Institute for Justice Joins Fight to End Retaliatory Defamation Lawsuit in Wisconsin

Kelly Gallaher Is Being Sued For Criticizing Her Local Government

Kelly Gallaher is a community activist in the small village of Mount Pleasant, Wisconsin. Long interested in politics, she became focused on her local government in the midst of the debate over the now-failed Foxconn development in Mount Pleasant. And she has stayed active: She speaks out at meetings of the local Board of Trustees, circulates petitions and sometimes criticizes her government in the local paper. It’s the last one that has landed her in trouble.

The trouble started when the Board of Trustees voted to extend their terms in office from two years to three. Kelly thought this proposal was a power grab and was frustrated that it came out of nowhere, so she and some friends started gathering signatures for a ballot initiative to undo the local change. They were quickly successful, gathering signatures and momentum as people expressed distaste for the sudden shift in the rules.

The controversy caught local attention, and a local news story quoted the village attorney. Painting a very different picture from Kelly, who had been saying the change was sudden, the village attorney told the paper that “discussion of [the change] began back in 2018.” But Kelly—who is the sort of person who both goes to meetings and pays attention—knew that was wrong. She would have remembered if it had been discussed. To confirm her suspicions, she sent Smith an open-records request asking for all records of these discussions.

He responded with village council agendas for three meetings—one in 2021 and two in January 2022. Kelly didn’t think those agendas made clear that term extensions were on the table—the 2021 meeting agenda just said “Village Government Orientation and Strategic Planning Update”—and, in any event, none of them was from anywhere close to 2018. So she followed up, asking for more support for the village attorney’s quote to the newspaper. A week later, she asked again. And the village attorney told her that was it: “This subject matter was not discussed at a public meeting within that timeframe, other than the 4/19/21 meeting previously discussed.”

For Kelly, that was enough. She emailed the reporters who had quoted the village attorney, attaching the emails from her open-records request and claiming that Smith lied when he said the village had been discussing the term-extension since 2018. She repeated the sentiments (screenshotting her email) in posts on Facebook and Twitter.

Within a few hours of Kelly’s posts going live, the village attorney threatened to sue Kelly. Claiming that Kelly’s statements were “false and defamatory,” he said he’d sue her for harming his reputation if she did not immediately retract her statements. Kelly did not particularly want to retract. After all, she was in the midst of an important political fight, and she had been perfectly honest—there were not any public discussions of the term limit fight in 2018 and suggesting otherwise was lying.

But Kelly is not a lawyer and didn’t want to have to pay a lawyer to deal with whatever the village attorney might do to her. Between that and the fact that she was dealing with her mother’s failing health—her mother was moved to hospice care that same week—Kelly was frightened and not interested in facing a courtroom battle. And so she did as she was commanded: She posted retractions to her social-media accounts and emailed the newspaper to retract her previous email.

Even though she sent the retractions, she did not stop her criticisms. In fact, she dug up an audio recording of that 2021 meeting where the term extensions had first been discussed, which she thought reflected poorly on the village attorney, and sent them to the local public-radio station, which promptly ran a story quoting Kelly.

In the midst of all this, and despite Kelly’s complying with his demands and retracting her statements, the village attorney sued her anyway. In his lawsuit, Smith claims he has suffered “emotional distress” from being criticized in public and asks the court to force Kelly to pay him actual and punitive damages for the harm to his reputation as an attorney.

The First Amendment Protects the Right to Criticize the Government

Chris Smith’s frivolous lawsuit is almost certain to fail. Under the Supreme Court’s 1964 decision in New York Times v. Sullivan, the First Amendment’s protections for free speech prohibit “public officials” like Smith from winning defamation claims unless they can show a false statement was made with “actual malice.” “Actual malice” in this sense doesn’t just mean with generalized ill will—instead, it requires a public-official plaintiff like Smith to show not only that a statement was false, but that a defendant intentionally lied or was at least grossly reckless about the truth.

But nothing Kelly said was even false. She interpreted Chris Smith’s statement to the newspaper as an assertion that there had been public discussions of the term-length change as far back as 2018. And there hadn’t been any—Chris Smith’s own emails proved that there had been no public discussions in 2018 (or 2019 or 2020). And saying something that isn’t true is lying.

