GARTZKE, P.J.
Harry Sharp and Robert Lee appeal from a judgment for $80,665.87 against them in favor of Glenn Barnhill. Barnhill claims they discharged him from his job with the University of Wisconsin-Extension Survey Research Laboratory (WSRL) in retaliation for speech protected by the first amendment to the United States Constitution.
The issues are whether: (1) Sharp and Lee violated Barnhill's first amendment rights of free speech; (2) Sharp and Lee are entitled to qualified immunity from suit against them in their personal capacities; and (3) Barnhill is entitled to punitive damages. We conclude that Sharp and Lee violated Barnhill's right of free speech and are not immune from suit. We also conclude, however, that the jury was improperly instructed concerning punitive damages, which prevented the real controversy from being tried with respect to that issue. We [287]*287reverse the judgment under sec. 752.35, Stats., and remand for a new trial on punitive damages only.
1. PROCEDURAL BACKGROUND
Barnhill was a part-time interviewer for WSRL. Sharp is WSRL's director and Lee was its field director. Barnhill sued them and the Board of Regents of the University of Wisconsin System (Regents) under 42 U.S.C. sec. 1983,1 alleging he was fired in retaliation for giving information about a shopping mall survey to newspapers.
The jury found that no later than March 26, 19852 Barnhill was "discharged because he disclosed materials concerning the shopping mall survey to the newspaper (s)" and that "retaliation for exercise of his first amendment rights [was] a primary factor in [his] discharge." The jury awarded Barnhill $16,000 for lost earnings, $20,000 for mental anguish, and $25,000 punitive damages.
Sharp, Lee, and the Regents moved for judgment notwithstanding the verdict and for a new trial. They [288]*288asserted that they had not violated Barnhill's first amendment rights, they are entitled to qualified immunity, and the award is excessive. The trial court denied the motion on the first two grounds but granted Sharp and Lee a new trial on damages for lost earnings. The court dismissed all claims against the Regents because they are entitled to absolute immunity.
The parties then stipulated that Barnhill’s lost earnings were $5,200 and that his reasonable attorney's fees, costs, and disbursements were $30,465.87. The trial court entered judgment in favor of Barnhill and against Sharp and Lee for $80,665.87, and Sharp and Lee appealed.
2. FIRST AMENDMENT RIGHTS OF PUBLIC EMPLOYEES
If a public employee claims to have been impermis-sibly disciplined because of speech activity, the analysis is a multi-step process. Melton v. City of Oklahoma City, 879 F.2d 706, 713 (10th Cir. 1989).
First, the court must determine whether a public employee's speech touches upon a matter of public concern. Connick [v. Myers], 461 U.S. 138, 103 S. Ct. 1684. Second, if the statement satisfies the public concern, inquiry, the court must then balance the interests of the employee in making the statement against the public employer's interest in the effective and efficient fulfillment of its responsibilities to the public. Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). Third, assuming that both previous elements have been found in favor of the plaintiff, he or she must then prove that the protected speech "was a 'motivating factor' in the detrimental employment decision." Mt. Healthy City School Dist. v. Doyle, 429 [289]*289U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). Fourth and finally, if plaintiff makes this showing, the burden then shifts to the employer to show by a preponderance of evidence that it would have reached the same decision in the absence of the protected activity. Id.. . . [T]he first two steps of the process involve questions of law for the court, the two-part Mt. Healthy analysis involves questions of fact for the jury. Koch v. City of Hutchinson, 847 F.2d 1436, 1440 n.11 (10th Cir) (en banc) cert. denied, — U.S. —, 109 S.Ct. 262, 102 L.Ed.2d 250 (1988).
Melton, 879 F.2d at 713.
The trial court concluded that Barnhill's speech had nothing to do with dissatisfaction over internal employment conditions. Rather, it related to a matter of public concern. Sharp and Lee do not dispute that Barnhill's disclosure constituted speech on a matter of public concern. They focus their argument on the second step in the analysis. They argue that the balancing of interests under Pickering weighs in their favor rather than Barnhill's.
When deciding the motions after verdict, the trial court did not explicitly perform the necessary Pickering balancing. It noted that the jury found the balance of interests weighed in favor of Barnhill and that the finding was advisory only. It apparently adopted that "finding" as its own conclusion of law.
