Tomczyk v. Wausau Pilot and Review Corp., 2024 WI App 62, 14 N.W.3d 339 (unpublished, but authored, can be cited for persuasive purposes)
Defamation is a legal issue that pits the First Amendment right to free speech of individuals in the community against the First Amendment right to free press of news organizations. The Wisconsin Court of Appeals recently reaffirmed the legal standards that strike that balance.
In 2021, there was a heated debate in Marathon County, Wisconsin over a proposed resolution aimed at increasing diversity by labeling the county a “community for all.” This involved a number of Marathon County Board meetings with speakers from the public. At one of these meetings, on August 12, Cory Tomczyk, a local businessman and community leader (who has since been elected to the Wisconsin State Senate), was overheard referring to two other speakers (at least one of whom was a 13-year old) with a homosexual slur. Several speakers mentioned these comments on the record at the next meeting on August 19.
The Wausau Pilot, a nonprofit online newspaper, published two articles covering the “community for all” debate, the public meetings, and the comments. The first article, on August 21, referred only to “a local businessman,” but the second article, on August 28, identified Mr. Tomczyk. The publisher added Mr. Tomczyk’s name after she took steps to confirm that he was the one who had used the slur.
Mr. Tomczyk demanded a retraction, the Wausau Pilot refused to issue a retraction, and Mr. Tomczyk filed a lawsuit in Marathon County Circuit Court. The court ultimately granted Wausau Pilot’s summary judgment motion because it concluded that Mr. Tomczyk was a “public figure,” at least for the purpose of the “community for all” debate, and that Mr. Tomczyk would not meet his burden to establish “actual malice.”
On appeal, the Wisconsin Court of Appeals applied and affirmed the standard for defamation, which goes all the way back to New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
Generally, a plaintiff alleging a claim for defamation under Wisconsin common law must establish three elements: (1) a false statement; (2) communicated by speech, conduct or in writing to a person other than the person defamed; and, (3) the communication is unprivileged and tends to harm one’s reputation so as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with him or her. Tomczyk, 2024 WI App 62, ¶18. Wisconsin courts have adopted the same constitutional element the United States Supreme Court added in New York Times. Tomczyk, 2024 WI App 62, ¶19. In order for “public officials” (or “public figures”) to recover damages in a defamation action against media defendants, they must prove by clear and convincing evidence that the statement was made with “actual malice.” Id. “Actual malice” means that the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times, 376 U.S. at 280.
A key question in this case was whether Mr. Tomczyk, a businessman speaking at public hearings, was a “public figure.” In Wisconsin, there are two kinds of public figures under the law: general purpose public figures and limited purpose public figures. Tomczyk, 2024 WI App 62, ¶23. Tomczyk, 2024 WI App 62, ¶22. It is well settled that determination of the status of a plaintiff in a defamation action is a question the court decides as a matter of law. Tomczyk, 2024 WI App 62, ¶22. And in this case, the Wisconsin Court of Appeals determined that Mr. Tomczyk “undoubtedly” qualified as a limited purpose public figure. Tomczyk, 2024 WI App 62, ¶23.
“Limited purpose public figures ... are otherwise private individuals who have a role in a specific public controversy.” Tomczyk, 2024 WI App 62, ¶24. There is a two-prong test to determine if a defamation plaintiff is a limited purpose public figure:
(1) there must be a public controversy; and
(2) the court must look at the nature of the plaintiff’s involvement in the public controversy.
Id. Then, the analysis of that second prong has three steps:
(1) isolating the controversy at issue;
(2) examining the plaintiff’s role in the controversy to determine whether it is more than trivial or tangential; and
(3) determining whether the alleged defamation was germane to the plaintiff’s participation in the controversy.
Id. This three-step analysis presents an objective test to assess the facts about the plaintiff’s relationship to the controversy, to determine if the person became a limited purpose public figure by ‘voluntary injection’ into a controversy or by being ‘drawn into a particular public controversy.’ Id.
The Wisconsin Court of Appeals concluded that the undisputed facts established Mr. Tomczyk was a limited purpose public figure for the purposes of the “community for all” resolution, that the resolution was a public controversy, that Mr. Tomczyk’s role was neither trivial nor tangential, and the allegedly defamatory statements at issue were germane to Mr. Tomczyk’s participation in the dispute. Tomczyk, 2024 WI App 62, ¶54.
At the next step, the court concluded that Mr. Tomczyk had not presented evidence by which a reasonable jury could conclude that Wausau Pilot harbored serious doubts about the truth of the publications such that it acted with actual malice in publishing them. Tomczyk, 2024 WI App 62, ¶67. Proof of actual malice requires a showing by clear and convincing evidence that the defamatory falsehood was published with knowledge of its falsity or with reckless disregard for its truth. Tomczyk, 2024 WI App 62, ¶55. If the plaintiff does not meet this burden, “under no circumstances can the plaintiff recover.” Id.
It is always wise to be careful what you say in public, even in the midst of a heated debate. This is especially true for public figures, including those who might be public figures for a limited purpose. There are several key takeaways from this case:
You do not need to be elected to be a public figure for defamation purposes;
You may not like something published about you, but that doesn’t mean it’s defamation, especially if you are a public figure;
To prove defamation, a public figure has to show “actual malice” by the publisher.
This case has reignited discussion of possible anti-SLAPP (strategic lawsuit against public participation) legislation in Wisconsin, which allows judges to quickly dismiss lawsuits filed to silence or intimidate critics by making them pay for a legal defense. This is the law in many states. A bill was introduced in the last legislative session, but it did not even get a hearing. It will be interesting to watch whether a new anti-SLAPP bill is introduced in 2025 or beyond.
