Legal Fight | 2003

June 18, 2003

Substance appeals to Seventh U.S. Circuit, citing four years of First Amendment violations in Chicago

By George N. Schmidt

(Chicago, June 18, 2003.) Attorneys for Substance, Inc. and the editor of Substance (this reporter) filed the appeal at the Seventh U.S. Circuit Court of Appeals today, formally challenging the constitutionality and legality of the four-and-a-half year campaign by the Chicago Board of Education to suppress the publication of important information on high-stakes testing in the pages of the monthly newspaper Substance.

The appeal, which centers on numerous violations of the First Amendment rights of Substance newspaper and its editor, asks the court to overturn rulings dating back to January 26, 1999, by U.S. District Judge Charles Norgle Sr. and two other judges who heard parts of the case at the district court level.

According to the mandatory "Statement of Issues" that must appear at the beginning of any appeal to the higher U.S. courts, Substance attorneys Elaine Siegel, Mark Barinholtz, and Alan Barinholtz argued as follows:

Statement of Issues:

" I. Whether a government entity may utilize the Copyright Act against a newspaper and its editor as a means to suppress disclosure of portions of invalid educational tests, for which there is no market.

" A. Whether the trial court erred in striking defendants' affirmative defenses asserting "fair use," First Amendment, and free speech and press provisions of applicable state constitutions, on a motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P.

" B. Whether the trail court erred in holding that defendants did not intend to offer evidence in support of its affirmative defenses, where defendants had lengthily addressed their trail plans for such evidence in a memorandum ordered by the court.

" C. Whether the trial court erred by failing to vacate and/or reconsider the ruling striking the affirmative defenses, even after it became clear that the court's earlier ruling was based upon material representations of fact, and incorrect interpretations of law.

" D. Whether the trial court erred in denying defendants leave to amend their affirmative defenses, even after it became apparent that the plaintiff had misused its copyright.

" E. Whether the trail court erred in entering summary judgment against defendants, finding copyright infringement, where it refused to entertain defenses that had been stricken on a Rule12(b)(6) motion to dismiss.

" F. Whether the trial court erred in entering summary judgment where it was evident there existed genuine disputed issues of material fact.

" G. Whether the trial court erred in granting a permanent injunction against publication of invalid educational tests that were a matter of public concern, that were no longer in use and could not be used due to invalidity, where any injury could be remedied by an award of damages.

" II. Whether a municipal school board may use the Copyright Act as a pretext to violate the First Amendment rights of a teacher in its employ, and to suppress a teacher-run newspaper critical of its policies and programs.

" A. Whether the trial court erred in dismissing defendants' counterclaim and third-party complaint.

" B. Whether the trial court erred in denying defendants leave to file and amended counterclaim and third-party complaint."

The case, entitled "Chicago School Reform Board of Trustees v. Substance, Inc. and George N. Schmidt" (99 C 440, Northern District of Illinois, Eastern Division) began on January 26, 1999, when Chicago's school board (at the time called "Chicago School Reform Board of Trustees" and since July 2001 called the "Chicago Board of Education") sued Substance for 'Copyright Infringement' after the January-February 1999 issue of Substance published a lengthy critique of the CASE (Chicago Academic Standards Examinations) tests including, as part of the critique, reproductions of several of the examination documents.

Amid a hysterical media campaign orchestrated by Chicago Mayor Richard M. Daley's press office and by Paul G. Vallas, who at the time was serving as Chief Executive Officer of the Chicago Public Schools, Substance was accused of costing the school board more than $1 million in damages for the alleged copyright infringement. Ultimately, then-Chief Accountability Officer Phil Hansen of the Chicago Public Schools signed legal documents before the court claiming that the Substance publication had cost the school system $1.3 million.

Updates will be filed to this story over the next week