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"In brief" posts are shorter looks at interesting filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the documents themselves (expressing gratitude to lawyers and judges who are decent writers). Those lifted parts are indented. My additions / summaries are not.
Case no: 23AP998
Case name: Cory Tomczyk v Wausau Pilot and Review Corp.
Court of Appeals District: III
Panel: Lisa Stark, Thomas Hruz, and Gregory Gill Jr.
Opinion author: Stark
Circuit Court: Marathon County
Judge: Scott Corbett
Attorneys for Wausau Pilot and Review: Joseph Terry, Stephen Fuzesi, Tyler Infinger, and Peter Jorgensen
Law firm: Williams & Connolly
Attorneys for Wausau Pilot and Review: James Friedman, Brian C. Spahn, and Maxted Lenz
Law firm: Godfrey & Kahn
Attorney for Cory Tomczyk: Matthew Fernholz Law firm: Cramer Multhauf
Cory Tomczyk and Genesis Ventures, Inc. d/b/a IROW appeal from an order of the circuit court granting summary judgment to Wausau Pilot and Review Corporation, Damakant Jayshi, and Shereen Siewert and dismissing Tomczyk and IROW’s defamation lawsuit. Tomczyk and IROW allege that Wausau Pilot published two articles in August 2021 falsely accusing Tomczyk of referring to two individuals as a “fag” at a Marathon County Board of Supervisors meeting, during which the county board addressed whether it should adopt a resolution aimed at increasing diversity by labeling the county a “community for all” (hereinafter, Community for All resolution).
Tomczyk is a Republican state senator from Mosinee. IROW is his shredding, recycling, and media destruction company.
The issue on appeal is whether Tomczyk is a public figure for purposes of defamation law. If so, Tomczyk and IROW are required to establish that Wausau Pilot made the allegedly defamatory statements with actual malice — the standard established under New York Times Co. v. Sullivan. The circuit court determined that Tomczyk was a limited purpose public figure with respect to the Community for All debate and that Tomczyk and IROW were unable to prove, by clear and convincing evidence, that Wausau Pilot made the allegedly defamatory statements with actual malice.
Tomczyk, was not yet a senator when he attended two county board meetings in May and August, 2021, and spoke against the resolution. He allegedly made the slurs at the August meeting. An attendee, Norah Brown, said in an affidavit that she heard both comments and texted another woman about one of them.
A video of the August 12, 2021 meeting was made publicly available on the internet. While Tomczyk’s comments cannot be heard, Brown can be seen turning her head to look at Tomczyk as an individual was walking up to the microphone to speak, which occurred approximately twelve minutes into the video. The clock on the wall is visible in the video, showing that the time was approximately 4:14 p.m. A couple of minutes later, the camera switches back to a view of the audience, and Brown can be seen on the video looking down at her telephone in her lap. The record indicates that Brown sent ... the message at 4:16 p.m.
Two community members, including Brown, testified at an Aug. 19 about the alleged comments.
On August 21, 2021, Wausau Pilot published the first article at issue in this case, reporting on the Community for All debate (hereinafter, the August 21 article). Jayshi’s name was on the byline. The article outlined the opinions on each side of the debate and quoted several individuals. The article also reported on the August 19, 2021 meeting and addressed Tomczyk’s alleged comment. ... Of note, the August 21 article did not identify Tomczyk by name, only referring to him as “a local businessman.”
On August 28, 2021, one week later, Wausau Pilot published the second article at issue in this case, which identified Tomczyk as the individual who had used the slur. The August 28 article also included a hyperlink to the August 21 article. Again, Jayshi was listed as the author of the article. The August 28 article observed that the Community for All debate “exposed rifts not only between elected officials but also among members of the community, mirroring a divide that, polls show, is only getting wider.” It further reported that certain county board supervisors and members of the county’s diversity commission had been harassed and threatened as a result of the resolution. The August 28 article continued:
Mosinee resident Cory Tomczyk, during an Executive Committee meeting on Aug. 12, called commission members “fools” who are paid by taxpayers. Tomczyk, earlier this month, was widely overheard calling a 13-year-old boy who spoke in favor of the resolution a [slur], prompting another resident ... to say later that the boy should “get over it.”
According to the record, while Jayshi wrote the article, the sentence attributing the slur to Tomczyk was added by Siewert after she took steps to confirm that Tomczyk had used the slur at the August 12 meeting.
