In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1609
DAVID NOVOSELSKY,
Plaintiff‐Appellee,
v.
DOROTHY BROWN, in her individual
capacity, and COOK COUNTY, a Body
Politic,
Defendants‐Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CV 03702 — Charles R. Norgle, Judge.
____________________
ARGUED OCTOBER 1, 2015 — DECIDED MAY 10, 2016
____________________
Before POSNER, MANION, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. The parties in this action have a
long and litigious relationship. Over the past decade, plaintiff
David Novoselsky has filed many lawsuits alleging impropri‐
eties by defendant Dorothy Brown in her capacity as Clerk of
the Circuit Court of Cook County, Illinois. Brown later made
2 No. 15‐1609
statements to the public and to private parties accusing No‐
voselsky of being an unscrupulous attorney. Those statements
form the basis of this case.
Novoselsky brought this suit against Brown under state
law for defamation and under 42 U.S.C. § 1983 for First
Amendment retaliation, and he seeks to hold Cook County
liable for Brown’s actions pursuant to Monell v. Department of
Social Services, 436 U.S. 658 (1978). Brown moved for summary
judgment based on arguments that her communications are
protected from liability by a web of immunity defenses. The
district court denied defendants’ motion for summary judg‐
ment, and defendants have taken this interlocutory appeal
from the rejection of the immunity defenses.
We reverse. On the state‐law defamation claim, Brown’s
communications were all statements reasonably related to her
official duties. Illinois state law provides immunity to Brown
for claims based on these statements. Brown is also entitled to
summary judgment on the First Amendment retaliation
claim, for all she did to retaliate was criticize Novoselsky. It
follows that Cook County is also entitled to summary judg‐
ment.
I. Factual and Procedural Background
A. Communications by Brown
At relevant times, defendant Dorothy Brown has been the
Clerk of the Circuit Court of Cook County, Illinois. Plaintiff
David Novoselsky is a Wisconsin citizen with a law practice
in Chicago. Since 2004, Novoselsky has served as attorney in
over a dozen lawsuits brought by various plaintiffs against
Brown and Cook County. These lawsuits repeatedly raised al‐
legations that Brown was misappropriating county filing fees.
No. 15‐1609 3
In particular, Novoselsky alleged that between 2001 and 2011,
the Cook County Clerk’s office did not report a shortfall of
receipts totaling upwards of $300 million. None of Novo‐
selsky’s lawsuits have resulted in favorable judgments for his
clients.
On June 14, 2010, Brown filed a complaint with the Illinois
Attorney Registration and Disciplinary Committee
(“ARDC”). Her complaint said that Novoselsky had breached
a number of provisions of the Illinois Supreme Court Rules of
Professional Conduct, including: Rule 3.1, filing meritless
claims; Rule 3.6, making extrajudicial statements to the pub‐
lic; Rule 4.1, making false statements; and Rule 8.4, commit‐
ting general misconduct. Brown’s office also issued a press re‐
lease that summarized the contents of the complaint. The re‐
lease said that Novoselsky was “guilty of misconduct,” had
“wasted taxpayer money,” and had engaged in conduct that
was “clearly not professional.”
Novoselsky counters that the ARDC complaint amounted
to retaliation for his behavior at a January 2010 press confer‐
ence held by Brown. In the midst of a campaign for the Dem‐
ocratic nomination for Cook County President, Brown had
been criticized for her handling of her office’s “Jeans Day”
program. The program gave employees the opportunity to
pay a small sum for the privilege of wearing jeans to work on
designated days. The funds were collected and used to aid
employees in times of misfortune, to provide donations to
charities, and to fund office parties. Questions arose as to both
recordkeeping and the propriety of Brown soliciting dona‐
tions from public employees. Brown called the press confer‐
ence to address these accusations.
4 No. 15‐1609
After reading a prepared statement, Brown invited ques‐
tions. Believing Novoselsky was a member of the press,
Brown engaged him in discussion. She found his questions,
which implied that she had engaged in criminal conduct, “un‐
professional and disrespectful.” Brown later expressed con‐
cern that the public would accept as true Novoselsky’s re‐
peated false accusations at the press conference and in litiga‐
tion. In any event, Brown lost the primary election in March
2010. Brown’s office completed a first draft of the ARDC com‐
plaint in April and filed the complaint in June. The filed com‐
plaint accused Novoselsky of fraudulently representing him‐
self as a member of a legitimate news organization to gain en‐
try to the press conference, as well as of making numerous
disparaging allegations and filing multiple meritless lawsuits
against Brown.
The ARDC complaint did not end Novoselsky’s litigation
efforts. After Brown filed the complaint, Novoselsky took part
in a lawsuit seeking to force the funding and implementation
of a previously approved juvenile intervention program. The
program was designed to reassign non‐violent juvenile of‐
fenders from the criminal justice system to social services su‐
pervision, sparing them from incarceration alongside more
serious offenders. Leaders of the lawsuit said that Brown had
refused to release funds because she had determined that the
program violated the Illinois Constitution. Novoselsky took
the case, working alongside a former state court judge who
had resigned from the bench specifically to pursue the law‐
suit. Civil rights leader Reverend Jesse Jackson, Sr. agreed to
serve as named plaintiff. The suit was filed on May 19, 2011.
