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.

PETA “Shocking Statements” Found Non-Defamatory

In Moore et al v. People for the Ethical Treatment of Animals, the Illinois Appellate Court held that statements made by PETA about a dog trainer and her company were non-defamatory.  The statements described plaintiffs as training dogs by placing electronic collars on their genitals and included descriptions that “the Bichon was literally lifted into the air, that’s how strong the shock was.”  The court found that the statements were not actionable because there was “no positive factual statement of cruelty to animals.”  The court noted that plaintiffs’ own literature described that their training methodology included placing multiple electronic collars on dogs’ necks and “hindquarters.”   The court reasoned that if the plaintiffs own literature did not demonstrate “animal cruelty and in fact touts the uniqueness of her dog training” then the PETA statements did not either.  Further, the court found that the statements were substantially true because genitals “reside in the hindquarters of dogs.”  In addition, the court found that the statements could be innocently construed because they were mere reactions and descriptions by witnesses to the training and witnesses could be “disturbed by a wide range of behavior and, therefore, cannot be accused of defamation when that person is reacting to such behavior.”

It could be argued that the fact that the plaintiffs’ use of electronic collars on the dogs’ “hindquarters” is substantively different than an accusation that they placed electronic collars to deliver a shock to dogs’ genitals, and that the latter constitutes criminal animal cruelty and unethical treatment but the former does not.  The statements alleged to be defamatory also raised the number of times a dog was shocked in the course of training.  Thus, another court could have found that plaintiffs’ admissions to using the multiple collar technique did not, in and of itself, show that the defamatory sting was substantially true or demonstrate an innocent construction.

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Phil Zisook on CBS News – Chicago

Speech Law Blog contributor Phil Zisook was interviewed by CBS News-Chicago for his impressions on a new lawsuit filed by a business owner against a reviewer who gave his services an “F” on angieslist.com.  Read the story here and see the video here.

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.