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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.

Teacher’s Assistant, School Principal and School District Protected From Defamation Claims

In Goldberg v. Brooks, the Illinois Appellate Court held that a teacher’s assistant, school principal and school district had immunity from claims of defamation relating to statements they made concerning the plaintiff’s performance as a school bus driver.  The assistant had reported to the school principal that the plaintiff drove her against her will outside the school district before beginning his route. The principal reported that statement and others to the driver’s employer. Those statements included that Plaintiff had attempted or threatened to run over two children crossing in front of his bus and that the Plaintiff was not a suitable person to work with children.

In finding the statements protected and privileged, the Court first found that the Defendants were each entitled to tort immunity. Specifically, the Illinois Tort Immunity Act expressly protects public entities for injuries caused by any action of its employees that is defamatory. It also protects public employees from liability for acts in the scope of employment caused by negligent misrepresentation or the providing of information. The Court also found that the statements of the assistant and principal were protected by a common law absolute privilege since the individual defendants, as public employees, had a duty to report misconduct.

Goldberg demonstrates the difficulty a plaintiff faces in successfully stating a cause of action against public officials for statements made in the course of their official duties.

High School Basketball Coach Loses Defamation SLAPP Suit

On October 18, 2010, the Illinois Appellate Court affirmed the dismissal of a high school basketball coach’s lawsuit for defamation, false light invasion of privacy and tortious interference with prospective economic advantage. The defendants had urged that plaintiff be removed from his positions as athletic director and coach in petitions to the school board, on the internet and in  radio broadcasts. The court found that the lawsuit violated the Illinois Citizen Participation Act (“CPA”) (735 ILCS 110/1 et seq.) and constituted a strategic lawsuit against public participation (“SLAPP”). Sandholm v Kuecker, et al. The statements at issue referred to Sandholm as “excessively abusive” and that he routinely bullied, humiliated and badgered players. The statements emanated from the defendants as the “Save Dixon Sports Committee.” One posting described plaintiff as a “psyco [sic]nut [who]talks in circles and is only coaching for his glory.” The post continued: “It is his twisted pshyco [sic] babble and his abuse of power that we have had enough of.”

In finding that the CPA barred plaintiff’s lawsuit, the court applied a two-part analysis emanating from City of Columbia v. Omni Outdoor Advertising, Inc., to determine whether the defendants’ acts were “genuinely aimed at procuring favorable government action.”  First, whether objective persons could have reasonably expected to procure a favorable government outcome through the campaign at issue. If so, the court does not consider defendants’ subjective intent. If, however, the objective inquiry is answered in the negative, the court considers whether defendants’ subjective intent was not to achieve a government outcome, but to interfere with plaintiff by using the governmental process itself.

The court found that the record demonstrated defendants’ repeated efforts to lobby the school board to remove plaintiff as athletic director and coach, even after the board initially denied their petition (the board ultimately reconsidered its ruling and removed plaintiff based upon the campaign).  The court referred to defendants’ internet postings and radio presentations as “part of the process of influencing the government to make a decision in petitioner’s favor” and described the campaign to remove plaintiff as “classic political speech.” Therefore, the court found that plaintiff did not disprove that objective persons in defendants’ position could reasonably believe that they could succeed in achieving their desired government outcome and it was unnecessary to consider the defendants’ subjective intent: “As the Act states, defendants are immune from liability, regardless of intent or purpose, except when not genuinely aimed at procurring favorable government action.” 735 ILCS 110/15. Significantly, the court found, that to constitute citizen participation protected by the CPA, the statements “did not need to be made within a petition or during a hearing, but needed only to be made within defendants’ participation in the government process, which includes acts of gaining public support to influence favorable government action.” Thus, the court affirmed the trial court’s dismissal of plaintiff’s lawsuit and award of attorneys’ fees to the defendants.

Sandholm demonstrates that the Illinois Citizen Participation Act continues to be applied broadly to encompass not only direct requests for governmental action, but also statements directed to the public at large which may influence government action. The scope of the Act continues to develop on a case-by-case basis.

Speech Law Blog contributor Phil Zisook presents Defamation Seminar online

Speech Law Blog contributor, attorney Phil Zisook, recently presented a one hour continuing legal education seminar on defamation law for Professional Education Resource Corporation and its MentorCLE program. The seminar was videotaped and is now viewable here. Continuing Legal Education Credit is available.

Merit Systems Protection Board Reverses Removal of Employee for Hatch Act E-mail

In Special Counsel v Mark, the Merit Systems Protection Board reversed a Hearing Officer’s decision ordering the removal (termination) of an IRS agent who sent an e-mail to multiple people, including co-workers, forwarding a message from then-presidential candidate Barack Obama, soliciting campaign contributions.  The e-mail added the following message to recipients: “FYI … if you want to help out the campaign.”  The employee was charged with a violation of the Hatch Act, a federal law which, among other things, prohibits federal employees from engaging in political conduct while on duty and using one’s official authority or influence for the purpose of interfering with or affecting the result of an election.  Violations of the Hatch Act carry the penalty of termination of federal employment unless the Board unanimously determines that a lesser penalty of not less than a 30 day suspension is warranted.