On May 20 and 21, Brown reached out to Reverend Jack‐
son to discuss the case. Brown also forwarded two documents
No. 15‐1609 5
to Reverend Jackson. The first was a detailed assessment of
the merits of the case by the Office of the Clerk in which
Brown denied that she was delaying implementation of the
juvenile intervention program and claimed that Novoselsky
had instigated the lawsuit in order to “turn the public trust
against the first African‐American Clerk of the Circuit Court
of Cook County.” The second was an annotated index of No‐
voselsky’s previous litigation efforts against Brown. These
communications had an effect on Reverend Jackson. He ap‐
peared with Brown on the afternoon of May 21 on a local Chi‐
cago television station to discuss their efforts to cooperate on
the program moving forward. He also withdrew his name
from the lawsuit against Brown.
In response to both Brown’s communications with Rever‐
end Jackson and her pursuit of the ARDC complaint and press
release, Novoselsky filed this lawsuit on June 1, 2011, present‐
ing a state‐law claim of defamation and a § 1983 claim of First
Amendment retaliation. Less than a week after Novoselsky
filed this suit, Brown sent a long letter to an investigator for a
private watchdog group, the Better Government Association
(“BGA”). The letter spelled out again the lawsuits Novoselsky
had filed against Brown, his behavior at the Jeans Day press
conference, and his potential “racial animus against Clerk
Brown” feeding into the “unconscious perception some peo‐
ple may have that African‐Americans are intellectually and
morally inferior.” For good measure, Brown included quota‐
tions from Lewis Carroll and various psychologists. Brown
followed this up in November with a letter to the Cook
County President and Board of Commissioners. The letter re‐
peated Brown’s characterizations of Novoselsky’s litigious‐
ness. It also accused an unknown county official of leaking an
internal memorandum to Novoselsky. Brown argued that this
6 No. 15‐1609
memorandum, suggesting that the County should sever its
present banking relationship with low‐rated financial institu‐
tions, was fueling Novoselsky’s accusation that Brown was ir‐
responsibly depositing County funds in high‐risk banks.
In March 2012, Novoselsky filed a second amended com‐
plaint, which is now the operative complaint for this case and
this appeal. His claims of a First Amendment violation and of
defamation remained the same, but he added allegations re‐
garding Brown’s communications to the BGA and the Board
of Commissioners. Novoselsky now bases his suit on four
communications: (1) Brown’s ARDC complaint and press re‐
lease; (2) Brown’s communications to Reverend Jackson; (3)
the letter to the BGA; and (4), the letter to the Cook County
President and Board of Commissioners.
B. Procedural History
In September 2013, Novoselsky filed a motion for partial
summary judgment, arguing that there were no issues of fact
regarding the communications with Reverend Jackson, the
letter to the BGA, and the letter to the Board of Commission‐
ers. In September 2014, the district court denied the motion.
In the interim, Brown and Cook County filed their own mo‐
tion for summary judgment. Brown argued that she was pro‐
tected by both absolute and qualified immunities from suit
based on her communications. Cook County also sought sum‐
mary judgment on several grounds.
The district court denied defendants’ motion for summary
judgment in early March 2015. The judge rejected Brown’s
theories of absolute immunity: that she was protected by an
Illinois judicial rule, that her communications were privileged
because they were made during a judicial proceeding, and
No. 15‐1609 7
that her communications were speech related to her official
duties. Nor was the judge persuaded that Brown was entitled
to qualified immunity on either the retaliation or defamation
claims. Brown and the County appealed the district court’s
decision to deny the motion for summary judgment.
II. Analysis
Federal jurisdiction in this case is appropriate: the § 1983
retaliation claim arises under federal law, 28 U.S.C. § 1331,
and the defamation claim is part of supplemental jurisdiction,
28 U.S.C. § 1367. Diversity jurisdiction is also available for the
state‐law claim since plaintiff is a citizen of Wisconsin. See 28
U.S.C. § 1332. We have jurisdiction to consider this interlocu‐
tory appeal under the collateral order doctrine. See Will v. Hal‐
lock, 546 U.S. 345, 349 (2006) (summarizing doctrine); Mitchell
v. Forsyth, 472 U.S. 511, 530 (1985) (denial of qualified immun‐
ity based on issue of law); Nixon v. Fitzgerald, 457 U.S. 731, 742
(1982) (denial of absolute immunity); Whitlock v. Brueggemann,
682 F.3d 567, 573 (7th Cir. 2012) (denial of both absolute and
qualified immunity from suit).
We review de novo a district court’s denial of summary
judgment on these legal immunity defenses. Gustafson v. Ad‐
kins, 803 F.3d 883, 890 (7th Cir. 2015). Summary judgment is
proper where, construing facts and drawing inferences in the
light most favorable to the non‐moving party, “there is no
genuine dispute as to any material fact and the movant is en‐
titled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
also Riker v. Lemmon, 798 F.3d 546, 551 (7th Cir. 2015), quoting
Carman v. Tinkes, 762 F.3d 565, 566 (7th Cir. 2014).