The balancing of interests under Pickering is a question of law for the court. Melton, 879 F.2d at 713, Wren v. Spurlock, 798 F.2d 1313, 1317 (10th Cir. 1986). A trial court errs by leaving the question to the jury. Wren, 798 F.2d at 1318. However, the error does not [290]*290require reversal if our legal conclusion matches the jury's "finding." Id.
The trial court made no findings concerning facts material to the balancing of interests under Pickering. We have two options stemming from the failure of the trial court to make findings of fact supporting its conclusion of law. Dodge v. Carauna, 127 Wis. 2d 62, 67, 377 N.W.2d 208, 211 (Ct. App. 1985). First, we may independently review the record and affirm the court's decision if the evidence sustains findings supporting the trial court's conclusion, and reverse if not. Second, we may reverse and remand the matter to the court to make findings of fact and conclusions of law.
We choose the first option. The record is extensive and complete. We have reviewed it and conclude that the material evidence is undisputed. We now recite the evidence.
3. EVIDENCE
Sharp is a University of Wisconsin-Madison faculty member. He has been the director of WSRL since its formation twenty-five years ago and is an expert in survey research. He is primarily responsible for developing the questionnaires used in WSRL research. Lee was the field director of WSRL. His duties included supervision of interviewers and other personnel involved in actually performing surveys using questionnaires developed by WSRL.
WSRL generally avoids commercial market research but does research on customer preferences for trade associations and nonprofit organizations. WSRL is funded entirely from fees received from clients request[291]*291ing survey research. It has an excellent reputation in its field.
The validity of survey research depends upon the confidentiality Of the survey questions during the period that the survey is being conducted. A reputation for disclosing the text of survey questions before the survey is completed can harm the business of a survey research organization.
WSRL employs part-time interviewers to question randomly selected individuals. The interviewers are required to sign and follow a pledge of confidentiality which reads in relevant part:
I will maintain 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.] I know this is priviledged [sic] information and as such I promise to uphold the Laboratory's standards.
I am aware that the rights of human subjects is [sic] a prime concern to thé Laboratory and that all study procedures are reviewed to ensure that individual respondents are protected at each stage of research.
Barnhill was a part-time interviewer beginning January 30, 1984. He signed a pledge of confidentiality. He had no prior expertise in survey research.
Although Sharp testified that he believed the language of the pledge extended to the disclosure of the questions from survey questionnaires, he acknowledged that it was ambiguous. Barnhill testified that he understood the pledge to apply only to information received from persons surveyed, such as a disclosure of a filled-out questionnaire. He testified that his training class and the [292]*292training manual discussed confidentiality only in those terms. A coworker testified to the same effect.
WSRL's "Manual for Telephone Interviewers," in its discussion of the pledge of confidentiality, speaks only to protecting survey data and other information obtained through interviews. It suggests that the interviewers tell interviewees about the pledge on occasion.
In the fall of 1984, the International Council of Shopping Centers, a trade association, contracted with WSRL for a survey of shoppers' attitudes toward group activities in malls. Sharp prepared the survey questions with input from the sponsor. WSRL conducted a "pretest" consisting of 100 interviews. This was done to examine questions for clarity and to do preliminary statistical analyses.
Before the pre-test, Barnhill attended a briefing on November 23, 1984 regarding the survey. He left the meeting. When the meeting leader asked why, Barnhill expressed displeasure that WSRL was doing a survey on the topic. The leader told him that he need not participate, and he did not.
At that time, litigation concerning the free speech rights of individuals and groups in shopping malls was pending in Dime county circuit court. The facts and history of that litigation are recited in Jacobs v. Major, 132 Wis. 2d 82, 91-95, 390 N.W.2d 86, 88-90 (Ct. App. 1986), aff'd, 139 Wis. 2d 492, 496-501, 407 N.W.2d 832, 833-35 (1987). One of the defendants was Nu Parable, "an unincorporated dance group organized by [defendant] Major and others to publicly perform a choreographed depiction of the results of nuclear warfare as a political statement." 139 Wis. 2d at 497, 407 N.W.2d at 834.
