The following criteria are applicable to whether a defamation plaintiff may be considered a public figure for a limited range of issues: 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 to see whether the plaintiff has voluntarily injected himself or herself into the controversy so as to influence the resolution of the issues involved. Denny v. Mertz, 106 Wis. 2d 636, 318 N.W.2d 141 (1982). But see Wiegel v. Capital Times Co., 145 Wis. 2d 71, 426 N.W.2d 43 (Ct. App. 1988).

A private individual need only prove that a news media defendant was negligent in broadcasting or publishing a defamatory statement. A negligence standard complies with the guarantee of freedom of the press contained in the Wisconsin Constitution. Denny v. Mertz, 106 Wis. 2d 636, 318 N.W.2d 141 (1982).

A private citizen may become a public figure regarding a particular issue that is of substantial public interest and must prove actual malice to prevail in a libel action. Wiegel v. Capital Times Co., 145 Wis. 2d 71, 426 N.W.2d 43 (Ct. App. 1988).

Judicial or quasi-judicial proceedings are protected by absolute privilege, subject to two restrictions: 1) the statement must be in a procedural context recognized as privileged; and 2) it must be relevant to the matter under consideration. Rady v. Lutz, 150 Wis. 2d 643, 444 N.W.2d 58 (Ct. App. 1989).

A fire department captain with considerable power and discretion is a public official who must meet the malice requirement. Defendant firefighters had a common law privilege to comment in writing on the captain’s fitness for office. Miller v. Minority Brotherhood of Fire Protection, 158 Wis. 2d 589, 463 N.W.2d 690 (Ct. App. 1990).

If a defamation plaintiff is a public figure, there must be proof of actual malice. The deliberate choice of one interpretation of a number of possible interpretations does not create a jury issue of actual malice. The selective destruction by a defendant of materials likely to be relevant to defamation litigation allows an inference that the materials would have provided evidence of actual malice. Torgerson v. Journal/Sentinel Inc., 210 Wis. 2d 524, 563 N.W.2d 472 (1997), 95-1098.

For purposes of libel law, a “public figure” who must prove malice includes a person who by being drawn into or interjecting himself or herself into a public controversy becomes a public figure for a limited purpose because of involvement in the particular controversy, which status can be created without purposeful or voluntary conduct by the individual involved. Erdmann v. SF Broadcasting of Green Bay, Inc., 229 Wis. 2d 156, 599 N.W.2d 1 (Ct. App. 1999), 98-2660. See also Sidoff v. Merry, 2023 WI App 49, 409 Wis. 2d 186, 996 N.W.2d 88, 22-1871.

A “public dispute” is not simply a matter of interest to the public. It must be a real dispute, the outcome of which affects the general public in an appreciable way. Essentially private concerns do not become public controversies because they attract attention; their ramifications must be felt by persons who are not direct participants. Maguire v. Journal Sentinel, Inc., 2000 WI App 4, 232 Wis. 2d 236, 605 N.W.2d 881, 97-3675.

In defamation cases, circuit courts should ordinarily decide a pending motion to dismiss for failure to state a claim before sanctioning a party for refusing to disclose information that would identify otherwise-anonymous members of an organization. Lassa v. Rongstad, 2006 WI 105, 294 Wis. 2d 187, 718 N.W.2d 673, 04-0377.

Actual malice requires that the allegedly defamatory statement be made with knowledge that it was false or with reckless disregard of whether it was false or not. Actual malice does not mean bad intent, ill-will, or animus. Repeated publication of a statement after being informed that the statement was false does not constitute actual malice so long as the speaker believes it to be true. Actual malice cannot be inferred from the choice of one rational interpretation of a speech over another. Donohoo v. Action Wisconsin, Inc., 2008 WI 56, 309 Wis. 2d 704, 750 N.W.2d 739, 06-0396.

The plaintiff was a public figure for all purposes when the plaintiff was involved in highly controversial and newsworthy activities while in public office; the publicity and controversy surrounding these events continued well after the term of office ended; the plaintiff remained in the news after leaving office as a result of new developments in the various inquiries into his official conduct; and the plaintiff had a connection with another public official in the news. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756 N.W.2d 649, 07-2314.