8 No. 15‐1609
A. Absolute Immunity for Defamation
Brown makes three principal arguments as to why she is
absolutely immune from liability against the state‐law defa‐
mation claims. First, she argues that Illinois Supreme Court
Rule 775 shields complainants from liability for complaints
filed with the ARDC. Second, she contends that some of the
communications are privileged because they were made dur‐
ing the course of a judicial proceeding. Third, Brown argues
that her communications are privileged as within the scope of
her duties as Clerk of the Circuit Court of Cook County. The
district court rejected each of these arguments. We focus our
attention on Brown’s argument that she is absolutely immune
because her statements were related to her official duties. We
agree with Brown and reverse on this basis.1
1. Communications Related to Official Duties
Illinois courts have long held that executive branch offi‐
cials of state and local governments cannot be civilly liable for
statements within the scope of their official duties. Geick v.
Kay, 603 N.E.2d 121, 127 (Ill. App. 1992). This immunity co‐
vers even defamatory statements. Klug v. Chicago School Re‐
form Bd. of Trustees, 197 F.3d 853, 861 (7th Cir. 1999). The pro‐
tection cannot be overcome by demonstrating “improper mo‐
tivation or knowledge of the statement’s falsity, including
malice.” Id.; see also Geick, 603 N.E.2d at 127. This absolute
immunity for such statements “represents a severe re‐
striction” for individuals seeking redress against defamation.
1
Brown also makes an alternative argument that her communications
should receive a “qualified privilege” under state law even if they are not
shielded by absolute immunity. We need not address her argument for a
qualified privilege, which was not presented to the district court.
No. 15‐1609 9
Blair v. Walker, 349 N.E.2d 385, 387 (Ill. 1976). The Supreme
Court of Illinois has explained that this immunity is “justified
by the countervailing policy that officials of government
should be free to exercise their duties without fear of potential
civil liability.” Id.
The privilege “provides a complete immunity from civil
action.” Zych v. Tucker, 844 N.E.2d 1004, 1008 (Ill. App. 2006);
see also Barrow v. Blouin, 38 F. Supp. 3d 916, 922–23 (N.D. Ill.
2014) (noting that, in Illinois, “an absolute privilege when
making statements that are reasonably related to the official’s
job responsibilities … provides complete immunity from civil
action”); Tracy Schachter Zwick, Overprivileged? A Guide to Il‐
linois Attorney’s Privilege to Defame, 86 Illinois Bar Journal 378,
379 (1998) (officials are protected “not only from civil liability
but also from the danger of an unsuccessful civil action”).
Brown’s immunity defense is therefore properly the subject of
an interlocutory appeal from a denial of summary judgment.
Whitlock, 682 F.3d at 573.
Absolute immunity extends to “executive officials.” Blair,
349 N.E.2d at 387. Blair applied the immunity to the Governor
of Illinois. Geick held that the immunity also extends to
“mayors of Illinois municipalities,” “chief administrators,”
and “official[s] of the executive branch of a local govern‐
ment.” 603 N.E.2d at 127. In Klug, we predicted the Illinois
courts would extend the immunity to local school board offi‐
cials. 197 F.3d at 861. Citing both the Illinois Supreme Court
in Blair, 349 N.E.2d at 387, and the Supreme Court of the
United States in Barr v. Matteo, 360 U.S. 564, 574 (1959), we
noted that the privilege was meant to ensure that “officials of
government” could be free from unwarranted defamation
suits. Klug, 197 F.3d at 861.
10 No. 15‐1609
As Clerk of the Circuit Court of Cook County, Brown’s po‐
sition does not entail the same level of executive authority as
a governor or mayor. But the clerk is an elected official who is
the chief administrator of a local government office and is
charged with a number of executive functions and duties. See
705 Ill. Comp. Stat. 105/13 (2015). Brown is thus immune from
liability insofar as she communicated within the scope of
those functions and duties.
The scope of the immunity is broad. The sole considera‐
tion is “whether the statements made were reasonably re‐
lated” to the official’s duties. Geick, 603 N.E.2d at 127–28, cit‐
ing Dolatowski v. Life Printing & Publishing Co., 554 N.E.2d 692,
695 (Ill. App. 1990). Put another way, officials are immune
from suit for “statements made within the scope of their au‐
thority.” Horwitz v. Board of Educ. of Avoca School Dist. No. 37,
260 F.3d 602, 617 (7th Cir. 2001), quoting Klug, 197 F.3d at 861.
Depending upon the powers of the office, this scope might
broadly include all official duties as well as the “exercises of
discretionary judgment” incident to those duties. Blair, 349
N.E.2d at 389; see also Barr v. Matteo, 360 U.S. at 573–74 (“It is
not the title of [an official’s] office but the duties with which
the particular officer sought to be made to respond in dam‐
ages is entrusted … which must provide the guide … .”). The
immunity is not without limits. While immunity may “protect
the functions that particular government officials perform,” it
does not shield “the government officials themselves.” Au‐
riemma v. Montgomery, 860 F.2d 273, 277 (7th Cir. 1988).
We conclude that all of the arguably defamatory commu‐
nications in this case are protected by this official immunity.
