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, 508 U.S. 34, 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, 128 L. Ed. 2d 686 (1994). See also Burkes v. Klauser, 185 Wis. 2d 309, 517 N.W.2d 502 (1994).
A city's ban on almost all residential signs violated the right of free speech. City of LaDue v. Gilleo, 512 U.S. 26, 129 L. Ed. 2d 22 (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, 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, 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, 132 L. Ed. 2d (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, 135 L. Ed. 2d 843 (1996) and O'Hare Truck Service v. Northlake, 518 U.S. 712, 135 L. Ed. 2d 874 (1996).
The constitutionality of injunctions restraining actions by abortion clinic protesters is discussed. Schenck v. Pro-Choice Network, 519 U.S. 357, 137 L. Ed. 2d 1 (1997).
Assessments against commodity producers under an agricultural marketing order to pay for the costs of generic advertising did not violate the producer's free speech rights. Glickaman v. Wileman Brothers & Elliot, Inc. 521 U.S. 457, 138 L. Ed. 2d 585 (1997).
A public broadcasting network's decision to exclude an independent candidate who had little public support was a permissible exercise of journalistic discretion. Arkansas Educational TV v. Forbes, 523 U.S. 666, 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, 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, 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, 146 L. Ed. 2d 265 (2000).
A statute that makes it unlawful within regulated areas 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, 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, 149 LEd 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, 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 to any student who obtained parental consent, did not raise an establishment of religion violation that could be raised to justify content-based discrimination against the club. Good News Club v. Milford Central School, 533 U.S. 98, 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, 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 burning's long and pernicious history as a signal of impending violence. Virginia v. Black, 538 U.S. 343, 155 L. E. 2d 535, 123 S. Ct. 1536 (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, 155 L. Ed. 2d 793, 123 S. Ct. 1829 (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, 159 L. Ed 2d 84, 124 S. Ct. 2219 (2004).
Government employees do not relinquish all 1st amendment rights enjoyed by citizens by reason of their employment, but a governmental employer may impose certain restraints on speech of its employees that would be unconstitutional if applied to the general public. Employees have rights to speak on matters of public concern. When government employees speak or write on their own time on topics unrelated to their employment, the speech can have protection, absent some governmental justification far stronger than mere speculation in regulating it. San Diego v. Roe, 543 U.S. 77, 160 L. Ed 2d 410, 125 S.Ct. 521 (2004).
When public employees makestatements pursuant to their official duties, the employeesare 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. ___, 164 L. Ed. 2d 689, 126 S. Ct. 1951 (2006).
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; 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).
The dividing line between publications that may be denied to prisoners and those that may not is not a matter of administrative grace, but of constitutional right. Gaugh v. Schmidt, 369 F. Supp. 877.
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).
Content neutral size restrictions placed on a banner proclaiming "Church/State--Keep Them 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).
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.
Academic freedom; some tentative guidelines. Keith, 55 MLR 379.
Protection of commercial speech. 60 MLR 138.
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 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.
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.
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.
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.
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.
"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; its 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, ___ Wis. 2d ___, 718 N.W.2d 673, 04-0377.
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.
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 (1979).
"Public figure" principle in libel cases are discussed. Wolston v. Reader's Digest Assn., Inc. 443 U.S. 157 (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.
I,4 Right to assemble and petition. Section 4. The right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged.
A narrowly drawn anti-cruising ordinance did not violate the right to assemble or travel. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 507 N.W.2d 163 (Ct. App. 1993).
The right to intrastate travel, including the right to move about one's neighborhood in an automobile, is fundamental, but infringements on the right are not subject to strict scrutiny. Cruising ordinances, reasonable in time, place, and manner, do not violate this right. Brandmiller v. Arreola, 199 Wis. 2d 528, 544 N.W.2d 849 (1996), 93-2842.
The legislature cannot prohibit an individual from entering the capitol or its grounds. 59 Atty. Gen. 8.
Section 947.06, Stats. 1969, which prohibits unlawful assemblies, is constitutional. Cassidy v. Ceci, 320 F. Supp. 223.
Wisconsin, a Constitutional Right to Intrastate Travel, and Anti-Cruising Ordinances. Mode. 78 MLR 735.