In Mark, the employee admitted to sending the e-mail and to violating the Hatch Act.  However, he argued that removal was not an appropriate penalty because only one e-mail was involved and the e-mail was not sent to subordinates over whom he had control or supervisory authority.  Further, there was no evidence that Mark was actively engaged in political fund-raising or other campaign activity apart from the one e-mail at issue.  The Board agreed that removal was inappropriate, but found:  “We consider any Htach Act violation by a federal employee, on duty and in government offices, to be a serious matter.”  The Board reversed the removal Order of the Hearing Officer, and instead ordered a 120 day suspension for the violation.

Marks demonstrates that Hatch Act violations by federal employees carry severe penalties, even for engaging in a single act of political activity on the job.  However, it is possible to successfully argue against the Act’s presumed penalty of removal.  In many Hatch Act cases, removal is found to be warranted because campaign contributions are requested from employees over whom the offender has supervisory control or authority over.  Because that factor was not present inMarks, the employee had a stronger argument for the imposition of a lesser penalty.  DLE attorney and Speech Law Blog contributor Phillip J. Zisook has also successfully argued against the Act’s presumed penalty of termination and recently negotiated a lesser penalty on behalf of a client charged with violating the Act.

Breach of Fiduciary Duty Claim Dismissed as SLAPP Suit

On October 20, 2010, the Illinois Appellate Court upheld the dismissal of company’s lawsuit against a former employee for breach of fiduciary duty and fraud as a SLAPP suit. Hytel Group, Inc. v. Butler.  The lawsuit was filed nearly six months subsequent to the employee’s firing, and four months after the employee filed a wage claim against the company.  The employee argued that after she was terminated she repeatedly tried to secure her last paycheck and was told that if she filed a wage claim, the company would “sue [her] ass.”  She further argued that the company’s lawsuit was, in fact, in retaliation of her pursuit of the wage claim, in violation of the Illinois Citizen Participation Act (Illinois’ anti-SLAPP statute).

The company countered that a wage claim was a purely private matter to which the Citizen Protection Act did not apply.  However, the court found that the Act was to be construed liberally and that the employee’s wage claim was “an exercise of her right to petition for redress of grievances.”  The company also argued that its claims were unrelated to the employee’s wage claims and therefore did not impinge the employee’s First Amendment right to petition for redress of her grievance.  However, the court held that the focus was whether the company’s claims were in retaliation for the wage claims, rather than whether they were directly related.

Finally, the company argued that applying the Act is such a way would have the unintended consequence of eliminating all counterclaims, because every counterclaim filed after a movant’s initial claim would be deemed a response to the initial claim. The court rejected this argument as well, noting that the court has a role in determining whether a counterclaim is brought with “retaliatory intent.”  For example, “retaliatory intent may be inferred when a claim lacking merit is filed shortly after the exercise of protected rights” but if a counterclaim “states a potentially valid cause of action and seeks damages within the ordinary range recoverable  . . . and there are no other facts suggesting an intent to chill the other party’s exercise of first amendment right to seek redress, then the later claim has not been brought ‘in response to’ the other party’s exercise of first amendment rights within the meaning of the Act.”

Hytel demonstrates the sweeping protections of the Citizen Participation Act and how the Act may be used outside the traditional parameters of defamation actions resulting in the dismissal of retaliatory lawsuits.  The Illinois Act is one of the broadest of its kind in the country, and the interpretation and scope of the Act are likely to be the subject of further judicial opinion.  Whether the court’s determination of a party’s “intent” in bringing a claim or counterclaim can be clearly established remains to be seen, as well as how courts will handle scenarios where a party may have mixed motives.

Illinois Court SLAPPs Condo Association in Mezuzah Case

On September 30, 2010, in Shoreline Towers Condominium Association v. Gassman, the Illinois Appellate Court held that a condominium association’s lawsuit against a unit owner for defamation and other counts violated the Illinois Citizen Participation Act (anti-SLAPP Law).  The unit owner, Debra Gassman, had challenged a condominium bylaw which precluded residents from placing personal objects in common areas.  Pursuant to the bylaw, the association removed a mezuzah Gassman attached to the doorpost of her condominium. While Gassman filed various civil rights petitions to challenge the rule, maintaining that it constituted religious discrimination, she also provided information to the Jewish Star newspaper and engaged in other conduct criticizing the rule as anti-Semitic and made disparaging comments regarding the President of the association. The condominium association’s lawsuit sought injunctive relief and  damages.  The trial court dismissed the counts of the association’s lawsuit brought in its own name, finding it to be a strategic lawsuit against public participation.  It denied the motion to dismiss the counts of the suit that sought relief on behalf of the condominium president.  In affirming the dismissal of the association’s counts, the Appellate Court held: “Contrary to Shoreline’s argument, the Act does not protect only public outcry regarding matters of significant public concern, nor does it require the use of a public forum in order for a citizen to be protected.  Rather, it protects from liability all constitutional forms of expression and participation in pursuit of favorable government action.”  The Court also affirmed an award of attorney’s fees to Gassman.

