Court Limits Sandy Hook False-Flag Protagonist Freedom of Speech
11 views
Skip to first unread message
Bob Hurt
Jun 18, 2019, 4:40:42 PM6/18/19
to Lawmen
A Sandy Hook victim's parent, Lenny Pozner, just won a defamation
judgment against James Fetzer and Mike Palecek in Dane County
Wisconsin Circuit Court for Fetzer's book Nobody
Died at Sandy Hook (2015)
denouncing as a false-flag fraud the Sandy Hook shooting massacre
of 6 teachers and 20 first-grade students.
See the Fetzer/Palecek
motion for summary judgment which the court denied.
US Constitution First Amendment:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
That amendment does not prohibit the
state legislatures from making laws abridging freedom of speech,
but state Constitutions contain a similar provision that does. For
example, here is the provision in Florida's current
constitution, Article I Declaration of Rights:
SECTION 4. Freedom of speech and press.—Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated.
I don't see how a defamation charge can
arise from a denouncing the government for staging and acting a
false flag incidents using paid crisis actors, and for denouncing
any of the crisis actors for their roles in the incident. Even if
the incident was genuine, government could have staged it by
pretending to engage in some crisis training in the vicinity, as
happened at the Tsarev Boston bombing or, apparently, Sandy Hook.
I don't see how articulating the facts and reasoning constitutes
defamation. That's nothing more than whistle-blowing, and it's
wrong to punish whistle-blowers...
... unless they blow the whistle loudly
in another's ear, in other words, engage in speech injuriously
with false assertions, bad motives, or unjustifiable ends.
Apparently that's what Fetzer and Palecek did. They will now
learn an important lesson about the limit of their freedom of
speech rights. The Wisconsin Constitution, annotated,
provides this
rendering of its freedom of speech and libel section (note
the case law explaining the matter):
Free speech; libel. Section 3. Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libel, the truth may be given in evidence, and if it shall appear to the jury that the matter charged as libelous be true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
free
speech
A city can validly
prohibit picketing private homes when the subject of the
picketing has no relationship to any activity carried on there.
Wauwatosa v. King, 49 Wis. 2d 398, 182 N.W.2d 530 (1971).
A journalist has a
constitutional right to the privilege not to disclose sources of
information received in a confidential relationship, but when
such confidence is in conflict with the public's overriding need
to know, it must yield to the interest of justice. The state
need not affirmatively demonstrate proof of compelling need or
lack of an alternative method of obtaining the information
sought when the crimes involved and the prevention of repetition
of those crimes constitute a compelling need. State v. Knops, 49 Wis. 2d 647, 183 N.W.2d 93 (1971).
Only that portion of
an obscenity ordinance defining obscenity in Roth-Memoirs terms
is unconstitutional, and the remainder is a viable, effective
ordinance when supplemented by the supreme court's Chobot obscenity
definition “community standards" definition. Madison v. Nickel, 66 Wis. 2d 71, 223 N.W.2d 865 (1974).
Prohibiting the
solicitation of prostitutes does not violate the right of free
speech. Shillcutt v. State, 74 Wis. 2d 642, 247 N.W.2d 694 (1976).
When a radio talk show
announcer was fired for allowing talk show guests to slander
minorities, the announcer's right of free speech was not
infringed. Augustine v. Anti-Defamation Lg. B'nai B'rith, 75 Wis. 2d 207, 249 N.W.2d 547 (1976).
When the record did
not indicate that a tenant union provided inadequate, unethical,
or complex legal advice to tenants, the tenant union's
information service was protected by free speech guarantees.
Hopper v. Madison, 79 Wis. 2d 120, 256 N.W.2d 139 (1977).
The public's right to
be aware of all facts surrounding an issue does not interfere
with the right of a newspaper to reject advertising. Wis. Assoc.
of Nursing Homes v. Journal Co. 92 Wis. 2d 709, 285 N.W.2d 891 (Ct.
App. 1979).
Procedures to
determine whether a journalist may properly invoke privilege to
prevent disclosure of confidential sources set. Green Bay
Newspaper v. Circuit Court, 113 Wis. 2d 411, 335 N.W.2d 367 (1983).
The right of free
speech applies against state action, not private action. Jacobs
v. Major, 139 Wis. 2d 492, 407 N.W.2d 832 (1987).
News gatherers have no
constitutional right of access to disaster scenes beyond that
accorded the general public. City of Oak Creek v. King, 148 Wis. 2d 532, 436 N.W.2d 285 (1989).
Commercial speech is
protected by the 1st amendment. The government must show that a
restriction directly advances a substantial interest for it to
be constitutional. City of Milwaukee v. Blondis, 157 Wis. 2d 730, 460 N.W.2d 815 (Ct.
App. 1990).
A sentence based on an
activity protected by the 1st amendment is constitutionally
invalid, but when a sufficient link to criminal activity is
shown, the activity is no longer protected. State v. J.E.B. 161 Wis. 2d 655, 469 N.W.2d 192 (Ct.
App. 1991).
Although music is
accorded a presumption of being protected speech, an ordinance
prohibiting all unreasonable noise was not an unconstitutionally
vague encroachment on free speech. City of Madison v. Bauman, 162 Wis. 2d 660, 470 N.W.2d 296 (1991).
An employee's free
speech rights were not violated when the employer's need for
confidentiality and discipline clearly outweighed the employee's
interest in disclosing confidential information. Barnhill v.
Board of Regents, 166 Wis. 2d 395, 479 N.W.2d 917 (1992).
The 1st amendment
rights of inmates are subject to limitation and regulation.
