(dissenting). "If 'hard cases make bad law,' unusual cases surely have the potential to make *313even worse law." Department of the Air Force v. Rose, 425 U.S. 352, 382 (1976) (Burger, C.J., dissenting). This is an unusual case: a public employee breaches his duty of confidentiality, voluntarily quits,1 sues, and recovers $80,665.87, including $20,000 for mental anguish and $25,000 punitive damages. This result is not only bad law, it offends common sense. I therefore dissent.
I disagree with the majority in three respects. First, I do not agree that Barnhill's disclosure of the survey questions was protected speech. Second, I do not agree that Barnhill's interest in disclosing the survey questions outweighed the Wisconsin Survey Research Laboratory's interest in maintaining the confidentiality of those questions. Finally, I conclude that the majority failed to apply the "clearly-established law" standard to the individual defendants' qualified immunity defense.
Because it is so clear that the individual defendants, who were Barnhill's superiors2 and are alleged to have discharged Barnhill, are immune from liability and that immunity disposes of the case,31 restrict my discussion primarily to that issue.4 It will be necessary, however, to *314discuss the first amendment issue because whether the defendants are entitled to qualified immunity depends on how well Barnhill's first amendment rights were established, if in fact his speech was protected by the first amendment.
HH
At the outset, it is necessary to identify Barnhill's speech which he claims was protected. The law as to certain speech may be clearly established while the law as to other speech may not. The jury responded "yes" to the question: "Was Mr. Barnhill discharged because he disclosed materials concerning the shopping mall survey to the newspaper(s)?" The materials Barnhill disclosed concerning the shopping mall survey were the survey questions. Barnhill could not disclose the survey results because he didn't know the results. Barnhill disclosed the survey questions to reporters to support his thesis that the survey was slanted so as to elicit responses supporting the position of shopping mall operators in pending litigation.
The jury was not asked whether Barnhill was discharged because of the content of his speech criticizing the university for conducting surveys for inappropriate *315purposes and inappropriate clients.5 Barnhill states that the first amendment issue is: "Did the interests of the Wisconsin Survey Research Center [sic] ... in keeping a survey schedule confidential outweigh the interests of [Barnhill] in disclosing the text of the survey questions to newspapers while the survey was still underway?"
Thus, we are presented with a much narrower issue than that decided by the circuit court and the majority. The circuit court concluded that Barnhill's speech "was an attempt to bring to light potential wrongdoing on the part of defendants." The majority states: "Barnhill exercised his right of free speech to comment about the rela*316tionship between the state university and private business." Maj. op. at 296-97.
Both courts applied the "clearly-established" standard at a level of genérality that nullifies the defense of qualified immunity. "The Supreme Court has warned that in determining whether the law was clearly established, a court should be careful not to test the rule of law at such a level of generality as to render unavailable the defense of qualified immunity." Melton v. City of Oklahoma City, 879 F.2d 706, 729 n.37 (10th Cir. 1989), citing Anderson v. Creighton, 483 U.S. 635, 639 (1987).
The courts should have tested the "clearly-established" rule of law against the facts of this case. The test in this case is: Was Barnhill's first amendment speech interest in disclosing confidential information acquired by him in the course of his employment so clearly established that the individual defendants knew or should have known that they would violate his constitutional rights if they discharged him for breaching his duty of confidentiality?
N — i
A.
The general contours of the defense of qualified immunity are by now well sculpted. In Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), the Court held that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Put another way, a claim for qualified immunity would be defeated only if an official" 'knew or reasonably should have known that the action he took within his sphere of official responsi*317bility would violate the constitutional rights of the [plaintiff]' . . . (emphasis added)." Id. at 815 (quoting Wood v. Strickland, 420 U.S. 308, 322 (1975)).
Since Harlow, the Court has more specifically shaped the contours of the qualified immunity defense. In Malley v. Briggs, 475 U.S. 335, 341 (1986) the Court said that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." In Mitchell v. Forsyth, 472 U.S. 511, 528 (1985) the Court held that public officials are immune unless "the law clearly proscribed the actions" they took. In Anderson v. Creighton, 483 U.S. 635, 639-40 (1987), the Court comprehensively explained the application of-the Harlow standard:
[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the "objective legal reasonableness" of the action assessed in light of the legal rules that were "clearly established" at the time it was taken.