On November 27, 1984, Barnhill wrote to Lee. His letter read as follows:
[293]*293I recently expressed to Doris [the pre-test meeting leader] my concern about the shopping center survey (project 1613) that the Wisconsin Survey Research Lab has undertaken for the shopping mall trade association.
Doris informed me that I would not be required to contribute to the study. I appreciate that my political conscience has been respected by the university — in accord with the principles the university represents.
While I appreciate not being required to personally participate in this study, I feel compelled to explain why I believe this is an inappropriate study for the university to be undertaking.
We, as members of a university community, cannot continue to pretend that the applications of our research are of no concern to our research choices or designs. Increasingly our scientific techniques are being used in ways that threaten our democratic society and in fact, threaten our very existence as a species. We must think about the consequences of our work and the moral questions involved.
The question at issue in this study is free speech. This is a right guaranteed in the First Amendment of our Bill of Rights. It was made explicit so that free speech could not be usurped by public opinion, shopping mall owners, or anyone else.
The issue 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. And isn't public interest what the university is supposed to represent?
Our democratic nation and the university depend upon open public discussion. The vitality of [294]*294democracy requires that there be as many places for expression of diverse points of view as possible. Alternative viewpoints to prevailing orthodoxy are restricted by the cost of mass communication, and access to free speech in public places must be protected.
Lee shared the letter with Sharp, who considered the letter but did not respond to it. Barnhill continued to work for WSRL.
On January 23, 1985, while the full survey was in progress, Lee received a phone call from a reporter for the Capital Times, a Madison newspaper. The reporter told Lee that the newspaper had the text of the shopping center survey questions, but did not reveal his source. Lee told Sharp about the conversation.
Lee then issued a memorandum to WSRL field staff, dated Wednesday, January 23,1985, which read in relevant part:
A very serious violation of confidentiality has occurred at the Lab. A reporter for the Capitol Times [sic] has obtained a copy of the interview schedule for a project currently in the field. The reporter informed us the copy came from a member of the WSRL staff but did not identify the individual.
It has always been Lab policy to make public the schedule of interview questions only after a project has been taken from the field . . ..
The person or persons involved in making the schedule available outside the Lab have violated the oath of confidentiality they are committed to as a Lab employee.
It is our firm belief that anyone who cannot agree to and carry out our rules of confidentiality should not work for the Lab.
[295]*295We are certain that all but one or two of the Lab's employees carry out their jobs in a completely professional manner, one that is above reproach. We thank those people. [Emphasis in original.]
The memorandum was posted and also mailed to the entire staff. Barnhill was not working during that week.
The next Sunday, January 27, 1985, while the survey was being conducted, an article was published in the Milwaukee Journal paraphrasing some of the survey questions. The article stated in part:
Mall owners' property rights outweighed the right of an anti-nuclear group to perform its dance of protest in the thick of all the various activity that gives life to two local shopping centers, a judge here ruled last week.
At the same time, interviewers employed at the University of Wisconsin's Survey Research Laboratory were making random telephone calls across the state, asking questions that hinted at the issues in the case of the Nu Parable Dancers:
Would the presence of such groups in part of a shopping center cause you to avoid that part of the center? To cut down on your shopping time? To find another shopping center? Or, consumers were asked, would you consider them entertaining and educational, and thus find the time in the center more enjoyable?
Should shopping center owners keep all such groups out of the mall, have the right to pick and choose among them, or should the center be open to all special-interest groups?
The article quoted both Barnhill and Sharp.
Barnhill admits he allowed the Milwaukee Journal to examine the survey questions. He gave conflicting testimony as to whether he knew about the January 23, [296]*2961985, memo at that time. He maintains that he never disclosed the text of the survey questions to the Capital Times.
Sharp ordered the survey interviews stopped after he learned of the Milwaukee Journal article. Sharp testified that the survey had been completed and its integrity had not been compromised. However, WSRL and the sponsor had contracted for 1,000 interviews to be performed, with total costs estimated at $14,025. The survey concluded with 956 usable interviews, with final costs of $11,106.84.
