On May 30, 2024, a Wisconsin Court of Appeals granted a petition for appeal in Johnson v. MacCudden, a Milwaukee County case involving claims of defamation against Scarlett Johnson, a self-proclaimed local parents’ rights activist and member of Moms for Liberty. Ms. Johnson allegedly posted various statements criticizing her local school district and an individual, who formerly served as the school district’s Social Justice Coordinator. This case explores the narrow divide between the First Amendment’s protections for engaging in government criticism and defamatory speech.
Facts
In October 2022, Mary MacCudden, who served as the Social Justice Coordinator for a school district in Ozaukee County, filed a lawsuit against Ms. Johnson regarding Ms. Johnson’s posts on social media. Specifically, Ms. Johnson’s posts labeled Ms. MacCudden as “woke,” a “woke lunatic,” a “bully,” and a “white savior with a god complex.”
On April 22, 2024, the Milwaukee County Circuit Court issued an order, which concluded that Ms. Johnson’s phrases like “woke,” “white savior,” and “bullies,” are actionable in a defamation claim brought by Ms. MacCudden because they “imply the allegation of undisclosed defamatory facts.” This is based on the idea that such statements suggest that Ms. Johnson is aware of facts about Ms. MacCudden, which, if true, would indicate Ms. MacCudden “abuses her position of power over students” and is “unfit to teach” in her role as Social Justice Coordinator. The Circuit Court’s ruling meant that the case would continue, potentially to trial, rather than be dismissed.
On May 6, 2024, Ms. Johnson filed a petition requesting the Court of Appeals review the Circuit Court decision immediately, rather than waiting for the case to go to trial. The Court of Appeals granted the petition and will hear Ms. Johnson’s appeal. As a result, the Circuit Court’s decision and the impending trial is on hold until the Court of Appeals determines whether the alleged statements are protected by the free speech clause of the First Amendment to the United States Constitution, or if the Constitution does not protect Ms. Johnson from defending herself against a defamation claim for the statements she made.
Claims
Ms. MacCudden alleged that Ms. Johnson’s statements were defamatory and caused harm to her reputational interests.
In her appeal, Ms. Johnson argued that her statements posted on social media are:
- Protected by the First Amendment, and
- Unactionable in a defamation claim, as they are “opinions” rather than false assertions of fact.
Because defamation claims involve determining whether or not the statements made are actually true, Ms. Johnson further asserted that proving the truth of whether Ms. MacCudden is “woke” or a “bully” is a nearly impossible task because the meanings are highly subjective.
Case History
Over the past year, this case has seen significant procedural developments. On July 7, 2023, the Milwaukee County Circuit Court denied Ms. Johnson’s motion to dismiss and partially denied her motion for summary judgment. These rulings indicate that some of the defamation allegations have sufficient merit to proceed to trial, while other statements. Are “substantially true”, and therefore can not serve to support a claim for defamation. Those statements include Ms. Johnson’s assertions that Ms. MacCudden worked as a Social Justice Coordinator at an Ozaukee County school district, the school district paid to have a Social Justice Coordinator, and that Ms. MacCudden is a (mostly) white woman. The remaining statements in Ms. Johnson’s social media post were found to be “mixed opinions” which may be relied on to support a claim for defamation. Prior to the petition for appeal, the Milwaukee County Circuit Court intended to resolve these claims at trial.
Elements of Defamation
In order to prevail in a defamation claim in Wisconsin, a plaintiff must prove the following elements:
- The defendant made a false statement presented as fact;
- The defendant published or communicated that statement to a third party; and
- The statement was unprivileged and harmed the plaintiff’s reputation by adversely affecting their standing in the community or deterring others from interacting with them.
Importantly, the truth of the defendant’s statement remains a complete defense to a defamation claim. If the statements “are not capable of a false and defamatory meaning, or are substantially true,” the defamation claim will fail. Torgerson v. Journal/Sentinel Inc., 210 Wis. 2d 524 (1997). Even if a statement is false, a claim of defamation may fail if the other elements of defamation are not met.
Opinions are generally not considered defamatory unless they imply “undisclosed defamatory facts.” For an opinion statement to be actionable, it “must be blended with an expression of fact and must imply the assertion of undisclosed defamatory facts as a basis for the opinion.” Bauer v. Murphy, 191 Wis. 2d 517 (1995). Subjective terms make the defamation analysis all the more difficult, as such are often viewed as expressions of opinion rather than verifiable facts. For example, “in my opinion John Jones is a liar” exemplifies how an expression implies undisclosed, defamatory facts (i.e., the speaker knows something I don’t) Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).
An actionable defamatory statement must either explicitly state or clearly imply a false statement that harms an individual’s reputation. In cases where the defamatory nature of the statement is unclear, courts may consider the statement’s implications. The statement must be reasonably capable of conveying a defamatory meaning to an ordinary person. Words and phrases which tend to be indefinite or ambiguous and present no clear definition, do not support a defamation action. Blomdahl v. Peters, 367 Wis. 2d 748 (2016) (calling someone a “poser” is too ambiguous to be actionable). The context in which the statement is made is crucial, and specific words must be interpreted within a broad context.
Wisconsin law differentiates between defamatory speech and expression and protected First Amendment speech and expression. While the First Amendment protects a wide range of speech and expression, it does not protect defamatory statements. Defamatory statements against private individuals (as opposed to against a public official), are actionable if the one who made the statements acted negligently.
Therefore, in order to prevail, Ms. MacCudden, a teacher who is not a public official, will need to prove that Ms. Johnson made a false statement(s) about her; that Ms. Johnson published or communicated that statement online; and that Ms. Johnson acted unreasonably in failing to diligently ascertain the truth of her statements before posting them on social media. Note that a different, and stricter, standard applies if the target of allegedly defamatory statements is a public official, such as the school district administrator or a board member. To prevail in a defamation case, a public official must additionally establish that the statements were made with the intent to cause harm.
Conclusion
This case exemplifies how the passions and frustrations of disagreement, when played out on social media, can, in some circumstances, lead to a legal dispute. Although the results of this case are not yet determined, the case serves as an important reminder that there does exist a line across which otherwise protected Free Speech becomes legally actionable defamation.