Interception and withholding of inter-inmate correspondence was
reasonable. Yoder v. Palmeri, 177 Wis. 2d 756, 502 N.W.2d 903 (Ct.
App. 1993).
Whether a restriction
on nude dancing is overbroad depends on whether the ordinance is
targeted at curbing only harmful secondary effects of exotic
clubs. Fond du Lac County v. Mentzel, 195 Wis. 2d 313, 536 N.W.2d 160 (Ct.
App. 1995), 94-1924.
The state's power to
ban the sale of alcoholic beverages under the 21st amendment
includes the lesser power to ban nude dancing on premises where
alcohol is served. Schultz v. City of Cumberland, 195 Wis. 2d 554, 536 N.W.2d 192 (Ct.
App. 1995), 94-3106.
Restrictions upon the
free speech rights of inmates are discussed. Lomax v. Fiedler, 204 Wis. 2d 196, 554 N.W.2d 841 (Ct.
App. 1996), 95-2304.
A zoning ordinance
that did not set aside any area where an adult bookstore would
be allowed was impermissible. Town of Wayne v. Bishop, 210 Wis. 2d 218, 565 N.W.2d 201 (Ct.
App. 1997), 95-2387.
A public nudity
ordinance will meet a challenge that it is facially overbroad if
it is drafted in a manner that addresses the secondary effects
of adult entertainment without suffocating protected expression
in a real and substantial manner. Lounge Management v. Town of
Trenton, 219 Wis. 2d 13, 580 N.W.2d 156 (1998), 96-1853.
Obscenity is, and has
been, an abuse of the right to speak freely on all subjects
under the state constitution. The breadth of protection offered
by the Wisconsin constitution in the context of obscenity is no
greater than that afforded by the 1st amendment. County of
Kenosha v. C. & S. Management, Inc. 223 Wis. 2d 373, 588 N.W.2d 236 (1999), 97-0642.
It may be appropriate
to consider context in determining whether a communication
“expressly advocates" the election, defeat, recall, or retention
of a clearly identified candidate or a particular vote at a
referendum, within the meaning of s. 11.01 (16) (a) 1. Elections
Board v. Wisconsin Manufacturers & Commerce, 227 Wis. 2d 650, 597 N.W.2d 721 (1999), 98-0596.
When an ordinance
regulates 1st amendment activities, the government normally has
the burden of defending the regulation beyond a reasonable
doubt, but when prior restraints are concerned and the
government action at issue is the review of an applicant's
qualifications for a business license, the city does not bear
the burden of going to court to effect the denial of a license,
nor does it bear the burden of proof once in court. City News
& Novelty, Inc. v. City of Waukesha, 231 Wis. 2d 93, 604 N.W.2d 870 (Ct.
App. 1999), 97-1504.
Unfiled pretrial
materials in a civil action between private parties are not
public records and neither the public nor the press has either a
common law or constitutional right of access to those materials.
State ex rel. Mitsubishi v. Milwaukee County, 2000 WI 16, 233 Wis. 2d 1, 605 N.W.2d 868, 99-2810.
A town ordinance
prohibiting nudity on premises operating under a retail Class B
liquor license was constitutional under City
of Erie v. Pap's A.M. 529 U.S. 277, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000).
Urmanski v. Town of Bradley, 2000 WI App 141, 237 Wis. 2d 545, 613 N.W.2d 905, 99-2330.
Only a “true threat"
is punishable under statutes criminalizing threats. A true
threat is a statement that a speaker would reasonably foresee
that a listener would reasonably interpret as a serious
expression of a purpose to inflict harm, as distinguished from
hyperbole, jest, innocuous talk, expressions of political views,
or other similarly protected speech. It is not necessary that
the speaker have the ability to carry out the threat. State v.
Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, 99-1924.
Application of the
disorderly conduct statute to speech alone is permissible under
appropriate circumstances. When speech is not an essential part
of any exposition of ideas, when it is utterly devoid of social
value, and when it can cause or provoke a disturbance, the
disorderly conduct statute can be applicable. State v. A.S., 2001 WI 48, 243 Wis. 2d 173, 626 N.W.2d 712, 99-2317.
Purely written speech,
even if it fails to cause an actual disturbance, can constitute
disorderly conduct, but the state has the burden to prove that
the speech is constitutionally unprotected “abusive" conduct.
“Abusive" conduct is conduct that is injurious, improper,
hurtful, offensive, or reproachful. True threats clearly fall
within the scope of this definition. State v. Douglas D. 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, 99-1767.
Although the 1st
amendment prohibits law enforcement officials from prosecuting
protected speech, it does not necessarily follow that schools
may not discipline students for such speech. Like law
enforcement officials, educators may not punish students merely
for expressing unpopular viewpoints, but the 1st amendment must
be applied in light of the special characteristics of the school
environment. Schools may limit or discipline conduct that for
any reason materially disrupts classwork or involves substantial
disorder or invasion of the rights of others. State v. Douglas
D. 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, 99-1767.
A county public
assembly ordinance that contained a 60-day advance filing
requirement, a 45-day processing time period, a prohibition
against advertising, promoting, and selling tickets before a
license was issued, a required certification by the zoning
administrator, and a license fee in excess of $100 per
application was not narrowly tailored to achieve a significant
government interest and violated the 1st amendment free speech
guarantee. Sauk County v. Gumz, 2003 WI App 165, 266 Wis. 2d 758, 669 N.W.2d 509, 02-0204.
The exception to
protection for “true threats" is not limited to threats directed
only at a person or group of individuals, nor is it limited to a
threat of bodily harm or death. State v. Robert T. 2008 WI App 22, 307 Wis. 2d 488, 746 N.W.2d 564, 06-2206.