The operation of this standard, however, depends substantially upon the level of generality at which the relevant "legal rule" is to be identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of "clearly established law" were to be applied at this level of generality, it would bear no relationship to the "objective legal reasonableness" that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified *318liability simply by alleging violation of extremely abstract rights. Harlow would be transformed from a guarantee of immunity into a rule of pleading. Such an approach, in sum, would destroy "the balance that our cases strike .between the interests in vindication of citizens' constitutional rights and in public officials' effective performance of their duties," by making it impossible for officials "reasonably [to] anticipate when their conduct may give rise to liability for damages." It should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.
Anderson, 483 U.S. at 639-40 (citations omitted; emphasis added).
B.
The seventh circuit court of appeals has applied the Harlow standard, as explained in Anderson, in several cases:6 Greenberg v. Kmetko, 840 F.2d 467 (7th Cir. 1988); Rakovich v. Wade, 850 F.2d 1180 (7th Cir. 1988) (en banc), cert. denied, 488 U.S. 968 (1988); Cleveland-*319Perdue v. Brutsche, 881 F.2d 427 (7th Cir. 1989), cert. denied, 59 U.S.L.W. 3326 (U.S. Oct. 30, 1990) (No. 89-1167).
In Greenberg, the court held that merely stating that a social worker had the right to be free from retaliation for exercise of his first amendment rights, stated the legal principle at issue in overly abstract terms. The court remanded the case to the district court for reconsideration in light of Anderson.
In Rakovich a member of a Wisconsin city's civil service commission alleged that the police chief and police officers initiated an investigation of his activities in retaliation for his criticism and past disagreements with the police department and individual officers. The court, en banc, held that the officers were qualifiedly immune because their conduct did not violate plaintiffs clearly-established rights. Applying the principles of Anderson, the court said:
The factual circumstances of the alleged violation need not be "identical" to prior holdings in order to find an officer entitled to qualified immunity. LeClair v. Heart, 800 F.2d 692, 696 (7th Cir. 1986) (citing People of Three Mile Island v. Nuclear Regulatory Commissioners, 747 F.2d 139, 148 (3d Cir. 1984) (no qualified immunity if the defendant violated "a clearly established and well litigated general proposition in which the case at hand merely represents a new factual wrinkle")). Nonetheless, ”[c]losely analogous cases, those decided before the defendants acted or failed to act, are required to find that a constitutional right is clearly established." Powers v. Lightner, 820 F.2d 818, 821 (7th Cir. 1987) (divided panel) (citing Lojuk v. Johnson, 770 F.2d 619, 628 (7th Cir. 1985) ("While cases involving the exact fact pattern at bar are unnecessary, case law in a closely analogous area is crucial to permit us to *320conclude that reasonably diligent government officials would have known of the case law, related it to the situation at hand, and molded their conduct accordingly.") However, this does not mean that only binding precedent will clearly establish a right.
Therefore, "[i]n the absence of binding precedent, a court should look to whatever deci-sional law is available to ascertain whether the law is clearly established under Harlow." A review of these cases should focus only on rights clearly established in their respective contexts . . .. Lojuk, 770 F.2d at 628.
Powers, 820 F.2d at 821.
'This means that . . . public officials are entitled to immunity unless it has been authoritatively decided that certain conduct is forbidden.'
Rakovich, 850 F.2d at 1209-1210 (citations omitted).
