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July 20, 1995


The opinion of the court was delivered by: Richard Mills, District Judge:


The conduct of the Libbra family is revolting and disgraceful!

Summary judgment is entered for all Defendants.

Case closed.


At all times relevant to the instant motion, Plaintiffs Joe, Vicki (wife of Joe), Todd, and Troy (sons of Joe and Vicki) Libbra were residents in a home at 822 East Union Street, Litchfield, Montgomery County, Illinois; Defendant Katherine Dobrinic was State's Attorney for Montgomery County, Illinois; Defendant Dorothy Mansholt was Mayor of the City of Litchfield, Illinois; and Defendant William Dolahite was the Litchfield City Chief of Police.

The Libbras moved to the City of Litchfield sometime during the middle of 1989. They rented their home at 822 East Union Street from David and Rebecca Joudah. Sometime during 1990, Joe Libbra began posting signs in his yard critical of public, including the named Defendants, and private individuals. Examples of a few of Joe Libbra's signs include: "Has newspaper owner been accused of fondling boys? Ask him;" "Ms. Mayor and superintendent having an affair;" "Did city attorney get AIDS Debbie's whorehouse;" and "Miss D.A. needs line coke."

On December 12, 1990, at approximately 3:30 a.m., someone set fire to the Libbras' signs (the signs that were set afire are not the signs mentioned in the preceding paragraph). The cause of the fire has never been determined.

On June 4, 1990, as a result of David and Rebecca Joudahs' (the record title holders of the Libbras' home) failure to maintain their monthly mortgage payments, America's Mortgage Company filed a complaint for foreclosure in Montgomery County against the Joudahs and twelve lien holders. The Libbras were not named in the foreclosure action. On September 13, 1990, America's Mortgage Company, through its attorney, Nancy Handegan, requested a hearing on its complaint for foreclosure. The Joudahs failed to appear and were consequently defaulted. Circuit Judge John P. Coady of the Montgomery County Circuit Court entered an order allowing the judgment and sale of the property. On February 14, 1991, Judge Coady subsequently entered an order confirming the sale of the property. Judge Coady's order also authorized the Sheriff of Montgomery County to obtain and turn over possession of the Libbras' residence to America's Mortgage Company on or after March 16, 1991.

On March 26 and in May of 1991, the Libbras were served with Judge Coady's order authorizing the sheriff to turn over possession of their residence to America's Mortgage Company. The Libbras failed to vacate the property. Because the Libbras would not voluntarily vacate the premises, America's Mortgage Company intended to evict them on June 3, 1991. However, prior to that date, Attorney Handegan spoke to Joe Libbra and he agreed to vacate the premises by June 15; the eviction was therefore postponed.

On the morning of June 18, 1991, as a result of the Libbras' failure to vacate the premises, a moving company hired by America's Mortgage Company proceeded to remove the Libbras' possessions from their residence. Immediately thereafter, the Libbras, pro se, petitioned Judge Coady for an emergency hearing. Later that day, an emergency hearing was held before Judge Coady. Judge Coady, apparently concerned that the ejectment of the Libbras was improper because they were never made a party to the foreclosure proceeding against the Joudahs, ordered America's Mortgage Company to cease the eviction process. A hearing on the Libbras' right to possess the property was set for June 27, 1991.

On June 27, Judge Coady determined that the Libbras had no right to possess the property. Consequently, he entered an order directing the Libbras to vacate the premises by July 18, 1991. The Libbras did not appeal that order.

Sometime during late 1990 or early 1991, police officers from the City of Litchfield were directed to take pictures of the Libbras' signs. This generally occurred on a daily basis, for fifteen to thirty minutes at a time, until the Libbras were evicted from their residence.

On June 20, 21, 22, and 23 of 1991, the City of Litchfield issued tickets to Joe Libbra, charging him with a violation of the City's zoning ordinance. The Libbras continued to post signs at their residence on Union street until they were evicted on July 18, 1991. Following the eviction, from July to December 1991, the Libbras resided with Joe Libbra's mother. No signs were posted at the mother's residence. In December 1991, the Libbras moved from their mother's residence to another home in Litchfield and immediately began posting signs again. The Libbras posted signs until Joe Libbra agreed to stop as part of his probation agreement for a felony conviction for intimidation in 1993. The four zoning ordinance tickets issued to Joe Libbra in 1991 were never prosecuted and were dismissed for want of prosecution on March 10, 1994.


