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Civil Rights — public employment — free speech

By: WISCONSIN LAW JOURNAL STAFF//October 24, 2011//

Civil Rights — public employment — free speech

By: WISCONSIN LAW JOURNAL STAFF//October 24, 2011//

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United States Court of Appeals

Civil

Civil Rights — public employment — free speech

Where an employer merely spoke publicly in response to a public employee’s criticisms, the counter-speech was not retaliation for the employee’s exercising his right to freedom of speech.

“The appellants say that in undertaking this analysis, the court must take into consideration Sheriff Clarke’s own right to free speech, and they are correct. We cannot afford one party his right to free speech while discounting the rights of the other party. Other circuits and courts within our circuit have addressed this situation—where the alleged retaliatory action is in itself speech—by limiting a finding of an adverse action only to situations where the defendant’s speech is threatening, harassing, or intimidating. See Owens v. Ragland, 313 F.Supp.2d 939, 949 (W.D. Wis. 2004); Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 687 (4th Cir. 2000) (‘[W]here a public official’s alleged retaliation is in the nature of speech, in the absence of threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will imminently follow, such speech does not adversely affect a citizen’s First Amendment rights, even if defamatory.’).”

“Here, Sheriff Clarke called the Eric Von Show and expressed his opinion that Hutchins’ criticism was a result of Hutchins carrying a grudge against him for a past disciplinary action. Sheriff Clarke then went on to discuss that disciplinary action. Sheriff Clarke’s comments about Hutchins’ disciplinary history pertain to a past disciplinary action and in no way intimate any future disciplinary action against Hutchins with regard to that closed matter. Sheriff Clark’s disclosure of Hutchins’ disciplinary history did not constitute a threat, coercion, or intimidation that punishment, sanction, or adverse regulatory action would immediately follow, and so were not actionable under § 1983. Even if some ‘harassment and ridicule’ might be retaliatory speech under § 1983 (See Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)), Sheriff Clark’s statements did not rise to that level.”

Reversed and Remanded.

10-2661 Hutchins v. Clarke

Appeal from the United States District Court for the Eastern District of Wisconsin, Callahan, Mag. J., Bauer, J.

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