SCOTUS Precedent Provides Path to Winning Defamation Appeal

SCOTUS Precedent Provides Path to Winning Defamation Appeal

In 1983, Hustler magazine ran a full-page parody ad against televangelist and conservative political commentator Jerry Falwell Sr., depicting him as an incestuous drunk who had sex with his mother in an outhouse. The ad was marked as a parody that was "not to be taken seriously."
In response, Falwell sued Hustler and the magazine's publisher Larry Flynt for intentional infliction of emotional distress, libel, and invasion of privacy, but Flynt defended the ad's publication as protected by the First Amendment.
In an 8–0 decision five years later, SCOTUS held that the emotional distress inflicted on Falwell by the ad was not a sufficient reason to deny the First Amendment protection to speech that is critical of public officials and public figures.
In that landmark decision, SCOTUS also referenced New York Times vs. Sullivan, another landmark decision that greatly limited the ability for public figures to sue for defamation.
Here is a quote from that decision:
"At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one's mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole…The First Amendment envisions that the sort of robust political debate that takes place in a democracy will occasionally yield speech critical of public figures who are intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large…the "breathing space" that freedom of expression requires in order to flourish must tolerate occasional false statements, lest there be an intolerable chilling effect on speech that does have constitutional value.”
Lots to read there, but the gist is that if you’re a public figure, you'd better have some thick skin, because a healthy democracy yields a lot of public bickering, some of which can get pretty intense.

We lost a historic defamation case last week, and a jury in rural Oneida county awarded right-wing newspaper publisher Greg Walker $750,000 in damages largely because of the parody I wrote entitled “Scene from a Mysogynist Publisher’s Bedroom,” in which I clearly told my audience that the story they were reading was a parody.
Additionally, in other pieces that weren’t written as “parody,” I always used the word “alleged” when repeating stories that I heard from others that I couldn’t prove to be true, and I publicly retracted statements that were later proven to me to be false.
Given that the Minocqua Brewing Company isn’t a magazine nor a newspaper--both of which should seemingly be held to higher journalistic standards than a brewery--how could Hustler and the New York Times have beaten their defamation lawsuits while we lost ours in spectacular fashion?

Because Judge Leon Stenz, on loan from neighboring and tiny Forest County, WI (Pop. ~8K), inexplicably ruled that the publisher of the only two local newspapers in Oneida county was NOT A PUBLIC FIGURE
To add insult to injury, Stenz dismissed our countersuit against Gregg Walker, filed after he referred to me as “Bagdad Bangstad” and a “Jackbooted Liberal” in two out of the 68 hit pieces published against me and my company over the last 3 years, by ruling that I, the owner of a brewery and not a media company--WAS A PUBLIC FIGURE.
Stenz’s decision was appalling, and it must be overturned on appeal—not only for my sake—but to make sure this never happens again. To let this decision stand is to invite every rich MAGA bully in Wisconsin to sue progressive activists into oblivion, assuming they live in the “right” (pun intended) part of the state.

So what do we do now?
We appeal, of course, but the path forward on exactly how to do that was a bit murky when I wrote about this decision last week.
The good thing about this case is that I discovered, after initially paying tens of thousands of dollars in legal fees, that I was covered by insurance--meaning that my insurance company is ultimately on the hook to pay any damages awarded to Walker.
The not-so-good aspect to this case is that insurance companies aren’t necessarily incentivized to rectify terrible legal precedent stemming from bad rural court decisions. Their jobs, after losing lawsuits, are usually to attempt to settle out of court for the lowest amount possible, drop future coverage for claimants, and move on.
In my mind, this type of decision, because of the chilling effects it will have on progressive speech in bright red rural areas like Minocqua, can’t be swept under the rug in an insurance settlement.
The inevitable suppression of free speech engendered by this decision, along with Republican attempts to criminalize peaceful protests and even impeach a judge who has the power to end illegal gerrymandering, threatens to cut that final thread upon which our state’s democracy hangs. 
For this reason, I’ve asked my legal team currently suing to rid Wisconsin of our parasitic private school voucher system, Brian Potts and Fred Melms, to join my insurance company’s legal team in this appeal, and to NOT settle out of court with Gregg Walker under any circumstances.

To settle is to award a bully, and that’s just not how I’m built.
So that’s the plan. I’m being told the road to appeal may last another year, and to hire additional lawyers outside of those hired by my insurance company will cost money.
If you think this decision was bad not only for me and the Minocqua Brewing Company, but also for free speech in Wisconsin, and want help make sure that legal precedent is rectified in this case, here’s a link to chip in and help us fight back.

The Minocqua Brewing Company's work to keep Wisconsin blue has made us a target in bright red Northern Wisconsin, and we certainly lost the battle last week against the right wing "Old Boy's Network" that protects its own at the expense of the rest of its inhabitants. Republican-dominated local governments in Northern Wisconsin have resulted in the lowest average wages, health outcomes, and educational attainment in the entire state.

I took my lumps last week and got served a large dose of humility by a lot of negative press, but I know that what we're fighting for is right, and the statistics bear that out.

So what else is there to do but to get up, dust oneself off, and keep fighting!  

Thanks for reading and thanks for sticking with the Minocqua Brewing Company. Together, we'll make a proverbial shandy out of the lemons we were dealt, and Wisconsin's justice system will ultimately be better for it.

Kirk Bangstad
Owner, Minocqua Brewing Company
Founder, Minocqua Brewing Company Super PAC

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