In this comprehensive guide, we’re going to take you through everything defamation in the state of Wisconsin! We’ll be walking you through the basics of Wisconsin libel and slander laws, important defamation lawsuit formalities and requirements, recoverable defamation damages, and more! Consider this your ultimate guide to Wisconsin defamation law!
Are you a resident of Wisconsin and the victim of false accusations or malicious online attacks? This needs to be addressed as soon as possible. We’re here to help.
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How Does Wisconsin Define Libel & Slander?
Before we get into how Wisconsin defines defamation, let’s first take a look at what the definition of defamation is, and the two fundamental forms it takes. Defamation simply refers to a written or oral publication of a false assertion of fact to a third-party, which subsequently harms another party’s reputation.
The United States is a common law legal jurisdiction, along with the United Kingdom, Canada, and Australia, and classifies defamation as a civil injury or wrong, meaning it’s a “tort” and allows a plaintiff to recover both monetary and non-monetary damages for their injury. Defamation may also be commonly referred to as the “tort of defamation” or “defamation of character.” In this blog post, we will use all three terms interchangeably to refer to defamation.
Defamation takes two fundamental forms: libel and slander.
- Libel: a written or published false assertion of fact to a third-party, which causes harm to another person’s reputation. Libel covers not only written statements, but any photograph, video, or media preserved in a tangible medium.
- Slander: a spoken false assertion of fact to a third-party, which causes harm to another person’s reputation.
To help you remember the difference between libel and slander, it’s time to think back to that high school Latin class you took. “Libellus” is the Latin word for “small book” or “booklet,” so anytime you see a defamatory statement preserved in a “small book” or writing, you know you’re dealing with libel.
Before initiating a defamation claim in your state, it’s important to familiarize yourself with the main difference between libel and slander, as it could ultimately affect the time-frame you have to bring your claim. Failing to acquaint yourself with your state’s respective defamation statute of limitations could lead to having your claim thrown out or dismissed altogether.
Additionally, both libel and slander actions have their own respective formalities and requirements that must be adhered to when bringing a claim.
Unfortunately, the general public tends to easily confuse both libel and slander, often opting to use “slander” as a catch-all term for all defamation. The reality of today’s defamation landscape is that most defamatory communications are published on the Internet, and thus libellous rather than slanderous.
Defamation may also be commonly referred to as:
- Character assassination
However, keep in mind that “disparagement” actually refers to a false statement of fact which affects a person’s or business’s proprietary and financial rights, rather than reputation. Make sure to brush up on the differences by checking out our comprehensive article on business and commercial disparagement.
So, what is the correct term for a person who communicates or publishes a defamatory statement?
- Defamers: the comprehensive term for persons who communicate a false statement of fact to a third-party, which then causes harm to another’s reputation.
- Libelers: a person who publishes a written false statement of fact to a third-party, which then causes harm to another’s reputation.
- Slanderers: a person who orally publishes a false statement of fact to a third-party, which then causes harm to another’s reputation.
- Famacide: a somewhat archaic term meaning to literally “destroy another person’s reputation.”
Now that we’ve walked you through the core principles of defamation in the United States, let’s take a look at Wisconsin’s defamation definition, and the requisite elements a defamation plaintiff must show in order to succeed in their defamation lawsuit.
Wisconsin’s Defamation Definition
According to Wisconsin defamation law, defamation is defined as:
- A false statement;
- Communicated by speech, conduct or in writing to a person other than the person defamed; and,
- 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 parties from associating or dealing with him or her.1
Wisconsin does recognize the legal doctrines of defamation by implication and innuendo, along with defamation by direct statement.2
We will expand on this below.
Keep in mind that for a defamation claim to succeed in Wisconsin, there must be “certainty” as to the identity of the person defamed, found “from the [defamatory] words themselves.”3 However, the person need not be specifically named. Identity is established if it is ascertainable.4
Wisconsin Defamation Cases & Examples
- Overlapping of Statements: Statements critical of a reputed cult to which plaintiffs belonged were defamatory of them where the statements arose solely in a discussion of plaintiffs’ suitability as parents, and statements regarding the cult and parents overlapped. Kennedy v. Children’s Serv. Society, 17 F.3d 980, 983–84 (7th Cir. 1994).
- Reasonable Inferences: Referring to the plaintiff as “Director X” in a memo did not shield the defendants from liability to a deposed corporate director where the memo described circumstances from which recipients could reasonably infer that plaintiff was the subject of the memo. Amoroso v. Schuh, 278 F. Supp. 3d 1106 (W.D. Wis. 2017).
- No Reasonable Inferences: Statements critical of job cuts and transfers, and the social consequences and morality of a company’s decisions, were not defamatory of the company’s director of corporate communications “as a matter of law [because] no reasonable person could find that the communications director was a decisionmaker at the company, responsible for the job transfers at issue and their social and economic consequences.” Thompson v. National Catholic Reporter Pub. Co., 4 F. Supp. 2d 833, 840 (E.D. Wis. 1998).
- Defamation on Facebook in Wisconsin: In a 2015 Wisconsin defamation case, a defendant created a false Facebook profile in a university professor’s name and used it to post comments attacking the professor’s character. The appellate court affirmed that the defendant’s actions were defamatory. Laughland v. Beckett, 2015 WI App 70.
- RipoffReport Defamation: An electronics distributor made a post on RipoffReport.com accusing one of his suppliers of grand larceny for accepting payment and failing to deliver the agreed-on products. The supplier sued for defamation, claiming it had fulfilled all of its contracted duties. The court held that because the posts were made on a non-government website, they did not qualify for any privilege and were sufficient to support a defamation claim. Stavropoulos v. Patton, No. 15-cv-811, 2015 U.S. Dist. LEXIS 149729 (E.D. Wis. Nov. 4, 2015).
- Firefighter Disability: A news publication discussing a former firefighter’s disability was held not to be defamatory because the broadcast, taken in context and as a whole, was critical of the state’s disability system rather than the firefighter himself. Marjala v. Fox News Network LLC, 2017 WI App 7.
Now, let’s turn to Wisconsin’s defamation pleading standard for defamation lawsuits.
Wisconsin’s Defamation Pleading Standard
It’s important to first understand what pleadings are and why our legal system requires them. If you’ve ever watched a popular television legal drama, we bet you’ve encountered at least several of these terms before!
First, what are pleadings and what do they include?
Pleadings are formal written documents and statements which initiate a legal action. They are first filed by the plaintiff, and generally include:
- Statement of facts
- Allegations and assertions by the plaintiff
- Fundamental issues and arguments of the case
- Relevant defenses a defendant may rely upon
After pleadings are filed, the defendant will then be given an opportunity to respond to the allegations and issues set forth.
Below are some of the most common types of pleadings in the United States.
- Complaint: the first formal document filed by the plaintiff, outlining their fundamental claims, facts, arguments, and issues. It will also include a “prayer for relief,” or a request for damages.
- Answer: the defendant’s “answer” or response to the plaintiff’s Complaint. In a defendant’s Answer, he or she rebuts and address the plaintiff’s proffered allegations, issues, and facts.
- Reply: the plaintiff’s response to a defendant’s answer.
- Counterclaim: in some cases, a defendant may actually file a separate and distinct legal claim against the plaintiff, which is meant to offset the plaintiff’s initial complaint.
Do understand that most states in the U.S. will differ (some significantly) in their respective pleading requirements for ALL lawsuits. In the case of defamation, one state may require libel plaintiffs to bring their claims within a shorter period of time (statute of limitations), while a different state may have a more relaxed timeframe for bringing defamation lawsuits.
Additionally, some U.S. states may require a libel or slander plaintiff to plead his claim with a heightened degree of detail and specificity, while others may only require a defamation plaintiff to provide a short summary of the defamatory statement in question.
If you’re unsure of your state’s specific defamation pleading standards and wondering how to file an internet defamation lawsuit, make sure to reach out to our experienced team of defamation removal lawyers as soon as possible. Call us at (216) 373-7706 or schedule a meeting online to set up your free, initial no-obligation defamation consultation!
Now that we’ve addressed what pleadings are and why they are important, let’s take a look at Wisconsin’s defamation pleading standard.
Particular & Plausible
Under Wisconsin defamation law, plaintiffs are required to include “the particular words complained of” in any defamation complaint.5 Merely attaching letters containing alleged defamatory statements to the complaint is insufficient to satisfy such requirement.6 Plaintiffs must also allege facts that plausibly suggest they are entitled to relief.”7
Wisconsin Defamation Per Se
Defamation per se, sometimes referred to as ‘libel per se’ or ‘slander per se’, refers to certain types of statements which are considered so inherently inflammatory and defamatory that a defamation plaintiff need not prove damages (or economic losses). The reason defamation per se exists is to ease the burden of actually having to prove damages when there’s clearly significant damage done.
Wisconsin defamation law dictates that slander (spoken defamation) per se and all printed libels (written defamation) are actionable and compensable without proving actual monetary loss or other special damages.10 Slander will be classified as ‘per se’ when the statement in question alleges:
- A criminal offense
- A loathsome disease
- Statements regarding plaintiff in his or her business or profession 11
Do note that even if a statement constitutes slander per se in Wisconsin, a plaintiff cannot recover damages if he or she fails to allege reputational harm flowing from the statement.12
For example, a statement ascribing a criminal history to an innocent person was ruled to be defamatory per se in Wisconsin. Teague v. Schimel, 2017 WI 56.