Author: Kelly L. Mangan
Tomczyk v. Wausau Pilot and Review Corp., 2024 WI App 62, 14 N.W.3d 339 (unpublished, but authored, can be cited for persuasive purposes)
Defamation is a legal issue that pits the First Amendment right to free speech of individuals in the community against the First Amendment right to free press of news organizations. The Wisconsin Court of Appeals recently reaffirmed the legal standards that strike that balance.
In 2021, there was a heated debate in Marathon County, Wisconsin over a proposed resolution aimed at increasing diversity by labeling the county a “community for all.” This involved a number of Marathon County Board meetings with speakers from the public. At one of these meetings, on August 12, Cory Tomczyk, a local businessman and community leader (who has since been elected to the Wisconsin State Senate), was overheard referring to two other speakers (at least one of whom was a 13-year old) with a homosexual slur. Several speakers mentioned these comments on the record at the next meeting on August 19.
The Wausau Pilot, a nonprofit online newspaper, published two articles covering the “community for all” debate, the public meetings, and the comments. The first article, on August 21, referred only to “a local businessman,” but the second article, on August 28, identified Mr. Tomczyk. The publisher added Mr. Tomczyk’s name after she took steps to confirm that he was the one who had used the slur.
Mr. Tomczyk demanded a retraction, the Wausau Pilot refused to issue a retraction, and Mr. Tomczyk filed a lawsuit in Marathon County Circuit Court. The court ultimately granted Wausau Pilot’s summary judgment motion because it concluded that Mr. Tomczyk was a “public figure,” at least for the purpose of the “community for all” debate, and that Mr. Tomczyk would not meet his burden to establish “actual malice.”
On appeal, the Wisconsin Court of Appeals applied and affirmed the standard for defamation, which goes all the way back to New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
Generally, a plaintiff alleging a claim for defamation under Wisconsin common law must establish three elements: (1) a false statement; (2) communicated by speech, conduct or in writing to a person other than the person defamed; and, (3) the communication is unprivileged and tends to harm one’s reputation so as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with him or her. Tomczyk, 2024 WI App 62, ¶18. Wisconsin courts have adopted the same constitutional element the United States Supreme Court added in New York Times. Tomczyk, 2024 WI App 62, ¶19. In order for “public officials” (or “public figures”) to recover damages in a defamation action against media defendants, they must prove by clear and convincing evidence that the statement was made with “actual malice.” Id. “Actual malice” means that the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times, 376 U.S. at 280.
A key question in this case was whether Mr. Tomczyk, a businessman speaking at public hearings, was a “public figure.” In Wisconsin, there are two kinds of public figures under the law: general purpose public figures and limited purpose public figures. Tomczyk, 2024 WI App 62, ¶23. Tomczyk, 2024 WI App 62, ¶22. It is well settled that determination of the status of a plaintiff in a defamation action is a question the court decides as a matter of law. Tomczyk, 2024 WI App 62, ¶22. And in this case, the Wisconsin Court of Appeals determined that Mr. Tomczyk “undoubtedly” qualified as a limited purpose public figure. Tomczyk, 2024 WI App 62, ¶23.
“Limited purpose public figures ... are otherwise private individuals who have a role in a specific public controversy.” Tomczyk, 2024 WI App 62, ¶24. There is a two-prong test to determine if a defamation plaintiff is a limited purpose public figure:
(1) there must be a public controversy; and
(2) the court must look at the nature of the plaintiff’s involvement in the public controversy.
Id. Then, the analysis of that second prong has three steps:
(1) isolating the controversy at issue;
(2) examining the plaintiff’s role in the controversy to determine whether it is more than trivial or tangential; and
(3) determining whether the alleged defamation was germane to the plaintiff’s participation in the controversy.
Id. This three-step analysis presents an objective test to assess the facts about the plaintiff’s relationship to the controversy, to determine if the person became a limited purpose public figure by ‘voluntary injection’ into a controversy or by being ‘drawn into a particular public controversy.’ Id.
The Wisconsin Court of Appeals concluded that the undisputed facts established Mr. Tomczyk was a limited purpose public figure for the purposes of the “community for all” resolution, that the resolution was a public controversy, that Mr. Tomczyk’s role was neither trivial nor tangential, and the allegedly defamatory statements at issue were germane to Mr. Tomczyk’s participation in the dispute. Tomczyk, 2024 WI App 62, ¶54.
At the next step, the court concluded that Mr. Tomczyk had not presented evidence by which a reasonable jury could conclude that Wausau Pilot harbored serious doubts about the truth of the publications such that it acted with actual malice in publishing them. Tomczyk, 2024 WI App 62, ¶67. Proof of actual malice requires a showing by clear and convincing evidence that the defamatory falsehood was published with knowledge of its falsity or with reckless disregard for its truth. Tomczyk, 2024 WI App 62, ¶55. If the plaintiff does not meet this burden, “under no circumstances can the plaintiff recover.” Id.
It is always wise to be careful what you say in public, even in the midst of a heated debate. This is especially true for public figures, including those who might be public figures for a limited purpose. There are several key takeaways from this case:
This case has reignited discussion of possible anti-SLAPP (strategic lawsuit against public participation) legislation in Wisconsin, which allows judges to quickly dismiss lawsuits filed to silence or intimidate critics by making them pay for a legal defense. This is the law in many states. A bill was introduced in the last legislative session, but it did not even get a hearing. It will be interesting to watch whether a new anti-SLAPP bill is introduced in 2025 or beyond.