United States District Court, Northern District of Illinois, Eastern Division
April 2, 2001
THE CHICAGO READER, ET AL., PLAINTIFFS,
MICHAEL SHEAHAN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: James B. Moran, Senior U.S. District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs Chicago Reader, Inc. (Reader) and Tori Marlan filed this
Section 1983 suit against Cook County Sheriff Michael F. Sheahan, Press
Officer William Cunningham, Cook County Jail Director Ernesto Velasco and
Public Information Officer Joan Stockmal. The original complaint alleged
that defendants violated plaintiffs' First Amendment rights by refusing
Marlan access to the jail in retaliation for a previous negative
newspaper story. There are currently three motions pending. Plaintiffs
move to amend their complaint, seeking to add an equal protection claim.
And the parties have filed cross motions for summary judgment on the
First Amendment claim. Defendants' motion for summary judgment on count I
is denied, and plaintiffs' motion for summary judgment on count I is
granted. Plaintiffs' motion to amend is denied as moot.
Marlan is a reporter for the Reader, a newspaper widely circulated in
the Chicago area. Defendants are public officials responsible for
operating the Cook County Department of Corrections (DOC). The DOC has a
written policy encouraging media access to the jail. Pursuant to this
policy defendants regularly admitted Marlan. She visited program
interviewed inmates and spoke with jail personnel. She was denied access
to the "Bullpen," a staging area where jail officials were allegedly
strip-searching female (but not male) inmates. Marlan's research
culminated in an article entitled "Strip Search," published by the Reader
on March 8, 1998, discussing a class action lawsuit by a group of women
against Sheahan and jail officials, alleging the strip search-policy
violated their rights.
Following the strip-search article, Marlan began researching a story
about a Chicago Legal Aid for Incarcerated Mothers (CLAIM) program for
female inmates. She requested permission from the press office to observe
a class. CLAIM classes are held in program areas — physical spaces
within the jail where group activities are typically conducted. These are
generally not accessible to the public, but accredited press members are
routinely admitted. Marlan herself visited program areas while
researching her strip-search story. This time Cunningham denied her
request. The parties dispute the precise reason for this denial, but both
concede it had something to do with what was included, or not included,
in the strip-search article.
Defendants have offered Marlan alternate information sources about the
CLAIM program. DOC officials have expressed willingness to answer
questions by telephone; have provided an attendee list so Marlan could
interview inmates involved; and have made a videotape of a class. But
they will not allow Marlan to personally observe a class.
We may only grant summary judgment if there are no genuine issues of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). This does not mean
there must be absolutely no evidence supporting the non-moving party, but
rather there is not enough to support a reasonable jury verdict. Id.
I. Defendants' Motion
The parties offer competing formulations of the elements. Plaintiffs
cite Seventh Circuit precedent defining retaliation claims brought by
employees against public employers. See, e.g., Kokkinis v. Ivkovich,
185 F.3d 840 (7th Cir. 1999); DeGuiseppe v. Village of Bellwood,
68 F.3d 187 (7th Cir. 1995). Defendants counter with cases from other
circuits where, as here, there was no employment relationship between the
parties. See, e.g., Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998);
Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283 (9th Cir.
1999); Suarez Corp. Indus. v. McGraw, 202 F.3d 676 (4th Cir. 2000). We
believe this is a distinction without a difference.
We begin by looking at the precise definitions courts have developed.
The non-employee plaintiff must prove:
(1) that the plaintiff was engaged in a
constitutionally protected activity; (2) that the
defendant's adverse action caused the plaintiff to
suffer an injury that would likely chill a person of
ordinary firmness from continuing to engage in that
activity; and (3) that the adverse action was
motivated at least in part as a response to the
exercise of the plaintiff's constitutional rights.
Bloch, 156 F.3d at 678. By contrast, the Seventh Circuit employment cases
A public employee must demonstrate that he has
suffered an adverse employment action motivated by the
exercise of his right to free speech. . . . And the
complained-of action must be sufficiently adverse to
present an actual or potential danger that the speech
of employees will be chilled.
DeGuiseppe, 68 F.3d at 191 (citations omitted).*fn1
The parties do not
quarrel with two of the elements. DeGuiseppe's reference to free speech
fits within Bloch's requirement of a constitutionally-protected
activity. And both cases refer to the defendant's motivation as an
element. Their disagreement focuses on the requisite level of harm:
"likely to chill a person of ordinary firmness" versus "actual or
potential danger that the speech . . . will be chilled." We believe these
are merely different ways of saying the same thing.
We find no instances where courts have drawn the distinction defendants
emphasize. Courts discuss the unique attributes of the employment
relationship in terms of the Pickering/Connick balancing test, supra
n.1. But this affects whether the employee's speech is protected, not the
level of harm she must show. To the contrary, the two lines of cases
regularly cite each other and use language indicating that courts are
using similar injury thresholds. Bloch it self quotes a Seventh Circuit
employer retaliation case in its discussion of what constitutes an
See Bloch, 156 F.3d at 679, quoting Bart v. Telford,
677 F.2d 622, 625 (7th Cir. 1982). Recent dicta from the Seventh Circuit
further suggests there is no critical distinction between the injury
standards in employment and non-employment retaliation cases. "They are
not, of course, even limited to employment. Any deprivation under color
of law that is likely to deter the exercise of free speech, whether by an
employee or anyone else, is actionable . . . if the circumstances are
such as to make such a refusal an effective deterrent to the exercise of
a fragile liberty." Power v. Summers, 226 F.3d 815, 820 (7th Cir. 2000).