On February 7,1985, The Daily Cardinal, a University of Wisconsin-Madison student newspaper, published an article on the survey. It quoted Barnhill, Sharp, and two anonymous interviewers who agreed with Barn-hill's position. The article quoted survey questions and Barnhill's interpretations of certain questions. The survey was not then in progress. The jury found that Barn-hill was discharged not later than March 26, 1985. He had performed no work for WSRL since December 1984.
4. BALANCING BARNHILL'S FREE SPEECH RIGHT AGAINST WSRL'S INTERESTS
We turn to the Pickering balancing in which we weigh the interest of the employee in commenting on a matter of public concern against the interest of the employer in promoting the efficiency of its public services. Pickering, 391 U.S. at 568. We conclude that the balance of interests falls heavily in Barnhill's favor.
When balancing the interests of Barnhill and his employer, we take into account the political nature of Barnhill's exercise of his right to speak openly. Freedom of speech is perhaps the most basic of our civil liberties. Without it, few of our liberties can long exist. With it, all other liberties are reinforced. Barnhill exercised his right [297]*297of free speech to comment about the relationship between the state university and private business. The public concern in that relationship is not only substantial but is, in essence, political. That factor weighs heavily in Barnhill's favor.
Against Barnhill's interest in speech we must balance the employer's interest. We consider the following factors: (1) the effect of Barnhill's conduct on discipline and harmony among fellow workers; (2) WSRL's need for confidentiality; (3) whether the conduct impeded Barnhill in competently performing his duties; (4) WSRL's need to encourage a relationship involving loyalty and confidence between the employee and his superiors; (5) the manner, time, and place in which Barnhill's speech was delivered; (6) how directly the speech touches upon matters of public concern; and (7) the presence or absence of work rules or announced policy regulating Barnhill's speech. Connick v. Myers, 461 U.S. 138, 151-54 (1983); Clark v. Holmes, 474 F.2d 928, 931 (7th Cir. 1972), cert. denied, 411 U.S. 972 (1973).
Several of these factors have little bearing on this case. Barnhill's conduct was not shown to have affected discipline and harmony among those of his colleagues familiar with the events. No evidence exists that Barn-hill's conduct impeded the performance of his duties. He was excused from further participation in the survey before he made the disclosures, and he did little or no work for WSRL after the disclosures. The relationship between Barnhill and his superiors was not one requiring unusual loyalty or confidence. The other factors call for greater analysis.
Regarding the time, place and manner of Barnhill's speech, Sharp and Lee argue that, before going to the [298]*298newspapers, Barnhill should have waited until the survey had been completed. In fact, Barnhill did wait until the survey was nearly completed. He testified that he knew the survey would be ending "roughly during that time" in which he spoke to the Milwaukee Journal and the Daily Cardinal. WSRL halted the survey shortly after publication of the first news article, but nevertheless obtained 956 usable responses toward its goal of 1000.
Sharp and Lee argue that Barnhill should have waited until the survey results were used or presented. That might have been a more convenient time for Sharp and Lee, but we decline to impose on employees the burden of delaying speech to a time more convenient to the employer. In many cases, the time will never come when the employer will consider it convenient for the speech to occur. It is not appropriate to require employees to guess when the convenience of the employer has been sufficiently served so that they might speak without risk of discipline. In this case, the timing of Barn-hill's conduct did little more than inconvenience and embarrass the employer.
Confidentiality and work rule violations are the factors weighing most heavily on the employer's side. As a preliminary matter, we must determine the extent of WSRL's interest in confidentiality.
When an employer has a desire for routine confidentiality, and uses written pledges and manuals to communicate that desire, it is reasonable for an employee to believe that those documents fully state the employer's policies. When an employer has written policies, an after-the-fact argument that an unexplained need for confidentiality existed will not be accorded significant weight in the Pickering balance. The WSRL confidenti[299]*299ality pledge and employee manual were ambiguous, at best, on the confidentiality of survey questions. WSRL did not effectively communicate a rule that survey questions were confidential. Although Sharp and Lee had an interest in maintaining the confidentiality of the survey questions, they did not protect that interest.