Free speech and the
state's campaign finance law are discussed in light of Buckley
v. Valeo. 65 Atty. Gen. 145 (1976).
Car card space on a
city transit system is not a free speech forum. Lehman v. City
of Shaker Heights, 418 U.S. 298, 94 S. Ct. 2714, 41 L. Ed. 2d 770 (1974).
A flag misuse statute
was unconstitutional as applied to a flag hung upside down with
a peace symbol affixed when the context imbued the display with
protected elements of communication. Spence v. State of
Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974).
Commercial advertising
is protected free speech. Bigelow v. Virginia, 421 U.S. 809, 95 S. Ct. 2222, 44 L. Ed. 2d 600 (1975).
Campaign expenditure
limitations unduly restrict political expression. Contribution
limits impose serious burdens on free speech only if they are so
low as to prevent candidates and political committees from
amassing the resources necessary for effective advocacy, Buckley
v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976).
See also McConnell v.
Federal Elections Commission, 540 U.S. 93, 124 S. Ct. 619, 157 L Ed. 2d 491
(2003) (Reversed in part by Citizens
United, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010)),
Randall v. Sorrell, 548 U.S. 230, 126 S. Ct. 2479, 165 L. Ed. 2d 482 (2006).
Federal Election Commission v. Wisconsin Right to Life, Inc. 551 U.S. 449, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (2007).
McCutcheon v. Federal Election Commission, 572 U.S. ___, 134 S. Ct. 1434, 188 L. Ed. 2d 468 (2014).
Prior restraint of
news media to limit pretrial publicity is discussed. Nebraska
Press Association v. Stuart, 427 U.S. 539, 96 S. Ct. 2791, 49 L. Ed. 2d 683 (1976).
A board of education
may not prevent a non-union teacher from speaking of a
bargaining issue at an open meeting. Madison School District v.
Wisconsin Employment Commission, 429 U.S. 167, 97 S. Ct. 421, 50 L. Ed. 2d 376 (1976).
Corporations' free
speech rights are discussed. First National Bank of Boston v.
Bellotti, 435 U.S. 765, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978).
The 1st amendment
prohibited the prosecution of a newspaper for publishing
confidential proceedings of a commission investigating judicial
conduct. Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S. Ct. 1535, 56 L. Ed. 2d 1 (1978).
Collective activity
undertaken to obtain meaningful access to courts is a
fundamental right protected by the 1st amendment. In re Primus, 436 U.S. 412, 98 S. Ct. 1893, 56 L. Ed. 2d 417(1978).
A newspaper office may
be searched for evidence of a crime even though the newspaper is
not suspected of a crime. Zurcher v. Stanford Daily, 436 U.S. 547, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978).
The 1st amendment does
not guarantee the public's or media's right of access to sources
of information within government control. Houchins v. KQED, Inc. 438 U.S. 1, 98 S. Ct. 2588, 57 L. Ed. 2d 553 (1978).
Public employee
private, as well as public, speech is protected. Givhan v.
Western Line Consol. School Dist. 439 U.S. 410, 99 S. Ct. 693, 58 L. Ed. 2d 619 (1979).
The press and public
have no constitutional right to attend a pretrial suppression
hearing when the defendant demands a closed hearing to avoid
prejudicial publicity. Gannett Co. v. DePasquale, 443 U.S. 368, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979).
A public utility had
the free speech right to enclose with bills inserts discussing
controversial issues of public policy. Consolidated Edison v.
Public Service Commission, 447 U.S. 530, 100 S. Ct. 2326, 65 L. Ed. 2d 319 (1980).
For restrictions on
commercial speech to stand a constitutional challenge, the
restriction must not be more extensive than is necessary to
serve the government's interests. Central Hudson Gas v. Public
Service Commission of New York, 447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980).
An ordinance
prohibiting a live dancing exhibition violated the free speech
clause. Schad v. Mount Ephraim, 452 U.S. 61, 101 S. Ct. 2176, 68 L. Ed. 2d 671 (1981).
A statute that
prohibits placing unstamped mailable matter in any box approved
by the U.S. postal service does not violate the free speech
clause. U.S. Postal Service v. Greenburgh Civic Assn. 453 U.S. 114, 101 S. Ct. 2676, 69 L. Ed. 2d 517 (1981).
An ordinance that
placed substantial restrictions on billboards other than those
used for onsite commercial advertising violated the free speech
clause. Metromedia v. San Diego, 453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981).
A public university
that provided a forum to many student groups but excluded
religious student groups violated the principle that state
regulation of speech should be content neutral. Widmar v.
Vincent, 454 U.S. 263, 102 S. Ct. 269, 70 L. Ed. 2d 440 (1981).
An ordinance
regulating the sale of drug paraphernalia was constitutional.
Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982).
There are
constitutional limits on the state's power to prohibit
candidates from making promises in the course of an election
campaign. Some promises are universally acknowledged as
legitimate, indeed indispensable to decisionmaking in a
democracy. Brown v. Hartlage, 456 U.S. 45, 102 S. Ct. 1523, 71 L. Ed. 2d 732 (1982).
A school board's
discretion to determine the contents of school libraries may not
be exercised in a narrowly partisan or political manner. Board
of Education v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982).
States are entitled to
greater leeway in the regulation of pornographic depictions of
children. New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982).
The discharge of a
public employee did not deny free speech rights, under the facts
of the case. Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983).
A sidewalk is a
“public forum". The prohibition of leaflets denied free speech.
U.S. v. Grace, 461 U.S. 171, 103 S. Ct. 1702, 75 L. Ed. 2d 736 (1983).
