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 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, 164 L. Ed. 2d 689, 126 S. Ct. 1951 (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, 168 L. Ed. 2d 290, 127 S. Ct. 2618 (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 violates 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, 168 L. Ed. 2d 166, 127 S. Ct. 2489 (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 first 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 first amendment. Pleasant Grove City, Utah v. Summum, 555 U.S. ___, 129 S. Ct. 1125, 1135, 172 L. Ed. 2d 853, 865 (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. ___,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 first 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. The first amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh the costs. The constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. United States v. Stevens, 559 U.S. ___, 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 first 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. ___, 130 S. Ct. 2971, ___ L. Ed. 2d ___ (2010).
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 — 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, 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.
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. See also State v. Schweda. 2007 WI 100, 303 Wis. 2d 353, 736 N.W.2d 49, 05-1507.
A party's waiver of the right of trial by jury need not be a waiver in the strictest sense of that word, that is, an intentional relinquishment of a known right. Instead, a party may waive the right of trial by jury by failing to assert the right timely or by violating a law setting conditions on the party's exercise of the jury trial right. Rao v. WMA Securities, Inc. 2008 WI 73, 310 Wis. 2d 623, 752 N.W.2d 220, 06-0813.
It lies within the circuit court's discretion to determine the appropriate procedure for deciding factual issues in default judgment cases and that the defaulting party therefore has no right of trial by jury. The circuit court did not violate the defendant's right of trial by jury under Art. I, s. 5 when it denied the defendant's motion for a jury trial on the issue of damages. The defendant waived its right of trial by jury in the manner set forth in ss. 804.12 and 806.02 by violating the circuit court's discovery order and by incurring a judgment by default. Rao v. WMA Securities, Inc. 2008 WI 73, 310 Wis. 2d 623, 752 N.W.2d 220, 06-0813.
Comparing the purpose underlying the modern statute to the purpose underlying its alleged common law counterpart will be helpful in applying the first prong of the Village Food test. Harvot v. Solo Cup Company, 2009 WI 85, 320 Wis. 2d 1, 768 N.W.2d 176, 07-1396.
An implied statutory right to trial by jury in situations where the legislature has not prescribed such a right and where the constitution does not afford such a right would open a can of worms. Statutes vary widely. Ad hoc judicial discovery of implied statutory rights to trial by jury would not yield a meaningful legal test that could carry over from case to case, but would instead invite ad hoc argument whenever the statutes are silent. Harvot v. Solo Cup Company, 2009 WI 85, 320 Wis. 2d 1, 768 N.W.2d 176, 07-1396.
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.
Juror intoxication is not an external influence about which jurors may testify to impeach a verdict. Tanner v. United States, 483 U.S. 107 (1987).
I,6 Excessive bail; cruel punishments. Section 6. Excessive bail shall not be required, nor shall excessive fines be imposed, nor cruel and unusual punishments inflicted.
Imposition of a 3-year sentence as a repeater was not cruel and unusual even though the present offense only involved the stealing of 2 boxes of candy, which carried a maximum sentence of 6 months. Hanson v. State, 48 Wis. 2d 203, 179 N.W.2d 909.
It was not cruel and unusual punishment to sentence a defendant to 25 years for armed robbery when the maximum was 30 years, when by stipulation the court took into consideration 5 other uncharged armed robberies. Mallon v. State, 49 Wis. 2d 185, 181 N.W.2d 364.
Current standards of what constitutes cruel and unusual punishment should not be applied in reviewing old sentences of long standing. State ex rel. Warren v. County Court, 54 Wis. 2d 613, 197 N.W.2d 1.
