Monthly Archives: February 2012

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Seventh Circuit Reaffirms The Health of Mt. Healthy

In Brown v County of Cook, the Seventh Circuit affirmed the grant of summary judgment for the defendants on Plaintiff’s claim that he was passed over for a promotion as a Cook County Sheriff because he was a Republican and did not contribute to a Democratic sheriff’s campaign fund. Brown claimed that he was discriminated against as a consequence of his First Amendment political speech.  In rejecting Brown’s claim, the court applied Mt Healthy City School District Board of Education v. Doyle.  The court found that pursuant to Mt. Healthy, if Brown presented evidence that his political affiliation was a motivating factor in his being passed over, the burden would shift to the Defendant to show that Brown’s political affiliation was not the cause of  his not being promoted. For example, if the Defendants could show that no openings were available, Brown could not prevail, even if he would not have been promoted as a consequence of his failure to contribute, had an opening existed.  The evidence submitted to the court showed that whether one contributed to the campaign was not a factor in who got promoted and who did not.

Brown demonstrates that a negative impact alone is not enough to prevail in civil rights claims based upon the exercise of First Amendment Speech.  A successful litigant must show that he would not have sustained the employment consequence but for his speech.

Illinois Broadens Scope of Publication Liability in Defamation Cases to Include Reasonably Forseeable Unauthorized Repetitions

On February 10, 2012 the Illinois Appellate Court broadened the scope of publication for which a defendant may be liable in defamation cases.  In Tunca v Painter, the Court held that a defendant is not only liable for statements he made, but also for those repetitions of his statements by third parties which are reasonably foreseeable, or the natural and probable consequence of the defendant’s original statement. Thus, in Tunca, the Court extended defamation liability for statements made by third parties who then spread the defamatory statements to additional people. This enhanced scope is consistent with Restatement (Second) of Torts as well as the majority of other jurisdictions. New York and Missouri still adhere to the rule that there is no liability for unauthorized republications.  A prior Illinois decision from 1882, Clifford v Cochrane, held that the publication at issue must have been made by the defendant or by a third party with the defendant’s authorization.

Tunca brings Illinois in line with the majority of jurisdictions which extend defamation liability for the repetition of defamatory statements by third persons which are reasonably forseeable. This development is consistent with the body of recent tort law in general through which a plaintiff may recover damages which are the reasonably forseeable consequence of the defendant’s conduct.