The government's
substantial interest in maintaining the park in the heart of the
capital in an attractive condition sustained a regulation
against camping or overnight sleeping in public parks. Free
speech was not denied. Clark v. Community for Creative
Non-violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984).
A school district did
not violate the free speech clause by disciplining a student for
giving an offensively lewd and indecent speech at a school
assembly. Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986).
School administrators
may exercise control over style and content of student speech in
school-sponsored activities as long as control is reasonably
related to “legitimate pedagogical concerns." Hazelwood School
District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988).
A state may not
categorically ban targeted, direct-mail advertising by
attorneys. Shapero v. Kentucky Bar Assn. 486 U.S. 466, 108 S. Ct. 1916, 100 L. Ed. 2d 475 (1988).
A Brookfield ordinance
prohibiting picketing of individuals' residences was not
facially invalid. Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988).
A protester's
conviction for flag desecration violated the right of free
speech. Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989).
The 1st amendment
prohibits employment decisions concerning low-level public
employees from being based upon political patronage. Rutan v.
Republican Party of Illinois, 497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990).
A public indecency
statute barring public nudity and requiring dancers to wear
pasties and G-strings did not violate the right of free
expression. Barnes v. Glen Theatre, Inc. 501 U.S. 560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991).
Press freedom does not
confer a constitutional right to disregard promises that would
otherwise be enforceable under state law. A possible promissory
estoppel action for breaching an agreement to keep a source
confidential was not barred. Cohen v. Cowles Media Co., 501 U.S. 663, 111 S. Ct. 2513, 115 L. Ed. 2d 586 (1991).
A county ordinance
requiring permits for all parades, public assemblies, and other
private uses of public property that gave the county
administrator the power to adjust permit fees to meet police
expenses incident to the permitted activity violated the 1st
amendment because the ordinance lacked narrowly drawn,
reasonable, and definite standards guiding the administrator and
because it impermissibly required an analysis of the content of
the applicant's message. Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed. 2d 101 (1992).
Exclusion of “fighting
words" from free speech protections did not justify a city
ordinance banning displays that convey messages of racial,
gender, or religious intolerance. A city may not selectively ban
fighting words based on the particular idea expressed. R.A.V. v.
St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992).
A city ban on
newsracks for commercial publications violated the right to free
speech when the city failed to establish a “reasonable fit"
between its legitimate interest in safety and aesthetics and the
ban. Cincinnati v. Discovery Network, 507 U.S. 410, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (1993).
Denial of the use of a
school building to a church seeking to exhibit a film when a
nonsectarian group would have been allowed the use of the
building to show a secular film on the same topic violated the
right of free speech. Lamb's Chapel v. Center Moriches Union
Free School Dist., 508 U.S. 384, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993).
For a government
employee's speech to be protected, the speech must be on a
matter of public concern and the employee's interest in
expressing himself or herself on the matter must outweigh the
injury the speech could cause the employer in providing public
services through its employees. Waters v. Churchill, 511 U.S. 661, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994).
A city's ban on almost
all residential signs violated the right of free speech. City of
LaDue v. Gilleo, 512 U.S. 43, 114 S. Ct. 2038, 129 L. Ed. 2d 36 (1994).
An Ohio statute
prohibiting the distribution of anonymous campaign literature
violated the right of free speech. McIntyre v. Ohio Elections
Commission, 514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995).
The selection of the
makeup a parade is entitled to free speech protection. A parade
sponsor's free speech rights include the right to deny a group's
participation who intends to convey a message contrary to the
sponsor's. Hurley v. Irish-American Gay Group, 515 U.S. 557, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995).
A state university
that funded printing a broad range of student publications but
denied funding for a student religious group's publication
violated free speech guarantees and was not excused by the need
to comply with the establishment of religion clause. Rosenberger
v. University of Virginia, 515 U.S. 819, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995).
As with government
employees whose employment may not be terminated for exercising
1st amendment rights, independent contractors may not have their
government contracts terminated for refusing to support a
political party or its candidates or for exercising free speech
rights. Board of County Commissioners v. Umbehr, 518 U.S. 668, 116 S. Ct. 2342, 135 L. Ed. 2d 843 (1996)
and O'Hare Truck Service v. Northlake, 518 U.S. 712, 116 S. Ct. 2353, 135 L. Ed. 2d 874 (1996).
Content-neutral size
restrictions placed on a banner proclaiming “Church/State —
Separate," after it was hung in the state capitol rotunda,
served the state's significant interest in protecting the
capitol from visual degradation. That a Christmas tree and
Menorah in the rotunda were allowed to remain without
restriction did not prove content-based discrimination. Gaylor
v. Thompson, 939 F. Supp. 1363 (1996).
The constitutionality
of injunctions restraining actions by abortion clinic protesters
is discussed. Schenck v. Pro-Choice Network, 519 U.S. 357, 117 S. Ct. 855, 137 L. Ed. 2d 1 (1997).
But see McCullen v. Coakley, ___ U.S. ___, 134 S. Ct. 2518, 189 L.E.2d
502 (2014).
Assessments against
commodity producers under an agricultural marketing order to pay
for the costs of generic advertising did not violate the
producers' free speech rights. Glickman v. Wileman Brothers
& Elliot, Inc. 521 U.S. 457, 117 S. Ct. 2130, 138 L. Ed. 2d 585 (1997).
A public broadcasting
network's decision to exclude from a televised debate an
independent political candidate who had little public support
was a reasonable, viewpoint-neutral exercise of journalistic
discretion. Arkansas Educational TV v. Forbes, 523 U.S. 666, 118 S. Ct. 1633, 140 L. Ed. 2d 875 (1998).