First, Brown’s complaint to the ARDC was within the scope of
her official duties. Novoselsky’s numerous lawsuits against
No. 15‐1609 11
Brown alleged her dereliction of the office’s responsibilities—
failure to segregate court fees into separate bank accounts,
failure to audit court funds, and unlawful use of court funds
for personal gain. Brown’s complaint focused on these issues
and pointed to the Illinois provisions regulating her conduct
in each of these areas. To be sure, Brown tested the boundaries
of her immunity by remarking in a footnote that Novoselsky
is guilty of “racial animus” and citing controversial publica‐
tions to show the public has an unconscious perception of Af‐
rican Americans as “intellectually and morally inferior.” But
taken altogether, the complaint falls within the ambit of
Brown’s official duties to oversee the Circuit Court Clerk’s of‐
fice and to respond to litigation filed against it.
Brown’s press release regarding the ARDC complaint is
protected by the immunity as well. Blair is particularly in‐
structive and provides a helpful starting point. There, the
Governor released a press statement detailing his actions in a
tax delinquency case in which two real estate brokers had al‐
legedly taken advantage of distressed homeowners. Blair, 349
N.E.2d at 385–86. The Governor admitted that the actions of
the two men may have been “technically within the law,” but
he characterized the brokers as “two bad actors” and “unscru‐
pulous,” described their actions as “unconscionable” and “a
simple case of greed,” charged them of being guilty of “ma‐
nipulation” and “dishonest dealing,” for “[p]reying on a help‐
less woman.” Id. at 386.
The Illinois Supreme Court determined that this commu‐
nication was absolutely privileged. Id. at 389. Though the
court acknowledged that “press releases can result in great
damage to an allegedly defamed individual,” it countered
that government officials need to be able to inform the public
12 No. 15‐1609
and their constituents of the issues before their offices. Id. at
389. This point echoed the U.S. Supreme Court’s similar hold‐
ing that “a public statement of agency policy in respect to mat‐
ters of wide public interest and concern is … action in the line
of duty” and therefore “within the outer perimeter” of an of‐
ficial’s duty for purposes of immunity. Barr, 360 U.S. at 574–75
(immunity where acting director of Office of Rent Stabiliza‐
tion issued press release on suspension of two department
employees).
Novoselsky argues that Barr and Blair are inapposite. First,
he contends that Barr involved the personnel decisions of a
supervisor over a supervisee, and that the subject matter of
the press releases was therefore far more within the line of
duty of the supervisor than is the case with Brown’s press re‐
lease. But there was no such internal personnel decision at is‐
sue in Blair, and this did not bar the Governor’s communica‐
tions from receiving immunity. Blair, 349 N.E.2d at 387, 389.
Second, Novoselsky argues that, unlike the defendant offi‐
cials in Barr and Blair, Brown did not have supervisory control
over the ARDC, so filing a complaint was not within her offi‐
cial duties as clerk.
That is not the proper inquiry. See Geick, 603 N.E.2d at 127
(rejecting this framing of Blair). If Governor Walker in Blair
had attempted to stop the actions of the unscrupulous brokers
by way of asking the courts for an injunction, over which he
had no supervisory control, he could have publicized that
step to his constituents without sacrificing his immunity. For
purposes of the immunity defense, we ask whether the official
had the discretion to “speak out” and to defend “the integrity
of the internal operations of the agency which [she] headed,”
No. 15‐1609 13
not whether she had power over the underlying personnel ac‐
tion described in the press release. Barr, 360 U.S. at 574–75.
Novoselsky argues further that the substance of the press
release was generally not related to Brown’s official duties as
clerk. He contends that Brown’s allegations concerned “per‐
sonal, not official matters,” including her campaign for Cook
County President. The press release’s references to Novo‐
selsky’s lawsuits against the Circuit Court are at odds with
“the true thrust and purpose” of the document, he argues,
which was to defame Novoselsky over personal matters. The
district court agreed with Novoselsky’s conclusion, noting
that the communications were of a “personal nature … in re‐
lation to elections for which Brown, as an individual, was on
the ballot.”
Even if the true thrust and purpose of the press release was
personal and nefarious, that would not defeat Brown’s im‐
munity under Illinois law. In this regard, the absolute privi‐
lege is absolute. It is not defeated by malicious intent or im‐
proper motivation. Horwitz, 260 F.3d at 618, quoting Klug, 197
F.3d at 861. An “unworthy purpose” behind the communica‐
tion “does not destroy the privilege,” for immunity would be
of little use if it could be defeated by “a jury’s speculation as
to motives.” Barr, 360 U.S. at 575, quoting Tenney v. Brandhove,
341 U.S. 367, 377 (1951). The correct inquiry under Illinois law
is whether the action of distributing the press release and the
release’s contents were related to Brown’s duties as clerk. The
act of circulating the press release, as noted above, is within
Brown’s duties. And as in Blair, the contents of the release
were reasonably related to her duty as clerk and a defense of
her and her department’s performance. See also Geick, 603
N.E.2d at 128 (statement of official discussing alleged political
14 No. 15‐1609
motivations of action reasonably related to official duties).