Defamation per se actions will give rise to “presumed damages,” as the libel or slander plaintiff need not prove damages after all. We will walk you through Wisconsin’s defamation damages in greater detail in Section 5.
If you’re curious about the flipside of the defamation per se coin is, look no further. Below, let’s take a look at defamation per se’s opposite – defamation per quod.
Wisconsin Defamation Per Quod
If a statement in question doesn’t fall under one of the four aforementioned ‘per se’ categories, then it will likely be classified as defamation per quod. Defamation per quod is the exact opposite of defamation per se, and instead of presuming damages, it requires a libel or slander plaintiff to provide supporting evidence that the statement in question is in fact defamatory.
Under Wisconsin slander laws, slander that does not fall within one of the above per se categories will be considered slander per quod. This means that the Wisconsin slander plaintiff need not only prove the elements of defamation, but they also must prove that the defamation caused them harm in either monetary loss or special damages.13
- Wisconsin Slander Per Se Case: In 2007, a bar owner was accused of throwing a glass of ice at a police officer. The bar owner claimed the accusation was false and defamatory, and had to show that the claim led to her subsequent arrest for disorderly conduct, and that such arrest caused her both physical and reputational harm. Brunner v. McKillip, 488 F. Supp. 2d 775, 782-83 (W.D. Wis. 2007).
Defamation By Implication & Innuendo in Wisconsin
As noted above, Wisconsin recognizes defamation by implication and defamation by innuendo.
Oftentimes, defamation isn’t always so obvious, and may be disguised in seemingly everyday language and speech. This makes it difficult to ascertain whether a statement is, in fact, defamatory or offensive.
Defamation by implication refers to statements which insinuate specific information to actually be true, when in fact it’s false and harmful. Beware of statements which seek to combine both true and false assertions.
U.S. Defamation Law Fact: The U.S. is typically considered a pro-defendant defamation jurisdiction due to the enforcement of the First Amendment and U.S. Constitution. Other commonwealth countries, such as Canada, Australia, and the United Kingdom (along with European countries) are however considered pro-plaintiff defamation jurisdictions, and popular legal jurisdictions for defamation plaintiffs seeking favorable verdicts.
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Important Wisconsin Defamation Formalities & Requirements
The United States boasts one of the most complicated and nuanced legal systems in the world, which can be an extremely daunting process for defamation victims looking to initiate a lawsuit.
Both the United States and Wisconsin have countless hurdles that libel and slander plaintiffs must tackle when bringing a successful defamation lawsuit. In this section, we’re going to take you through the most important Wisconsin defamation formalities and requirements that you should be aware of when bringing an Internet defamation or libel lawsuit.
Specifically, we’re going to walk you through:
- Wisconsin courts and their legal jurisdiction over out-of-state defamation defendants
- Where Wisconsin defamation plaintiffs may bring their lawsuit
- Wisconsin’s defamation statute of limitations
- Important Wisconsin defamation legal cases
Let’s get started.
Do Wisconsin Courts Have Jurisdiction Over Out-of-State Libel Defendants?
Simply put, yes.
In order to have jurisdiction over out-of-state defamation defendants, Wisconsin courts “require plaintiffs to satisfy the requirements of the state’s long-arm statute, Wis. Stat. § 801.05, as well as the due process clause of the United States Constitution.”14
Specifically, Wisconsin’s long-arm statute reads: “A court of [Wisconsin] having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to s. 801.11 under the following circumstances:
- LOCAL PRESENCE OR STATUS. In any action whether arising within or without this state, against a defendant who when the action is commenced:
- Is a natural person present within this state when served; or
- Is a natural person domiciled within this state; or
- Is a domestic corporation or limited liability company; or
- Is engaged in substantial and not isolated activities within this state, whether such activities are wholly interstate, intrastate, or otherwise.
- SPECIAL JURISDICTION STATUTES…
- LOCAL ACT OR OMISSION. In any action claiming injury to person or property within or without this state arising out of an act or omission within this state by the defendant.
- LOCAL INJURY; FOREIGN ACT. In any action claiming injury to person or property within this state arising out of an act or omission outside this state by the defendant, provided in addition that at the time of the injury, either:
- Solicitation or service activities were carried on within this state by or on behalf of the defendant; or
- Products, materials or things processed, serviced or manufactured by the defendant were used or consumed within this state in the ordinary course of trade.
In sum, Wisconsin’s long-arm statute looks for actual connections to the state. Whether the defendant in person was physically located within Wisconsin, or solicited services via someone in state, or whether products or services were consumed within state, Wisconsin is looking for true ties to their state for personal jurisdiction to attach.
Furthermore, “The burden is on the plaintiff to establish jurisdiction under the long-arm statute,” but the statute “is to be liberally construed in favor of exercising jurisdiction.” 15
In Wisconsin’s defamation history, at least one Wisconsin trial court has found that merely posting a message on a web bulletin board, without any other elements , does not establish personal jurisdiction over a non-resident in a defamation action.16 Personal jurisdiction over a newspaper publisher likewise requires more than proof that the published posts its article on the World Wide Web and leaves space on its webpage for third parties to display Wisconsin-based advertising for any Wisconsin-based viewers of the website.17
Let’s take a look at several examples:
Wisconsin Personal Jurisdiction Cases & Examples
- An attorney’s performance of limited services in Wisconsin for a non-Wisconsin client was insufficient for Wisconsin courts to exercise jurisdiction over him in a defamation action. Nelson v. Bulso, 979 F. Supp. 1239 (E.D. Wis. 1997).
- A Wisconsin corporation’s parent company that was incorporated in Delaware, operated out of Rhode Island and itself maintained no employees or property in Wisconsin still satisfied the “substantial systematic activities” requirement of Wisconsin’s long-arm statute via its subsidiary. Hayeland v. Jaques, 847 F. Supp. 630 (E.D. Wis. 1994).
So, now that we understand ‘YES’, Wisconsin courts may exercise personal jurisdiction over out-of-state defamation defendants, let’s take a look at where Wisconsin defamation plaintiffs can actually sue them!
Venue: Where Can Wisconsin Defamation Plaintiffs Sue?
When bringing a defamation action in the state of Wisconsin, except as otherwise provided by statute, venue in civil suits or special proceedings shall be proper:
- In the county where the claim arose;
- In the county where the real or tangible personal property, or some part thereof, which is the subject of the claim, is situated;
- In the county where a defendant resides or does substantial business; or
- If the provisions under par. (a) to (c) do not apply, then venue shall be in any county designated by the plaintiff. WIS. STAT. § 801.50.
For example, venue for a libel action in Wisconsin will be proper in a county in which some of a defendant’s newspapers are delivered and read. Voit v. Madison Newspapers. Inc., 116 Wis. 2d 217 (1984).
Now, let’s take a look at the timeframe Wisconsin defamation plaintiffs have to actually bring their libel or slander lawsuit!
Wisconsin Defamation Statute of Limitations
Before diving into Wisconsin’s defamation statute of limitations time frame, let’s first understand the fundamental principles driving its existence and how it helps further a smooth working and fairer legal system.
Simply put, a statute of limitations (SOL) is a time limiting mechanism and restraint, which places a tolling time period on legal actions and an individual or business’s ability to bring them. Should a person or business fail to bring their claim within the required statute of limitations time period, they may be penalized or have their lawsuit thrown out altogether.
What are the core principles behind a statute of limitations?
- Preservation of vital evidence: Evidence, especially in slander lawsuits, can be fleeting or more likely to be destroyed. By requiring plaintiffs to initiate their suits within a specific period of time, it helps preserve crucial evidence which is relevant to the case.
- Bringing a claim with reasonable diligence: It’s no surprise that the U.S. legal system is clogged and not operating like a well-oiled machine. Furthermore, we boast our fair share of frivolous lawsuits. SOLs help protect against frivolous actions being filed, and claims being commenced without much thought.
- Elimination of more “cruelty than justice”: It’s important for both parties to receive information within a timely period. By providing defendants and other relevant parties to a lawsuit sufficient notice of an upcoming lawsuit or legal claim, this ultimately helps level the scales of justice.
So, how long do Wisconsin defamation plaintiffs have to bring their claim?
Wisconsin’s statute of limitations for both libel and slander is three years, making it one of the longest defamation statutes of limitations in the United States.18 However, Wisconsin’s statute of limitations for a defamation counterclaim is tolled by the filing of the plaintiff’s complaint, at least in the view of one federal court.19
For example, in 2007, the Brewers Baseball Club posted allegedly defamatory information about a fan to TheSmokingGun.com. The fan’s defamation claims failed because she filed them after the statute of limitations had already passed (in 2010). Ladd v. Uecker, 2010 WI App 28.
How does Wisconsin’s defamation statute of limitations stack up to other states in the U.S.?
|Virginia||One (1) year|
|District of Columbia||One (1) year|
|Michigan||One (1) year|
|Pennsylvania||One (1) year|
|Ohio||One (1) year|
|New Jersey||One (1) year|
|Texas||One (1) year|
|Georgia||One (1) year|
|California||One (1) year|
|Illinois||One (1) year|
|South Carolina||Two (2) years|
|Florida||Two (2) years|
|Nevada||Two (2) years|
|Massachusetts||Three (3) years|
|Wisconsin||Three (3) years|
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Does Wisconsin Recognize the Single Publication Rule?