Under Fed.R.Civ.P. 56(c), summary judgment shall be granted if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Black v. Henry Pratt Co., 778 F.2d 1278, 1281 (7th Cir. 1985). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Unquestionably, in determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its burden, the opposing party must come forward with specific evidence, not mere allegations or denials of the pleadings, which demonstrates that there is a genuine issue for trial. Howland v. Kilquist, 833 F.2d 639 (7th Cir. 1987). Furthermore, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).


The Libbras initiate this action under 42 U.S.C. § 1983 alleging violations of their First Amendment rights.*fn1 In order to establish a successful § 1983 claim, the Libbras must show (1) that the conduct complained of was committed by a person acting under color of state law and (2) that this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. New Burnham Prairie Homes v. Village of Burnham, 910 F.2d 1474, 1479 (7th Cir. 1990). Since Defendants do not dispute that they acted under the color of state law, the issue under § 1983 is whether the Libbras were deprived of rights secured by the Constitution.

The Libbras characterize their claim against Defendants as a conspiracy to deprive them of their First Amendment guarantee of freedom of speech. However, based on the allegations of the complaint and the pleadings in this matter, it appears more accurate to characterize this action as a conspiracy to retaliate against the Libbras for exercising their First Amendment rights.*fn2


Section 1983 does not punish conspiracy, Goldschmidt v. Patchett, 686 F.2d 582, 585 (7th Cir. 1982), rather, as a practical matter, proof of a civil conspiracy simply broadens the scope of liability under § 1983 to include individuals who were part of a conspiracy but did not act directly to deprive a plaintiff of his or her constitutional rights. Miller v. Village of Dolton, No. 94-C-765, 1995 WL 137051, *5, LEXIS 3892, *16 (N.D.Ill. Mar. 27, 1995). In order to establish a prima facie case of a civil conspiracy, "a plaintiff must show (1) an express or implied agreement among defendants to deprive plaintiff of his or her constitutional rights and (2) actual deprivations of those rights in the form of overt acts in furtherance of the agreement." Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir. 1988). Because we conclude that the Libbras were not deprived of any constitutional rights by the alleged conspirators (element # 2), we need not decide whether they have provided sufficient evidence of an express or implied agreement amongst those conspirators.


As previously indicated, we construe the pleadings in this matter as alleging that Defendants conspired to retaliate against the Libbra family for exercising their First Amendment right to freedom of speech. Specifically, as a result of posting signs in their yard critical of public and private individuals, the Libbras claim that they were retaliated against and harassed by Defendants.*fn3 Assuming the content of the signs qualifies as protected speech and the Libbras were in fact retaliated against, such a claim is undoubtedly actionable under § 1983. Smart v. Board of Trustees of Univ. of Illinois, 34 F.3d 432, 434 (7th Cir. 1994) ("Any form of official retaliation for exercising one's freedom of speech is actionable as an infringement of that freedom."); Rakovich v. Wade, 850 F.2d 1180, 1211 (7th Cir. 1988) ("[A]n act in retaliation for the exercise of a constitutionally protected[, for example, a first amendment interest,] is actionable under § 1983.").

As evidence of Defendants' retaliatory conduct, the Libbras identify four events: (1) their signs were set ablaze; (2) they were "illegally" evicted from their home; (3) the Litchfield Police Department parked their automobiles in front of their residence and photographed the signs; and (4) the Litchfield Police Department issued four tickets to Joe Libbra for violating a residential zoning ordinance. We will discuss whether these events qualify as retaliatory conduct, but, we must begin our analysis of the Libbras' claim with the threshold question posed in any suit alleging a violation of the First Amendment; namely, whether the speech at issue is protected. Hedges v. Wauconda Community Unit School Dist., 807 F. Supp. 444, 453 (N.D.Ill. 1992).