Accordingly, Brown is entitled to absolute immunity for issu‐
ing the ARDC press release.
This case highlights a fundamental asymmetry in Illinois
law of absolute immunity. A government official may make
defamatory statements, and may even do so with actual mal‐
ice, about a political opponent so long as the communications
pertain to the duties and responsibilities of her office. See
Prosser and Keeton on Torts § 114, at 822–23 (5th ed. 1984)
(noting that many critics contend this immunity affords “a
golden opportunity for utterly unscrupulous politicians to
abuse their position by inflicting outrageous injury upon the
helpless and innocent”). Yet under New York Times Co. v. Sulli‐
van, 376 U.S. 254 (1964), that political opponent as a member
of the public may be liable for defamation if he makes a simi‐
lar statement about the public official with “actual malice,”
meaning “with knowledge that it was false or with reckless
disregard” for the truth. Id. at 279–80. Absolute immunity un‐
der state law may therefore produce a form of incumbent ad‐
vantage on occasion.
But the courts of Illinois have determined that the values
of “full public knowledge” and “unfettered discharge of pub‐
lic business” justify such an imbalance. Blair, 349 N.E.2d at
387, quoting Comment, Defamation Immunity for Executive Of‐
ficers, 20 U. Chi. L. Rev. 677, 679 (1953); see also Geick, 603
N.E.2d at 127. Illinois could also decide to rectify the imbal‐
ance by, as a matter of state law, extending the privilege
against a defamation suit to all statements criticizing public
officials, even those made with malice. But Illinois has not
done so, as is its prerogative, and it is our responsibility to
apply Illinois law as it currently exists. See Erie Railroad Co. v.
No. 15‐1609 15
Tompkins, 304 U.S. 64, 78 (1938); Bridewell v. Eberle, 730 F.3d
672, 677 (7th Cir. 2013) (“State courts have the prerogative of
innovating on common‐law subjects, but federal courts do
not.”).
For similar reasons, the other communications by Brown
are subject to the same privilege. Brown’s communications
with Reverend Jackson concerned a lawsuit brought against
her in her official capacity. The subject of the litigation was
Brown’s administration of funds pertaining to a juvenile in‐
tervention program, a decision within the responsibilities of
her office. While Brown made potentially defamatory state‐
ments within this correspondence, alleging Novoselsky’s liti‐
giousness and racial bias, the communications themselves fall
within the broad scope of absolute immunity for statements
made in the scope of official duty.
The letter to the BGA was similarly related to Brown’s of‐
ficial duties. The correspondence sets out to “serve as a sum‐
mary of the 23 legal actions” filed by Novoselsky against
Brown and her office. Brown noted in the BGA letter that de‐
fending the lawsuits has cost her department and the taxpay‐
ers in excess of one million dollars. Though her correspond‐
ence again veers toward alleging “racial animus” on the part
of Novoselsky, Brown’s letter concerned her responsibilities
and duties as an elected official and tried to rebut charges
about the administration of her office.
And, finally, the letter to the Cook County Board of Com‐
missioners was also protected by the absolute immunity un‐
der state law. The letter was concerned primarily with an in‐
ternal investigation by the Office of the Independent Inspec‐
tor General to determine the source of an internal leak. The
16 No. 15‐1609
investigation began upon Brown’s request for an official in‐
vestigation of a leak of internal assessments of banks used by
the County. This leaked information was important to pend‐
ing litigation brought by Novoselsky. The County Board letter
from Brown discussed Novoselsky by way of background for
the broader conversation about the litigation documents.
While that discussion of Novoselsky was not flattering, it was
largely an aside to a lengthy discussion of Brown’s defense of
a lawsuit brought by Novoselsky and filing of a formal re‐
quest with the Inspector General. This set of actions and co‐
operation with the Cook County Board was reasonably re‐
lated to Brown’s duties as clerk.
2. Alternative Immunity Arguments
Brown also receives immunity for the ARDC complaint as
a statement made during the course of a legal proceeding. Un‐
der Illinois law, “anything said or written in the course of a
legal proceeding is protected by an absolute privilege.” Zan‐
ders v. Jones, 680 F. Supp. 1236, 1238 (N.D. Ill. 1988) aff’d, 872
F.2d 424 (7th Cir. 1989), citing Bond v. Pecaut, 561 F. Supp. 1037,
1038 (N.D. Ill. 1983), aff’d, 734 F.2d 18 (7th Cir. 1984). Other‐
wise defamatory material is therefore privileged if it arises
“during the course and as a part of, a judicial proceeding … if
the matter has some relation to the proceeding.” Malevitis v.
Friedman, 753 N.E.2d 404, 406–07 (Ill. App. 2001), quoting Re‐
statement (Second) of Torts § 587 (1977). Statements are priv‐
ileged even if they are not confined or relevant to the specific
issues of the litigation. Malevitis, 753 N.E.2d at 407, citing Popp
v. O’Neil, 730 N.E.2d 506, 510 (Ill. App. 2000), and Libco Corp.
v. Adams, 426 N.E.2d 1130, 1132 (Ill. App. 1981). They may not,
No. 15‐1609 17
however, be “inflammatory matters entirely unrelated to the
litigation.” Malevitis, 753 N.E.2d at 407.2
In Illinois, the ARDC “sometimes acts as a quasi‐judicial
body,” and “sometimes acts merely as an investigative
agency.” Lykowski v. Bergman, 700 N.E.2d 1064, 1070 (Ill. App.
