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.