Of course, determining whether the speech at issue qualifies as protected speech presents many interesting issues. At this point, the Court notes that our independent research could not uncover a reported case factually and legally similar to the instant action. Consequently, we are writing on a clean slate with respect to several of the issues presented in this matter. Regardless, based on the established precedent derived from somewhat analogous § 1983 First Amendment cases, we are confident that our resolution of the issues is in harmony with First Amendment jurisprudence.

The first issue concerns which party has the burden of proof in a case of this nature. The Libbras raised this issue in a motion in limine, and in our order of June 22, 1995, we concluded that they, as plaintiffs, have the burden of establishing that the speech at issue qualifies as protected speech. To summarize our prior holding, the Libbras initiated this case under § 1983 and as an element of such a claim, they must establish that Defendants' conduct deprived them of a right secured by the Constitution. Of course, since not all speech is protected, R.A.V. v. City of St. Paul, 505 U.S. 377, 406, 112 S.Ct. 2538, 2555, 120 L.Ed.2d 305 (1992) (White, J., concurring) ("[T]he First Amendment does not apply to categories of unprotected speech."), the Libbras cannot claim that they were deprived of a Constitutional right until and unless they establish that they were engaged in speech protected under the First Amendment, i.e., establishing a Constitutional — First Amendment — deprivation is a part of their prima facie case. Accordingly, it seems clear that the Libbras are burdened with the task of convincing the Court that the content of their signs qualifies as protected speech and thus enjoys Constitutional protection.*fn4 See Caldwell v. City of Elwood, 959 F.2d 670, 672 (7th Cir. 1992) (In the context of a public employee alleging that he was retaliated against for exercising his First Amendment guarantee of free speech, the public employee must establish "that the speech [he] engaged in was constitutionally protected under the circumstances."); Brookins v. Kolb, 990 F.2d 308, 313 (7th Cir. 1993) (In a case involving a prisoner who claimed prison officials retaliated against him for exercising his First Amendment rights, the Seventh Circuit stated that "[plaintiff] has not demonstrated that the speech contained in his letter rose to the level of protected speech."); Clayton-El v. Caraway, 1992 WL 266023, *3, No. 90-2251, LEXIS 25727, *8 (7th Cir. Oct. 6, 1992) ("[Plaintiff] cites no authority for the proposition that `smart mouthing' and `cursing' at prison guards are forms of speech that enjoy protection under the First Amendment.").

Allocating the burden of establishing the protected status of the speech to the Libbras, however, leads to a peculiar predicament as a result of the arguments raised in this matter. That is, in arguing that the content of the Libbras' signs is not protected speech, Defendants resort to the law of defamation, slander, and libel claiming that the signs contain false, baseless, and unfounded accusations. As a general statement, it is true that if the Libbras acted with "actual malice," i.e., knowledge of the falsity of their statements or reckless disregard of whether their statements were true or false, New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 725-726, 11 L.Ed.2d 686 (1964), their speech does not enjoy First Amendment protection. See Brenner v. Brown, 36 F.3d 18, 20 (7th Cir. 1994) ("[S]peech is not protected where it is[] made with a reckless disregard for the truth. . . .").

The "actual malice" inquiry as to whether speech enjoys Constitutional protection developed in the context of public officials initiating defamation claims as a result of alleged defamatory statements relating to their official conduct. However, in cases of that nature, the public official — as the plaintiff, of course — has the burden of proof as to whether the particular statement was made with actual malice. But here, because the Libbras, as plaintiffs, are initiating this action under § 1983, they must establish a Constitutional deprivation and no such deprivation results unless their speech is protected under the First Amendment. Thus, the Libbras must come forward with evidence that their derogatory statements directed at numerous public and private individuals were not made with actual malice. Otherwise, they have failed to establish that their speech enjoys First Amendment protection.