1998). But the filing of a complaint triggers the judicial role of
the ARDC, and “an absolute privilege exists for any state‐
ments made during any step preliminary and necessary to a
judicial or quasi‐judicial proceeding.” Id. at 1071, citing
Prosser and Keeton on Torts § 114, at 819 (5th ed. 1984); see
also Baravati v. Josephthal Lyon & Ross Inc., 834 F. Supp. 1023,
1028 (N.D. Ill. 1993) (“Statements made before a quasi‐judicial
proceeding are absolutely privileged.”). The privilege is a
complete bar to a defamation claim. Lykowski, 700 N.E.2d at
1071. Here, then, Brown cannot be subject to suit for any state‐
ments made directly to the ARDC in her filed complaint.
That judicial proceeding immunity extends only to the
complaint itself. Statements concerning quasi‐judicial pro‐
ceedings are no longer privileged once given “to third parties
such as the media,” and therefore the press release would not
receive privilege under this theory. Lykowski, 700 N.E.2d at
2
The absolute privilege granted to statements made during the course of
judicial or quasi‐judicial proceedings provides “complete immunity from
civil action.” Bushell v. Caterpillar, Inc., 683 N.E.2d 1286, 1287 (Ill. App.
1997), citing Ringier America, Inc. v. Enviro‐Technics, Ltd., 673 N.E.2d 444,
446 (Ill. App. 1996); cf. Barrow v. Blouin, 38 F. Supp. 3d 916, 922–23 (N.D.
Ill. 2014) (noting, in the context of statements reasonably related to an of‐
ficial’s job responsibilities, that absolute privilege provides complete im‐
munity from suit). An order denying absolute immunity may be reviewed
on interlocutory appeal. Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985). We
therefore have jurisdiction to consider this theory.
18 No. 15‐1609
1071, citing Prosser § 114, at 819–20 (“[S]tatements given to
the newspapers concerning the case are not part of the judicial
proceeding, and are not absolutely privileged.”).3
B. Qualified Immunity on First Amendment Claim
We turn next to Brown’s qualified immunity defense to
Novoselsky’s § 1983 First Amendment retaliation claim. Qual‐
ified immunity protects government agents from liability for
their actions so long as they did not violate “clearly estab‐
lished statutory or constitutional rights of which a reasonable
person would have known.” Purvis v. Oest, 614 F.3d 713, 720
(7th Cir. 2010), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). This is a two‐part inquiry. First, taking the facts in the
light most favorable to the plaintiff, we ask whether the de‐
fendant violated a constitutional right. Second, we ask
whether that constitutional right was clearly established at
the time of the violation. Wheeler v. Lawson, 539 F.3d 629, 639
(7th Cir. 2008), citing Saucier v. Katz, 533 U.S. 194, 201 (2001).
We have discretion to address these questions in either order.
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
3 Novoselsky also asserts that Brown’s communications with his then‐cli‐
ent, Reverend Jackson, violated her duties as an attorney under Rule of
Professional Conduct 4.2, which prohibits a lawyer, even one who is her‐
self a party to a lawsuit, from communicating directly with an opposing
party known to be represented by a lawyer in the matter. See In re Segall,
509 N.E.2d 988 (Ill. 1987) (imposing suspension). When the lawyer is a
public official, such restrictions on communicating with members of the
public can pose difficult problems, as comments to the rule acknowledge.
We need not decide in this appeal whether Brown violated Rule 4.2. That
is a matter for the Illinois disciplinary authorities; a violation would not
give rise in and of itself to a civil claim for damages. See Ill. Rules of Prof’l
Conduct, Preamble [20] (2010).
No. 15‐1609 19
Novoselsky claims that Brown violated his First Amend‐
ment rights by retaliating against him for his exercise of those
rights. As a general rule, to prevail on the retaliation claim,
Novoselsky must demonstrate that “(1) he engaged in activity
protected by the First Amendment; (2) he suffered a depriva‐
tion that would likely deter First Amendment activity in the
future; and (3) the First Amendment activity was at least a
motivating factor in the Defendants’ decision to take the retal‐
iatory action.” Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012)
(internal quotation marks omitted), quoting Bridges v. Gilbert,
557 F.3d 541, 546 (7th Cir. 2009); see also Woodruff v. Mason,
542 F.3d 545, 551 (7th Cir. 2008) (applying retaliation frame‐
work to state agency’s response to litigious party).
Novoselsky’s retaliation claim raises two questions for us.
First, is Novoselsky’s work as a lawyer in and of itself activity
protected by his personal rights under the First Amendment?
Second, were Brown’s statements the rare instance where
speech can amount to unconstitutional retaliation?
We turn first to the question of protected activity. Novo‐
selsky argues he was exercising his own First Amendment
rights “to petition the government for redress of grievances”
and, acting as an attorney, “to bring an action on behalf of
[plaintiffs] to seek redress of grievances affecting the public
interest.”