However, Lee's January 23 memo to staff following the phone call from the Capital Times unambiguously stated that WSRL believed the questions to be confidential. If when Barnhill spoke to the Milwaukee Journal he knew about the January 23 memo, then WSRL had communicated to Barnhill its belief that the questions were confidential. Accordingly, WSRL would have a stronger confidentiality and work rule interest under the Pickering test than if it had not so communicated.
Barnhill provided conflicting testimony regarding his knowledge of the January 23 memo.3 As discussed above, the trial court made no findings of fact to support [300]*300its Pickering conclusion. This court may not find facts when the evidence is in dispute. Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155, 159 (1980). We hold, however, that even if we accept the version of events that creates the strongest interest for the employer, Barnhill's speech interest prevails.
Under that version, an unknown informant released the questions to the Capital Times. Barnhill knew from reading the January 23 memo that WSRL considered the questions confidential. He also knew that a "person or persons" had disclosed the questions to the Capital Times. Accepting Barnhill's most self-damaging testimony, he then violated a confidentiality rule by speaking to the Milwaukee Journal. Under this version, the case is similar to Hanneman v. Breier, 528 F.2d 750 (7th Cir. 1976).
The plaintiffs in Hanneman were Milwaukee police union leaders under investigation for violation of departmental rules. They were advised that the investigation was confidential. A newspaper revealed the existence of the investigation. The leak was not attributed to the officers. The officers then wrote a letter to public officials complaining that the investigation was driven by anti-union animus. The letter revealed no unpublished facts. The department disciplined the officers for violating its confidentiality rule.
The plaintiffs filed a sec. 1983 action. The Seventh Circuit applied the Pickering test to determine whether the employer's interest in confidentiality outweighed the employees' interest in speech. The court focused primarily on the fact that the newspaper article had already disclosed the information in question:
[301]*301Under these circumstances, we do not believe that the state interests which support the police department's confidentiality rule justify its application in this case. By the time plaintiffs' letter appeared, the ability of the chief of police to conduct his internal investigation in private had already been destroyed by publication of a front-page newspaper article disclosing the existence of the investigation and the persons and subjects involved.
In view of the prior newspaper coverage, the only new disclosure in plaintiffs letter was their unfounded charge that Chief Breier was acting for improper anti-union motives . . ..
Of course departmental discipline may be undermined when police officers disobey an official regulation and an express order not to disclose police business. The department's general interest in discipline alone, however, does not outweigh the individual and public interest in the subject of plaintiffs' September 17 letter. Once the matter was placed in the public eye, plaintiffs, as officers of the certified collective bargaining representative of nonsupervisory policemen, had a legitimate interest in bringing any improper anti-union conduct by the chief of police in connection with the now-publicized investigation to the attention of influential government officials outside the police department. The finding by the district court that the investigation was not motivated by anti-union animus does not negate plaintiffs' interest in soliciting outside support which they believed to be necessary at the time.
Hanneman, 528 F.2d at 754-55 (footnotes and citation omitted).
Lee's January 23 memo states the Capital Times had already received the survey questions. Barnhill's discussion with the Milwaukee Journal therefore revealed [302]*302nothing that was not already in possession of the Capital Times. The fact that the January 23 interpretation of the confidentiality agreement attempted to bar such disclosures, and that Barnhill knew of the interpretation, is not sufficient to overcome Barnhill's speech interest.4
The final factor we must consider is how directly Barnhill's speech touched upon matters of public concern. Sharp and Lee do not dispute that Barnhill's speech affected such a matter.5 His speech touched that matter with sufficient directness. Barnhill's speech was intended to expose what he perceived as university action favoring business at the expense of the first amendment.
After considering all the Pickering factors, we conclude that the employer's interest is insufficient to justify infringement of Barnhill's right of free speech.
5. MT. HEALTHY ISSUES
The last part of the analysis to determine whether an employee has been unlawfully disciplined because of a free speech exercise is that required by Mt. Healthy City [303]*303School Dist. v. Doyle, 429 U.S. 274, 287 (1977) (see our excerpt from Melton, pp. 288-89). Mt. Healthy requires the plaintiff to show that his speech was a substantial or motivating factor in his dismissal. The verdict satisfied this requirement. The jury not only found that Barnhill was discharged because he disclosed materials concerning the shopping mall survey to the newspapers but that "retaliation for exercise of First Amendment rights [was] a primary factor in [his] discharge."