Similar to statutes of limitations, the single publication rule is also a time-limiting mechanism and restraint used in defamation claims. The single publication rule limits a plaintiff’s ability to bring multiple libel or slander lawsuits for each defamatory publication which comes after the original. Specifically, it limits a plaintiff’s right to legal recovery, meaning he or she can only initiate a single lawsuit for a libelous or slanderous publication – unless a material alteration is made to the original statement or publication.
Without the single publication rule in place, our already clogged judicial system would run rampant with plaintiffs seeking recovery for every subsequent defamatory publication to the original.
Under Wisconsin defamation statute, publication of defamatory words occurs when they are communicated to one individual other than the person defamed.20 The Court of Appeals has adopted the single publication rule and has specifically applied it to publications on the Internet.21
Rejecting a plaintiff’s claim that the continued appearance of an allegedly defamatory item on the Internet continued to renew the statute of limitations for her cause of action, the court adopted the Restatement (Second) of Torts § 577A(3), noting “the great majority of courts have … followed the single-publication rule.”22
As to the Internet, “[w]e reject the notion that each ‘hit’ or viewing of the information should be considered a new publication that retriggers the statute of limitations.”23
However, the court in Laughland v. Beckett held that where the defendant continues to post new defamatory material attacking the plaintiff on a Facebook page, the defendant’s continuous course of conduct is not a single publication and the statute of limitations does not begin to run until AFTER the defendant’s last post.24
As mentioned above, a material alteration to the original defamatory publication will give rise to an entirely new defamation action!
Do note that the Uniform Single Publication Act has not been adopted in Wisconsin.
Understanding your respective state’s defamation statute of limitations is crucial for bringing a successful libel or slander lawsuit. Make sure to reach out to an experienced Internet defamation removal attorney to better explain your rights and remedies in your state. Do NOT go at this alone, otherwise, you may risk failing to secure a favorable judgment.
Private vs. Public Defamation Plaintiffs in Wisconsin: Which One Am I?
When bringing a defamation lawsuit in the United States, it’s crucial to understand that your rights and remedies will likely depend on your “status” in society. And, depending on which type of defamation plaintiff you are classified, you will have to meet one of two burdens of proof in order to succeed in your defamation suit. United States defamation and libel laws recognize two core types of defamation plaintiffs:
- Private plaintiffs
- Public plaintiffs
In this section, we’re going to walk you through several important libel cases in the U.S. which have shaped present-day defamation laws as we know it. We’re also going to take you through the specific burdens both public and private plaintiffs must prove in order to succeed in their defamation lawsuit. We think you might just be surprised to find out which type of defamation plaintiff you are!
First, let’s start with the fundamental reason why U.S. courts distinguish between private and public defamation plaintiffs.
The distinction between public and private libel plaintiffs was first addressed in the landmark defamation case of New York Times Co. v. Sullivan. In Sullivan, the U.S. Supreme Court found a need to differentiate between different defamation plaintiffs, and ultimately established differing burdens of proof needed to be met for each.
Specifically, the Supreme Court emphasized the need to promote democratic debate and public comment in today’s society. And, which types of figures are often at the forefront of social, political, legal, and economic policy? Elected officials, notable societal figures, and even celebrities. Average citizens shouldn’t fear legal repercussions for voicing their concerns and criticisms of public figures, as it would ultimately stifle “uninhibited debate.”
Below are the two core defamation plaintiffs found in the U.S. and the respective burdens of proof attached to each.
- Private plaintiffs: If you’re reading this blog post, there’s a good chance you’re classified as a “private plaintiff,” due to you likely never having voluntarily (or involuntarily) thrust yourself to the forefront of public controversy or comment. Most people like to keep their personal lives…well personal. Due to private plaintiffs wanting to remain out of the limelight, they have a less strict burden of proof to meet when bringing a libel or slander claim in the U.S. To succeed in one’s defamation action, a private plaintiff need only prove a defendant published or communicated a defamatory statement with ordinary negligence (in a way exceeding how a reasonable person should act).
- Public plaintiffs: Public plaintiffs are typically persons with some sort of prominence in today’s society. Think of politicians, celebrities, athletes, and other notable figures. These persons are all considered public plaintiffs in the United States. After all, they’ve either voluntarily or involuntarily thrust themselves to the forefront of public controversy or comment. And, it’s in our best interest to discuss these individuals! As a result, public plaintiffs must prove a defendant published or communicated a defamatory statement with actual malice or reckless disregard.
Wisconsin Actual Malice Test
Under Wisconsin defamation law, when ascertaining actual malice, the Wisconsin Supreme Court established a subjective test. Under Wisconsin’s actual malice test, the plaintiff must show that the defendant “knew the statement was false, in fact entertained serious doubts as to the truth of the publication, or had a high degree of awareness of probable falsity.”25
The actual malice standard “must be met by something more than evidence suggesting the defendant lacked reasonable grounds,”26 and “[t]he focus is on the defendant’s attitude pertaining to the truth or falsity of the published statements rather than upon any hatefulness or ill-will.”27
Although the plaintiff must show that the defendant entertained serious doubts to the truth of the publication, “[t]his does not mean that a defendant can escape liability simply by claiming he or she believed a statement was true.”28
Finally, in certain instances, a jury may infer doubts about a statement from circumstantial evidence.”29
Wisconsin Actual Malice Case Examples
- Preacher vs. LGBT Community: When an activist posted a press release to its website accusing a well-known preacher of inciting violence against the LGBT community, the preacher sue for defamation. And, because the words of the preacher’s sermon were ambiguous, the Court held that the activist’s interpretation was reasonable and, thus, that the preacher could not show actual malice as a matter of law. Storms v. Action Wis. Inc., 2008 WI 56.
- Lack of Language: A television station’s failure to use the word “allegedly” to describe actions attributed to a shooting suspect by the police was insufficient to create a jury issue of actual malice. Erdmann v. SF Broadcasting, 299 Wis. 2d 156 (Ct. App. 1999).
- Accuracy Verification: A Wisconsin court held that actual malice was not shown by proof that the defendant radio station had failed to investigate or verify the accuracy of its report before repeating a story obtained from a local newspaper. Lewis v. Coursolle Broadcasting, 127 Wis. 2d 105.
- Editorial Process: A Wisconsin plaintiff failed to show actual malice when the defendant wire service simply re-edited and summarized the article published by a local newspaper; there was no evidence that errors in the service’s article were anything more than unintended byproducts of the editorial process. Simonson v. UPI, 500 F. Supp. 1261, (E.D. Wis. 1980).
Those two plaintiff classifications can be quite vague or wide in scope, so most states have actually narrowed down the above types of plaintiffs, and split them into further classes.
Today, most states recognize four types of libel and slander plaintiffs:
- Private Plaintiff
- Public Official
- All-Purpose Public Figure
- Limited-Purpose Public Figure
Wisconsin recognizes the above four types of defamation plaintiffs.
To help better your understanding of the four types of plaintiffs found in Wisconsin and the U.S., below is a comprehensive table.
|Wisconsin's Four Classifications of Defamation Plaintiffs||Private Plaintiffs||Public Officials||Public Figures (General-Purpose||Limited-Purpose Public Figures (LPPFs)|
|Definition||Plaintiffs who do not fall within any other category. Private plaintiffs are persons who have not voluntarily or involuntarily thrust themselves to the forefront of public criticism, debate, or controversy.||Wisconsin courts have not delved greatly into what constitutes a public official beyond citing the U.S. Supreme Court’s holding in New York Times Co. v. Sullivan, and often appear to conflate ‘public officials’ and ‘public figures'. “[T]he ‘public official’ designation ‘applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs,’ but “cannot be thought to include all public employees.”||Whether a plaintiff is a public figure in Wisconsin is an issue of law to be decided by the court, not the jury. For a Wisconsin court to determine whether a plaintiff is a 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 to see whether the plaintiff has injected himself or herself into the controversy so as to influence the resolution of the issues involved. A public controversy is “defined in terms of whether the dispute or controversy had ‘an impact outside of those immediately interested’ in the dispute.” Under the second step of public figure analysis, a court: (1) isolates the controversy, (2) examines the plaintiff’s role in it, and (3) examines the connection between the defamation and the controversy.||One may become an “involuntary” limited purpose public figure in Wisconsin by being drawn into the center of a public controversy.|
|Burden of Proof||Ordinary Negligence||Actual Malice||Actual Malice||Actual Malice|
|Examples||1. There was no public controversy, and therefore no public figure status, where a woman expressed views about her ex-husband and divorce, even though she had been active in promoting the ideals of feminism and liberal Catholicism. Maguire v. Journal/Sentinel, Inc., 232 Wis. 2d 236, 245 (Ct. App. 1999).|
2. Court held that the leader of a widely publicized dissident stockholder battle was not a public figure because, although newsworthy, the dispute was essentially an internal corporate struggle rather than a “public controversy.” Denny v. Mertz, 106 Wis. 2d 636 (1982).
|1. A state legislature representative qualifies as a public official. Lassa v. Rongstad, 2006 WI 105 (court used public figure terminology interchangeably with public official).|
2. A Wisconsin Court held that an unelected Police Chief satisfies the public official test. Pronger v. O’Dell, 127 Wis. 2d 292, 295 (Ct. App. 1985).
