and the restriction is no greater than is essential to further that interest. Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702 (2003). Under Tinker, 393 U.S. 503 (1969), restrictions on student speech are constitutionally permissible if school officials reasonably forecast that the speech would materially and substantially disrupt the work and discipline of the school or invade the rights of others. Although that test is deferential to school officials and is applied in light of the special characteristics of the school environment, it is stricter than the test for speech restrictions in a nonpublic forum. In this case, the Tinker test applied to the student’s claim challenging the school’s enforcement of its policy barring clothing that depicts firearms. N.J. v. Sonnabend, 37 F.4th 412 (2022). A town board was restrained from discharging its police chief until the issue of impermissible consideration of the chief’s political activities was resolved. Kuhlmann v. Bloomfield Township, 521 F. Supp. 1242 (1981). Content-neutral size restrictions placed on a banner proclaiming “Church/State — Separate,” after it was hung in the state capitol rotunda, served the state’s significant interest in protecting the capitol from visual degradation. That a Christmas tree and Menorah in the rotunda were allowed to remain without restriction did not prove content-based discrimination. Gaylor v. Thompson, 939 F. Supp. 1363 (1996). Although the 1st amendment establishment clause neither compels nor authorizes the university to categorically exclude funding of activities related to worship, proselytizing, and sectarian religious instruction with segregated fees, the university may nevertheless be able to exclude some or all of the activities to which it objects. The university is free to enact viewpoint neutral rules restricting access to segregated fees, for it may create what is tantamount to a limited public forum if the principles of viewpoint neutrality are respected. However, before excluding an activity from the segregated fee forum pursuant to a content-based distinction, the university must explain specifically why that particular activity, viewed as a whole, is outside the forum’s purposes. Roman Catholic Foundation, UW-Madison, Inc. v. Regents of University of Wisconsin System, 578 F. Supp. 2d 1121 (2008). Affirmed. Badger Catholic, Inc. v. Walsh, 620 F.3d 775 (2010). A public employer may choose not to hire a particular applicant for a nonpartisan position because of the applicant’s history of partisan political activity. This is an appropriate exception to the general rule that public employers may not make employment decisions on the basis of protected 1st amendment activities. However, an applicant’s political affiliation and the applicant’s history of partisan activities are two distinct considerations. Albers-Anders v. Pocan, 905 F. Supp. 2d 944 (2012). The 1st amendment accommodates reasonable restrictions on the time, place, and manner of speech as long as they are: 1) content-neutral; 2) narrowly tailored to serve a significant government interest; and 3) leave open ample alternative channels for communication of the information. Even content-neutral regulations may not condition speech on obtaining a license or permit from a government official in that official’s boundless discretion. An acceptable regulation must contain adequate standards to guide the official’s decision and render it subject to effective judicial review. Candy Lab Inc. v. Milwaukee County, 266 F. Supp. 3d 1139 (2017). Constitutional Law: Testimonial Privilege of Newsmen. Baxter. 55 MLR 184 (1972).
Constitutional Law: Academic Freedom: Some Tentative Guidelines. Keith. 55 MLR 379 (1972).
Constitutional Law—First Amendment—Protection of Commercial Speech. Lohmann. 60 MLR 138 (1976).
Zurcher: Third Party Searches and Freedom of the Press. Cantrell. 62 MLR 35 (1978).
A Newspaper Cannot Constitutionally Be Compelled to Publish a Paid Advertisement Designed to Be an Editorial Response to Previous Newspaper Reports. Layden. 64 MLR 361 (1980).
Granting Access to Private Shopping Center Property for Free Speech Purposes on the Basis of a State Constitutional Provision Does Not Violate the Shopping Center Owner’s Federal Constitutional Property Rights or First Amendment Free Speech Rights. Munroe. 64 MLR 507 (1981).
The First Amendment and Freedom of the Press: A Revised Approach to the Marketplace of Ideas Concept. Garry. 72 MLR 187 (1989).