At first glance, the fact that the Libbras are burdened with the task of establishing that their statements were not made with actual malice, yet, if the Libbras were named as defendants in defamation actions brought by the "targets" of their signs, those individuals — not the Libbras — would have to establish that the statements were in fact made with actual malice in order to prevail, may appear troubling. However, we believe this is the correct approach in a case of this nature. Again, as we have repeatedly noted, this is a § 1983 action initiated by the Libbras. As part of their prima facie case under § 1983, the Libbras must establish a Constitutional deprivation. Here, there is no Constitutional deprivation unless the speech at issue qualifies as protected speech. And, since not all speech is protected under the First Amendment, the Libbras cannot establish a prima facie case unless they show that their speech enjoys First Amendment protection. Finally, since statements made with actual malice do not enjoy First Amendment protection, the Libbras must show that their statements were made in the absence of actual malice.*fn5

A case of this nature raises another interesting issue. In a § 1983 suit involving a public employee who alleged that she was retaliated against because she had exercised her Constitutionally protected right of free speech, the Supreme Court held that "the inquiry into the protected status of speech is one of law, not fact." Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 1690 n. 7, 75 L.Ed.2d 708 (1983). Thus, in the instant matter, it would appear clear that the Court is to determine whether the Libbras' signs qualify as protected speech. However, in order to determine whether the speech at issue qualifies as protected speech, we must consider whether the Libbras acted with actual malice. But, in defamation actions initiated by public officials, it is the jury that must determine whether the speaker acted with actual malice, not the court. See Babb v. Minder, 806 F.2d 749, 756 (7th Cir. 1986) ("The evidence adduced at trial indicates that [defendant] acted with reckless disregard of the truth or falsity of the defamatory statements and thus supports the jury finding of actual malice."). Regardless, because we conclude in this opinion that the Libbras' conduct constitutes as actual malice as a matter of law (i.e., no rational trier of fact could conclude otherwise), no further discussion concerning this particular dilemma is necessary.

Now, to the heart of the analysis.

As previously indicated, in order to determine if the content of the Libbras' signs rises to the level of protected speech, we defer, in large part, to "actual malice" jurisprudence. Actual malice is generally defined as statements made "with knowledge of their falsity or in reckless disregard of whether they are true or false." Garrison v. Louisiana, 379 U.S. 64, 78, 85 S.Ct. 209, 217, 13 L.Ed.2d 125 (1964); accord, Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 2696, 105 L.Ed.2d 562 (1989). "Reckless disregard" in turn is loosely defined as requiring, at a minimum, that the speaker make the statements with a "high degree of awareness of their probable falsity," Garrison, 379 U.S. at 74, 85 S.Ct. at 216, or he must have "entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). However, in determining whether a statement was made with "actual malice" or, more particularly, with "reckless disregard," the Supreme Court has cautioned that these terms are not capable of being defined in "one infallible definition." Harte-Hanks Communications, Inc., 491 U.S. at 686, 109 S.Ct. at 2695. "Rather, only through the course of case-by-case adjudication can we give content to these otherwise elusive constitutional standards." Id.

With this in mind, we will now analyze the signs at issue to determine if the statements contained therein were made with "actual malice," or more specifically, with "reckless disregard." Before beginning the analysis, however, we must take care of one last preliminary matter. We are mindful that statements of opinion receive full Constitutional protection under the First Amendment. Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1 (1990). However, since the statements contained within the signs at issue here reasonably imply that the Libbras had an underlying factual basis for making those statements, the statements do not qualify as mere opinions. See id. at 20, 110 S.Ct. at 2706; Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993) ("[I]f it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.") (emphasis ours).

Since the Libbras are burdened with the task of convincing the Court that their signs are protected under the First Amendment, our analysis will be limited to only those signs discussed in the Libbras' summary judgment responses. We will not sift through the voluminous deposition testimony searching for signs not discussed in the pleadings, nor will we devise arguments for the Libbras. Such is their attorney's responsibility, not ours.

A. "Has newspaper owner been accused of fondling boys? Ask him"

The first sign stated: "Has newspaper owner been accused of fondling boys? Ask him." The Litchfield News Herald is owned by John Hanafin.*fn6 Although the entire Libbra family is named as plaintiffs in this action, only Joe Libbra accepted responsibility for creating this particular sign. Thus, since Vicki, Troy, and Todd Libbra did not ...

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