3. Citing Pronger v. O’Dell, a Wisconsin Court held that one of 45 captains in the Milwaukee Fire Department was a public official. Miller v. Minority Brotherhood of Fire Protection, 158 Wis. 2d 589 (Ct. App. 1990).
|1. Former district attorney and candidate for attorney general was ruled to be a general purpose public figure. Biskupic v. Cicero, 2008 WI App 117.||1. Applying Wisconsin defamation law, the 7th Circuit found a mathematician who published articles was a limited purpose public figure; “anyone who publishes become a public figure in the world bounded by the readership of the literature to which has contributed.” Dilworth v. Dudley, 75 F.3d 307 (7th Cir. 1996) (Posner, J.).|
If you’re unsure of what type of defamation plaintiff you are, it’s important to reach out to an experienced Internet defamation removal lawyer as soon as possible!
Issues of Private & Public Concern in Wisconsin
Similar to how both public and private defamation plaintiffs have differing burdens of proof, issues of private and public concern also boast their own respective burdens of proof. This is also in furtherance of uninhibited debate, comment, and discussion in today’s society.
Should our legal system ultimately fail to distinguish between public and private issues, everyday persons may risk legal repercussions for commenting openly on important and hot-topic issues shaping our democracy.
Just as private plaintiffs need only prove ordinary negligence to succeed in their defamation claim, it’s only natural that private issues also require the proving of ordinary negligence in their publication. Public issues then require a showing of actual malice or reckless disregard.
At the time of publication, there are no notable cases in Wisconsin pertaining to issues of public and private concern, so we recommend looking to the above legal cases and examples concerning public and private figures to better familiarize yourself with the matter.
Now that we’ve walked you through the requisite elements a Wisconsin defamation plaintiff must prove in order to succeed in their lawsuit, let’s take a look at the most commonly relied upon defenses to libel and slander claims.
Popular Defenses to Defamation in Wisconsin
U.S. defamation law is extremely complex and nuanced (along with Wisconsin libel laws), especially when it comes to defenses a defendant may rely on to avoid defamation liability.
In this section, we’re going to tackle several of the most commonly relied upon defamation defenses to slander and libel lawsuits in Wisconsin and the United States.
Below, we’ll be walking you through the following defamation defenses:
- Privilege (Absolute, Qualified, Statutory, Reporter’s Privilege)
- Libel-Proof Plaintiff Doctrine
- Section 230 of the Communications Decency Act
- Wire-Service Defense
Let’s first start with one of the most commonly relied upon defenses to defamation lawsuits in the United States: the defense of opinion.
Defense of Opinion in Wisconsin
At the very heart of defamation lawsuits is the false assertion of fact by one party, which is of and concerning another. Specifically, if the contents of a publication or communication may be independently verified as fact or fiction, then it will not fall under the defense of opinion.
Opinion refers to statements and communications which are unable to be independently verified as fact or fiction, and relied on by defamation defendants in the United States and Wisconsin.
Following the Restatement, the Wisconsin Supreme Court has referred to the common law protection afforded expressions on matters of public interest as a privilege, i.e., the privilege of fair comment.30
No Wisconsin court has ruled on the “pure opinion” issue in a published decision since the U.S. Supreme Court’s landmark decision in Gertz v. Robert Welch, and no court has addressed a constitutionally-based test for distinguishing fact from opinion.
Following another major Supreme Court decision in Milkovich v. Lorain Journal Co., the Seventh Circuit explained that “a communication that blends an expression of opinion with an expression of fact is actionable in Wisconsin if it implies the assertion of undisclosed defamatory facts as a basis of the opinion.”31
Wisconsin Opinion Cases & Examples
- After a performer emailed her customer to complain about her performance being posted and shared online, the customer distributed the performer’s email among its community, along with a notation characterizing it as “overzealous,” “litigious” and “heavy-handed.” The court held that such characterizations merely expressed the author’s opinion about the email and was thus not defamatory. Rigsby v. AM Community Credit Union, 2014 WI App 45 (unpublished opinion) (citing Restatement (Second) of Torts § 566).
- Applying Wisconsin defamation law, the Seventh Circuit noted that a passage in a book calling an academic “a crank,” “lunatic” and “traitor” for his wrong-headed theories was capable of both literal and figurative meanings. In context, the words were mere rhetorical hyperbole and, standing alone, were not actionable. Dilworth v. Dudley, 75 F.3d 307 (7th Cir. 1996).
Truth & Falsity: Can a Statement Be Verified as Truth?
As noted above, when a statement is capable of being verified as fact or fiction, then it’s time to determine whether a truthful statement contained any falsities. Simply put, the truth may hurt, however, that doesn’t give rise to a legitimate defamation action.
When determining whether an allegedly libelous or slanderous publication is true or false, Wisconsin does not require a statement to be true in every particular. “All that is required is that the statement be substantially true.”32 Substantial truth requires that the “sting” or the “gist” of the statement be felt, and notes that minor inaccuracies or falsities will have no bearing on it.
Truth will act as a complete defense to libel and defamation actions in Wisconsin.33
Wisconsin has applied the U.S. Supreme Court’s decision in Philadelphia Newspapers, Inc. v. Hepps, recognizing that the plaintiff has the burden of proving falsity in defamation actions against media defendants.34
Furthermore, Wisconsin has not yet recognized the doctrine of incremental harm, which measures the reputational harm felt by the statements beyond the harm felt by the non-actionable portions of the rest of the publication.35
Truth & Falsity Defense Examples
- High school students sued for defamation after a parent wrote a letter to the athletic director accusing them of harassing and photographing his daughter in the locker room. Because the parts of the letter the students claimed were false could cause them no more harm than the parts they admitted to, the court held that the letter was substantially true and dismissed their claim. Kopp v. Sch. Dist. of Crivitz, 2017 WI App 80 (unpublished opinion).
- A statement that a plaintiff “was facing criminal charges” was held to be substantially true even though the plaintiff had not been charged. A state official did, however, state that the plaintiff’s conduct could potentially violate criminal law. Terry v. Journal Broad. Corp., 2013 WI App 130.
Wisconsin Privilege: A Person’s Right to Do Or Say Something
Privilege simply refers to a person’s fundamental right to do or say something. Just as most of the aforementioned defamation principles, privilege exists to further uninhibited debate and public discussion. Privilege is a defense which protects statements which in some cases, may be considered defamatory.
Think about it. Privilege is vital for a thriving and progressive democracy. It’s commonly employed in our most fundamental decision-making processes and mechanisms (ex. Legislative, judicial, administrative, etc…).
When drafting comprehensive legislation, reform, and regulation, imagine never being able to present the flip side of the coin. Clearly, legislation would end up heavily biased and lacking in scope and coverage. Our democracy would ultimately come to a screeching halt, and basic rights would face potential erosion.
In this section, we’re going to walk you through the most common forms legal privilege takes in Wisconsin and the United States.
- Absolute Privilege
- Qualified Privilege
- Statutory Privilege
- Reporter’s Privilege
Let’s first start with the apex predator of legal privilege in the United States – absolute privilege.
Absolute Privilege in Wisconsin
Absolute privilege is as its name implies…absolute. Meaning, it’s the most comprehensive form of privilege in today’s privilege landscape. It refers to a person’s unqualified and absolute right do or say something, even if considered defamatory.
As absolute privilege is top dog, it also protects parties publishing and communicating statements with actual malice and reckless disregard.
Due to its near blanket-immunity granted to speakers, absolute privilege typically attaches in judicial, legislative, administrative, and official proceedings.
Wisconsin legal cases have recognized an absolute privilege, which protects:
- Participants in a judicial and “quasi-judicial” proceeding,36
- Statements made to a grand jury, or to a district attorney,37 and
- Statements made by high-ranking executive government officials in carrying out their duties.38
In respect to quasi-judicial proceedings, the court will consider the circumstances under which statements were made to determine if they should be afforded the absolute privilege.39
Let’s take a look at some cases addressing legal privilege in Wisconsin.
Three Wisconsin Privilege Cases
- Defamatory statements made by a defense attorney in court filings regarding a pending case concerning photographs posted to the Internet were held to be absolutely privileged. Neri v. Barber, 2014 WI App 45.
- Testimony given at an injunction hearing to remove defamatory content from the Internet was held to be absolutely privilege in a 2010 case. Ladd v. Uecker, 2010 WI App 28.
- A Wisconsin court denied the ascription of absolute privilege to statements at a city council meeting by a citizen who was neither invited to speak, nor under oath, nor responding to a question by the city council. It stipulated that its holding did not extend to whether absolute privilege would apply in a similar city council meeting to “witness testimony that is compelled by a subpoena, given under oath, or directed and supervised by questions from the legislative body.” Vultaggio v. Yasko, 215 Wis. 2d 325, 339–42 (1998).
Now, let’s turn to absolute privilege’s younger sibling – qualified privilege.
Qualified Privilege: Absolute Privilege’s Younger Sibling
Qualified privilege also refers to a person’s right to do or say something, at a certain time, and to a special audience. However, it is granted in far fewer situations and does not cover statements or communications made with actual malice and reckless disregard.