For his part, Smith doesn’t seem to think Kelly was lying. He just thinks she misinterpreted his statement: When he said there had been discussions of the issue as far back as 2018, he says, he didn’t mean public discussions. He just meant private discussions. Maybe. (One might wonder why “we have been discussing this in secret for years” is a relevant thing to say in the context of a debate about whether the change was dropped on the public with insufficient notice, but maybe.) Even if Smith is right, though, this sort of semantic dispute just isn’t the stuff of which defamation claims are made. Kelly made clear why she thought he was lying by showing reporters the open-records emails that she said contradicted his statements. If he disagreed, he was free to explain himself to reporters in his own right. Simply put, fights about what somebody said in the newspaper belong in the newspaper—not in court.

The Process Is the Punishment

Filing meritless lawsuits might seem like a funny way to protect one’s “reputation” as an attorney. But frequently, plaintiffs in lawsuits like this do not need to win in court to achieve their goals. Ordinary people threatened with lawsuits will frequently respond just as Kelly did here, by being frightened and saying whatever they need to say to get themselves out of trouble. Or by simply shutting up. If that happens, a censorious plaintiff wins—no matter what happens in court.

This intimidation effect may explain why defamation suits like this one are so common, despite being legally weak. An Ohio mayor sued local citizens for their social-media criticism of his job performance. West Virginia politician Don Blankenship sued dozens of people for calling him a “felon,” when in fact he was sentenced to a year in prison after being convicted of a charge that was only a misdemeanor. Former Representative Devin Nunes unsuccessfully sued over a Twitter account that pretended to be a cow belonging to his family.

Some states, recognizing the huge costs that baseless defamation suits can impose on free speech, have passed laws restricting so-called “strategic lawsuits against public participation” (SLAPP).These laws, called anti-SLAPP laws, make it easier to get defamation suits thrown out of court early, and they even allow successful defendants to force plaintiffs to pay for the cost of defending the suit. According to the Reporters Committee for Freedom of the Press, as of June 2021, 31 states and the District of Columbia have passed some form of anti-SLAPP law. Wisconsin is not one of them. There has been pressure for the state to adopt one—the Uniform Law Commission, a nonpartisan multi-state legislative association to which Wisconsin is a member, has drafted a model anti-SLAPP law that it urges its members to adopt—but thus far Wisconsin legislators have failed to reform their state’s laws.

But there is pressure from the courts as well. Many legal scholars—including Justice Clarence Thomas and D.C. Circuit Court Judge Laurence Silberman—have publicly questioned whether current laws are too protective of defamation defendants. They have urged the courts to reconsider the Supreme Court precedents and argue that the courts should allow far more defamation lawsuits than they currently do.

Cases like Kelly’s, though, show that First Amendment protections remain essential. The absolute most that can be said about her dispute with Chris Smith is that it comes down to a question of interpretation. She thought his statement to the newspaper meant that there had been public discussions of the term-length change as early as 2018. That statement is a lie. Smith, apparently, contends that he meant there had been secret discussions in 2018—and that statement, perhaps, is true. But disputes like this are the classic and appropriate subject of political debate, not courtroom factfinding—and certainly not the subject of enormous damage awards. If political arguments like Kelly’s are not protected, then no one can engage in political debate without risking financial ruin.

Fortunately, Kelly’s speech is protected. But, because Wisconsin has no anti-SLAPP law on the books, it could cost her tens of thousands of dollars just to prove that. That is why she has joined with the Institute for Justice to ask the courts to throw out Smith’s suit and vindicate the basic rights of Wisconsonites and Americans more generally to criticize their own government.

The Litigation Team

The litigation team consists of IJ Senior Attorney Robert McNamara and IJ Law & Liberty Fellow James Knight, as well as Andrew Erlandson and Stephen Hurley of the Wisconsin law firm Hurley Burish, S.C., which is serving as local counsel.

The Institute for Justice
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Founded in 1991, the Institute for Justice is the national law firm for liberty and the nation’s leading defender of property rights, educational choice, economic liberty and free speech. IJ’s defense of free speech has previously helped vindicate the right to speak without being subject to baseless lawsuits in places ranging from Texas to Tennessee to Colorado.


Reprinted from: ​ij.org/case/wisconsin-slapp/
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