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.
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. In a defamation action brought by a private figure against a media defendant, the plaintiff has the burden of proving that the speech at issue is false; this requirement is imposed in order to avoid the chilling effect that would be antithetical to the 1st amendment’s protection of true speech on matters of public concern. Terry v. Journal Broadcast Corp., 2013 WI App 130, 351 Wis. 2d 479, 840 N.W.2d 255, 12-1682. State libel laws are preempted by federal labor laws to the extent statements made without knowledge of falsity or reckless disregard for truth are at issue. Old Dominion Branch No. 496, National Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974). A public figure who sues media companies for libel may inquire into the editorial processes of those responsible when proof of “actual malice” is required for recovery. Herbert v. Lando, 441 U.S. 153, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979). Defamation Law of Wisconsin. Brody. 65 MLR 505 (1982).
Constitutional Law—Limitations on Damages Awarded to Public Officials in Defamation Suits. Kampen. 1972 WLR 574.
A Misplaced Focus: Libel Law and Wisconsin’s Distinction Between Media and Nonmedia Defendants. Maguire. 2004 WLR 191.
I,4Right to assemble and petition. Section 4. The right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged. 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. The legislature cannot prohibit an individual from entering the capitol or its grounds. 59 Atty. Gen. 8.
The national democratic party has a protected right of political association and may not be compelled to seat delegates chosen in an open primary in violation of the party’s rules. Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 101 S. Ct. 1010, 67 L. Ed. 2d 82 (1981). As with the speech clause, to show that an employer interfered with rights under the petition clause, an employee, as a general rule, must show that the employee’s speech was on a matter of public concern. The right of a public employee under the petition clause is a right to participate as a citizen, through petitioning activity, in the democratic process. It is not a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts. Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011). See also Williams v. Illinois, 567 U.S. 50, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012). 2011 Wis. Act 10’s various restrictions, in their cumulative effect, do not violate union members’ associational rights. The 1st amendment does not require the state to maintain policies that allow certain associations to thrive. For the most part, the Bill of Rights enshrines negative liberties. It directs what government may not do to its citizens, rather than what it must do for them. Laborers Local 236 v. Walker, 749 F.3d 628 (2014). Section 947.06, 1969 stats., which prohibits unlawful assemblies, is constitutional. Cassidy v. Ceci, 320 F. Supp. 223 (1970). Wisconsin, A Constitutional Right to Intrastate Travel, and Anti-Cruising Ordinances. Mode. 78 MLR 735 (1995).
“LOL No One Likes You”: Protecting Critical Comments on Government Officials’ Social Media Posts Under the Right to Petition. Sweeny. 2018 WLR 73.
I,5Trial by jury; verdict in civil cases. Section 5. [As amended Nov. 1922] The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law. Provided, however, that the legislature may, from time to time, by statute provide that a valid verdict, in civil cases, may be based on the votes of a specified number of the jury, not less than five-sixths thereof. [1919 J.R. 58, 1921 J.R. 17 A, 1921 c. 504, vote Nov. 1922] NOTE: See also the notes to article I, section 7 — Jury Trial and Juror Qualifications for notes relating to jury trials in criminal cases.