Also known as “Common Interest Privilege,” qualified privilege generally requires a speaker to have a duty to communicate or publish a statement to further moral, social, or legal policy, and also requires the audience to have a reciprocal interest in having the statement communicated to them.
With respect to conditional (qualified) privileges, the Wisconsin Supreme Court has “approved and adopted” the Restatement.40
When a qualified privilege applies, a plaintiff can nonetheless prove defamation by showing that the defendant abused the privilege by, for instance, making the defamatory statement with reckless disregard for its truth, or mixing unprivileged defamatory statements with privileged ones.41
However, a mere allegation that a defendant has abused a conditional privilege, absent evidentiary material of record to support such a claim, is not sufficient to defeat a summary judgment motion based on conditional (qualified) privilege.42 In Wisconsin, the burden is on the defendant to show the communication was privileged, and then upon the plaintiff to prove abuse.43
The common law privilege of fair comment has also been recognized in Wisconsin, “afford[ing] legal immunity for the honest expression of opinion on matters of legitimate public interest when based upon true or privileged statement of fact.”44
A qualified privilege has been held to exist in the following circumstances:
- Statements to law enforcement officers45
- Statements of an ex-employer to a prospective employer concerning an ex-employee (i.e., an employment reference)46
- Statements by an educator to a prospective employer47
- Credit bureau reports48
- Statements made by all but the most senior public officials in carrying out their duties49
- Reports of judicial and legislative proceedings50
- Communications between persons with a common interest51
- Statements by a citizen made at a city council meeting that were relevant to the issues on the agenda, but were not compelled by subpoena, given under oath, or directed or supervised by questions from the city council52
- Statements made concerning the ownership of property in a lis pendens notice53
- Statements by a county administrator to the county board concerning a county employee54
Keep in mind that the above is not an exhaustive list of all qualified privileges in Wisconsin.
Statutory Privilege: It’s the Law
Statutory privilege refers to a privilege conferred and prescribed for by statute (codified in law) and outlines specific circumstances and situations where privilege should attach.
Under Wisconsin statute, the following sections create privileges under specific conditions:
- 895.05(1) – Newspapers publishing true and fair reports of “any judicial, legislative or other public official proceeding” or of “any public statement, speech, argument or debate in the course of such proceeding.” The privilege does not extend to headlines, nor to “libelous remarks or comments added or interpolated in any such report or made and published concerning same, which remarks or comments were not uttered by the person libeled or spoken concerning the person libeled in the course of such proceedings by some other person.” The privilege has been held not to protect the report of pleadings with respect to which no judicial action has been taken.55
- 146.36(1g) – Good faith participation in “the review or evaluation of the services of health care providers.” The privilege has been applied to defeat defamation claims brought by a doctor arising out of such an evaluation.56
Reporter’s Privilege: Protecting Confidential Information & Sources
Reporter’s privilege is essential for the free and uninhibited dissemination of information and ideas. Specifically, reporter’s privilege, sometimes referred to as ‘journalist’s privilege’ or ‘press privilege’, refers to a journalist or reporter’s legal protection from being forced to testify or divulge confidential information and sources.
Wisconsin reporter’s privilege and shield law took effect May 22, 201057 and prohibits the issuance of a subpoena to any “news person” seeking the identity of a confidential source, confidential information or, broadly, “[a]ny news, information, or identity of any source of any news or information.”58
Do note that a court may issue a subpoena to a “news person” only in criminal matters where there are reasonable grounds to believe a crime has occurred or in a civil action where the complaint states a claim, and then only if the information is highly relevant, necessary to the case, not available elsewhere and there is an “overriding public interest” in disclosure.59
So, what does a “news person” include?
A “news person” includes print, broadcast or electronic news organizations that disseminate news or information to the public “on a regular and consistent basis,” as well as book publishers and any reporters and editors of such organizations.60
Wisconsin’s shield law also bars “subpoenas to persons other than news persons” to seek information or testimony about a “business transaction” between that person and the news person if the “purpose of the subpoena is to discover” the identity of a confidential source or the source’s information.61
Such statute appears to preclude requiring a suspected source to testify whether he or she is in fact the source.
Libel-Proof Plaintiff Doctrine: A Person so Reviled
In rare cases, there are defamation plaintiffs who are so utterly reviled and looked down upon in their community, that defamatory words don’t actually lower their standing in the community. Such plaintiff is referred to as the libel-proof plaintiff doctrine. The most common types of libel-proof plaintiffs are small-town drug dealers and habitual criminals, who often boast a lengthy rap sheet.
There are no notable cases tackling the libel-proof plaintiff doctrine in Wisconsin.
Section 230 of the Communications Decency Act
Section 230 of the Communications Decency Act is a controversial piece of legislation which immunizes websites and Internet service providers (ISPs) from defamation claims for content and materials posted by third-parties. This is a commonly relied on defense by most user-generated content platforms (think Facebook, Reddit, Pinterest).
The Communications Decency Act (CDA) protects interactive computer services from claims against them as publishers as that speech. Below are several cases involving the CDA in Wisconsin.
- Wisconsin Supreme Court reversed an appellate court decision, holding that the CDA provides immunity to a website used to facilitate illegal arms dealing. “[I]f a website’s design features can be used for lawful purposes, the CDA immunizes the website operator from liability when third parties use them for unlawful purposes.” Daniel v. Armslist, LLC, 2019 WI 47.
- Yahoo! Immunized under the CDA for its search results showing potentially unlawful material created by others. Stayart v. Yahoo! Inc., 651 F. Supp. 2d 873 (E.D. Wis. 2009).
The CDA immunizes websites in the way that telephone companies are protected from criminal and illegal activities discussed across their telephone lines.
Wire-Service Defense: Rarely Applied But Still Relevant
While considered somewhat archaic and not particularly applicable to most modern-day technology, the wire-service defense does have its time and place. Specifically, the wire-service defense protects persons or organizations who rely upon information which was sent via a reputable wire-service.
As of the date of publish, Wisconsin has not ruled on any significant cases concerning the wire-service defense.
If you’ve been the victim of defamatory remarks and online accusations and want to explore your legal options, reach out to the experienced defamation lawyers of Minc Law as soon as possible! At Minc Law, we can inform you of your best course of legal action, and whether a defendant has any actionable defenses they may rely upon.
Let’s put an end to the online abuse and attacks together!
Defamation Removal Tip: It’s important to screenshot and document all defamatory communications and content. Doing so is important for bringing a successful defamation claim. Make sure to timestamp all evidence and have a trusted friend or family member assist in the documentation process – this can help refute claims from the opposing party that you’ve tampered with the evidence.
Wisconsin Defamation Damages
At the very center of defamation claims in the U.S. is the element of damages, or harm to another’s reputation. Damages are typically awarded in a monetary form, to act as compensation for reputational harm and injury suffered.
Under Wisconsin defamation statute and law, defamation damages may be broken down into several types:
- Presumed Damages
- Actual Damages
- Punitive Damages
Wisconsin Presumed Damages & Defamation Per Se
As emphasized under our ‘defamation per se’ section, defamation per se plaintiffs need not prove damages when bringing their claim, as they are presumed. This occurs in situations where the defamatory statement in question is so inherently defamatory and inflammatory, that it’s natural one would expect significant damage caused.
Under Wisconsin defamation law, damages are presumed in pleadings alleging libel or slander per se.62
And, in an action against a news media defendant, a plaintiff is not entitled to presumed damages absent proof of actual malice.63
Actual Damages & Defamation Per Quod
Similar to how presumed damages are associated with defamation per se actions, actual damages go hand in hand with defamation per quod actions – as they require evidence to prove the defamatory nature of a statement.
Although special damages in Wisconsin need not be pleaded in alleging libel or slander per se, they must be pleaded in slander per quod actions.64 In slander per quod actions, one must plead special damages that were suffered as a result of the defamation, and it is not sufficient to plead only expenses which would have been incurred absent the defamation.65
Components of actual damages in a defamation action include special damages, such as loss of income, as well as general damages for injury to reputation and for mental suffering caused by the defamatory statement.66
Punitive Damages in Wisconsin
Sometimes referred to as “exemplary damages,” punitive damages are damages awarded to a plaintiff to punish a defendant for extremely egregious and malicious conduct. They are most commonly awarded in cases involving fraud, violence, and inappropriate behavior.
Under the Wisconsin statute, punitive damages may be awarded upon evidence “showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff.”67 Plaintiffs cannot recover punitive damages against a media defendant absent proof of “actual malice” by clear and convincing evidence.68
Since 2011, punitive damages have been limited to twice the compensatory damages or $200,000, whichever is greater.69 No decision has yet addressed whether compensatory damages in an actual malice defamation case by a public plaintiff would also be subjected to double punitive damages.
Finally, defendants may be awarded attorney’s fees when a plaintiff’s actions are frivolous, or when the plaintiff knows or should have known that his or her claim was made without any reasonable basis in law or equity.70
Frequently Asked Questions (FAQ)
Now, let’s take a look at some of the most frequently asked defamation questions about Wisconsin and United States’ libel and defamation laws.
Q. What has been the effect of the Internet on free speech in Wisconsin?
A. Wisconsin courts have not held that Internet speech should receive greater or lesser First Amendment protection than any other form of speech.
