Judge denies Bangstad motion to dismiss defamation lawsuit

A circuit court judge denied a motion Friday to dismiss a defamation lawsuit filed by Gregg Walker and his newspaper companies against Kirk Bangstad — a lawsuit alleging that Bangstad defamed Walker with false accusations on multiple occasions and that he continued to do despite numerous letters and warnings that the allegations were false and to cease and desist.

Bangstad’s attorney, Frederick Melms, argued that Walker is a public figure and that the complaint filed against Bangstad, the owner of Minocqua Brewing Company, failed to provide sufficient facts for the lawsuit to proceed.

Forest County circuit judge Leon Stenz rejected those arguments, however, denying the motion and saying the complaint was properly pled and the question of Walker’s status as a public figure would be determined by a jury. 

“All the facts necessary to establish a cause of action are pled, and, together with the reasonable inference from those facts, they support a proceeding and so the motion will be denied,” Stenz said.

In the motion hearing, Melms argued that Walker was a public figure by virtue of his ownership of two newspapers and, that being the case, Walker had to prove actual malice on Bangstad’s part. Melms also argued that the complaint failed to provide sufficient evidence of such malice to move the claim forward.

The attorney for Walker and for Lakeland Printing Co. and Walker Communications, Matthew Fernholz, said it was Bangstad’s arguments that fell short. Walker was a private figure, Fernholz argued, but, even if not, the complaint had offered enough evidence of actual malice on Bangstad’s part for the case to proceed.

“They are hanging their hat on the public figure status, which they haven’t met the burden at this stage,” Fernholz argued. “The court should not apply that standard and deny the motion, but, even if the court were to apply it, we did plead actual malice. We set forth the grounds as to why Mr. Bangstad did make these statements recklessly and without investigating whether they were true.”

Bangstad’s motion 
In his presentation to the court, Melms honed in on the underlying claims and legal sufficiency of Walker’s complaint.

“When we are asking ourselves if sufficient facts have been pled, I think it is important first to obviously understand what this case is about,” Melms argued. “This case is about a public figure who is arguing that they have been defamed. Gregg Walker is clearly a public figure in this matter.” 

Melms said Walker had pleaded as much in his own complaint by saying he was the owner and publisher of two successful newspapers, which Melms said made him a public figure.

And once it was established that Walker was a public figure, Melms said, the case took on a different configuration.

“Once we’re dealing with a public figure, in the context of defamation, it becomes more of a First Amendment question,” he said. “And because it is a First Amendment question, we have the extra element of actual malice.”

Melms said the requirement for proving actual malice were clear: Was the alleged defamation made by someone who did it knowingly or with reckless disregard for the truth?

“And I don’t think that, in plaintiff’s complaint, they sufficiently pled any facts that would suggest that any of the defamation occurred with any actual malice,” he contended. “They pled no facts to suggest that Kirk Bangstad made these statements knowingly or that he made them with a reckless disregard for the truth.”

A failure to investigate whether the statements were true is not enough legally to show malice, Melms said, referring to established case law.

“It has to be more for that,” he said. “The defendant has to functionally have known that they were making a false statement or that they had a good idea, if you look at all the case law as a whole. … The logic behind the extra element in public figure defamation is that public figures have such an important place in society that we can’t allow any sort of chilling effect of the speech or criticism, and I think the same can be said of newspapers, which is why the actual malice requirement and Gregg Walker’s status as a public figure should be extended to his two newspapers as well, The Lakeland Times and River News.”

Once that was considered by the court, Melms said, he believed the court would find that the complaint itself was not factually sufficient to maintain a defamation claim with the actual malice requirement.

Utterly false statements
But Fernholz said the complaint’s pleadings were strong, and he set about to show it by reviewing with the court the three statements at issue in the lawsuit.

“Mr. Bangstad has repeatedly called my client, Gregg Walker, a crook, despite numerous cease-and-desist letters warning that Mr. Walker has no criminal history,” Fernholz said. “Mr. Bangstad has repeatedly referred to Mr. Walker as a misogynist and a misogynistic bully without evidentiary support and again in spite of receiving multiple cease-and-desist letters that the statement was false and defamatory.”

Finally, Fernholz stated, Bangstad wrote on the Minocqua Brewing Company Facebook page that Walker and The Times referred to local chamber of commerce director Krystal Westphal as “retarded.” 

“Mr. Bangstad put quotation marks around that word, implying that it was printed with Mr. Walker’s approval and in his newspaper,” Fernholz said. “It’s utterly false. It’s never been printed. In a subsequent media interview, Mr. Bangstad says, ‘Yeah, well, maybe it wasn’t. I might have been wrong about that.’”

Fernholz was incredulous: “So, guess what, oops? That’s the response?”

Fernholz then responded to Melms’s arguments in the motion to dismiss. First, the attorney said, the complaint had in fact properly pled the defamation claim. 