It is a violation of
the 4th amendment for police to bring members of the media or
other 3rd persons into a home during the execution of a warrant
when the presence of the 3rd persons in the home is not in aid
of the execution of the warrant. Wilson v. Layne, 526 U.S. 603, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999).
The financing of
student organizations through mandatory student fees does not
violate the 1st amendment if viewpoint neutrality is the
operational principal. Board of Regents v. Southworth, 529 U.S. 217, 120 S. Ct. 1346, 146 L. Ed. 2d 193 (2000).
An ordinance
prohibiting public nudity was valid when the government's
asserted interest was combating the secondary effect associated
with adult entertainment and was unrelated to suppression of the
erotic message of nude dancing. Erie v. Pap's A.M. 529 U.S. 277, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000).
A statute that makes
it unlawful within regulated areas near a health care facility
for any person to knowingly approach within eight feet of
another person, without that person's consent, for the purpose
of passing a leaflet or handbill to, displaying a sign to, or
engaging in oral protest, education, or counseling with such
other person is constitutional. Hill v. Colorado, 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000)
Inmate to inmate
correspondence that includes legal assistance does not receive
more 1st amendment protection than other correspondence. Shaw v.
Murphy, 532 U.S. 223, 121 S. Ct. 1475, 149 L. Ed. 2d 420 (2001).
The 1st amendment
protects speech that discloses the content of an illegally
intercepted telephone call when that speech was by a person not
a party to the interception. Bartnicki v. Vopper, 532 U.S. 514, 121 S. Ct. 1753, 149 L. Ed. 2d 787 (2001).
Speech discussing
otherwise permissible subjects cannot be excluded from a limited
public forum, such as a school, on the grounds that it is
discussed from a religious viewpoint. A club's meetings, held
after school, not sponsored by the school, and open to any
student who obtained parental consent, did not raise an
establishment of religion violation that could to justify
content-based discrimination against the club. Good News Club v.
Milford Central School, 533 U.S. 98, 121 S. Ct. 2093, 150 L. Ed. 2d 151 (2001).
A village ordinance
making it a misdemeanor to engage in door-to-door advocacy
without first registering with the village and obtaining a
permit violated the 1st amendment. Watchtower Bible and Tract
Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 122 S. Ct. 2080, 153 L. Ed. 2d 205 (2002).
A state, consistent
with the 1st amendment, may ban cross burning carried out with
the intent to intimidate, but a Virginia statute treating any
cross burning as prima facie evidence of intent to intimidate
was unconstitutional. Instead of prohibiting all intimidating
messages, a state may choose to regulate this subset of
intimidating messages in light of cross burnings' long and
pernicious history as a signal of impending violence. Virginia
v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L.E.2d
535 (2003).
Regulation of
charitable subscriptions, barring fees in excess of a prescribed
level, effectively imposes prior restraints on fundraising, and
is incompatible with the 1st amendment. However, any and all
reliance on the percentage of charitable donations fundraisers
retain for themselves is not prohibited. While bare failure to
disclose that information to potential donors does not establish
fraud, when nondisclosure is accompanied by intentionally
misleading statements designed to deceive the listener, a fraud
claim is permissible. Illinois v. Telemarketing Associates, Inc. 538 U.S. 600, 123 S. Ct. 1829, 155 L. Ed. 2d 793 (2003).
The 1st amendment
requires that an adult business licensing scheme assure prompt
judicial review of an administrative decision denying a license.
An ordinance providing that the city's final decision may be
appealed to state court pursuant to state rules of civil
procedure did not violate the 1st amendment. City of Littleton
v. Z. J. Gifts D-4, L.L.C, 541 U.S. 774, 124 S. Ct. 2219, 159 L. Ed 2d 84 (2004).
While a governmental
employer may impose certain restraints on the speech of its
employees that would be unconstitutional if applied to the
general public, the courts have recognized the right of
employees to speak on matters unrelated to their employment and
to speak on matters of public concern. Because a police
officer's off-duty activities were not related to a matter of
public concern and were designed to exploit his employer's
image, they were not protected under the 1st amendment. San
Diego v. Roe, 543 U.S. 77, 125 S. Ct. 521, 160 L. Ed 2d 410(2004).
When public employees
make statements pursuant to their official duties, the employees
are not speaking as citizens for 1st amendment purposes, and the
constitution does not insulate their communications from
employer discipline. Restricting speech that owes its existence
to a public employee's professional responsibilities does not
infringe any liberties the employee might have enjoyed as a
private citizen. It simply reflects the exercise of employer
control over what the employer itself has commissioned or
created. Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006).
Schools may take steps
to safeguard those entrusted to their care from speech that can
reasonably be regarded as encouraging illegal drug use. School
officials did not violate the 1st amendment by confiscating a
pro-drug banner and suspending the student responsible for it.
Morse v. Frederick, 551 U.S. 393, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007).
Enforcement of a rule
adopted by a statewide membership corporation organized to
regulate interscholastic sports among its members that
prohibited high school coaches from recruiting middle school
athletes did not violate the 1st amendment. There is a
difference of constitutional dimension between rules prohibiting
appeals to the public at large and rules prohibiting direct,
personalized communication in a coercive setting. Bans on direct
solicitations are more akin to a conduct regulation than a
speech restriction, but restrictions are limited to conduct that
is inherently conducive to overreaching and other forms of
misconduct. Tennessee Secondary School Athletic Association v.
Brentwood Academy, 551 U.S. 291, 127 S. Ct. 2489, 168 L. Ed. 2d 166 (2007).