Q. Are there any protections for anonymous speech in Wisconsin?
A. Simply put, yes. The Wisconsin Supreme Court recognized that anonymous speech on the Internet requires a measure of protection against abuse of the discovery process to uncover the identity of the anonymous speaker.71 To that end, it held that Wisconsin courts must first “decide a motion to dismiss before compelling disclosure [of identifying information] and imposing sanctions,”72 thus ensuring that any underlying defamation claims have merit before allowing anonymous speakers to be unmasked.
For example, a state politician filed a claim against a combination of known and anonymous defendants who had sent out defamatory political mailers about her during an election cycle, seeking to unmask the defendants. The Supreme Court upheld the lower court’s judgment in favor of the politician, citing the defendants’ failure to argue for a ruling on the motion to dismiss before allowing discovery. Lassa v. Rongstad, 2006 WI 105.
Q. Can Wisconsin defamation defendants retract, clarify, or correct past defamatory statements and publications?
A. A libeled person must provide “those alleged to be responsible” a reasonable opportunity to correct the libelous material before commencing any civil action arising out of a publication in any newspaper, magazine or periodical.73 If a plaintiff fails to first demand a retraction of alleged libel in a newspaper, magazine, or periodical, dismissal is MANDATED.74
A retraction demand will be inadequate as to a particular statement if it fails to say the statement is defamatory and fails to state the true facts on the topic covered by the statement.75 The retraction statute only applies to magazines, newspapers, and periodicals.
It does NOT apply to other publications, such as computer bulletin boards.76
To constitute an adequate correction or retraction giving rise to the limitation of damages and other benefits provided by the statute, a retraction or correction must be published “without comment,” that is, it cannot rationalize the accuracy or meaning of the offensive statements.77 Publication of a correction eliminates any claim for punitive or presumed damages and may be evidence of mitigation of actual damages.78
For example, a fan sued a baseball club for defamation after the club posted defamatory information online. The fan did not first demand a retraction of the libel, and the court held that “[h]er failure to give notice is fatal to her claim.” Ladd v. Uecker, 2010 WI App. 28, 11.
Q. What is a SLAPP Lawsuit? Does Wisconsin have any Anti-SLAPP laws and protections in its books?
A. Short for “Strategic Lawsuits Against Public Participation,” SLAPP lawsuits are actions initiated by a party seeking to intimidate, censor, or burden an opponent into dropping a claim or action themselves. These types of lawsuits are often considered highly unethical and are often frivolous, which has given rise to protective laws and regulations to combat such types of suits.
Unfortunately, Wisconsin does not have any Anti-SLAPP statutes in their books.
Q. Does criminal libel or slander exist in Wisconsin?
A. Wisconsin statutes classify the publication of any defamatory matter to a third person with the “intent to defame” as a misdemeanor.79 Do note that intent to publish can be inferred from the nature of the communication.80
Truth, good motive and privilege are statutorily recognized defenses to criminal defamation claims.81 The absolute privilege for statements made in judicial proceedings is available as a defense to prosecution for criminal defamation.82
Understand that perjury is not an exception to the absolute privilege from defamation liability; however, it may be punished under the perjury statute.83
Let’s take a look at a few examples of criminal defamation in Wisconsin.
- Court of Appeals held that there was probable cause that an owner of a photograph-developing store violated the criminal libel statute when he was accused of improperly disseminating to others his customers’ photographs, which depicted the customers engaged in sexual activities. State v. Stebner, No. 92-1735-CR, 1993 Wisc. App. LEXIS 893 (Ct. App. July 15, 1993) (unpublished opinion).84
- In a prosecution for criminal defamation of a county employee, the State conceded that the conviction could not constitutionally stand without proof that the defendant published the statements with actual malice. State v. Worzalla, 2014 WI App 71.
- An emergency medical technician used his supervisor’s email password and sent to the community a number of the supervisor’s emails that seemed to describe an extramarital affair. The supervisor committed suicide the next day. The Wisconsin Supreme Court agreed the technician had a “First Amendment right to defame a public official” with “true information,” but not to do so by misusing a password and pretending to be the supervisor. State v. Baron, 2009 WI 58 (upholding a Wisconsin statute criminalizing identity theft used to damage the reputation of another even where the published material is true).
Q. What is the doctrine of Prior Restraint? Does Wisconsin enforce it?
A. Prior restraint refers to government action which prohibits speech before it even occurs.
The Supreme Court decided prior restraint in concept while invalidating as unconstitutional a statute that permitted a pre-hearing finding of criminal obscenity because it “constitute[d] an impermissible chilling of First Amendment rights when there has been no prior adversary adjudication of obscenity.”85
However, injunctive relief may be available after the fact. In Qatar Inv. & Projects Dev. Holding Co. v. Doe, the court granted a temporary restraining order requiring a blog hosting company to take down all or part of an allegedly defamatory blog post which featured the plaintiff’s picture and references to him and his company in a discussion about the criminal activities of another person with a similar name.
The court’s order required the deletion of the plaintiff’s name and picture and the reference to his company, but provided that if the hosting company could not delete just those items, then it must remove the entire blog post. 86
- Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 525, 534, 563 N.W.2d 472, 477, 25 Media L. Rep. 2249, 2252 (1997). For many years, Wisconsin has applied the Restatement definition of defamatory meaning. Frinzi v. Hanson, 30 Wis. 2d 271, 140 N.W.2d 259 (1966); Bauer v. Murphy, 191 Wis. 2d 517, 530 N.W.2d 1, 3 (Ct. App. 1995). “A communication is defamatory ‘if it tends so to harm the reputation of another as to lower him [or her] in the estimation of the community or deter third persons from associating or dealing with him [or her].’ ” Tatur v. Solsrud, 174 Wis. 2d 735, 741, 498 N.W.2d 232, 233–234 (1993) (quoting Restatement (Second) of Torts § 559 (1977)).
- Converters Equipment Corp. v. Condes Corp., 80 Wis. 2d 257, 258 N.W.2d 712 (1977); Frinzi v. Hanson, 30 Wis. 2d 271, 140 N.W.2d 259 (1966). The Seventh Circuit considered libel by implication in relation to distinctions between fact and opinion in Milsap v. Journal/Sentinel, Inc., 100 F.3d 1265, 25 Media L. Rep. 1046 (7th Cir. 1996). The allegedly defamatory implications of a television broadcast are examined by considering both the audio and video, including their relation and juxtaposition, and including the broadcast as a whole, rather than in detached fragments. Mach v. Allison, 2003 WI App 11 ¶ 31, 259 Wis. 2d 686, 656 N.W.2d 766. On the other hand, the use of scary music and selective video editing in promotional previews of a television news story has been held not to create any defamatory implication when none of the spoken or written words were defamatory or substantially untrue. Terry v. Journal Broadcast Co., 2013 WI App 130 ¶ 26, 351 Wis. 2d 479, 507, 840 N.W.2d 255, 267–68.
- De Witte v. Kearney & Trecker Corp., 265 Wis. 132, 137, 60 N.W.2d 748 (1953).
- Wildes v. Prime Mfg. Corp., 160 Wis. 2d 443, 465 N.W.2d 835 (Ct. App. 1991).
- Wis. Stat. § 802.03(6).
- Tatur v. Solsrud, 174 Wis. 2d 735, 498 N.W.2d 232 (1993).
- Data Key Partners v. Pemira Advisors LLC, 2014 WI 86 ¶¶ 30–31, 356 Wis. 2d 665, 688, 849 N.W.2d 693, 701.
- Hoan v. Journal Co., 238 Wis. 311, 298 N.W. 228 (1941).
- E.g., Giwosky v. Journal Co., 71 Wis. 2d 1, 237 N.W.2d 36 (1976). Modern decisions suggesting that upon a dismissal motion the complaint is to be liberally construed appear to be inconsistent with the historical requirement that the challenged words are to be interpreted in accordance with their natural and reasonable meaning. Compare, Meier v. Meurer, 8 Wis. 2d 24, 98 N.W.2d 411 (1959) and Frinzi v. Hanson, 30 Wis. 2d 271, 140 N.W.2d 259 (1966), with Schaefer v. State Bar, 77 Wis. 2d 120, 252 N.W.2d 343 (1977). But in Amoroso v. Schuh, 278 F. Supp. 3d 1106 (W.D. Wis. 2017), the court held that reasonable inferences from the alleged facts were sufficient to sustain a libel claim against defense motion to dismiss arguing that the publication did not identify the plaintiff, that its statements were not defamatory, and that a common interest privilege precluded defamation liability.
- Teff v. Unity Health Plans Ins. Corp., 2003 WI App 115, ¶ 40, 265 Wis. 2d 703 666 N.W.2d 38 (citing Martin v. Outboard Marine Corp., 15 Wis. 2d 452, 113 N.W.2d 135 (1962)).
- Bauer v. Murphy, 191 Wis. 2d 517, 530 N.W.2d 1, 3–4 (Ct. App. 1995).
- Janusz v. Olen, 234 Wis. 2d 149, 610 N.W.2d 511, 2000 WI App 71, 2000 WL 136313, at *2 (unpublished opinion).
- Starobin v. Northridge Lakes Development Co., 94 Wis. 2d 1, 287 N.W.2d 747 (1980).