When Wausau Pilot refused to issue a retraction, Tomczyk and IROW filed this suit against Wausau Pilot, alleging defamation claims on behalf of both Tomczyk and IROW. The basis of the defamation claims was that Wausau Pilot “disparaged not only Tomczyk, but his business, IROW”— given the identification of “Tomczyk as a ‘local businessman’”— by “asserting that Tomczyk referred to a 13-year-old boy as a ‘[slur],’” which the complaint stated “stemmed from ill will, bad intent, and malevolence towards” Tomczyk. The complaint further alleged that Wausau Pilot acted “with actual malice” because it “either knew such statements were false, or … acted with reckless disregard as to whether such statements were true or false.” In addition, the complaint alleged that Wausau Pilot acted “with an intent to harm [Tomczyk’s] reputation in the community.”
The circuit court granted Wausau Pilot’s summary judgment motion by written decision. The court concluded that Tomczyk was “a public figure at least for the limited purpose of the ‘Community for All’ debate” because “[h]e was a local business owner who spoke out against the resolution at two public meetings on the issue”; “[b]oth his public comments and the alleged use of a slur toward another person making public comment were newsworthy, making his role in the controversy more than trivial or tangential”; “[a]nd, given that the stated purpose of the ‘Community for All’ resolution was to promote inclusivity, his alleged use of the slur would be germane to the resolution and to his participation in the controversy.” The court further determined that Tomczyk and IROW could not meet their burden to establish actual malice: “On this record, it is not possible to find that [Wausau Pilot] had serious doubts about the truth of the publication.” Tomczyk and IROW appeal.
Discussion
Courts define “public figures” as those individuals “who, although not government officials, are nonetheless ‘intimately involved in the resolution of important public questions.’”
In Wisconsin, there are two kinds of public figures under the law: general purpose public figures and limited purpose public figures. We conclude that we need not reach the question of whether Tomczyk is a general purpose public figure because Tomczyk undoubtedly qualifies as a limited purpose public figure.
“Limited purpose public figures … are otherwise private individuals who have a role in a specific public controversy.” In Wisconsin, our state supreme court “has established a two-prong test to determine whether 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.’”
In this case, Tomczyk concedes that there was a public controversy. Tomczyk states, “To be sure, the Community for All [r]esolution was a public controversy in Marathon County in the summer of 2021.”
The controversy centers around the Community for All resolution and what role Tomczyk played in that debate. Tomczyk does not argue to the contrary.
We conclude that Tomczyk’s involvement with the Community for All debate was more than trivial or tangential. At the May 13, 2021 meeting, Tomczyk’s opposition speech did not merely identify concerns with the provisions of the Community for All resolution, but his rebuke was also directed at members of the county board for what he claimed was a “failure of leadership.” Tomczyk further asserted that the Community for All resolution’s stated effort to make the county “an open, inclusive, and diverse place to live and work” was implausible, questioning how the county board would accomplish this task because “you are not that important.” He concluded by proclaiming, “If I sound annoyed, you are correct. I expect better from our local government.”
Tomczyk also spoke out against the resolution at the August 12, 2021 meeting. Again, his remarks were aimed primarily at the county board members, claiming that the board was “continuing to allow a charade to persist” and referring to members of the county diversity commission as “fools.”
Importantly, Tomczyk’s involvement in the Community for All debate followed closely his involvement in organizing and promoting numerous community protests against COVID-19 pandemic measures and vaccinations. At least some of those protests were held at Tomczyk’s IROW properties. Further, during this time, he conducted interviews with local news media promoting the protests, and he served on the board of directors of “Get Involved Wisconsin,” an organization founded by Ellefson that “became the lead in organizing and promoting these protests.” According to Tomczyk, to promote his first protest at IROW, he spoke with two local radio stations, which from the context of this statement made during Tomcyzk’s deposition we understand to have been on air, “and after that, it just spread across the state,” resulting in 1,500 to 3,000 people attending the protest.
In addition to his (former) elected position on the school board, Tomczyk had also been involved in local politics and community affairs. According to the record, Tomczyk served as the vice chair of the Republican Party of Marathon County from 2008 until 2015. From 2019 to 2022, Tomczyk also served as a board member of the Greater Wausau Chamber of Commerce. Finally, he served on local boards for youth sports.
Based on these facts, it is clear that Tomczyk voluntarily “thrust” himself “to the forefront of” the Community for All debate “in order to influence the resolution of the issues involved.” He did so by attending the county board meetings and speaking out against both the resolution and the board itself, which brought particular attention to the divisive nature of the controversy and drew more attention to the debate than merely opposing the resolution would have.