Zoning Law: Architectural Appearance Ordinances and the First Amendment. Rice. 76 MLR 439 (1993).
Hate Crimes—New Limits on the Scope of First Amendment Protection? Resler. 77 MLR 415 (1994).
Improving the Odds of the Central Hudson Balancing Test: Restricting Commercial Speech as a Last Resort. Gollin. 81 MLR 873 (1998).
Social Media Use and Viewpoint Discrimination: A First Amendment Judicial Tightrope Walk with Rights and Risks Hanging in the Balance. Hidy. 102 MLR 1045 (2019).
A Researcher-Subject Testimonial Privilege: What to do Before the Subpoena Arrives. Nejelski & Lerman. 1971 WLR 1085.
Of Shadows and Substance: Freedom of Speech, Expression, and Action. Himes. 1971 WLR 1209.
Constitutional Law—Free Speech on Premises of Privately Owned Shopping Center. Felsenthal. 1973 WLR 612.
Constitutional Protection of Critical Speech and the Public Figure Doctrine: Retreat by Reaffirmation. Backer. 1980 WLR 568.
Corporate “Persons” and Freedom of Speech: The Political Impact of Legal Mythology. Patton & Bartlett. 1981 WLR 494.
Lamb’s Chapel v. Center Moriches Union Free School District: Creating Greater Protection for Religious Speech Through the Illusion of Public Forum Analysis. Ehrmann. 1994 WLR 965.
Behind the Curtain of Privacy: How Obscenity Law Inhibits the Expression of Ideas About Sex and Gender. Peterson. 1998 WLR 625.
The Journalist’s Privilege. Kassel. Wis. Law. Feb. 1996.
The Price of Free Speech: Regents v. Southworth. Furlow. Wis. Law. June 2000.
Regulating the Limits of Speech. Hoffer. Wis. Law. July/Aug. 2018.
Social Media, the First Amendment, and Government Actors. Westerberg & Dumas. Wis. Law. Jan. 2020.
libel
In a libel action involving a public figure or a matter of public concern, the defendant is entitled to the “clear and convincing” burden of proof and also to a finding of the type of malice involved. Polzin v. Helmbrecht, 54 Wis. 2d 578, 196 N.W.2d 685 (1972). In determining punitive damages in libel cases, it is relevant to consider the maximum fine for a similar offense under the criminal code. Wozniak v. Local 1111 of United Electrical Works of America, 57 Wis. 2d 725, 205 N.W.2d 369 (1973). The executive committee of the medical staff of a private hospital is not a quasi-judicial body so as to render a letter to it privileged. DiMiceli v. Klieger, 58 Wis. 2d 359, 206 N.W.2d 184 (1973). The following criteria are applicable to whether a defamation plaintiff may be considered a public figure for a limited range of issues: 1) there must be a public controversy; and 2) the court must look at the nature of the plaintiff’s involvement in the public controversy to see whether the plaintiff has voluntarily injected himself or herself into the controversy so as to influence the resolution of the issues involved. Denny v. Mertz, 106 Wis. 2d 636, 318 N.W.2d 141 (1982). But see Wiegel v. Capital Times Co., 145 Wis. 2d 71, 426 N.W.2d 43 (Ct. App. 1988). A private individual need only prove that a news media defendant was negligent in broadcasting or publishing a defamatory statement. A negligence standard complies with the guarantee of freedom of the press contained in the Wisconsin Constitution. Denny v. Mertz, 106 Wis. 2d 636, 318 N.W.2d 141 (1982). A private citizen may become a public figure regarding a particular issue that is of substantial public interest and must prove actual malice to prevail in a libel action. Wiegel v. Capital Times Co., 145 Wis. 2d 71, 426 N.W.2d 43 (Ct. App. 1988). Judicial or quasi-judicial proceedings are protected by absolute privilege, subject to two restrictions: 1) the statement must be in a procedural context recognized as privileged; and 2) it must be relevant to the matter under consideration. Rady v. Lutz, 150 Wis. 2d 643, 444 N.W.2d 58 (Ct. App. 1989). A fire department captain with considerable power and discretion is a public official who must meet the malice requirement. Defendant firefighters had a common law privilege to comment in writing on the captain’s fitness for office. Miller v. Minority