- Hy Cite Corp. v. badbusinessbureau.com, L.L.C., 297 F. Supp. 2d 1154, 1157 (W.D. Wis. 2004).
- Lincoln v. Seawright, 104 Wis. 2d 4, 9 (1981).
- State of Wisconsin Investment Board v. Schraeder, 2004 WL 1146448, 32 Media L. Rep. 1397 (Wis. Cir. Feb. 9, 2004).
- Salfinger v. Fairfax Media Ltd., 2016 WI App 17, 367 Wis. 2d 311, 876 N.W.2d 160, 2016 Wisc. App. LEXIS 26 (unpublished opinion).
- Wis. Stat. § 893.57.
- See Thermal Design, Inc. v. Guardian Bldg. Prods., No. 08-C-828, 2012 U.S. Dist. Lexis 83301 (E.D. Wis. June 15, 2012). When there are several conflicting statutes of limitations that could apply to a claim in a Wisconsin court, Wisconsin does not apply a traditional conflicts of law balancing analysis, but instead applies a borrowing statute, which applies the shortest potentially applicable limitations period when the claim involves a “foreign cause of action.” Wis. Stat. § 893.07. An action is a “foreign cause of action” when the plaintiff has alleged injury suffered outside Wisconsin. Guertin v. Harbour Assistance Co. of Bermuda, Ltd., 141 Wis. 2d 622, 630, 415 N.W.2d 831 (1987). In Faigin v. Doubleday Dell Publishing Group, Inc., the Seventh Circuit held that a libel action involving publication of libel inside Wisconsin and elsewhere is not a foreign cause of action under the borrowing statute + even when just a small fraction of the publication occurred in Wisconsin. Faigin v. Doubleday Dell Publishing Group, Inc., 98 F.3d 268, 24 Media L. Rep. 2590 (7th Cir. 1996).
- Ranous v. Hughes, 30 Wis. 2d 452, 141 N.W.2d 251 (1966); Voit v. Madison Newspapers, Inc., 116 Wis. 2d 217, 341 N.W.2d 693 (1984).
- Ladd v. Uecker, 2010 WI App 28, ¶¶ 11–12, 323 Wis. 2d 798, 780 N.W.2d 216.
- Id. ¶ 11.
- Id. ¶ 12. Until Ladd, Wisconsin had never considered the single or multiple publication rule. In a concurring opinion in Voit v. Madison Newspapers, Inc., 116 Wis. 2d 217, 226–27, 341 N.W.2d 693, 699 (1984), Justice Shirley Abrahamson had noted that in an appropriate case, the Wisconsin Supreme Court should review Street v. Johnson, 80 Wis. 455, 458 (1891), “to determine if the Johnson case adopts the multiple publication rule and whether the Court should follow the multiple or single publication rule.” Voit v. Madison Newspapers, Inc., 116 Wis. 2d at 226–27, 341 N.W.2d at 699 (1984). Unless or until such a review takes place, Ladd remains the rule in Wisconsin.
- Laughland v. Beckett, 2015 WI App 70, 365 Wis.2d 148, 870 N.W.2d 466.
- Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 525, 542–47, 563 N.W.2d 472, 480–482, 25 Media L. Rep. 2249, 2255–57. The Court observed that failure to investigate does not create actual malice, and neither does the erroneous interpretation of an ambiguous set of facts. Id. The court held that there was no actual malice, as a matter of law, because, at worst, the newspaper merely chose one interpretation from a number of possible, rational interpretations of ambiguous materials. Id. at 545–47, 563 N.W.2d at 482. That is not enough to create a jury issue of actual malice. Id. The Court noted that in some circumstances, a reporter’s destruction of notes can give rise to an inference of actual malice, creating a jury issue. Id. at 548, 563 N.W.2d at 483. See also, Donohoo v. Action Wisconsin, Inc., 2008 WI 56, ¶ 45, 309 Wis. 2d 704, 750 N.W.2d 739 (any reasonable interpretation of ambiguous material disproves actual malice).
- Milsap v. Journal/Sentinel, Inc., 897 F. Supp. 406, 410–11 (E.D. Wis. 1995) (applying Wisconsin law).
- Bay View Packing Co. v. Taff, 198 Wis. 2d 653, 685–86, 543 N.W.2d 522, 534, 24 Media L. Rep. 1289 (Ct. App. 1995).
- Anderson v. Hebert, 2011 WI App 56, ¶ 22, 332 Wis. 2d 432, 798 N.W.2d 275 (citing St. Amant v. Thompson, 390 U.S. 727, 732 (1968)).
- E.g., Williams v. Hicks Printing Co., 159 Wis. 90, 150 N.W. 183 (1914); Terry v. Journal Broadcast Co., 2013 WI App 130 ¶ 14, 351 Wis. 2d 479, 498, 840 N.W.2d 255, 263–64.
- Milsap v. Journal/Sentinel, Inc., 100 F.3d 1265, 1268 (7th Cir. 1996); see also Laughland v. Beckett, 2015 WI App 70 ¶ 27, 365 Wis. 2d 148, 870 N.W.2d 466, 475.
- Id.; see also John v. Journal Communications, Inc., 801 F. Supp. 210, 212–13, 20 Media L. Rep. 1833 (E.D. Wis. 1992) (an inaccuracy did not amount to falsity since the substance, gist and sting of the accusation were true.); Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 526, 534–35, 563 N.W.2d 472, 477, 25 Media L. Rep. 2249, 2252 (1997) (“If the challenged statements as a whole are not capable of a false and defamatory meaning, or are substantially true, a libel action will fail.”). “Substantial truth is a complete defense to a defamation action,” but this encompasses only “slight inaccuracies.” Maguire v. Journal/Sentinel, Inc., 232 Wis. 2d 236, 247, 605 N.W.2d 881, 888, 28 Media L. Rep. 1641 (Ct. App. 1999).
- Lathan v. Journal Co., 30 Wis. 2d 146, 158, 140 N.W.2d 417, 423 (1966).
- Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 525, 543, n.18, 563 N.W.2d 472, 481 n.18, (1997). See also Terry v. Journal Broadcast Co., 2013 WI App 130 ¶ 14, 351 Wis. 2d 479, 498, 840 N.W.2d 255, 263, assuming that ordinary burden (i.e., greater weight of the credible evidence) applies.
- Maguire, 232 Wis. 2d at 248, 605 N.W.2d at 888.
- See, e.g., Niedert v. Rieger, 200 F.3d 522, 525–26 (7th Cir. 1999) (absolute immunity for witnesses extends to statements relevant to the litigation, regardless of whether the statement is made in a pleading, affidavit, or open court); Spoehr v. Mittelstadt, 34 Wis. 2d 653, 150 N.W.2d 502 (1967); Hartman v. Buerger, 71 Wis. 2d 393, 238 N.W.2d 505 (1976); Churchill v. WFA Econometrics Corp., 2002 WI App 305, 258 Wis. 2d 926, 655 N.W.2d 505.
- Bergman v. Hupy, 64 Wis. 2d 747, 221 N.W.2d 898 (1974).
- Ranous v. Hughes, 30 Wis. 2d 452, 141 N.W.2d 251 (1966).
- Vultaggio v. Yasko, 215 Wis. 2d 325, 339–42, 572 N.W.2d 450, 456 (1998).
- Zinda v. Louisiana Pacific Corp., 149 Wis. 2d 913, 440 N.W.2d 548 (1989); Converters Equipment Corp. v. Condes Corp., 80 Wis. 2d 257, 264, 258 N.W.2d 712 (1977).
- See Amoroso v. Schuh, 278 F. Supp. 3d 1106, 1115 (W.D. Wis. 2017) (complaint supported reasonable inference that defendants abused privilege by publishing statements with knowledge of falsity to serve their own interests rather than the claimed common one); Kroeger v. Mott, Appeal No. 2015AP556 ¶¶ 19–24, 2016 Wisc. App. LEXIS 358 (June 14, 2016) (unpublished per curiam opinion). In Kroeger, the court affirmed summary judgment for the defense, concluding that the plaintiff failed to present triable issues on either of these abuse theories.
- Shannon v. Alliance for the Mentally Ill, 189 Wis. 2d 17, 525 N.W.2d 299, 304 (Ct. App. 1994).
- E.g., Otten v. Schutt, 15 Wis. 2d 497, 113 N.W.2d 152 (1962); Zinda, 149 Wis. 2d 913, 440 N.W.2d 548; see also Olson v. 3M Company, 188 Wis. 2d 25, 46, 523 N.W.2d 578, 586 (Ct. App) (company did not abuse common interest privilege by publicizing to the community the results of its investigation of allegations of sexual harassment among its employees; “3M had an important interest in letting the community know that it took seriously its obligation to provide a harassment-free work place. Communication to the community on the results of the investigation and the actions 3M had taken served to protect that interest.”).
- E.g., Terry v. Journal Broadcast Co., 2013 WI App 130 ¶ 14, 351 Wis. 2d 479, 498, 840 N.W.2d 255, 263–64, (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 13 (1990)); see also Arnold v. Ingram, 151 Wis. 438, 138 N.W. 111 (1913); Grell v. Hoard, 206 Wis. 187, 239 N.W. 428 (1931).