Cleveland-Perdue is pertinent because there, as here, there was no controlling precedent. The mother of a deceased inmate brought an action against prison officials to recover for inadequate medical treatment of the inmate, alleging that the prison officials violated the inmate's eighth amendment right to be free from cruel and unusual punishment. The court said:
[Q]ur independent research has revealed no decision by this court recognizing that a failure to remedy systemic deficiencies in health care services at a prison violated the eighth amendment prior to 1983 . . .. The presence of a controlling precedent is not, however, a sine qua non of a finding that a particular right has been clearly established within the meaning of Harlow. In the absence of a controlling precedent, we look to all relevant caselaw in an effort to determine whether at the time of the alleged acts a suffi*321cient consensus had been reached indicating that the official's conduct was unlawful. To state the proposition in another way, we seek to determine whether there was such a clear trend in the caselaw that we can say with fair assurance that the recognition of the right by a controlling precedent was merely a question of time. This approach makes eminent sense for it precludes an official from escaping liability for unlawful conduct due to the fortuity that a court in a particular jurisdiction had not yet had the opportunity to address the issue.
Cleveland-Perdue, 881 F.2d at 431 (citations omitted).
After reviewing the relevant case law, the court concluded that the prison officials were not qualifiedly immune because there was a clear consensus that a prison official's failure to remedy systemic deficiencies in medical services akin to those alleged constituted deliberate indifference to the inmate's medical needs, and violated his eighth amendment rights. Id.
See also Colaizzi v. Walker, 812 F.2d 304, 308 (7th Cir. 1987) ("[T]he test for immunity should be whether the law was clear in relation to the specific facts confronting the public official when he acted"), and Green v. Carlson, 826 F.2d 647, 649 (7th Cir. 1987) (district court erred in not considering specific facts of case).
C.
Under Anderson, we may not examine the individual defendants' defense of qualified immunity abstractly and solely in terms of general first amendnient rights. We must review the facts and determine whether, in the light of pre-existing law, the unlawfulness of Barnhill's discharge was apparent or should have been apparent to the individual defendants. The appropriate level of generality at which we must apply the Harlow standard is *322the disclosure by a public employee of confidential information imparted to the employee during his or her employment. Neither the circuit court nor the majority has applied the Harlow standard at the appropriate level of generality.
In my research of pre-existing law, I did not expect to find a "spotted cow" case, i.e., one in which a public employee was discharged for disclosing a survey schedule. I was not disappointed. Nor did I find "closely analogous" cases from which I could conclude with fair assurance that the recognition of a public employee's first amendment right to disclose confidential information imparted to the employee by the public employer was merely a matter of time. Without a "clear trend" in the case law recognizing such first amendment rights, Sharp and Lee could not have "known"7 that they would violate Barnhill's first amendment rights if they discharged him for disclosing the confidential survey schedule.
There is, however, sufficient case law and authority from which the individual defendants could have con-*323eluded that they could discharge Barnhill for disclosing confidential information without violating his constitutional rights, including his first amendment rights. There was also statutory authority in the form of Wisconsin's "whistleblower" laws from which Sharp and Lee could reasonably have concluded that they could discharge Barnhill for violating his duty of confidentiality.
(1)
In Snepp v. United States, 444 U.S. 507 (1980),8 the Court held that an ex-CIA agent's publication of a book about the CIA without the CIA's prior review and approval, was a breach of the agent's fiduciary obligation arising from his employment agreement. As an express condition of his employment, Snepp had executed an agreement with the CIA promising that he would "not . . . publish . . . any information or material relating to the Agency, its activities or intelligence activities generally, either during or after the term of [his] employment . . . without specific prior approval by the Agency." Id. at 508. His promise was an integral part of his undertaking "not to disclose any classified information relating to the Agency without proper authorization." Id. Upon the eve of his departure from the agency, Snepp also executed a "termination secrecy agreement," which reaffirmed his obligation.
The government brought action to enforce Snepp's agreement. Snepp claimed that his agreement was unenforceable as a prior restraint on protected speech. The Court rejected his claim, finding that the agreement that Snepp signed was a reasonable means for protecting the *324government's vital interests. Snepp, 444 U.S. at 509 nn. 3b, 4b.