One distinction that we do find important is that in many of these
cases the allegedly retaliatory act was itself speech. A public official
cannot be held liable for exercising his own free speech rights.
Similarly, we cannot enjoin him from speaking ill of plaintiffs. If
defendants' speech becomes threatening or harassing, however, then it is
not entitled to First Amendment protection. That is why courts so
frequently use words such as "threatening," "harassing" or "intimidating"
— to avoid a First Amendment catch-22. See Bloch, 156 F.3d at 679
(sheriff's disclosure of rape details not protected because intended to
humiliate plaintiff); Suarez, 202 F.3d at 687 (emphasizing that "where a
public official's alleged retaliation is in the nature of speech, in the
absence of a threat, coercion, or intimidation . . . such speech does not
adversely affect a citizen's First Amendment rights"). Because
defendants' alleged retaliatory acts here did not involve speech,
plaintiffs need not show harassment or intimidation.
Ultimately, we must discern some meaningful standard from this array of
cases. Because we find no meaningful distinction between the employment
and non-employment cases, we will simply apply the ones from this
circuit.*fn2 DeGuiseppe offers the most extensive discussion of the
Under the law of this Circuit, retaliation need not be
monstrous to be actionable under the First Amendment;
it need merely create the potential for chilling
employee speech on matter of public concern. `A
campaign of petty harassment may achieve the same
effect as an explicit punishment.' `Even minor forms
of retaliation can support a first Amendment Claim,
for they may have just as much of a chilling effect as
more drastic measure.'
68 F.3d at 192 (citations omitted). The most recent Seventh Circuit
statement on point reiterates that the action "must be sufficiently
"adverse' to deter the exercise of [plaintiffs'] rights." Power, 226 F.3d
at 821. Just to emphasize how low this threshold can be, teasing an
employee for bringing a birthday cake to the office can be enough to
state a retaliation claim. See Bart, 677 F.2d at 625 (noting "we cannot
say as a matter of law that the exercise of First Amendment rights by
public employees cannot be deterred by subjecting employees who exercise
them to harassment and ridicule through selective enforcement of work
rules."). Defendants' selective application of the press access policy
certainly falls within this broad definition.
There is no factual dispute as to plaintiffs' injury. Defendants simply
those injuries are not legally sufficient. We find denying Marlan
access to the CLAIM program could chill someone's speech. The alternative
sources defendants offered are not adequate substitutes for first-hand
observations. Reporters frequently do resort to alternate sources when
first-hand observations are not possible, but that in no way negates that
actually being there is optimal. Plaintiff has provided evidence of this
in the form of an affidavit from her editor and deposition testimony from
a journalism expert. But the potential chilling effect is so obvious
experts are hardly necessary. Interviewees may be more comfortable
talking to someone who was physically in class with them. And a camera
can never truly duplicate the live event. A reporter might well tone down
a critical article if she feared that jail officials might terminate, or
even restrict, her future access. That is exactly the type of chilling
effect the First Amendment guards against.
Defendants also argue that because Marlan had no constitutional or
statutory right to attend the CLAIM class, denying her access cannot be
actionable. That is not an accurate statement of the law. The cases we
have discussed amply demonstrate that denial of even discretionary
perquisites, if motivated by plaintiffs' views, violates the First
Amendment. See, e.g., Power, 226 F.3d at 821 (finding denial of
discretionary raise actionable). The DOC may not have had a legal
obligation to admit Marlan. But it may not refuse to do so because she
exercised her First Amendment rights.
II. Plaintiffs' Motion
Defendants concede that plaintiffs' speech was protected. And we have
found that the undisputed injury is legally sufficient. The only
remaining question is whether defendants were substantially motivated by
plaintiffs' speech. Here, there is a very clear factual dispute.
Plaintiffs contend that Marlan was punished because her article
criticized DOC officials. Defendants maintain that they denied Marlan
access to the CLAIM program because she deceived officials about her
For purposes of this motion we must accept defendants' version of the
facts. They concede that another reporter would have been permitted to
attend the CLAIM class as a matter of course. And that Marlan would have
been granted access but for her article. Defendants assert that they
denied Marlan access not because she criticized the sheriff, but because
she misled them about the content of her article. This is still a
content-based decision. Whether defendants took issue with the fact that
she criticized the sheriff, or that she wrote about something other than
what they expected, defendants clearly reacted to the content of Marlan's
article. That violates the First Amendment.
Here, the distinction from the employment context becomes relevant. An
employer can fire an employee for lying. Recall that under the
Pickering/Connick test we must consider the employer's interest in
maintaining an efficient office.*fn3 An employee who deceived her
employer could obviously be very disruptive to the work environment.
Reporters, however, may occasionally use deception in gathering
information as necessary to their First Amendment function of revealing
what government officials may not want the public to know. Clearly, this
does not extend to the point where a reporter jeopardizes jail security.
But admitting Marlan to the CLAIM class will not disrupt
anything at the jail. Defendants do not claim that Marlan had violated
prison rules, and concede they have no basis for believing she would do
differently in the future. Nor do they claim that allowing her access
will jeopardize security in any other way. They have, in effect, admitted
their decision to refuse her access was content-based.
Because defendants' stated justification still violates the First
Amendment, the factual dispute is immaterial. If Cunningham does not
trust Marlan, he does not have to personally answer her questions. But
defendants may not deny her a privilege accorded other reporters because
she did not include positive programs in her article. They must admit her
to the jail on the same terms as other reporters.
For the foregoing reasons, defendants' motion for summary judgment on
count I is denied, and plaintiffs' motion for summary judgment on count I
is granted. Because we grant plaintiffs' requested relief under count I,
their motion to amend is denied as moot.