WILL files appeal in defamation case for criticizing school district position

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The Wisconsin Institute for Law & Liberty (WILL) has filed an appeal on behalf of Scarlett Johnson, a Moms for Liberty activist, who is being sued for defamation for criticizing the Mequon-Thiensville School District on social media for employing a “social justice coordinator.”

WILL officials said that the appeal was filed due to the fact that Johnson’s posts are protected by the First Amendment.

“She should not have to endure a costly, pointless and incoherent jury trial,” said WILL Deputy Counsel Luke Berg during an interview with the Wisconsin Law Journal on Wednesday.

Berg noted his firm became involved on a pro-bono basis after hearing about the trial court’s alleged error in ruling on the issues of defamation and the First Amendment. Berg said his firm typically receives many requests to provide representation on appeals, but this case got his attention.

“The case against Ms. Johnson should have been promptly dismissed. She was expressing her opinion, and the First Amendment gives her the right to do so. We hope the Court of Appeals’ decision will help her avoid a misguided trial,” Berg added.

According to Berg, he expects a decision within the coming weeks on a recently filed motion requesting the appellate court grant an expeditated appeal, thus taking jurisdiction away from the trial court. In that case, it could take a year to receive a verdict from the Court of Appeals.

In the event the Wisconsin Court of Appeals denies the appeal, Berg said his firm is prepared to take the case to the Wisconsin Supreme Court.

Johnson said she believes she has a right to free speech.

“We have a right to free speech in this country and no one should be treated differently under the law because of their political beliefs. I am hopeful that we can establish what is a clear protection of the First Amendment,” Johnson said.

Berg noted Johnson was represented at the trial court by Tom Kamenick, the president and founder of the Wisconsin Transparency Project.

According to WILL, the lawsuit involves a defamation claim for a “run-of-the-mill social media posts on X and Facebook.”

The posts in question criticized a school district for having a “social justice coordinator,” and described people who hold such positions as “woke,” “white savior[s]” with a “G-d complex,” “woke lunatics” and “bullies.”

WILL acknowledged that while statements like these “are pervasive on social media,” they were more restrained than a great deal of other online speech.

The plaintiff responded with a defamation lawsuit.

According to WILL, the defendant’s conduct was not defamatory.

 “It is well-established, black-letter law that to be actionable for defamation, a statement must be provably false,” WILL said, citing  See Milkovich v. Lorain J. Co., 497 U.S. 1, 20 (1990).

According to WILL, a comment must directly state or clearly imply an objective, binary truth claim that listeners would reasonably understand to be either true or false.

Courts regularly hold that nebulous concepts like “woke” and “bully” that are routinely and indiscriminately thrown about in public discourse are not actionable, precisely because their very definitions are subjective.

Marquette University Law School professor Ed Fallone disagrees.

“In my opinion, the motion by WILL seeks to pre-determine the factual issues that the plaintiff seeks to prove at trial. The judge would be well within his/her discretion in giving the plaintiff the opportunity to prove these claims in court,” Fallone said during an interview with the Wisconsin Law Journal on Wednesday.

“In particular, the word ‘lunatic’ has an objective and negative connotation in the mind of the public. The plaintiff may not prevail in proving defamation at trial, but the claims appear sufficient to proceed at this stage,” Fallone added.

Marquette University Law School professor Scott Idleman agreed with WILL.

“WILL’s client has the better argument here,” Idleman said during an interview with the Wisconsin Law Journal Thursday.

“I read through the entire petition, and I reviewed some caselaw. Johnson’s comments when taken in the context of the entire conversation indicate these are opinions, merely hyperbolic statements,” Idleman said.

“They do not appear to be claims of fact — provable or disprovable,” he added.

According to Idleman, the trial court got it wrong.

“The judge got it incorrect and read too much into the comments,” Idleman added, noting “that’s not how defamation law works.  The judge was supposed to look at the full context of what was said.”

Idleman also noted, “WILL does a good job ratting off other cases, even though some aren’t in Wisconsin.”

Idleman concluded, “This person is a public employee. She (MacCudden) needs to have a bit of a thicker skin.”

Counsel at WILL argues the meaning of the words depends on one’s opinion and subjective viewpoint.

According to WILL, the statements Johnson made fall squarely into the non-actionable, not-provably-false category.

WILL’s petition asks the Court of Appeals to allow her to immediately appeal in order to prevent the costs of a trial.

“We are asking the Court to hold that statements like these are not actionable as defamation under Wisconsin law and are constitutionally protected,” WILL said.

The Wisconsin Law Journal reached out to Mequon-Thiensville School District officials on Wednesday seeking comment; no response was received prior to publication on Thursday.