I recognize that there is a vast difference between national security interests and WSRL's interest in preserving the confidentiality of its survey schedule. The difference, however, is one of degree, not of kind. This is evident from the cases cited by the Court where it had made clear that, even in the absence of an express agreement, the government may protect substantial government interests, other than national security interests, by imposing reasonable restrictions on employee activities that in other contexts might be protected by the first amendment. Id., citing CSC v. Letter Carriers, 413 U.S. 548 (1973) (provision of Hatch Act forbidding federal employees from "takfing] an active part in political management or in political campaigns" constitutional); Brown v. Glines, 444 U.S. 348 (1980) (air force regulations requiring commander's approved for serviceman's circulation of petitions on base, not violative of first amendment); Buckley v. Valeo, 424 U.S. 1 (1976) (provisions of Federal Election Campaign Act imposing ceilings on political contributions did not violate first amendment speech and association rights); Greer v. Spock, 424 U.S. 828 (1976) (military post regulations prohibiting political speeches and barring distribution or posting of any publication without prior written approved not constitutionally invalid on their face); and Cole v. Richardson, 405 U.S. 676 (1972) (state's statutory loyalty oath constitutionally permissible under first etnd fourteenth amendments).
Applicable is the following statement of the Court: "Undisputed evidence in this case shows that a CIA agent's violation of his obligation to submit writings about the Agency for prepublication review impairs the CIA's ability to perform its statutory duties." Snepp, 444 *325U.S. at 512. Barnhill's violation of his obligation to keep the survey schedule confidential, at least during the survey, materially impaired WSRL's ability to produce an untainted survey.
The Snepp court made clear that it did not consider that Snepp's fiduciary obligation was limited to "classified" information. The Court noted that Justice Stevens, in his dissent, conceded that, even in the absence of a written contract, an employee has the fiduciary obligation to protect confidential information obtained during the course of his employment. The Court said:
In this case, [Justice Stevens] seems to think that the common law would not treat information as "confidential" unless it were "classified." We have thought that the common-law obligation was considerably more expansive. See, e.g., Restatement (Second) of Agency secs. 396(c), 400 and Comment c, 404, and Comments b, d (1958); 5A Scott, Trusts sec. 505 (3d ed. (1967).
Id. at 515 n. 11 (citation omitted). Therefore, Barnhill's claim that he did not understand that his pledge of confidentiality extended to the survey schedule introduces an irrelevant consideration.9 Barnhill owed a common-*326law duty of confidentiality to WSRL, explained as follows in the Restatement (Second) of Agency:
Unless otherwise agreed, an agent is subject to a duty to the principal not to use or to communicate information confidentially given him by the principal or acquired by him during the course of or on account of his agency or in violation of his duties as agent ... to the injury of the principal. . ..
Restatement (Second) of Agency sec. 395 (1958).
Comment a. to sec. 395 states, "The agent. . . has a duty not to use information acquired by him as agent ... for any purpose likely to cause his principal harm or to interfere with his business . . .." The only exception is that the agent is privileged to reveal information confidentially acquired in the protection of a superior interest of himself or of a third person. Comment f. states:
An agent is privileged to reveal information confidentially acquired by him in the course of his agency in the protection of a superior interest of himself or of a third person. Thus, if the confidential information is to the effect that the principal is committing or is about to commit a crime, the agent is under no duty not to reveal it. . ..
*327(2)
In Wisconsin, the public employee-agent's privilege to reveal confidential information has been expanded by the "whistleblower" statutes, subch. III. ch. 230 and sec. 895.65.10 Sec. 10, 1983 Wis. Act 409, effective May 11, 1984. These statutes prohibit government employer retaliation against a government employee for lawfully disclosing "information" in the exercise of his or her rights under the first amendment to the U.S. , Constitution or art. I, sec. 3, of the Wisconsin Constitution.
"Information," under each statute, sec. 230.80(5), Stats., and sec. 895.65(l)(d), Stats., is defined to mean "information gained by the employe which the employe reasonably believes demonstrates: 1: A violation of any state or federal law, rule or regulation. 2. Mismanagement or abuse of authority in state [or local (sec. 230.80(5))] government, a substantial waste of public funds or a danger to public health and safety."