Offers to provide or
requests to obtain child pornography are categorically excluded
from the 1st amendment. Offers to deal in illegal products or
otherwise engage in illegal activity do not acquire 1st
amendment protection when the offeror is mistaken about the
factual predicate of his or her offer. Impossibility of
completing the crime because the facts were not as the defendant
believed is not a defense. U.S. v. Williams, 553 U.S. 285, 128 S. Ct. 1830; 170 L. Ed. 2d 650 (2008).
The free speech clause
of the 1st amendment restricts government regulation of private
speech; it does not regulate government speech. Although a park
is a traditional public forum for speeches and other transitory
expressive acts, the display of a permanent monument in a public
park is not a form of expression to which forum analysis
applies. Instead, the placement of a permanent monument in a
public park is best viewed as a form of government speech and is
therefore not subject to scrutiny under the free speech clause
of the 1st amendment. Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 129 S. Ct. 1125, 172 L. Ed. 2d 853 (2009).
The government may
regulate corporate political speech through disclaimer and
disclosure requirements, but it may not suppress that speech
altogether. Federal law prohibiting corporations and unions from
using their general treasury funds to make independent
expenditures for speech defined as an “electioneering
communication" or for speech expressly advocating the election
or defeat of a candidate is unconstitutional. Citizens United v.
Federal Election Commission, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010).
While the prohibition
of animal cruelty itself has a long history in American law,
depictions of animal cruelty are not outside the reach of the
1st amendment altogether. The guarantee of free speech does not
extend only to categories of speech that survive an ad hoc
balancing of relative social costs and benefits. A federal
statute that criminalized the commercial creation, sale, or
possession of certain depictions of animal cruelty, which
encompassed common depictions of ordinary and lawful activities
and required merely that the conduct be “illegal" where the
alleged violation took place, was substantially overbroad and
therefore facially invalid under the 1st amendment. United
States v. Stevens, 559 U.S. 460, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010).
A public university
may condition its official recognition of a student group, and
the attendant use of school funds and facilities, on the
organization's agreement to open eligibility for membership and
leadership to all students. In requiring a student religious
group, in common with all other student organizations, to choose
between welcoming all students and forgoing the benefits of
official recognition, a school did not transgress constitutional
limitations. The 1st amendment shields groups against state
prohibition of the organization's expressive activity, however
exclusionary that activity may be, but a group enjoys no
constitutional right to state subvention of its selectivity.
Christian Legal Society Chapter of Univ. of California, Hastings
College of Law v. Martinez, 561 U.S. 661, 130 S. Ct. 2971, 177 L. Ed. 2d 838 (2010).
The 1st amendment
shielded church members from tort liability for their speech
when they picketed near a soldier's funeral service and their
picket signs reflected the church's view that the United States
is overly tolerant of sin and that God kills American soldiers
as punishment. Whether the amendment prohibits liability for
speech in this type of case turns largely on whether that speech
is of public or private concern, as determined by all the
circumstances of the case. Snyder v. Phelps, 562 U.S. 443, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011).
A state cannot create
new categories of unprotected speech by applying a simple
balancing test that weighs the value of a particular category of
speech against its social costs and then punishes that category
of speech if it fails the test. Without persuasive evidence that
a novel restriction on content, such as restrictions on selling
or lending “violent" video games to children, is part of a long,
if heretofore unrecognized, tradition of proscription, a
legislature may not revise the judgment of the American people,
embodied in the 1st amendment, that the benefits of its
restrictions on the government outweigh the costs. Brown v.
Entertainment Merchants Association, 564 U.S. 786, 131 S. Ct. 2729, 180 L. Ed. 2d 708 (2011).
The 1st amendment does
not permit a public-sector union to adopt procedures that have
the effect of requiring objecting nonmembers to lend the union
money to be used for political, ideological, and other purposes
not germane to collective bargaining. The 1st amendment does not
allow a public-sector union to require objecting nonmembers to
pay a special fee or dues increase that is levied to meet
expenses for the purpose of financing the union's political and
ideological activities that were not disclosed when the amount
of the regular assessment was set. Knox v. SEIU, Local 1000, 567 U.S. 298, 132 S. Ct. 2277, 183 L. Ed. 2d 281 (2012).
The federal statute at
issue in this case imposed two types of limits on campaign
contributions: 1) base limits that restrict how much money a
donor may contribute to a particular candidate or committee, and
2) aggregate limits that restrict how much money a donor may
contribute in total to all candidates or committees. Base limits
were previously upheld as serving the permissible objective of
combatting corruption. The aggregate limits do little, if
anything, to address that concern, while seriously restricting
participation in the democratic process. The aggregate limits
are therefore invalid under the 1st amendment. McCutcheon v.
Federal Election Commission, 572 U.S. ___, 134 S. Ct. 1434, 188 L. Ed. 2d 468 (2014)
A Massachusetts act
that made it a crime to knowingly stand on a public way or
sidewalk within 35 feet of an entrance or driveway to any
reproductive health care facility violated the 1st amendment.
Although the act was content neutral, it was not narrowly
tailored because it burdened substantially more speech than was
necessary to further the government's legitimate interests.
McCullen v. Coakley, 573 U.S. ___, 134 S. Ct. 2518, 189 L. Ed. 2d 502 (2014).