Because of that finding, the burden was on Sharp and Lee to show that their decision to discharge Barnhill would have been the same regardless of his protected speech. Mt. Healthy, 429 U.S. at 287. However, it is too late to resolve that issue of fact. Sharp and Lee failed to request an appropriate instruction and question in the special verdict, and they do not contend that error occurred in this regard.6
Our analysis of the free speech issue satisfies us that Barnhill's speech was protected and that his discharge for the exercise of his right of free speech was an unlawful violation of that right. Sharp and Lee are liable to Barnhill unless they have qualified immunity.
6. QUALIFIED IMMUNITY
Qualified immunity is a defense available to a public employee against whom a 42 U.S.C. sec. 1983 action is brought in his or her personal capacity. Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). Sharp and Lee are such employees. The defense protects "government officials [304]*304performing discretionary functions . . . 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." Harlow, 457 U.S. at 818.
The defense depends on "the objective reasonableness of an official's conduct, as measured by reference to clearly established law." Id. (footnote omitted). The question is whether the law "was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not... be fairly said to 'know' that the law forbade conduct not previously identified as unlawful." Id.
The availability of the qualified immunity defense is a question of law for the court. It is not a mixture of fact and law for the jury. Alvarado v. Picur, 859 F.2d 448, 451 (7th Cir. 1988). We review questions of law de novo.
Sharp and Lee direct their argument to the "clearly established law" element of the test. They contend that, as applied to this case, Rakovich v. Wade, 850 F.2d 1180 (7th Cir. 1988), requires Barnhill to show decisional law specifically related to restricting the disclosure of survey questions by an employee interviewer, where the disclosures presented a risk of invalidating the survey. In short, they contend that they are immune from Barn-hill's suit unless before January 1985 some other court had decided that a public employer who conducted opinion surveys violated the free speech right of an employee by discharging him for releasing survey questions to news media before the survey was completed when the employer believed that such disclosure was prohibited by a pledge of confidentiality.
[305]*305We reject the claim that prior case law must have been that precisely analogous to have put Sharp and Lee on notice that they could not retaliate against an employee because he spoke on a. matter of public concern.
Sharp and Lee base their argument on Benson v. Allphin, 786 F.2d 268, 276 & n.17 (7th Cir.), cert. denied, 479 U.S. 848 (1986):
[T]here is one type of constitutional rule, namely that involving the balancing of competing interests, for which the standard may be clearly established, but its application is so fact dependent that the "law" can rarely be considered "clearly established." ... It would appear that, whenever a balancing of interests is required, the facts of the existing caselaw must closely correspond to the contested action before the defendant official is subject to liability under . . . Harlow.
The Ninth Circuit questioned whether Benson should be read so broadly. In Roth v. Veteran's Admin., 856 F.2d 1401, 1408 (9th Cir. 1988), the defendants argued that because a court must balance competing interests in a fact-specific process, public officials cannot be expected to predict the outcome of such balancing or engage in it themselves. The court rejected this argument because:
[W]e essentially would be holding that public employees can never maintain a [sec. 1983] action alleging retaliation for exercise of their first amendment rights because adjudicating these claims requires particularized balancing. We decline to adopt a rule that would effectively eviscerate whistleblower protection for public employees.
[306]*306The Tenth Circuit rejected Benson in Melton v. Oklahoma City, 879 F.2d at 729 (10th Cir. 1989). The court said qualified immunity "cannot become an insuperable barrier . ... In some circumstances, the fact-specific nature of the Pickering balancing may preclude a determination of 'clearly established' law," but "to the extent that courts in analogous (but not necessarily factually identical) cases have struck the necessary balance, government officials will be deemed 'on notice' . . .." 879 F.2d at 729 and n.36 (emphasis added). The court said, "a simple black letter rule is not possible," and that except through case-by-case application, the rule cannot be better stated. 879 F.2d at 728-29. We agree, and 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.
7. QUALIFIED IMMUNITY OF SHARP AND LEE
The relevant question before us is the objective question whether a reasonable official could have believed that discharging Barnhill was lawful, in light of clearly established law and information the officials possessed. Sharp and Lee's subjective beliefs about the discharge are irrelevant. Anderson v. Creighton, 483 U.S. 635, 641 (1987).