"Mismanagement" is defined in sec. 230.80(7), Stats., to mean "a pattern of incompetent management actions which are wrongful, negligent or arbitrary and capricious and which adversely affect the efficient accomplishment of an agency function. 'Mismanagement' does not mean the mere failure to act in accordance with a particular opinion regarding management techniques."
"Substantial waste of public funds" means "an unnecessary expenditure of a substantial amount of money or a series of unnecessary expenditures of smaller amounts of money." Sec. 230.80(9), Stats.
*328In view of these statutes, the individual defendants cannot claim that the law in Wisconsin in 1985, preventing them from discharging an employee for disclosing "information," as defined in secs. 230.80(5) and 895.65(1) (d), Stats., was not clearly established. However, the survey questions disclosed by Barnhill were clearly not "information" as defined in the "whistleblower" statutes. We need not consider whether Barnhill's criticisms that the university should not be engaged in this kind of research or that the survey was biased constituted "information" as defined in these statutes. Barnhill has limited the issue to his first amendment right to disclose the survey schedule.11
D.
The Wisconsin legislature could not, of course, by narrowly defining "information," permit government employers to discipline public employees for the exercise of their first amendment rights under the U.S. Constitution. Even though Barnhill's criticisms of the university and the survey itself did not constitute "information" under Wisconsin's whistleblower statutes, they would, in the proper context, constitute protected speech. However, there was no case law support in 1985 for the proposition that such criticisms were protected as "whistleblowing."
Therefore, the inquiry narrows sharply. The question is whether the individual defendants should have *329known from analogous cases that the first amendment prevented them from imposing and enforcing a duty of confidentiality upon interviewer-employees. I conclude that the interests which Barnhill sought to further in disclosing the survey schedule were not sufficient to accord him a privilege to reveal the information confidentially acquired by him in the course of his employment, at least during the progress of the survey. Others may differ with my conclusion in this respect, but I see no room for the conclusion that the individual defendants knew or should have known that they would abridge Barnhill's first amendment rights if they discharged him for violating his duty of confidentiality.
The majority relies on one case to conclude that "existing caselaw was close enough to have warned Sharp and Lee in 1985 that discharge of Barnhill for his speech activity would be unlawful." Maj. op. at 306. The reason they should have been warned, the majority concludes, is that Hanneman v. Breier, 528 F.2d 750 (7th Cir. 1976) established that a public employee cannot be discharged for speech relating to á matter of public concern when his or her speech publicizes once-confidential information which has been previously disclosed. Maj. op. at 307. The majority states: "A search of the law would have discovered the Hanneman decision, and whether or not Sharp and Lee knew of it is immaterial to our analysis." Id.
Thus, the majority concludes that one decision, which I will show is inapposite, established the law so clearly that the unlawfulness of Sharp's and Lee's action should have been apparent to them. One decision may be enough to alert public officials to the constitutional *330rights of public employees. However, Hanneman v. Breier is not Harlow v. Fitzgerald or Perry v. Sindermann,. 408 U.S. 593 (1972); it is not a case which has commanded public attention and comment. The majority imposes on the public official, untrained in the law, a task which frequently daunts the most conscientious and skilled legal practitioner or judge. The public official's only responsibility is to keep abreast of the law affecting public employee's constitutional rights as it develops, and to conform his or her conduct to that law when it is "clearly established."
We must be wary both of using hindsight to make an untidy body of case law seem clear and directive at the time the public official was called on to act, and of imagining that public officials have the training and experience in extracting legal rules from case law that appellate judges have.
Colaizzi v. Walker, 812 F.2d 304, 308 (7th Cir. 1987).
(2)
In any event, had Sharp and Lee known where to look and had they discovered Hanneman, they would have discovered a case which has no application to the situation presented to them. In Hanneman, a front-page story in the Milwaukee Journal disclosed that an internal investigation into the political activity of Milwaukee Professional Policeman's Protective Association officers was under way. The leak of this story to the press was not attributed to MPPPA. The day after publication, MPPPA members, on its behalf, distributed to the mayor, the city council, the city's labor negotiator, and the state labor board, a letter which confirmed that MPPPA officers had been questioned by agents of the city in connection with their political activities. This *331letter prompted a departmental investigation and resulted in charges being brought against these members for breaching the confidentiality of the department's internal affairs, in violation of a department rule.