Judicial candidates
have a 1st amendment right to speak in support of their
campaigns. States have a compelling interest in preserving
public confidence in their judiciaries. When a state adopts a
narrowly tailored restriction, like the one at issue in this
case, providing that judicial candidates “shall not personally
solicit campaign funds . . . but may establish committees of
responsible persons" to raise money for election campaigns,
those principles do not conflict. A state's decision to elect
judges does not compel it to compromise public confidence in
their integrity. The 1st amendment permits such restrictions on
speech. Williams-Yulee v. Florida Bar, 575 U.S. ___, 135 S. Ct. 1656, 191 L. Ed. 2d 570 (2015)
A law that is content
based on its face is subject to strict scrutiny regardless of
the government's benign motive, content-neutral justification,
or lack of animus toward the ideas contained in the regulated
speech. An innocuous justification cannot transform a facially
content-based law into one that is content neutral. Because
strict scrutiny applies either when a law is content based on
its face or when the purpose and justification for the law are
content based, a court must evaluate each question before it
concludes that the law is content neutral and thus subject to a
lower level of scrutiny. Reed v. Town of Gilbert, 576 U.S. ___, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015).
A speech regulation
targeted at specific subject matter is content based even if it
does not discriminate among viewpoints within that subject
matter. In this case, the town sign code singled out specific
subject matter for differential treatment, even if it did not
target viewpoints within that subject matter. Ideological
messages were given more favorable treatment than messages
concerning a political candidate, which were themselves given
more favorable treatment than messages announcing an assembly of
like-minded individuals. That is a paradigmatic example of
content-based discrimination. Reed v. Town of Gilbert, 576 U.S.
___, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015).
A speech regulation is
content based if the law applies to particular speech because of
the topic discussed or the idea or message expressed. A
regulation that targets a sign because it conveys an idea about
a specific event is no less content based than a regulation that
targets a sign because it conveys some other idea. Reed v. Town
of Gilbert, 576 U.S. ___, 135 S. Ct. 2218, 192 L. Ed. 2d 236 (2015).
When government
speaks, it is not barred by the Free Speech Clause from
determining the content of what it says. That freedom in part
reflects the fact that it is the democratic electoral process
that first and foremost provides a check on government speech.
Thus, government statements and government actions and programs
that take the form of speech do not normally trigger the 1st
amendment rules designed to protect the marketplace of ideas. As
a general matter, when the government speaks it is entitled to
promote a program, to espouse a policy, or to take a position.
Walker v. Texas Division, Sons of Confederate Veterans, Inc. 576
U.S. ___, 135 S. Ct. 2239, 192 L. Ed. 2d 274 (2015).
Based on the
historical context, observers' reasonable interpretation of the
messages conveyed by Texas specialty plates, and the effective
control that the State exerts over the design selection process,
Texas' specialty license plates constituted government speech.
Drivers who display a state's selected license plate designs
convey the messages communicated through those designs. The 1st
amendment stringently limits a state's authority to compel a
private party to express a view with which the private party
disagrees. But here, just as Texas could not require a group to
convey the state's ideological message, the group could not
force Texas to include a Confederate battle flag on its
specialty license plates. Walker v. Texas Division, Sons of
Confederate Veterans, Inc. 576 U.S. ___, 135 S. Ct. 2239, 192 L. Ed. 2d 274 (2015).
With a few exceptions,
the constitution prohibits a government employer from
discharging or demoting an employee because the employee
supports a particular political candidate. When an employer
demotes an employee out of a desire to prevent the employee from
engaging in political activity, the employee is entitled to
challenge that unlawful action under the 1st amendment and 42
USC 1983 — even if the employer makes a factual mistake about
the employee's behavior. A discharge or demotion based upon an
employer's belief that the employee has engaged in protected
activity can cause the same kind, and degree, of constitutional
harm whether that belief does or does not rest upon a factual
mistake. Heffernan v. City of Paterson, 579 U.S. ___, 136 S. Ct. 1412, 194 L. Ed. 2d 508 (2016).
A North Carolina
statute making it a felony for a registered sex offender to gain
access to a number of websites, including commonplace social
media websites, violated the 1st Amendment. A fundamental
principle of the 1st Amendment is that all persons have access
to places where they can speak and listen, and then, after
reflection, speak and listen once more. To foreclose access to
social media altogether is to prevent the user from engaging in
the legitimate exercise of 1st Amendment rights. Packingham v.
North Carolina, 582 U.S. ___, 137 S. Ct. 1730, 198 L. Ed. 2d 273 (2017).
Generally, the 1st
amendment protects a person from being removed from public
employment for purely political reasons. However, exemptions
from the patronage dismissal ban are allowed on the theory that
a newly elected administration has a legitimate interest in
implementing the broad policies it was elected to implement
without interference from disloyal employees. Pleva v. Norquist, 195 F.3d 905 (1999).
With one exception,
the university's system, as required by Southworth, for
distributing compelled fees collected from university students
to student groups that delegates funding decisions to the
student government was subject to sufficient limits. Southworth
v. Board of Regents of the University of Wisconsin System, 307 F.3d 566 (2002).
A regulation
prohibiting the sale of liquor on the premises of adult
entertainment establishments is constitutional if: 1) the state
is regulating pursuant to a legitimate governmental power; 2)
the regulation does not completely prohibit adult entertainment;
3) the regulation is aimed at combating the negative effects
caused by the establishments, not the suppression of expression;
and 4) the regulation is designed to serve a substantial
governmental interest, is narrowly tailored, and reasonable
avenues of communication remain; or alternatively the regulation
furthers substantial governmental interests and the restriction
is no greater than is essential to further that interest. Ben's
Bar, Inc. v. Village of Somerset, 316 F.3d 702 (2003).
A town board was
restrained from discharging its police chief until the issue of
impermissible consideration of the chief's political activities
was resolved. Kuhlmann v. Bloomfield Township, 521 F. Supp. 1242 (1981).
