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 that the 1st amendment protects, the employee is entitled to challenge that unlawful action under the 1st amendment and 42 U. S. C. § 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).
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.
LIBEL
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).
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.
The national democratic party has a protected right of political association and may not be compelled to seat delegates chosen in an open primary in violation of the party's rules. Democratic Party of U.S. v. Wisconsin,
450 U.S. 107, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981).
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 (1970).
Section 947.06, 1969 stats., which prohibits unlawful assemblies, is constitutional. Cassidy v. Ceci,
320 F. Supp. 223 (1970).
As with the Speech Clause, to show that an employer interfered with rights under the Petition Clause, an employee, as a general rule, must show that his or her speech was on a matter of public concern. The right of a public employee under the Petition Clause is a right to participate as a citizen, through petitioning activity, in the democratic process. It is not a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts. Bullcoming v. New Mexico, 564 U.S. ___,
131 S. Ct. 2705,
180 L. Ed. 2d 610 (2011).
2011 Act 10's various restrictions, in their cumulative effect, do not violate union member's associational rights. The 1st amendment does not require the state to maintain policies that allow certain associations to thrive. For the most part, the Bill of Rights enshrines negative liberties. It directs what government may not do to its citizens, rather than what it must do for them. Laborers Local 236, AFL-CIO v. Walker,
749 F. 3d 628 (2014).
Wisconsin, a Constitutional Right to Intrastate Travel, and Anti-Cruising Ordinances. Mode. 78 MLR 735 (1995).
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 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.
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 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 statute that creates a cause of action with an essential counterpart at common law becomes no less an essential counterpart simply because it addresses a narrower range of practices. If the legislature focuses and directs the principles of common law fraud to a specific realm it does not strip a litigant of his or her right to a jury trial when it would otherwise exist. Otherwise, a legislative enactment clearly modeled on a common law cause of action but applied to a specific context would carry no right to a jury trial. State v. Abbott Laboratories,
2012 WI 62,
341 Wis. 2d 510,
816 N.W.2d 145,
10-0232.
The party seeking to enforce a contractual waiver of a right to a jury trial has the burden of showing that the person against whom the waiver is asserted had actual knowledge of the rights being given up, including that the person was giving up his or her right to a jury and in what specific circumstances that would occur. The following non-exclusive list of factors may be considered when determining whether a contractual jury waiver was made knowingly and voluntarily: 1) the parties' negotiations concerning the waiver provision, if any; 2) the conspicuousness of the provision; 3) the relative bargaining power of the parties; and 4) whether the waiving party's counsel had an opportunity to review the agreement. Parsons v. Associated Banc-Corp,
2016 WI App 44,
370 Wis. 2d 112,
881 N.W.2d 793,
14-2581.
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.
A sentence is not discriminatory and excessive because it is substantially greater than that received by a codefendant. State v. Studler,
61 Wis. 2d 537,
213 N.W.2d 24.
Actions for the forfeiture of property that are commenced by the government and driven in whole or in part by a desire to punish may violate the guarantees against excessive punishment. State v. Hammad,
212 Wis. 2d 343,
569 N.W.2d 68 (Ct. App. 1997),
95-2669.
A prison inmate does not possess a reasonable expectation of privacy in his body that permits a 4th amendment challenge to strip searches. Prisoners convicted of crimes are protected from cruel and unusual treatment that prohibits prison officials from utilizing strip searches to punish, harass, humiliate, or intimidate inmates regardless of their status in the institution. Al Ghashhiyah v. McCaughtry,
230 Wis. 2d 587,
602 N.W.2d 307 (Ct. App. 1999),
98-3020.