The Hanneman court concluded that the confidentiality regulation was "clearly valid on its face. A public employer has a legitimate interest in preserving confidentiality in the conduct of its internal affairs." Hanne-man, 528 F.2d at 754. The court held, however, that by the time the officers' letter appeared, the police chiefs ability to conduct his internal investigation in private had already been destroyed by the newspaper article disclosing the existence of the investigation and the persons and subjects involved. Id. Thus, the court held that once the matter was placed in the public eye, the officers had a legitimate interest, protected by the first amendment, in bringing any improper anti-union conduct by the chief of police in connection with the investigation to the attention of government officials outside the police department.
Unlike Hanneman, here there was no public disclosure of the survey's existence, the survey questions or the survey results. Lee was informed by a Capital Times reporter that the newspaper had the text of the survey questions. However, the Capital Times did not publish a story about the survey. On the same day, Lee issued a memorandum to WSRL field staff informing them that "[a] very serious violation of confidentiality has occurred at the Lab." Lee warned staff that the person or persons who had made the survey schedule available to the Capital Times had violated the oath of confidentiality they were committed to as Lab employees. The majority is forced to assume that Barnhill was aware of this memo*332randum.12 The disclosures which he made to the Milwaukee Journal and The Daily Cardinal were made after Lee issued the memorandum to WSRL field staff. Lee and Sharp knew only that there was a breach of confidentiality which had the potential to destroy or adversely affect the survey. Lee's memorandum was an attempt at damage control. The memorandum warned WSRL employees, including Barnhill, that revealing the survey schedule was a breach of the employee's oath of confidentiality.
Thus, the situation facing Sharp and Lee was completely different from that facing the Milwaukee Police Department. In Hanneman, the damage had been done. It was appropriate for the police officers to then participate in the public debate which followed the disclosure of the intra-department investigation. In contrast, Sharp and Lee faced only a potential breach of confidentiality, depending on what action the Capital Times took. As reasonably competent public officials, they would not have learned from Hanneman that they could not enforce against Barnhill the laboratory's confidentiality rule, which was made plain to all members of the WSRL field staff, including Barnhill, prior to the disclosures to the Milwaukee Journal and to The Daily Cardinal.13
*333Hanneman recognizes the validity of a public employer's regulation which prohibits employees from disclosing the confidential business of the employer. Hanneman permits a first-amendment exception to such a rule only in the case where enforcing the rule becomes meaningless through prior public disclosure of the public employer's business. Hanneman has no application here except to affirm the validity of public employment rules of confidentiality.
I would reverse the judgment and direct the circuit court to enter judgment in favor of the individual defendants on their defense of qualified immunity.
The jury's finding that Barnhill was discharged is unsup-. portable. He clearly quit. The defendants, however, do not attack that finding. For purposes of my analysis, therefore, I assume Sharp and Lee discharged Barnhill.
Professor Harry Sharp is the director of the Wisconsin Survey Research Laboratory. Robert Lee was WSRL's field director.
The circuit court held that the Board of Regents is immune from liability on a 42 U.S.C. sec. 1983 claim. Barnhill did not appeal that holding.
Where the public official defendant alleges the affirmative defense of qualified immunity, that issue should be decided prior to trial, if possible. "Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) *314(emphasis added). The defendant's entitlement to qualified immunity is "an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Id. (emphasis in original). One of the pernicious effects of erroneously permitting a case to go to trial is that the focus may shift, as it did here, from whether the law was "clearly established" when the defendant acted, to a hindsight determination of whether the plaintiffs interest outweighed the government's interest.
In his letter of November 27, 1984, to the field director, Barnhill wrote:
I feel compelled to explain why I believe this is an inappropriate study for the university to be undertaking . . .. The issue [free speech in shopping malls] is a legal question and will appropriately be decided by the courts. The university should not be lending its name and reputation to one party in this dispute. Would the survey look the same if the ACLU had designed the questionnaire? Clearly a bias has been introduced by our client that may be used in a partisan way that may not be in the public interest. . ..