Although the 1st
amendment establishment clause neither compels nor authorizes
the University to categorically exclude funding of activities
related to worship, proselytizing, and sectarian religious
instruction with segregated fees, the University may
nevertheless be able to exclude some or all of the activities to
which it objects. The University is free to enact viewpoint
neutral rules restricting access to segregated fees, for it may
create what is tantamount to a limited public forum if the
principles of viewpoint neutrality are respected. However,
before excluding an activity from the segregated fee forum
pursuant to a content-based distinction, the University must
explain specifically why that particular activity, viewed as a
whole, is outside the forum's purposes. Roman Catholic
Foundation v. Regents of the University of Wisconsin System, 578 F. Supp. 2d 1121 (2008).
A public employer may
choose not to hire a particular applicant for a nonpartisan
position because of the applicant's history of partisan
political activity. This is an appropriate exception to the
general rule that public employers may not make employment
decisions on the basis of protected 1st amendment activities.
However, an applicant's political affiliation and the
applicant's history of partisan activities are two distinct
considerations. Albers-Anders v. Pocan, 905 F. Supp. 2d 944 (2012).
Behind the Curtain of
Privacy: How Obscenity Law Inhibits the Expression of Ideas
About Sex and Gender. Peterson. 1998 WLR 625.
Testimonial privilege
of newsmen. Baxter, 55 MLR 184 (1972).
Academic freedom; some
tentative guidelines. Keith, 55 MLR 379 (1972).
Protection of
commercial speech. 60 MLR 138 (1976).
Zurcher: third party
searches and freedom of the press. Cantrell. 62 MLR 35 (1978).
A newspaper cannot
constitutionally be compelled to publish a paid advertisement
designed to be an editorial response to previous newspaper
reports. 64 MLR 361 (1980).
Granting access to
private shopping center property for free speech purposes on the
basis of a state constitutional provision does not violate
owner's federal constitutional property rights or first
amendment free speech rights. 64 MLR 507 (1981).
First amendment and
freedom of press: A revised approach to marketplace of ideas
concept. Gary. 72 MLR 187 (1989).
Architectural
Appearances Ordinances and the 1st Amendment. Rice. 76 MLR 439
(1992).
Hate Crimes: New
Limits on the Scope of the 1st Amendment. Resler. 77 MLR 415
(1994).
Improving the Odds of
the Central Balancing
Test; Restricting Commercial Speech as a Last Resort. Gulling.
81 MLR 873 (1998).
Researcher-subject
testimonial privilege. Newels and Lehman, 1971 WLR 1085.
Freedom of speech,
expression and action. Hilmes, 1971 WLR 1209.
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. 1980 WLR 568.
Corporate “persons"
and freedom of speech: The political impact of legal mythology.
Payton and Bartlett, 1981 WLR 494.
Lamb's
Chapel v. Center Mortices Union Free School District:
Creating Greater Protection for Religious Speech Through the
Illusion of Public Forum Analysis. Ehrmann. 1994 WLR 965.
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.
libel
The burden of proof
and determination of damages in libel cases is discussed. Dalton
v. Meister, 52 Wis. 2d 173, 188 N.W.2d 494 (1971).
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 UE, 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).
“Public figure" is
defined. The constitutional protections of news media and
individual defamers are discussed. 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. Weigel 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 2 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, 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.
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 he 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 he 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.
In general, the
destruction of notes allows an inference that the notes would
have provided evidence of actual malice, but this rule is not
absolute. Because the plaintiff had not shown any way the
destroyed notes might show actual malice, the destruction of the
notes did not create a material factual dispute preventing
summary judgment. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756 N.W.2d 649, 07-2314.
The elements of a
defamatory communication are: 1) a false statement; 2)
communicated by speech, conduct, or in writing to a person other
than the person defamed; and 3) the communication is
unprivileged and is defamatory, that is, tends to harm one's
reputation so as to lower him or her in the estimation of the
community or to deter third persons from associating or dealing
with him or her. The statement that is the subject of a
defamation action need not be a direct affirmation, but may also
be an implication. Terry v. Journal Broadcast Corporation, 2013 WI App 130, 351 Wis. 2d 479, 840 N.W.2d 255, 12-1682.
In a defamation action
brought by a private figure against a media defendant, the
plaintiff has the burden of proving that the speech at issue is
false; this requirement is imposed in order to avoid the
chilling effect that would be antithetical to the 1st
amendment's protection of true speech on matters of public
concern. Terry v. Journal Broadcast Corporation, 2013 WI App 130, 351 Wis. 2d 479, 840 N.W.2d 255, 12-1682.
State libel laws are
preempted by federal labor laws to the extent statements made
without knowledge of falsity or reckless disregard for truth are
at issue. Old Dominion Br. No. 496, Nat. Asso., Letter Car. v.
Austin, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1973).
A public figure who
sues media companies for libel may inquire into the editorial
processes of those responsible when proof of “actual malice" is
required for recovery. Herbert v. Lando, 441 U.S. 153, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979).
“Public figure"
principle in libel cases is discussed. Wolston v. Reader's
Digest Assn., Inc. 443 U.S. 157, 99 S. Ct. 2701, 61 L. Ed. 2d 450 (1979).
Defamation law of
Wisconsin. Brody, 65 MLR 505 (1982).
Limitations on damages
awarded public officials in defamation suits. Kampen, 1972 WLR
574.
A Misplaced Focus:
Libel Law and Wisconsin's Distinction Between Media and Nonmedia
Defendants. Maguire. 2004 WLR 191.
Reply all
Reply to author
Forward
0 new messages