J. Justin Wilson
J. Justin Wilson · April 21, 2022

Does the First Amendment protect your right to criticize public officials without being subject to frivolous lawsuits?

That is the question raised by a court filing made today by the Institute for Justice (IJ)—a national public interest law firm that litigates to protect American’s First Amendment rights—on behalf of Kelly Gallaher, a Mount Pleasant, Wis., community activist who has been slapped with a frivolous defamation suit by Mount Pleasant Village Attorney Chris Smith. Claiming that Kelly’s email to local journalists and accompanying social-media posts caused him “emotional distress,” Chris Smith filed a six-page lawsuit demanding punitive damages for Kelly’s criticism and her “hundreds of posts on social media . . . [about] Village policies, politics, officials and employees” that “portray[] Mount Pleasant officials or employees negatively.” IJ is asking the trial court to throw the lawsuit out and vindicate Kelly’s–and everyone’s–fundamental right to criticize government officials.

“Kelly has done nothing wrong,” said Robert McNamara, a senior attorney at the Institute for Justice, which represents Gallaher for free. “The village attorney thinks he can use his law license to bully a political opponent into silence. But government officials are not in charge of how members of the public talk about politics, which is something we’ll be happy to explain to him in court.”

Gallaher is a longtime community activist in the small village of Mount Pleasant, Wisconsin, which is perhaps best known for being home to the now-failed Foxconn manufacturing plant development. As city officials began meeting in private to seal the multi-hundred million dollar deal, Gallaher organized her neighbors to demand more transparency and accountability from the village council. Since then, the plant has largely failed to materialize, but Gallaher has stayed active in local politics. 

While the lawsuit complains of Gallaher’s “hundreds” of posts about various local issues, her specific trouble started earlier this year when the Board of Trustees voted to extend their terms in office from two years to three. Sensing a power grab and feeling blindsided, Gallaher and her community group jumped into action to call a referendum on the term extension. 

In an apparent effort to assuage residents’ concerns with the vote, the village attorney told the local newspaper that “discussion of [the term extension] began back in 2018.”  Gallaher, who regularly watches village council meetings, thought that was wrong; She didn’t remember any such discussion, and so she filed an open records request with Smith to see when these “discussion[s]” happened. He responded with village council agendas for three meetings—one in 2021 and two in January of 2022, but nothing for 2018. Armed with her research, Gallaher emailed the local newspaper and posted on social media suggesting that Smith lied when he said the discussions dated back to 2018.

Shortly thereafter Smith threatened Gallaher with a defamation lawsuit, and demanded that she retract her statement. Gallaher did not want to retract. She was right: There had been no public discussions in 2018, and Smith did not say otherwise. Instead, he seemed to be saying that when he told the newspaper there had been “discussion” in 2018, he only meant that there had been secret, private discussions. That did not strike Kelly as a fair interpretation of his statement, but Smith was a lawyer, and she was not, and she was scared of a lawsuit. So she publicly retracted her claim that Smith had lied to reporters. 

A few days later, he sued her anyway.

“They are trying to silence me, but I won’t let them,” said Gallaher. “I’ve spent the better part of the last decade trying to make Mount Pleasant a better place, and I intend to spend another decade or more doing the very same.”

“They say that the truth is the best defense, and thankfully Kelly has the truth on her side,” said attorney James Knight, who is a litigation fellow at IJ.  “But that shouldn’t matter, because this lawsuit should have never been filed. Fights about what people say belong in the newspaper, not in the courtroom. The First Amendment protects Kelly’s right to publicly criticize government officials like Smith without suffering crushing financial damages over a simple difference of opinion.”

“Across America, city officials and other political figures seem to think they can use their power to retaliate against and silence their critics,” said IJ President and General Counsel Scott Bullock. “But the First Amendment protects our basic right to criticize the people who wield government power—even if it hurts their feelings—and IJ stands ready to vindicate that right for Kelly and for Americans nationwide.”