Appeals Court Sides With Wausau News Outlet in Defamation Case

Monday, September 23rd, 2024 -- 3:00 PM

(Sarah Lehr, Wisconsin Public Radio) 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.

According to Sarah Lehr with Wisconsin Public Radio, 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.”

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