Shoreline Towers demonstrates that claims of defamation against individuals exerting their speech rights to participate in or petition government are immune from liability unless the plaintiff  produces clear and convincing evidence that the acts of the moving party are not in furtherance of such rights. Particularly, where there is evidence of  underlying claims challenging laws as unconstitutional or other petitions for government action, there is a great burden on parties seeking to silence such citizen participation through lawsuits. As Shoreline demonstrates, because most anti-SLAPP statutes provide for attorneys’ fees in the event of meritorious claims, there is a heavy price to pay for retaliatory lawsuits seeking to penalize persons for exercising their constitutional rights.

Seventh Circuit Stops Enforcement of Ordinance Restricting Adult Bookstore Operating Hours

On October 1, 2010, the United States Court of Appeals for the Seventh Circuit affirmed the entry of a preliminary injunction and blocked the enforcement of an Indianapolis ordinance restricting the operating hours of adult bookstores.  Annex Books, Inc. v. City of Indianapolis, Indiana.  The ordinance required adult bookstores to close between midnight and 10:00 a.m., Monday through Saturday and all day on Sunday.  The City claimed that the closure would help reduce crime.  However, the bookstores provided arrest data showing that the number of arrests in Indianapolis either stayed the same or even rose after the ordinance became effective.  In defense of the ordinance, the City only presented a study showing that an ordinance dispersing adult bookstores, but not regulating their hours, reduced crime in Sioux City, Iowa.  The court recognized the distinction between that study and the Indianapolis ordinance, and found that the bookstores’ data implied that the restriction on hours did not measurably benefit a reduction in crime.  Thus, the Court held that the City did not meet constitutional scrutiny, i.e., that the law furthered an important government interest in a way that was substantially related to that interest.

Annex Books demonstrates that municipalities seeking to regulate the operation of adult-oriented businesses through time, place and manner restrictions must satisfy “intermediate scrutiny” in order for a restriction to be constitutional.  Indianapolis’ complete lack of proof on this point warranted the preliminary injunction being entered against enforcement of the ordinance.

Seventh Circuit Says No to Judge’s Request to Endorse Candidates

In Siefert v Alexander, the Seventh Circuit held that a Wisconsin Circuit Court Judge, John Siefert, did not have a First Amendment right to endorse candidates for office in light of  a prohibition contained in the Wisconsin Code of Judicial Conduct. The district court had found that the code provisions prohibiting a judge or judicial candidate from announcing a partisan affiliation, endorsing partisan candidates and personally soliciting contributions violated the First Amendment.  The Seventh Circuit agreed that the State’s prohibitions were content-based and affirmed the district court’s finding that the prohibition on speech announcing party affiliation was not narrowly tailored to serve a compelling state interest.  It held that a less restrictive alternative of recusal in the event of bias was an available remedy which would not ban such speech outright.

However, the Court found that the prohibitions against partisan candidate endorsements was permissible and did not violate Judge Siefert’s speech rights. Rather than apply strict scrutiny, the court applied a balancing approach to this prohibition.  It found that Wisconsin had an interest in regulating the non-campaign political activities of its judges and that prohibiting endorsements served that interest. The majority likened this restriction to the regulation of political speech in the workplace, such as under the Hatch Act, where federal employees are prohibited from engaging in political activity on the job.  Thus, the Court reasoned that a “more deferential approach to government prohibition” was appropriate.

With respect to the solicitation ban, the Court found that the prohibition was a content-based restriction but found that the ban was narrowly tailored to preserve judicial impartiality and prevent corruption.

In a dissent, Judge Rovner disagreed that a lesser standard than strict scrutiny was appropriate with respect to the political endorsement ban since it was a clearly a content-based restriction.  She noted: “The majority concedes that under a strict scrutiny analysis, the regulation . . . would fail. Rather than reach that unpalatable result, however, it has manufactured a new balancing test not heretofore applied to the First Amendment rights of elected judges.”  Judge Rovner explained that the Wisconsin rules permitted judges to make non-partisan endorsements  and that the under-inclusiveness of the provision was fatal to the rule’s constitutionality.  She explained her disagreement with the majority’s analysis:  “Thus, although elected judges are not like other elected officials, they are also not like public employees subject to Pickering [v. Board of Ed. of Township High School Dist. 205, 391 U.S. 563 (1968)] — that is, employees who answer only to the government as employer and not to the public at large.”

Judge Rovner’s dissent is convincing.  If the rules constitute content-based speech restrictions, strict scrutiny should apply.