Smart v. Board of Trustees of University of Illinois

Decision Date29 August 1994
Docket NumberNos. 93-3137,93-3176,s. 93-3137
Citation34 F.3d 432
Parties65 Empl. Prac. Dec. P 43,270, 94 Ed. Law Rep. 69, 9 IER Cases 1505 Winston I. SMART, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF the UNIVERSITY OF ILLINOIS, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Winston I. Smart, pro se.

Steven C. Daily, John L. Conlon, Greenberger, Krauss & Tennenbaum, Chicago, IL, and Charles Palmer, Flynn, Palmer, Tague & Lietz, Champaign, IL, for defendants-appellees.

Before POSNER, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.

POSNER, Chief Judge.

The plaintiff has appealed from the denial of his motion for a preliminary injunction that would if granted have prevented the University of Illinois from funding a suit for defamation that has been brought against him by several professors employed by the university. That suit, a diversity suit pending in the same district court, was stayed on the eve of trial to await the outcome of the appeal in the present suit, which was brought under 42 U.S.C. Sec. 1983 and charges that the university--a state agency, Kroll v. Board of Trustees, 934 F.2d 904 (7th Cir.1991)--by funding the defamation suit of its professors has infringed the plaintiff's freedom of speech.

The plaintiff, Smart, is a black lawyer who applied for a position with the university as an assistant professor of agricultural law and was turned down in favor of a white, Purnell. Smart responded to this disappointment by launching a nationwide mail campaign against the university and the professors whom he considered responsible for his rejection. He prepared an affidavit charging racial discrimination and fraud and mailed more than 1,500 copies to public officials, lawyers and others involved in agricultural law, the news media, bar organizations, and other individuals and groups. Among the particulars of the charge is that Professor Grossman, co-chairman of the search committee that had recommended Purnell over him, had altered Purnell's law school transcript by changing two F's to passing grades, in order to make Purnell look better. These accusations precipitated the suit for defamation by Purnell, Grossman, and others. The university is defraying the plaintiffs' legal expenses. Originally a plaintiff itself, later it voluntarily dismissed its claim.

Smart argues that by funding the suit for defamation the university is penalizing him for having exercised his right of free speech in accusing the university of fraud and discrimination. He does not live in Illinois, and he claims to have no resources with which to defend himself against the suit. He claims that his health will be endangered if he has to defend himself, and this is one of the grounds on which he argues that he will be harmed irreparably unless he gets a preliminary injunction.

We do not think the district judge abused his discretion in denying the motion for a preliminary injunction. This is so even though the idea behind Mr. Smart's suit, although somewhat far-fetched, cannot at this stage be declared wholly groundless. It is true that within the limits prescribed by the Supreme Court in the line of cases that began with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), defamation is not constitutionally protected. So if Smart loses the defamation suit, he will have very little basis for complaint, either against the plaintiffs in that suit or against their financial angel, the university. Cf. NLRB v. Mini-Togs, Inc., 980 F.2d 1027, 1033-34 (5th Cir.1993). Little basis, but perhaps not none. Malicious prosecution is the bringing of a suit known to be groundless, while abuse of process is the bringing of a suit that may, like the professors' defamation suit against Smart, have a solid grounding in law but that the plaintiff has filed not in order to vindicate his legal rights and obtain a judgment but in order to harass the defendant. In re Hendrix, 986 F.2d 195, 201 (7th Cir.1993); W. Page Keeton et al., Prosser and Keeton on the Law of Torts Sec. 121, p. 897 (5th ed. 1984). If malicious prosecution or abuse of process is committed by state actors and results in the arrest or other seizure of the defendant, there is an infringement of liberty, but we now know that the defendant's only constitutional remedy is under the Fourth Amendment (as made applicable to the states by the Fourteenth), and not under the due process clause directly. Albright v. Oliver, --- U.S. ----, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). If liberty is not at stake, it is difficult to see how either tort could be thought to invade an interest protected by the due process clause (life, liberty, or property) merely by virtue of its effect on the reputation or, like any suit, the pocketbook of the defendant. Defamation is not actionable in such circumstances, because reputation is not deemed property within the meaning of the due process clause. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). How torts so closely related to defamation in the interests that they invade as malicious prosecution and abuse of process could be thought to deprive a defendant of property mystifies us.

However that may be, Smart's argument is not that he has been deprived of property; it is that by bringing a defamation suit that he claims is malicious and abusive the defendants have infringed his freedom of speech, one of the forms of liberty protected by the Fourteenth Amendment. Any form of official retaliation for exercising one's freedom of speech is actionable as an infringement of that freedom. Many officials have enforcement powers, and legal harassment including but not limited to threats to prosecute and actual prosecutions has frequently been charged as an infringement of free speech. E.g., Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965); Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); Rakovich v. Wade, 850 F.2d 1180 (7th Cir.1988) (en banc); Sloman v. Tadlock, 21 F.3d 1462, 1469-70 (9th Cir.1994); Lewellen v. Raff, 843 F.2d 1103, 1109-10 (8th Cir.1988); Fitzgerald v. Peek, 636 F.2d 943 (5th Cir.1981) (per curiam); Wilson v. Thompson, 593 F.2d 1375 (5th Cir.1979). What is true about defamation--that it is not actionable as such under the Constitution, but that it is actionable when used by public officials to punish a person for expressing his views, Little v. City of North Miami, 805 F.2d 962, 967-68 (11th Cir.1986) (per curiam)--is true of defamation suits as well. The defamation suit in New York Times Co. v. Sullivan was...

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