Institute for Justice · May 24, 2022

RACINE, Wis.—This afternoon, Judge Jon E. Fredrickson of the Racine County Circuit Court granted the Institute for Justice’s (IJ’s) request to dismiss a defamation suit brought by Mount Pleasant Village Attorney Chris Smith against local political activist Kelly Gallaher from the bench. During a controversy over a proposed change to the term lengths of members of the Mount Pleasant village board, Smith told a local newspaper that the change had been discussed “since 2018.” This struck Kelly as wrong, and she followed up by sending Smith a public-records request for all records of public discussions since 2018. Told there were no records dating that far back, Kelly went public, accusing Smith of lying in emails to reporters and in social media posts. 

Smith responded promptly, telling Kelly he would sue her for defamation unless she publicly posted a retraction that he wrote himself and “refrain[ed] from publicly referencing [him] in any comment, regardless of whether such comment is written or spoken.” Kelly, who is not a lawyer and was frightened by the cost of a potential lawsuit, posted the retraction he wrote for her. And Smith sued her anyway. 

“Public officials don’t get to use lawsuits to punish people for criticizing them,” explained IJ Senior Attorney Robert McNamara. “Chris Smith’s lawsuit was transparently bogus and had no basis in the law. But a lawsuit doesn’t need to have any merit to scare people into silence, and that’s all too often the whole point of lawsuits like this one.” 

That is why IJ took on Kelly’s case. It is easy for lawyers or people with easy access to lawyers to file lawsuits and force their critics to spend thousands of dollars defending them (or, more likely, simply shut up). But the First Amendment means that lawsuits like Smith’s are baseless. Kelly had done her research and fully explained her basis for thinking that Smith was lying, and Smith (as a government official) has to overcome the high bar of First Amendment protection for speech like Kelly’s. For both reasons, IJ’s brief argued, the case should be dismissed.  

In today’s ruling from the bench, Judge Fredrickson agreed. “We’re talking about public citizens trying to do their due diligence about what their governments are doing,” he explained from the bench. “The record here is clear that [Kelly’s] Facebook, email, and Twitter statements are not defamatory.” 

Judge Fredrickson did not find that Smith had actually lied in his statements to the press, noting that, “Attorney Smith is not a liar, I’m not finding that.” Instead, the judge emphasized that a defamation suit was inappropriate because, whether Chris Smith had lied or not, Kelly “appeared to be concerned with getting the truth or falsity correct.” 

“It is a relief to prevail in court today and not just for myself,” said Kelly. “Every resident of Mount Pleasant won today because our public officials have been put on notice that they cannot silence the voices of their constituents through intimidation tactics like the frivolous lawsuit filed by Village Attorney Chris Smith. This lawsuit was filed to bankrupt me and force me into a settlement, thereby silencing any and all criticism of every Mount Pleasant official.”   

Nationwide, 32 states and Washington, D.C., have adopted anti-SLAPP (“Strategic Lawsuits Against Public Participation”) laws to discourage retaliatory defamation lawsuits like Chris Smith’s. These laws allow for quicker dismissals of abusive litigation and even allow defendants to recover their attorneys’ fees. 

“Today’s decision is a victory for free speech and a defeat for government officials who would like their constituents to shut up about them,” concluded IJ Constitutional Law Fellow James Knight. “But not everyone is represented by free public-interest lawyers, and the Wisconsin legislature should adopt meaningful reforms before the next Chris Smith decides to file a lawsuit like this.”