The First Amendment right to petition the government
“extends to the courts in general and applies to litigation in
particular.” Woodruff, 542 F.3d at 551, citing California Motor
Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972),
and NAACP v. Button, 371 U.S. 415, 429–30 (1963). This is so at
least in part because litigation may be a form of political ex‐
pression essential for vindicating the interests of minority
20 No. 15‐1609
groups. NAACP, 371 U.S. at 429–30. In Woodruff, we held that
the party to lawsuits challenging a government entity has a
protected right in that litigation activity. Woodruff, 542 F.3d at
551. This right can extend to an association of parties seeking
to express a grievance through litigation. California Motor
Transport, 404 U.S. at 510–11. And as the Supreme Court fa‐
mously declared, the First Amendment protects the right of
an organization’s “members and lawyers to associate for the
purpose of assisting persons who seek legal redress.”
NAACP, 371 U.S. at 428–30.
Accordingly, the right to petition the government is broad
when litigation is used as the vehicle. But nothing in these
cases settles whether an attorney herself has a personal con‐
stitutional right to file lawsuits on behalf of her client. The
right to petition protected in Woodruff was the right of the
party to the litigation, not his counsel. And Novoselsky is not
alleging that he has associated with other parties or his client
to exercise a First Amendment right.
It appears that only one circuit court has directly decided
whether an attorney can claim First Amendment protection
on his own behalf in representing his client, particularly for
purposes of a retaliation suit. In Mezibov v. Allen, 411 F.3d 712,
720–21 (6th Cir. 2005), a divided Sixth Circuit panel ruled that
an attorney had no personal First Amendment right at stake
when representing his client in a lawsuit. The panel majority
noted that judicial proceedings necessarily require a curtail‐
ing of free speech by way of various rules of procedure and
evidence. Id. at 717, citing Gentile v. State Bar of Nevada, 501
U.S. 1030, 1071 (1991). The panel reasoned that any act by a
lawyer is advocacy for his client. Any First Amendment right
at issue therefore belongs to the client, and the “sole raison
No. 15‐1609 21
d’etre” of a lawyer is to vindicate the client’s rights and inter‐
ests, not his own. Id. at 720 (distinguishing Legal Services Corp.
v. Velazquez, 531 U.S. 533 (2001)). Lawyering is not “free ex‐
pression.” Id. When a lawyer litigates, the court wrote, he is
“simply doing his job.” Id.
Judge Moore dissented on this point. Restrictions on the
First Amendment rights of an attorney do not mean a lack of
First Amendment rights altogether. Id. at 723 (Moore, J., dis‐
senting in part), citing Gentile, 501 U.S. at 1081–82 (O’Connor,
J., concurring) (noting that restricting a lawyer’s speech in lit‐
igation “does not mean, of course, that lawyers forfeit their
First Amendment rights”). Nor is it the case that attorneys are
“mere conduits for the speech of their clients,” as the very “act
of agreeing to represent a client in the first instance reflects a
decision by the attorney to exercise his or her First Amend‐
ment rights on behalf of the client.” Id. at 724 n.3, citing Sacher
v. United States, 343 U.S. 1, 9 (1952) (“Of course, it is the right
of counsel for every litigant to press his claim … .”).4
Our court has not yet taken sides in this debate, and we do
not need to do so in this case. Novoselsky simply cannot es‐
tablish that Brown’s alleged retaliation constituted a depriva‐
tion of his constitutional rights. In this case, the core of the
4 Mezibov remains the law of the Sixth Circuit but has been applied reluc‐
tantly in subsequent cases. Bright v. Gallia County, 753 F.3d 639, 654–55 (6th
Cir. 2014) (“Mezibov is binding precedent in this circuit … . Therefore, with
great reluctance, we hold that, at this time, Mezibov prevents us from rec‐
ognizing [an attorney’s] filing of his motion or its contents as protected
conduct.”); see also Lewter v. Kannensohn, 159 F. App’x 641, 648 (6th Cir.
2005) (mem.) (Keith, J., concurring in judgment but dissenting in part) (“I
strongly disagree with the majority opinion’s reliance on Mezibov and its
holding … .”).
22 No. 15‐1609
“alleged retaliatory action is in itself speech,” namely Brown’s
written communications. See Hutchins v. Clarke, 661 F.3d 947,
956 (7th Cir. 2011). Retaliatory speech is generally actionable
only in situations of “threat, coercion, or intimidation that
punishment, sanction, or adverse regulatory action w[ill] im‐
mediately follow.” Id. at 956–57. In certain cases, a public offi‐
cial may also face liability where he retaliated by subjecting
an individual to “embarrassment, humiliation, and emotional
distress.” Id. at 957, quoting Bloch v. Ribar, 156 F.3d 673, 679–
80 (6th Cir. 1998). But this is a high bar, usually limited to the
release of “highly personal and extremely humiliating de‐
tails” to the public. Hutchins, 661 F.3d at 957, quoting Bloch,
156 F.3d at 676 (county sheriff responded to rape victim’s pub‐
lic criticism by holding a public press conference where he re‐
leased intimate, humiliating, undisclosed details of the rape).