Brotherhood of Fire Protection, 158 Wis. 2d 589, 463 N.W.2d 690 (Ct. App. 1990). If a defamation plaintiff is a public figure, there must be proof of actual malice. The deliberate choice of one interpretation of a number of possible interpretations does not create a jury issue of actual malice. The selective destruction by a defendant of materials likely to be relevant to defamation litigation allows an inference that the materials would have provided evidence of actual malice. Torgerson v. Journal/Sentinel Inc., 210 Wis. 2d 524, 563 N.W.2d 472 (1997), 95-1098. For purposes of libel law, a “public figure” who must prove malice includes a person who by being drawn into or interjecting himself or herself into a public controversy becomes a public figure for a limited purpose because of involvement in the particular controversy, which status can be created without purposeful or voluntary conduct by the individual involved. Erdmann v. SF Broadcasting of Green Bay, Inc., 229 Wis. 2d 156, 599 N.W.2d 1 (Ct. App. 1999), 98-2660. See also Sidoff v. Merry, 2023 WI App 49, 409 Wis. 2d 186, 996 N.W.2d 88, 22-1871. A “public dispute” is not simply a matter of interest to the public. It must be a real dispute, the outcome of which affects the general public in an appreciable way. Essentially private concerns do not become public controversies because they attract attention; their ramifications must be felt by persons who are not direct participants. Maguire v. Journal Sentinel, Inc., 2000 WI App 4, 232 Wis. 2d 236, 605 N.W.2d 881, 97-3675. In defamation cases, circuit courts should ordinarily decide a pending motion to dismiss for failure to state a claim before sanctioning a party for refusing to disclose information that would identify otherwise-anonymous members of an organization. Lassa v. Rongstad, 2006 WI 105, 294 Wis. 2d 187, 718 N.W.2d 673, 04-0377. Actual malice requires that the allegedly defamatory statement be made with knowledge that it was false or with reckless disregard of whether it was false or not. Actual malice does not mean bad intent, ill-will, or animus. Repeated publication of a statement after being informed that the statement was false does not constitute actual malice so long as the speaker believes it to be true. Actual malice cannot be inferred from the choice of one rational interpretation of a speech over another. Donohoo v. Action Wisconsin, Inc., 2008 WI 56, 309 Wis. 2d 704, 750 N.W.2d 739, 06-0396. The plaintiff was a public figure for all purposes when the plaintiff was involved in highly controversial and newsworthy activities while in public office; the publicity and controversy surrounding these events continued well after the term of office ended; the plaintiff remained in the news after leaving office as a result of new developments in the various inquiries into his official conduct; and the plaintiff had a connection with another public official in the news. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756 N.W.2d 649, 07-2314. In general, the destruction of notes allows an inference that the notes would have provided evidence of actual malice, but this rule is not absolute. Because the plaintiff had not shown any way the destroyed notes might show actual malice, the destruction of the notes did not create a material factual dispute preventing summary judgment. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756 N.W.2d 649, 07-2314. The elements of a defamatory communication are: 1) a false statement; 2) communicated by speech, conduct, or in writing to a person other than the person defamed; and 3) the communication is unprivileged and is defamatory, that is, tends to harm one’s reputation so as to lower the person in the estimation of the community or to deter third persons from associating or dealing with the person. The statement that is the subject of a defamation action need not be a direct affirmation, but may also be an implication. Terry v. Journal Broadcast Corp., 2013 WI App 130, 351 Wis. 2d 479, 840 N.W.2d 255, 12-1682.
