Appeals court sides with Wausau news outlet in defamation case brought by politician

An appeals court has sided with a local news outlet in a defamation case brought by a Mosinee businessman who’s now a Republican state senator.

Cory Tomczyk sued the Wausau Pilot & Review in 2021 after the news site reported he was overheard using an anti-gay slur while in the audience of a Marathon County meeting. The suit also named the outlet’s publisher and editor Shereen Siewert and a Wausau Pilot reporter as defendants.

A Marathon County Circuit Court judge dismissed his claims last year, which prompted Tomczyk to appeal. This week, a three-judge appeals panel affirmed the lower court ruling.

As was the case in circuit court, the appellate court concluded that Tomczyk counted as a public figure in the context of reporting on a Marathon County board meetings about a proposal known as “Community for All.”

In order to prove defamation against a public figure under Wisconsin law, Tomczyk needed to provide evidence that the Wausau Pilot exercised “actual malice” by publishing something defamatory that it knew to be false, or that it published the information with “reckless disregard” as to whether it was true or not.

But Tomczyk failed to provide evidence to show that was the case, the appeals panel concluded in an opinion written by Judge Lisa Stark.

“Siewert’s uncontested testimony is that she was 100 percent certain” that
Tomczyk uttered the slur at the Aug. 12, 2021 meeting,” the opinion said, adding that Siewert took additional steps to verify the accuracy of the information. “Siewert’s investigation demonstrates why Wausau Pilot believed the statements were true and why that belief was not reckless.”

Tomczyk denies using the slur during that meeting, although, during a deposition that resulted from the lawsuit, he admitted to using the same anti-gay slur at other times in his life.

In a statement this week, Tomcyk said he’s currently reviewing his legal options, adding that the Wausau Pilot had “smeared” his “reputation and name.”

The appeals court “punted” by concluding that Tomczyk counted as public figure in the context of the Community for All debate, the statement said.

“This is an extremely high standard for someone to meet to prove a defamation claim, which allowed the Court of Appeals to avoid deciding whether I ever made the statement attributed to me,” the statement said in part. “The takeaway from this decision is that unsuspecting citizens whose only crime is participating in the democratic process can have their names destroyed by a partisan media outlet and the courts will decline to hear the merits of the case.”

But Brian Spahn, the Wausau Pilot’s attorney, said the court did consider the merits of the case.

“The court issued a ruling that Sen. Tomczyk defamation claim failed as a matter of law,” Spahn said. “It went through a detailed, well reasoned decision that he was and is a limited purpose public figure.”

The appeals court decision came as a “huge relief,” Siewert said Wednesday.

“It has been a long, long haul,” she said. “I feel like I’ve wasted so much energy on something that felt so wrong and it’s frustrating.”

Siewert said the publication’s racked up nearly $200,000 in legal bills as a result of Tomczyk’s litigation, which is close to its annual budget to run the newsroom.

Those costs previously put the Pilot in danger of closing, Siewert has said. The Pilot’s since received an outpouring of GoFundMe donations after the New York Times wrote about its legal situation.

Still, Siewert said the small nonprofit has had to put hiring on hold.

“It’s frustrating to see the amount of money wasted on something like this that could have gone to strengthen local news instead of paying attorneys,” she said. “But I will say I’m so grateful to our legal team and to all the people who have supported us along the way.”

Suit stemmed from reporting on ‘Community for All’ resolution

Marathon County erupted in controversy in 2021 over a proposed Community for All resolution that supporters say was intended to acknowledge racial disparities and affirm the county’s commitment to being “an open, inclusive, and diverse place to live and work.” After more than a year of contentious debate, however, the county board deadlocked and failed to pass a non-binding Community for All resolution.

Tomczyk spoke out against Community for All during multiple county board meetings in 2021.

In a Wausau Pilot article published on Aug. 21 of that year, a mother in favor of Community for All said her 13-year-old son and another person who spoke at the meeting had been called a slur. That article also named a member of the county’s Diversity’s Affairs Commission, who said she witnessed the episode and heard a “local businessman” use the anti-gay slur.

Although the Aug. 21 article did not name Tomczyk as the local businessman, a subsequent article published on Aug. 28, 2021 said Tomczyk was “widely overheard calling a 13-year-old boy who spoke in favor of the resolution a “f—.”

It was Siewert — not the bylined reporter who covered the meetings using YouTube recordings — who added Tomczyk’s name to the article, the appeals court noted.

The slur cannot be heard in the county’s video recording of the meeting, but Siewert said she took steps to verify the information, including reading “social media posts discussing the incident and identifying Tomczyk as the speaker” and reviewing texts between the boy’s mother and a Community for All supporter who Siewert described as a “trusted source,” according to court documents.

But Tomczyk says Siewert’s “rush to publish the defamatory article was clearly colored by politics.”

In court documents and in his statement this week, he cited Siewert’s private text messages, in which she referred to Tomczyk as “gross” and “dick head,” among other insults.

In response to the statement, Siewert said the Pilot stands by its reporting.

The texts came to light during the lawsuit’s discovery process, but the appeals court concluded that those insults weren’t relevant to the case.

“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.’” the appeals court wrote. “The focus of the actual malice standard ‘is upon the defendant’s attitude pertaining to the truth or falsity of the published statements rather than upon any hatefulness or ill-will.’”

Case inspired bill to strike down similar lawsuits more quickly

Democratic state lawmakers cited the Wausau Pilot’s legal situation last year, when they introduced a bill that would have allowed courts to more quickly strike down defamation lawsuits that are deemed meritless.

The bill would have allowed defendants in lawsuits targeting free-speech rights to file a special motion within 60 days, asking a judge to dismiss the case. That shortened timeline could result in the case being closed before it advances to a costly discovery process.

In order for the case to proceed after such a motion, the person suing be forced to prove their claims have a “probability” of succeeding. If not, the defendant could try and claw back their attorneys fees.

More than 30 states have similar laws on the books, designed to quell what are known as Strategic Lawsuits Against Public Participation.

But, in Wisconsin, the recently-introduced legislation expired at the end of the last legislative session. The bill failed to gain a single Republican sponsor and it never advanced to a public hearing in the GOP-controlled state Legislature.

Siewert said she could only speculate as to why the measure didn’t gain more traction. She said she’s hopeful a similar proposal will advance next session.

“I think that this is a kind of a political hot potato when it involves a member of the state Legislature,” she said. “I wonder if there would have been a hearing on this bill, if it had not been a state legislator who was involved in this lawsuit.”

Editor’s note: Wausau Pilot & Review Publisher Shereen Siewert also works as a part-time regional host for Wisconsin Public Radio. WPR staff who work with Siewert were not involved with reporting or editing this article.