- Bergman v. Hupy, 64 Wis. 2d 747, 221 N.W.2d 898 (1974); Heggy v. Grutzner, 156 Wis. 2d 186, 456 N.W.2d 845 (Ct. App. 1990).
- Calero v. Del Chemical Corp., 68 Wis. 2d 487, 228 N.W.2d 737 (1975).
- Talens v. Bernhard, 669 F. Supp. 251 (E.D. Wis. 1987).
- Stern v. Credit Bureau of Milwaukee, 105 Wis. 2d 647, 315 N.W.2d 511 (Ct. App. 1981).
- Ranous v. Hughes, 30 Wis. 2d 452, 141 N.W.2d 251 (1966).
- Lehner v. Berlin Pub. Co., 209 Wis. 536, 245 N.W. 685 (1932); Williams v. Journal Co., 211 Wis. 362, 247 N.W. 435 (1933).
- Kennedy v. Children’s Serv. Society, 17 F.3d 980 (7th Cir. 1994); Amoroso v. Schuh, 278 F. Supp. 3d 1106 (W.D. Wis. 2017) (statements by company management to its board of directors about the conduct of one director); Olson v. 3M Company, 188 Wis. 2d 25, 523 N.W.2d 578 (Ct. App.); Shannon v. Alliance for the Mentally Ill, 189 Wis. 2d 17, 525 N.W.2d 299 (Ct. App. 1994); Posyniak v. School Sisters of St. Francis, 180 Wis. 2d 619, 511 N.W.2d 300 (Ct. App. 1993); Hett v. Ploetz, 20 Wis. 2d 55, 121 N.W.2d 270 (1963); Miller v. Minority Brotherhood, 158 Wis. 2d 589, 463 N.W.2d 690 (Ct. App. 1990); Zinda v. Louisiana Pacific. Corp., 149 Wis. 2d 913, 440 N.W.2d 548 (1989); Wildes v. Prime Mfg. Corp., 160 Wis. 2d 443, 465 N.W.2d 835 (Ct. App. 1991) (statements by an employer to job prospect about a current employee during a job interview).
- Vultaggio v. Yasko, 215 Wis. 2d 325, 572 N.W.2d 450 (1998).
- Niedert v. Rieger, 200 F.3d 522, 527 (7th Cir. 1999).
- Anderson v. Hebert, 2013 WI App. 54 ¶¶ 9–11, 347 Wis. 2d 321, 830 N.W.2d 704.
- Ilsley v. Sentinel Co., 133 Wis. 20, 113 N.W. 425 (1907); Finnegan v. Eagle Printing Co., 173 Wis. 5, 179 N.W. 788 (1920); see also Maguire v. Journal/Sentinel, Inc., 232 Wis. 2d 236, 605 N.W.2d 881, 2000 WI App 4, review denied, 546 N.W.2d 471 (1996) (unpublished opinion) (when a reporter uses a description actually used by the court, the reporter cannot be negligent as a matter of law under Wis. Stats. 895.05(1); moreover, use of word “heckled” to describe plaintiff’s conduct, rather than “harassed,” the word chosen by the court, was a fair summary falling within the absolute judicial privilege).
- Rechsteiner v. Hazeldon, 2008 WI 97, ¶ 48, 313 Wis. 2d 542, 753 N.W.2d 496 (2008).
- Wis. Stats. § 885.14. Adoption of the statute follows decades in which Wisconsin’s privilege for reporters had been found only in the case law, most recently in Kurzynski v. Spaeth, 196 Wis. 2d 182, 538 N.W.2d 554, 24 Media L. Rep. 1016 (Ct. App. 1995), which applied the test of Schoen v. Schoen, 5 F.3d 1289 (9th Cir. 1993), to determine whether discovery will be permitted from a nonparty journalist in civil litigation. Kurzynski remained good law in Wisconsin despite attacks on Schoen elsewhere, but had not been expressly applied to a criminal setting. The new law’s prohibition of a subpoena for “any” information could also eliminate a situation that had become somewhat common in Wisconsin, where, in lieu of testimony, a subpoenaed reporter would strike a deal and provide an affidavit saying he or she had no recollection of the matter at hand other than what was printed in the paper or aired on the newscast.
- Wis. Stats. § 885.14(2).
- Wis. Stats. § 885.14(3).
- Wis. Stats. § 885.14(1).
- Wis. Stats. § 885.14(3).
- Teff v. Unity Health Plans Ins. Corp., 2003 WI App 115, ¶ 40 and n.6, 265 Wis. 2d 703 666 N.W.2d 38.
- Denny v. Mertz, 106 Wis. 2d 636, 659, 318 N.W.2d 141, 152, 8 Media L. Rep. 1369.
- Martin v. Outboard Marine Corp., 15 Wis. 2d 452, 113 N.W.2d 135 (1962); Teff v. Unity Health Plans Ins. Corp., 2003 WI App 115, ¶ 40 and n.6, 265 Wis. 2d 703 666 N.W.2d 38.
- Kennedy v. Children’s Serv. Society, 17 F.3d 980, 984 (7th Cir. 1994); see also Bauer v. Murphy, 191 Wis. 2d 517, 530 N.W.2d 1, 5 (Ct. App. 1995) (special damages not sufficiently alleged by claims of lost “athletic opportunities” and emotional distress, and loss of reputation).
- Badger Bearing, Inc. v. Drives & Bearings, Inc., 111 Wis. 2d 659, 331 N.W.2d 847 (Ct. App. 1983); Laughland v. Beckett, 2015 WI App 70 ¶ 36, 365 Wis. 2d 148, 870 N.W.2d 466, 476 (proof of specific economic loss is not required to recover general damages for impairment of one’s reputation and standing in the community).
- Wis. Stats. § 895.043(3). See also Gibson v. Overnite Transportation Co., 2003 WI App 210, 267 Wis. 2d 429, 671 N.W.2d 388 (awarding punitive damages in non-media defamation case based on showing of express malice); Laughland v. Beckett, 2015 WI App 70 ¶ 38, 365 Wis. 2d 148, 870 N.W.2d 466, 477 (same).
- Denny v. Mertz, 106 Wis. 2d 636, 318 N.W.2d 141, 8 Media L. Rep. 1369 (1982); Calero v. Del Chemical Corp., 68 Wis. 2d 487, 228 N.W.2d 737 (1975).
- Wis. Stats. § 895.043(6); 2011 Act 2 § 23m.
- Barbary v. Stokes, 1998 Wisc. App. LEXIS 317, 218 Wis. 2d 164, 578 N.W.2d 208 (Ct. App. 1998) (unpublished opinion).
- Lassa v. Rongstad, 2006 WI 105, 294 Wis. 2d 187, 718 N.W.2d 673.
- Id. at ¶ 52.
- Wis. Stats. § 895.05(2).
- Hucko v. Jos. Schlitz Brewing Company, 100 Wis. 2d 372, 380–81, 302 N.W.2d 68, 73 (Ct. App. 1981). A demand that fails to provide “a statement of what are claimed to be the true facts” is deficient and the defamation action is dismissed with prejudice. DeBraska v. Milwaukee Magazine, 2009 WI App 23, ¶¶ 22, 23, 316 Wis. 2d 386, 763 N.W.2d 219.
- Milsap v. Stanford, No. 95-C-86, at 3 (E.D. Wis. July 22, 1997) (unpublished opinion).
- It’s in the Cards, Inc. v. Fuschetto, 193 Wis. 2d 429, 535 N.W.2d 11 (Ct. App. 1995) (rejecting trial court conclusion that computer bulletin board is a “periodical”; noting that the retraction statute does not cover forms of libel such as letters, billboards, signs, or computer bulletin boards).
- Benson v. Schmidt, 190 Wis. 2d 468, 528 N.W.2d 91, 23 Media L. Rep. 1251 (Ct. App. 1994) (unpublished opinion) (holding that benefits of retraction statute were not available to a defendant whose explanatory letter was not a “correction” “without comment”; rather, it attempted to explain why defendant had originally criticized the plaintiffs, albeit in a less strident tone).
- Wis. Stats. § 895.05(2).
- Wis. Stats. § 942.01.
- Henson v. Stroede, 2015 Wisc. App. LEXIS 437 (June 17, 2015) (unpublished opinion) (allegation that statements were conveyed by yelling in an apartment building hallway permitted inference that defendant intended statements to be heard by others).
- Wis. Stats. § 942.01; State v. Gilles, 173 Wis. 2d 101, 496 N.W.2d 133 (Ct. App. 1992).
- State v. Cardenas-Hernandez, 219 Wis. 2d 516, 542, 579 N.W.2d 678, 689–90 (1998).
- The court reasoned that to display a photograph is to communicate what the photograph shows. Moreover, to show sexually explicit photographs of persons would expose them to ridicule and disgrace. The court held that the truth of the depictions in the photographs did not constitute a defense to criminal libel, because the statute’s truth defense applies only if the information was communicated with “good motives and for justifiable ends.”
- State v. I, 53 Wis. 2d 102, 113, 191 N.W.2d 897, 903 (1971). Compare United States v. The Progressive, 4 Media L. Rep. 2377 (W.D. Wis. 1979).
- Qatar Inv. & Projects Dev. Holding Co. v. Doe, 2017 U.S. Dist. LEXIS 216980, No. 17-CV-553-JDP (W.D. Wis. Sep. 6, 2017).