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Sheriff Dodges Liability for Call-In Radio Rant

CHICAGO (CN) - A Milwaukee County sheriff did not retaliate against a deputy by calling into a radio show to tell the host that the officer held a grudge over a disciplinary action, the 7th Circuit ruled.

The war of words erupted in May 2007 as listeners of the popular "Eric Von Show" on WMCS AM 1290 discussed and criticized Sheriff David Clarke for his involvement with a black community group dedicated to stopping crime.

Deputy David Hutchins called in to voice his opinion, which was also critical, saying that Clarke was not a good fit for the sheriff position.

Clarke soon joined the fray, saying Hutchins was a bitter "slacker" who was disciplined for "sexual harassment" in 2004. Hutchins had actually been disciplined for violating a rule against offensive conduct or language.

In a federal lawsuit, Hutchins claimed Clarke had used retaliation to infringe on the deputy's right to free speech. He also brought state-law claims under the Wisconsin Open Records Law and Right of Privacy statute.

Clarke appealed after U.S. District Judge William Callahan Jr. granted summary judgment for Hutchins.

This time, a three-judge appellate panel sided with the sheriff, concluding that Wisconsin's Open Records law did not apply and that Hutchins' privacy was not violated by the public outburst.

"Here, the facts in the record show that Sheriff Clarke called into a radio show and, spontaneously or not, discussed details regarding Hutchins' disciplinary history," Judge William Bauer wrote for the majority. "Nothing from this set of facts leads us to the conclusion that Wisconsin's Open Records Law should be invoked. There was no request to inspect Hutchins' disciplinary record, no permission granted, and no balancing test undertaken."

Though Clarke's "insensitive, not to mention inaccurate" comments may have given rise to other causes of action, Hutchins' interpretation of Open Records law would impermissibly expand the causes of actions under the statute, the court ruled.

Clarke's comments also did not violate Hutchins' right to privacy because the Clark revealed information available through public records. By conducting a balancing test, the court determined that Hutchins' disciplinary record did not qualify for a shield from the public.

"We find that the public interest in disclosure of this information is not outweighed by the public interest in maintaining it as a closed record. Many of the factors that favor non-disclosure of a police officer's personnel files are not present in Hutchins' case," Bauer wrote.

The court finally rejected Hutchins' First Amendment claims, finding that Clarke's comments, though possibly retaliatory, were protected speech as well.

"Sheriff Clarke's disclosure of Hutchins' disciplinary history did not constitute a threat, coercion, or intimidation that punishment, sanction, or adverse regulatory action would immediately follow," Bauer wrote. "We cannot afford one party his right to free speech while discounting the rights of the other party."

Judge Diane Williams wrote a brief concurrence.

"I write separately to note that I do not read the majority's opinion to overturn our circuit's longstanding recognition that retaliatory speech may be actionable ... if it is likely to deter a person of ordinary firmness from exercising his First Amendment rights," she explained.

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