Category Archives: Free Speech

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.

Illinois Court Rejects Heightened First Amendment Protections for Anonymous Internet Speech

On June 1, 2010, the Illinois Appellate Court in Maxon v. Ottawa Publishing Co.reversed a dismissal of a petition seeking the the identity of anonymous comment posters on a newspaper’s website.   The comments implied that the plaintiffs bribed officials to change a zoning ordinance.  The newspaper argued that the poster’s identity was constitutionally protected, but the court found that the First Amendment was not implicated.  Instead, the court ruled that Illinois Supreme Court Rule 224 permits petitioners to seek the identity of the anonymous poster prior to filing a Complaint for the purpose of identifying a potential defendant.  In a defamation action, Rule 224 requires that the potential plaintiff file a verified petition stating why the discovery is necessary and alleging facts with particularity that would establish a cause of action for defamation against the unnamed potential defendant.

Courts in other jurisdictions, such as New Jersey and Delaware, have held that there is a First Amendment right to speak anonymously and therefore require that a petition show: (1) that the poster has been notified of the potential claim so they have the opportunity to appear; (2) the exact statements purportedly made by the anonymous poster; (3) that the allegations meet a prima facie standard and can withstand a hypothetical motion for summary judgment.  This strict test protects the First Amendment right to speak anonymously from being chilled by meritless defamation claims.

However, the Maxon court rejected the argument “that anonymous internet speakers enjoy a higher degree of protection from claims of defamation than the private individual who has a cause of action against him for defamation.”  TheMaxon court found that the requirements of Rule 224 and that a plaintiff state a cause of action through factual allegations was sufficient to require disclosure of the identity of the anonymous poster and that  “once the petitioner has made out aprima facie case for defamation, the potential defendant has no First Amendment right to balance against the petitoner’s right to seek redress for damage to his reputation, as it is well settled that there is no First Amendment right to defame.”

One Justice dissented, reasoning that the greater requirement of demonstrating that the Complaint  would survive a motion for summary judgment “furthers the goal of compelling identification of anonymous internet speakers only as a means to redress legitimate misuses of speech rather than as a means to retaliate against or chill legitimate uses of speech.”

Maxon points to the divergent paths that courts are taking on the issue of anonymous internet posts.  Some courts have favored a First Amendment protection of anonymous speech, while Maxon favored potential plaintiffs seeking relief for defamatory speech.  These conflicting results will likely continue in the absence of additional state supreme court decisions.  Ultimately, the United States Supreme Court may have to address the speech rights of anonymous internet posters.

Seventh Circuit Allows Firefighter’s First Amendment and Due Process Case to Go Forward

On May 10, 2010, in Kodish v. Oakbrook Terrace Fire Protection District, the Seventh Circuit held that it was error to grant the defendant’s motion for summary judgment.  The court’s ruling allows the plaintiff’s claims, that he was terminated as a firefighter by the District in retaliation for exercising his First Amendment speech rights and that he had a property right in continued employment, to proceed.  The Plaintiff, Kodish, had been a firefighter for over one year. However, during four of his sixteen months of employment, he was on medical leave.  The applicable Illinois Fire Protection Act provides that the right to continued employment in the absence of just cause for termination attaches only after a firefighter “holds” his position for one year or longer.

The court found that “holding a position” for one year or longer did not require one to perform his job duties without interruption during that period.  Rather, the requirement was satisfied by a “colorable appointment coupled with performance of the duties of the position and remuneration therefor.”  Because Kodish met this standard notwithstanding his period of medical leave and interrupted employment, the court found that he had a property interest in continued employment.

With respect to Kodish’s First Amendment claim, the court found that given circumstantial evidence that the District Chief  had  anti-union animus and the District’s Board did not conduct its own investigation, but instead relied upon the Chief, it was error to hold that there was no genuine question of fact and that the District was entitled to Judgment as a matter of law.

The court’s decision is particularly noteworthy for its in-depth discussion of a public employee’s right to continued employment and its construction of what it means to “hold a position.”

Seventh Circuit Finds that Public Employee’s Termination Did Not Violate First Amendment

On May 18, 2010, the Seventh Circuit found that a public employee’s critical comments of his department did not implicate the First Amendment notwithstanding that they resulted in his termination.  Ogden v. Atterholt, et al.The Court found that the comments were made in the performance of the employee’s professional duties and not as a consequence of his rights as a citizen.  The Court based its decision on Garcetti v. Ceballos, where the United States Supreme Court found that public employers are permitted to exercise a significant amount of control over their employee’s words and conduct.  The Ogden court found that the speech at issue sought to implement changes within his department, in contrast to voicing concerns as a private citizen.  As the court found, “Garcettimade clear that public employees speaking pursuant to their official duties are speaking as employees, not citizens, and thus are not protected by the First Amendment regardless of the content of their speech.”

The court’s opinion is a straightforward application of Garcetti, a necessary case for anyone representing public employees to be aware of.