His letter was provided to several newspapers which quoted from it..
The Daily Cardinal article of February 7, 1985 quotes Barn-hill as accusing the university of allowing its reputation to be used "to legitimatize this unconstitutional policy by doing 'research' that masquerades public relations propaganda behind the cloak of objective science." The Milwaukee Journal article of January 27, 1985 reported Barnhill as saying that the shopping mall study was biased "simply because it was being paid for by representatives of the shopping center industry." Barnhill reportedly criticized the survey as "not scientific" and "not in the public interest." He was quoted as saying, "It seemed to me [the survey's] purpose was not so much to measure public opinion as to mold public opinion."
These cases were decided after Barnhill's supposed discharge. However, I do not cite them for the proposition that Barnhill's first amendment rights were not clearly established at that time. I cite them to explain how the Harlow standard, as elaborated in Anderson, is to be applied.
Barnhill argues that because Sharp and Lee consulted university counsel who advised caution, they "knew" that they would violate his first amendment rights if they discharged him. I reject that argument as against public policy. Investigating the state of the law would be punished, and ignorance rewarded. "Where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate . . .." Mitchell v. Forsyth, 472 U.S. at 524 (quoting Harlow, 457 U.S. at 819 (emphasis added in Mitchell)). In any event, the defendants' subjective beliefs are irrelevant. See Egger v. Phillips, 710 F.2d 292, 314 (7th Cir. 1983), cert. denied, 464 U.S. 918 (1983). ”[H]indsight-based reasoning on immunity issues is precisely what Harlow rejected. The decisive fact is not that Mitchell's position turned out to be incorrect, but that the question was open at the time he acted." Mitchell, 472 U.S. at 535.
See discussion of this case in Annotation, Public Employee's Right of Free Speech Under Federal Constitution's First Amendment — Supreme Court Cases, 97 L. Ed. 2d 903, 926.
In addition to being irrelevant, Barnhill's claim that he did not know that his pledge extended to the survey schedule is disingenuous. Barnhill cannot seriously argue that his pledge of confidentiality extended to the survey results but not to the survey questions. Barnhill was not a neophyte in survey research. On his employment application he stated that he had done extensive employment survey work. His pledge and the explanatory manual clearly and unambiguously imposed a duty of confidentiality upon Barnhill which extended to all information obtained by him in the course of conducting surveys on behalf of WSRL. The pledge read in part as follows: "I, -, as an interviewer for the Wisconsin Survey Research Laboratory, promise that I will main*326tain professional ethical standards of confidentiality while performing my duties. This means all information obtained during the course of conducting this research will be held in strict confidence." (Emphasis added.)
The Manual for Telephone Interviewers explained that, "The confidentiality pledge serves two purposes. The first and primary purpose is that it indicates to the Laboratory, you, the interviewer, understand your responsibility to keep all information you gather while performing your duties for WSRL confidential, and that you agree [emphasis in original] to this commitment." (Emphasis added.)
The circuit court held that Barnhill's state-law claim under sec. 895.65, Stats., was barred because he failed to give notice of his claim as required by sec. 893.82(2), Stats.
I conclude that the only possible "whistleblowing" was Barnhill's expressed belief that the survey was biased. This, however, is no more than a difference of opinion regarding management techniques which would not constitute information within the meaning of secs. 230.80(5) and 895.65, Stats. See sec. 230.80(7).
BarnhiH's testimony was conflicting. The circuit court did not resolve the conflict by making a finding of fact. We cannot make findings of fact. Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155, 159 (1980).
As the seventh circuit court of appeals has pointed out, the defendants in Hanneman did not show that the police officers were privy to confidential information that was not accessible to the ordinary citizen. Conner v. Reinhard, 847 F.2d 384, 390 (7th Cir. 1988), cert. denied, 488 U.S. 856 (1988). Thus, Hanneman involved a circumstance markedly different from that presented here.