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April 2, 2001


The opinion of the court was delivered by: James B. Moran, Senior U.S. District Judge.


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. at 248.

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 explain:

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 ...

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