The jury did not establish the date on which Barn-hill was discharged. The jury did find, however, that he had been discharged no later than March 26,1985 for his disclosure of the questions to the newspapers. We may infer from these verdict answers that Barnhill was discharged between January 23,1985 (when Sharp and Lee first became aware of a disclosure) and March 26, 1985. Before January 27, 1985, Sharp and Lee only knew that [307]*307an unknown employee or employees had disclosed the questions to the Capital Times. That reporter did not reveal his source. Sharp and Lee knew on January 27 that Barnhill had made disclosures to the Milwaukee Journal, because that article quoted Barnhill.
With those facts before them, Sharp and Lee, as reasonable officials, must be held to have known that they could not discharge Barnhill without infringing his first amendment rights. They could not discharge Barn-hill for the disclosure to the Capital Times, since they did not know who had made it. They could not discharge Barnhill for the disclosure to the Milwaukee Journal because of Hanneman. That case had held some nine years earlier a public employee cannot be discharged for speech relating to a matter of public concern when his speech publicized once-confidential information which had been previously disclosed. 528 F.2d at 754-55.7 The Hanneman decision is sufficiently clear as established authority for that proposition. 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.
We therefore conclude that Sharp and Lee do not have qualified immunity.
8. PUNITIVE DAMAGES
The federal common law of damages controls a punitive damage award under sec. 1983. Erwin v. County of Manitowoc, 872 F.2d 1292, 1299 (7th Cir. 1989). Punitive damages may be awarded in sec. 1983 actions "when the defendant's conduct is shown to be motivated by evil [308]*308motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983). Smith requires conduct that is "outrageous" in that it is inspired either by "evil motive" or shows "reckless indifference" to the rights of others. Hernandez-Tirado v. Artau, 874 F.2d 866, 869 (1st Cir. 1989).
Soderbeck v. Burnett County, 752 F.2d 285, 291 (7th Cir. 1985), cert. denied, 471 U.S. 1117 (1986), discusses the nature of reckless indifference to a first amendment right. The case involved the discharge of a sheriffs department employee by a newly elected sheriff. The employee was the wife of the outgoing sheriff but was arguably a confidential employee. 752 F.2d at 287-88. The trial court vacated the punitive award, and on appeal the Soderbeck court affirmed that decision.
The Soderbeck court resolved a question regarding reckless conduct left unanswered in Smith v. Wade: whether it is necessary to an award of punitive damages in a sec. .1983 action to show that the defendant knew he was violating the plaintiffs legal rights. 752 F.2d at 289. The court concluded that reckless indifference requires knowledge of some type of wrongdoing and that a contrary interpretation does not comport with the purpose of punitive damages to deter similar conduct.
The difference between deliberate and reckless harm is the difference between wanting to hurt someone and knowing that hurting someone is a highly likely consequence of an act undertaken for a different end. But in the latter case there must be knowledge of the danger that the defendant's act creates, which in this case is a danger of depriving a public employee of her freedom of speech; and the knowledge of this danger presupposes some knowledge of the free-speech rights of public employees.
[309]*309This point can be made clearer by noting that a primary purpose (we think the primary purpose) of punitive damages, both generally and in section 1983 cases, is to deter. Unless the defendant knew that the conduct which resulted in the injury to the plaintiff was forbidden, an award of punitive damages will have no deterrent effect.
The words used to mark off the domain of punitive damages — words like "maliciously," "wantonly," "oppressively," "spitefully" — indicate that punitive damages, like criminal fines which they resemble, are reserved for cases where the wrongfulness of the defendant's conduct is conspicuous, implying that its wrongfulness is apparent to the person who engages in it, and not just to a lawyer. If one needed great subtlety to realize that one had strayed into the forbidden zone where punitive damages are a sanction, the deterrent effect of such damages would be distorted. Some people would stray into the zone unknowingly; as to them the threat of punitive damages would not deter. Others would steer far clear of the zone, not knowing where it began; as to them lawful as well as unlawful conduct would be deterred. We may therefore set it down as a condition of awarding punitive damages that the defendant almost certainly knew that what he was doing was wrongful and subject to punishment.