In general, the destruction of notes allows an inference that the notes would have provided evidence of actual malice, but this rule is not absolute. Because the plaintiff had not shown any way the destroyed notes might show actual malice, the destruction of the notes did not create a material factual dispute preventing summary judgment. Biskupic v. Cicero, 2008 WI App 117, 313 Wis. 2d 225, 756 N.W.2d 649, 07-2314.

The elements of a defamatory communication are: 1) a false statement; 2) communicated by speech, conduct, or in writing to a person other than the person defamed; and 3) the communication is unprivileged and is defamatory, that is, tends to harm one’s reputation so as to lower the person in the estimation of the community or to deter third persons from associating or dealing with the person. The statement that is the subject of a defamation action need not be a direct affirmation, but may also be an implication. Terry v. Journal Broadcast Corp., 2013 WI App 130, 351 Wis. 2d 479, 840 N.W.2d 255, 12-1682.

In a defamation action brought by a private figure against a media defendant, the plaintiff has the burden of proving that the speech at issue is false; this requirement is imposed in order to avoid the chilling effect that would be antithetical to the 1st amendment’s protection of true speech on matters of public concern. Terry v. Journal Broadcast Corp., 2013 WI App 130, 351 Wis. 2d 479, 840 N.W.2d 255, 12-1682.

State libel laws are preempted by federal labor laws to the extent statements made without knowledge of falsity or reckless disregard for truth are at issue. Old Dominion Branch No. 496, National Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974).

A public figure who sues media companies for libel may inquire into the editorial processes of those responsible when proof of “actual malice” is required for recovery. Herbert v. Lando, 441 U.S. 153, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979).

Discussing the “public figure” principle in libel cases. Wolston v. Reader’s Digest Ass’n, 443 U.S. 157, 99 S. Ct. 2701, 61 L. Ed. 2d 450 (1979).

Defamation Law of Wisconsin. Brody. 65 MLR 505 (1982).

Constitutional Law—Limitations on Damages Awarded to Public Officials in Defamation Suits. Kampen. 1972 WLR 574.

A Misplaced Focus: Libel Law and Wisconsin’s Distinction Between Media and Nonmedia Defendants. Maguire. 2004 WLR 191.

I,4Right to assemble and petition. Section 4. The right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged.

A narrowly drawn anti-cruising ordinance did not violate the right to assemble or travel. Scheunemann v. City of West Bend, 179 Wis. 2d 469, 507 N.W.2d 163 (Ct. App. 1993).

The right to intrastate travel, including the right to move about one’s neighborhood in an automobile, is fundamental, but infringements on the right are not subject to strict scrutiny. Cruising ordinances, reasonable in time, place, and manner, do not violate this right. Brandmiller v. Arreola, 199 Wis. 2d 528, 544 N.W.2d 894 (1996), 93-2842.

The legislature cannot prohibit an individual from entering the capitol or its grounds. 59 Atty. Gen. 8.

The national democratic party has a protected right of political association and may not be compelled to seat delegates chosen in an open primary in violation of the party’s rules. Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107, 101 S. Ct. 1010, 67 L. Ed. 2d 82 (1981).

As with the speech clause, to show that an employer interfered with rights under the petition clause, an employee, as a general rule, must show that the employee’s speech was on a matter of public concern. The right of a public employee under the petition clause is a right to participate as a citizen, through petitioning activity, in the democratic process. It is not a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts. Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011). See also Williams v. Illinois, 567 U.S. 50, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012).

2011 Wis. Act 10’s various restrictions, in their cumulative effect, do not violate union members’ associational rights. The 1st amendment does not require the state to maintain policies that allow certain associations to thrive. For the most part, the Bill of Rights enshrines negative liberties. It directs what government may not do to its citizens, rather than what it must do for them. Laborers Local 236 v. Walker, 749 F.3d 628 (2014).