Tomczyk’s voice had influence beyond that of a private citizen, and he used that voice, in this instance, to “influence the resolution of the” Community for All debate. While these facts support Wausau Pilot’s claim that Tomczyk was a general purpose public figure, we conclude that they are properly considered when determining whether Tomczyk was a limited purpose public figure as well.
***
Tomczyk also asserts that he “was never an elected official in the summer of 2021 and he never took a vote on the Community for All resolution. His role was limited to that of a concerned citizen.” While Tomczyk’s status as an elected official or as one of the individuals voting on the resolution would likely factor into whether he qualified as a public official, these qualifications are not required of a public figure. In this case, Wausau Pilot does not argue that Tomczyk was a public official at the time of the Community for All debate; thus, we are concerned only with whether Tomczyk was a public figure.
Tomczyk claims that he was merely “a private citizen” and that his attendance and comments at the public county board meetings “cannot transform a private citizen into a public figure.” According to Tomczyk, he “was one of a large group of people who spoke publicly on the Community for All [r]esolution,” and he questions whether the law would now consider “all of them” as limited purpose public figures.
Initially, we note that we cannot simply accept Tomczyk’s conclusory statement that he was a private citizen. As noted above, Tomczyk’s prior involvement in the community and with political issues transformed his voluntary injection into the Community for All debate into something more than participation by a private citizen.
***
Wausau Pilot’s articles focused entirely on the Community for All debate. The articles detailed the divisive viewpoints, as demonstrated at the meetings and in messages received by county board supervisors, and included quotes from multiple individuals in support of the resolution, in opposition to it, and casting accusations at county leadership in response to leadership’s support of the measure. Tomczyk’s alleged use of the slur was reported by Wausau Pilot within that context.
While the public controversy concerned the Community for All resolution, to determine whether the alleged defamation was germane to Tomczyk’s participation in that controversy, it is important to understand the Community for All resolution itself. As best we can determine based on this record, the resolution, according to Siewert, “proposed proclaiming Marathon County as a community for all regardless of gender, color, [or] sexual orientation.” We also presume that the circuit court properly found that “the stated purpose of the ‘Community for All’ resolution was to promote inclusivity,” which means “including everyone” and “especially: allowing and accommodating people who have historically been excluded (as because of their race, gender, sexuality, or ability).”
We conclude that the germaneness test has been met because the allegedly defamatory statements relate to Tomczyk’s role in the public controversy. As noted, the slur allegedly used is an offensive term for a gay person. Accordingly, given that Tomczyk strongly opposed the resolution and that the resolution specifically identified sexual orientation as a consideration, we agree with Wausau Pilot’s assertion that it reported the allegedly defamatory statements “‘in connection with and to emphasize’ the acrimony of the ‘Community for All’ debate and the sharply opposing viewpoints on issues of diversity, which would certainly encompass the use of an anti-gay slur.”
Tomczyk’s allegedly “private” comment was seemingly made public because it was purportedly heard by others at the August 12, 2021 meeting. Tomczyk need not have allegedly said the slur in front of the entire county board meeting for it to be germane to the debate.
***
Given the steps Siewert took to verify the information, her testimony that Salm was a trusted source in the past, and her testimony that she was certain Tomczyk uttered the slur, we cannot conclude that Wausau Pilot knew that the allegation was false or even that it harbored any doubts as to that fact. Whether any of the above items of evidence prove that Tomczyk said the slur or not, and regardless of Tomczyk’s claim that other evidence discovered later suggests that the allegedly defamatory statements were false, Siewert’s investigation demonstrates why Wausau Pilot believed the statements were true and why that belief was not reckless. Tomczyk has not presented any evidence to call that conclusion into question.
***
Tomczyk asserts that “Siewert’s desire to publish an unsourced story was likely colored by her long-running disdain for Tomczyk, a man she has labelled ‘gross,’ an ‘asshole,’ and a ‘dick head.’” As Wausau Pilot identifies, however, “Tomczyk’s characterization of Siewert’s so-called ‘palpable disdain’ for him” does not “come close to meeting the actual malice standard.” We agree with Wausau Pilot that Siewert’s alleged “disdain” for Tomczyk has no bearing on whether she believed that the information contained in the articles was true and, without more, does not establish recklessness.
In summary, Tomczyk, a limited purpose public figure, has 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. Accordingly, Tomczyk’s defamation claim against Wausau Pilot fails.
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