Soderheck, 752 F.2d at 290-91 (citation omitted).
The same standard applies to Sharp and Lee. They could not recklessly disregard Barnhill's right of free speech unless they knew that discharging him violated that right. That Sharp and Lee should have known that such was the result of discharging him may justify the [310]*310award of compensatory damages, Harlow, 457 U.S. at 818-19, but it cannot justify punitive damages.
[P]unitive damages are not permissible absent evidence that the defendant actually intended to bring about the discharge of current employees in violation of their First Amendment rights. This is true even though a jury could reasonably have found . . . [defendants] liable for compensatory damages, and even though plaintiffs rights were sufficiently well established to defeat defendant's claim of qualified immunity. These findings merely establish what amounts to negligent behavior, and do not rise to the level necessary to support punitive damages.
Marin-Piazza v. Aponte-Roque, 873 F.2d 432, 435 (1st Cir. 1989) (citations omitted); see also Wulf v. City of Wichita, 883 F.2d 842, 867 (10th Cir. 1989) (" [i]t does not matter that we have concluded that [the defendant's] perception of disruption was objectively unreasonable, because an award of punitive damages requires an assessment of his subjective state of mind").
The jury was instructed as follows:
Punitive damages are never a matter of right. It is in the jury's discretion to award or withhold them. Punitive damages may not be awarded unless the defendant deliberately violated the plaintiffs rights. Even if you find that the violations are reckless or deliberate, you may withhold or allow punitive damages as you see fit.
If you find that the defendant's conduct was motivated by evil motive or intent, such as ill will or spite or grudge either toward the injured person individually or toward all persons such as plaintiff, then you may find that the defendant deliberately violated the plaintiffs rights.
[311]*311Acts are reckless when they represent a gross departure from ordinary care. If the defendant was in a position in which he certainly should have known that his conduct would violate the plaintiffs rights, and proceeded to act in disregard of that knowledge and of the harm or the risk of harm that would result to the plaintiff, then he acted with reckless disregard for the plaintiffs rights.
In answer this question [sic], you are instructed that the burden is on the plaintiff to convince you to a reasonable certainty by evidence that is clear, satisfactory, and convincing that the answer should be "yes." [Emphasis added.]
Sharp and Lee each testified that he believed Barn-hill had violated the pledge of confidentiality. They consulted with university legal counsel,8 who advised that they call Barnhill in to discuss their concern that he might again disclose survey questions. Lee denied he was told that he could not fire an employee "for doing something that he had a right to do as a matter of free speech." Barnhill was told to talk with the associate field director. He never did so.
The jury could reasonably have found that despite their protestations to the contrary, Sharp and Lee knew they violated Barnhill's right of free speech when they fired him. They are expert in a field that deals with speech activity. They oversee the solicitation of opinions. A jury could infer they knew they violated Barn-hill's rights when they fired him. But the jury could also have believed the testimony by Sharp and Lee regarding their conduct. In that case, the jury, properly instructed, could not have awarded punitive damages.
[312]*312Under sec. 752.35, Stats., we may reverse in the interest of justice if the real controversy has not been tried. Faulty but unobjected to jury instructions may cause the real controversy not to have been tried. Vollmer v. Luety, 156 Wis. 2d 1, 456 N.W.2d 797 (1990). Because the jury was improperly instructed regarding the conditions under which punitive damages could be awarded, the real controversy was not tried with respect to that award.
We will seldom rescue parties from the effects of erroneous instructions they allow the trial court to submit without objection. However, if punitive damages are improperly awarded in 42 U.S.C. sec. 1983 cases, the deterrent role of those damages is thwarted. Soderbeck, 752 F.2d at 290. Because of the important role of punitive damages in retaliatory discharge cases, we exercise our discretion under sec. 752.35, Stats., to order a new trial, limited to whether punitive damages may be awarded.9 The amount of that award should not be retried.
We reverse the judgment as it relates to punitive damages and remand for a new trial. The availability of punitive damages will be the only issue on retrial, and the trial court must instruct the jury in a manner consistent with this opinion.
By the Court. — Judgment affirmed in part; reversed in part and cause remanded.