Short of that boundary, the First Amendment gives wide
berth for vigorous debate, and especially for statements by
public officials. As the Second Circuit has explained, such of‐
ficials may express critical views of members of the public
even when those views are false. X‐Men Security, Inc. v. Pataki,
196 F.3d 56, 71 (2d Cir. 1999). In X‐Men, legislators publicly
accused a private security guard firm of being part of a hate
group, practicing “racism, gender discrimination, anti‐semi‐
tism, and other religious discrimination,” and ridiculing ob‐
jective findings to the contrary. Id. But their statements fell
short of “any semblance of threat, coercion, or intimidation.”
Id. Accordingly, the defendant officials were granted qualified
immunity against a § 1983 suit. Id. at 60.
The D.C. Circuit reached a similar result in Penthouse In‐
ternational, Ltd. v. Meese, 939 F.2d 1011 (D.C. Cir. 1991). There,
the U.S. Attorney General sent letters to retailers selling a
No. 15‐1609 23
magazine asking for a response to the accusation that they
were involved in the distribution of pornography. Id. at 1013.
As a result, a retailer discontinued its sales of the magazine.
Id. The D.C. Circuit held that the Attorney General had not
violated the publisher’s First Amendment rights: “As part of
the duties of their office, … officials surely must be expected
to be free to speak out to criticize practices, even in a condem‐
natory fashion, that they might not have the statutory or even
constitutional authority to regulate.” Id. at 1015. A public offi‐
cial must be allowed, on occasion, to criticize a private citi‐
zen’s speech, writings, or other expressive activity and may
do so broadly when no threat of sanction is involved. Id. at
1016.
Unconstitutional retaliation by a public official requires
more than criticism or even condemnation. However impoli‐
tic defendant Brown’s statements may have been, they did not
rise to the level of threat, coercion, intimidation, or profound
humiliation. Even taking all facts in the light most favorable
to Novoselsky, he cannot show that he suffered a deprivation
of a First Amendment right. Without this, he cannot make a
claim for retaliation even if we assume that his work as a law‐
yer was First Amendment activity. Gomez v. Randle, 680 F.3d
859, 866 (7th Cir. 2012). And without a cognizable claim for
retaliation, Novoselsky cannot demonstrate a violation of
“clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow, 457 U.S. at
818. Brown is therefore entitled to summary judgments both
on the merits and based on qualified immunity on plaintiff’s
First Amendment retaliation claim.
24 No. 15‐1609
C. Novoselsky’s Claim Against Cook County
The defendants also raise a number of arguments why
summary judgment should be granted on Novoselsky’s claim
against Cook County. That claim seeks to hold the county re‐
sponsible for Brown’s alleged First Amendment violation on
the theory of municipal liability under Monell v. Department of
Social Services, 436 U.S. 658 (1978). Under Monell, a county
may be liable for the deprivation of an individual’s constitu‐
tional right if the “deprivation was the result of the county’s
official policy, custom, or practice.” Wilson v. Giesen, 956 F.2d
738, 744 (7th Cir. 1992), citing Monell, 436 U.S. 658. To have a
viable Monell claim for damages, a plaintiff must show a vio‐
lation of his constitutional rights by an individual defendant.
Swanigan v. City of Chicago, 775 F.3d 953, 962 (7th Cir. 2015).
Because we hold that Brown did not violate Novoselsky’s
First Amendment right, it follows that Novoselsky cannot
avoid summary judgment on his Monell claim against the
county.
Moreover, under Monell, a county may not be vicariously
liable for the actions of an unrelated government entity. See
Thompson v. Duke, 882 F.2d 1180, 1187 (7th Cir. 1989) (in case
against Cook County, no liability for actions of employees of
elected Cook County Sheriff where county had no authority
to train employees or set employee policies). Illinois courts
have stated that the position of Circuit Court Clerk is not an
officer of the county. Drury v. County of McLean, 433 N.E.2d
666, 669 (Ill. 1982) (In Illinois, “the clerks of the circuit courts
in this State are not county officials, but are nonjudicial mem‐
bers of the judicial branch of State government.”).
There is a jurisdictional complication here, in that a Monell
defense is a “mere defense to liability,” not immunity from
No. 15‐1609 25
suit, so that a ruling denying a Monell defense is therefore not
on its own an appealable collateral order. Swint v. Chambers
County Comm’n, 514 U.S. 35, 43 (1995). We have explained,
though, why we have jurisdiction to review Brown’s immun‐
ity. Our answer to the question of her qualified immunity de‐
feats any basis for a Monell claim, so the claim against the
county is “inextricably intertwined” with the case against
Brown and our review on appeal is proper. See id. at 50–51;
see also Abelesz v. OTP Bank, 692 F.3d 638, 647 (7th Cir. 2012)
(pendent appellate jurisdiction is narrow but may be used
where there are “compelling reasons for not deferring the ap‐
peal of the otherwise unappealable interlocutory order”)
(quotation marks omitted).
The judgment of the district court is REVERSED and the
case is REMANDED for entry of judgment for defendants.