When a juror is struck after the trial has commenced, a litigant cannot be required to proceed with 11 jurors in a civil case. The trial court must declare a mistrial or grant a nonsuit with the right to plead over. It was error to grant a nonsuit and then direct a verdict for the defendant because a plaintiff refused to continue with 11 jurors. State ex rel. Polk v. Johnson, 47 Wis. 2d 207, 177 N.W.2d 122 (1970). Neither the constitution, statutes, or common law affords the right to trial by jury in a will contest. Bermke v. Security First National Bank of Sheboygan, 48 Wis. 2d 17, 179 N.W.2d 881 (1970). The requirement that a defendant prepay jury fees in a civil traffic forfeiture action is constitutional. State v. Graf, 72 Wis. 2d 179, 240 N.W.2d 387 (1976). Requiring the payment of a jury fee did not violate the right to a trial by jury. County of Portage v. Steinpreis, 104 Wis. 2d 466, 312 N.W.2d 731 (1981). The right to a jury trial does not extend to equitable actions. However, defendants who are required to plead legal counterclaims in equitable actions or lose those claims are entitled to a jury trial of their claims. Green Spring Farms v. Spring Green Farms Associates, 172 Wis. 2d 28, 492 N.W.2d 392 (Ct. App. 1992). Use of collateral estoppel to prevent a civil defendant from testifying that the defendant did not commit an act when in an earlier criminal trial the defendant was convicted by a jury of committing the act did not deny the defendant’s right to a jury. Michelle T. v. Crozier, 173 Wis. 2d 681, 495 N.W.2d 327 (1993). When collateral estoppel compels raising a counterclaim in an equitable action, that compulsion does not result in the waiver of the right to a jury trial. Norwest Bank Wisconsin Eau Claire, N.A. v. Plourde, 185 Wis. 2d 377, 518 N.W.2d 265 (Ct. App. 1994). There is neither a statutory nor a constitutional right to have all parties identified to a jury, but as a procedural rule the court should in all cases apprise the jurors of the names of all the parties. Stoppleworth v. Refuse Hideaway, Inc., 200 Wis. 2d 512, 546 N.W.2d 870 (1996), 93-3182. A party has a constitutional right to have a statutory claim tried to a jury when: 1) the cause of action created by the statute existed, was known, or recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848; and 2) the action was regarded as at law in 1848. Village Food & Liquor Mart v. H&S Petroleum, Inc., 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177, 00-2493. While a defendant has a right to a jury trial in a civil case, there is no vested right under this section to the manner or time in which that right may be exercised or waived. Those are merely procedural matters to be determined by law. Phelps v. Physicians Insurance Co. of Wisconsin, Inc., 2005 WI 85, 282 Wis. 2d 69, 698 N.W.2d 643, 03-0580. In order to deem the Village Food, 2002 WI 92, test satisfied, there need not be specific identity between the violation at bar and an 1848 cause of action, so long as there was an 1848 action that only differs slightly and is essentially a counterpart to the current cause. To the extent that the 1849 statutes recognize broad causes of action for civil forfeitures, they are insufficient to support a demand for a 12 person jury in every forfeiture action. Dane County v. McGrew, 2005 WI 130, 285 Wis. 2d 519, 699 N.W.2d 890, 03-1794. See also State v. Schweda, 2007 WI 100, 303 Wis. 2d 353, 736 N.W.2d 49, 05-1507. A party’s waiver of the right of trial by jury need not be a waiver in the strictest sense of that word, that is, an intentional relinquishment of a known right. Instead, a party may waive the right of trial by jury by failing to assert the right timely or by violating a law setting conditions on the party’s exercise of the jury trial right. Rao v. WMA Securities, Inc., 2008 WI 73, 310 Wis. 2d 623, 752 N.W.2d 220, 06-0813. It lies within the circuit court’s discretion to determine the appropriate procedure for deciding factual issues in default judgment cases and that the defaulting party therefore has no right of trial by jury. The circuit court did not violate the defendant’s right of trial by jury under this section when it denied the defendant’s motion for a jury trial on the issue of damages. The defendant waived its right of trial by jury in the manner set forth in ss. 804.12 and 806.02 by violating the circuit court’s discovery order and by incurring a judgment by default. Rao v. WMA Securities, Inc., 2008 WI 73, 310 Wis. 2d 623, 752 N.W.2d 220, 06-0813. Comparing the purpose underlying the modern statute to the purpose underlying its alleged common law counterpart will be helpful in applying the first prong of the Village Food, 2002 WI 92, test. Harvot v. Solo Cup Co., 2009 WI 85, 320 Wis. 2d 1, 768 N.W.2d 176, 07-1396. An implied statutory right to trial by jury in situations in which the legislature has not prescribed such a right and in which the constitution does not afford such a right would open a can of worms. Statutes vary widely. Ad hoc judicial discovery of implied statutory rights to trial by jury would not yield a meaningful legal test that could carry over from case to case, but would instead invite ad hoc argument whenever the statutes are silent. Harvot v. Solo Cup Co., 2009 WI 85, 320 Wis. 2d 1, 768 N.W.2d 176, 07-1396.
