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.
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 ...