I,5 Trial by jury; verdict in civil cases. Section 5. [As amended Nov. 1922] The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law. Provided, however, that the legislature may, from time to time, by statute provide that a valid verdict, in civil cases, may be based on the votes of a specified number of the jury, not less than five-sixths thereof. [1919 J.R. 58; 1921 J.R. 17 A; 1921 c. 504; vote Nov. 1922]
Note: See also the notes to Article I, Section 7—Jury Trial and Juror Qualifications for notes relating to jury trials in criminal cases.
When a juror is struck after the trial has commenced, a litigant cannot be required to proceed with 11 jurors in a civil case. The trial court must declare a mistrial or grant a nonsuit with the right to plead over. It was error to grant a nonsuit and then direct a verdict for the defendant because a plaintiff refused to continue with 11 jurors. State ex rel. Polk v. Johnson, 47 Wis. 2d 207, 177 N.W.2d 122.
Neither the constitution, statutes, or common law affords the right to trial by jury in a will contest. Estate of Elvers, 48 Wis. 2d 17, 179 N.W.2d 881.
The requirement that a defendant prepay jury fees in a civil traffic forfeiture action is constitutional. State v. Graf, 72 Wis. 2d 179, 240 N.W.2d 387.
Requiring the payment of a jury fee did not violate the right to a trial by jury. County of Portage v. Steinpreis, 104 Wis. 2d 466, 312 N.W.2d 731 (1981).
The right to 12-member jury can only be waived personally by the defendant. State v. Cooley, 105 Wis. 2d 642, 315 N.W.2d 369 (Ct. App. 1981).
The right to a jury trial does not extend to equitable actions. However defendants who are required to plead legal counterclaims in equitable actions or lose those claims are entitled to a jury trial of their claims. Green Spring Farms v. Spring Green Farms, 172 Wis. 2d 28, 492 N.W.2d 392 (Ct. App. 1992).
Use of collateral estoppel to prevent a civil defendant from testifying that he did not commit an act when in an earlier criminal trial the defendant was convicted by a jury of committing the act did not deny the defendant's right to a jury. Michelle T. v. Crozier, 173 Wis. 2d 681, 495 N.W.2d 327 (1993).
When collateral estoppel compels raising a counterclaim in an equitable action, that compulsion does not result in the waiver of the right to a jury trial. Norwest Bank v. Plourde, 185 Wis. 2d 377, 518 N.W.2d 265 (Ct. App. 1994).
There is neither a statutory nor a constitutional right to have all parties identified to a jury, but as a procedural rule the court should in all cases apprise the jurors of the names of all the parties. Stoppleworth v. Refuse Hideaway, Inc. 200 Wis. 2d 512, 546 N.W.2d 870 (Ct. App. 1996), 93-3182.
A party has a constitutional right to have a statutory claim tried to a jury when: 1) the cause of action created by the statute existed, was known, or recognized at common law at the time of the adoption of the Wisconsin Constitution in 1848; and 2) the action was regarded as at law in 1848. Village Food & Liquor Mart v. H & S Petroleum, Inc. 2002 WI 92, 254 Wis. 2d 478, 647 N.W.2d 177, 00-2493.
This section distinguishes the respective roles of judge and jury. It does not curtail the legislative prerogative to limit actions temporally or monetarily. Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866, 00-0072.
While a defendant has a right to a jury trial in a civil case, there is no vested right under art. I, sec. 5, to the manner or time in which that right may be exercised or waived. These are merely procedural matters to be determined by law. Phelps v. Physicians Insurance Company of Wisconsin, Inc. 2005 WI 85, 282 Wis. 2d 69, 698 N.W.2d 643, 03-0580.
In order to deem the Village Food test satisfied, there need not be specific identity between the violation at bar and an 1848 cause of action, so long as there was an 1848 action that only differs slightly and is essentially a counterpart to the current cause. To the extent that the 1849 statutes recognize broad causes of action for civil forfeitures, they are insufficient to support a demand for a 12 person jury in every forfeiture action. Dane County v. McGrew, 2005 WI 130, 285 Wis. 2d 519, 699 N.W.2d 890, 03-1794
A jury trial is not constitutionally required in the adjudicative phase of a state juvenile court delinquency proceeding. McKeiver v. Pennsylvania, 403 U.S. 528.