The three elements for common law defamation are, Fernholz stated, one, a false statement; two, communicated by speech or conduct or in writing to a person other than the person defamed; and three, the communication is unprivileged and intends to harm one’s reputation so as to lower him in the estimation of the community or deter third persons from associating with or dealing with him. 

“We pled this, and contrary to defendants’ assertions in their motion, libel claims do not require claims of actual damages,” he said. “Reputational harm is enough and you can plead it generally. The defendants don’t really address this in the reply brief. It appears they have conceded that you don’t need actual damages, you don’t need to prove them. You don’t need to plead them. You can plead reputational harm generally.”

Fernholz then guided the court through the alleged defamatory statements one-by-one to demonstrate how the complaint was properly pled.

“First, describing someone without a criminal record as a crook is defamatory,” he said, citing Wisconsin Supreme Court precedent.

“Ascribing criminal activity to an innocent person, however, demeans those assets,” the court stated in 2017 Teague v. Schimel. “Indeed, it is so clearly injurious that doing so  constitutes libel per se.”

Fernholz said Bangstad would offer protest.

“He’ll say, ‘Well, crook just doesn’t necessarily mean a criminal record,’ but we provided a well regarded dictionary that defines the colloquial use to mean a ‘professional rogue, a criminal, one consorting with criminals, or a person recognized by the authorities as belonging to a criminal class,’” he said. “And Mr. Bangstad was warned about this, and he continues to refer to my client as a crook, and they have not contested that these definitions are accurate. So it is defamatory to describe somebody without a criminal record as a crook.”

Describing someone as a misogynist was defamatory, too, Fernholz argued.

“Once again, we go to the dictionary, which defines misogyny as the hatred of women,” he said. “And Mr. Bangstad just says it. He says, ‘Well, Mr Walker is a misogynist and misogynistic bully.’ We have warned him against using that term. He refuses to stop. He provides no evidence for the statement. He must think it’s funny or amusing.”

Fernholz quoted from federal judge Royce Lamberth of the U.S. District Court for the District of Ciolumbia that falsely accusing an individual of being a misogynist was “a triable issue” of fact: “Indisputably, there is a triable issue of fact as to whether falsely accusing an individual of being a sexual predator, of having a criminal record, of being a monster, of preying on women, of being a racist, of being a misogynist, or any combination thereof, are statements” that would make a person ‘odious’ or ‘infamous’ and that could overcome a motion to dismiss.

“Again, the defendants do not dispute in their reply brief that referring to someone as a misogynist can have defamatory meaning, which is all that is required at the pleading stage,” Fernholz argued. 

Fernholz next turned to the ‘retarded’ comment.

“Falsely attributing this word to someone is defamatory,” he contended. “There was no basis for Mr. Bangstad to use this term. It has never appeared in The Lakeland Times describing Krystal Westphal or any other individual. In fact, Mr. Bangstad now admits he was mistaken. He’s not issued a retraction but he admits he was mistaken when he used that.”

It’s a statement that can’t be defended, and the defendants wisely did not, Fernholz continued.

“It’s a horribly offensive term,” he said. “[Falsely] ascribing the use of that word to someone is defamatory. So a claim is properly pled on all three statements.”

A public figure
Fernholz said Bangstad was trying to hang his hat on the public figure claim.

“It’s their only real argument in their motion to dismiss, that Gregg Walker is a public figure and therefore the actual malice pleading standard applies,” he said. “This is a very heavy burden for the defendants to meet. They offer nothing to substantiate their position, and courts have acknowledged that very few people are going to meet this standard. The mere fact that my client owns two newspapers does not make him a public figure.”

He cited a Wisconsin case law that “[a]ccess to the media, although often an accouterment of public figure status and part of the rationale for distinguishing a public figure from the more vulnerable private individual who generally lacks access, is certainly not determinative of public figure status.”

He a case in which the court detailed several factors that help in determining a person’s public figure status: statistical surveys that concern the plaintiff’s name recognition; previous coverage of the plaintiff in the press; whether the person has shunned the attention that the public has given him, among others.

“There are a number of these factors that the court says the trial courts are to apply to make this determination,” Fernholz said. “The defendants offer nothing. They just flick their wrist and say, ‘Well, he has a newspaper, therefore he’s a public figure and the standard applies.’ This is a very high burden that they have to meet and they don’t come anywhere close to meeting it. They assume without evidence that owning a newspaper makes you a public figure. But that is not the case. That is not what the law in Wisconsin states. They have failed to meet their burden. Mr. Walker is not a public figure.”

Still, Fernholz continued, even if the actual malice standard were applied, the claims were still properly pled. 

“To prove actual malice, you must demonstrate that the defendant had knowledge the statement was false or acted with reckless disregard of whether it was false or not,” he said. “Reckless disregard of truth or falsity of publication occurs when the defendant entertains doubts about it. Here, we have seen that the defendant has engaged in reckless disregard of the truth. He had no factual basis for asserting that Mr. Walker was a crook. He has no criminal record. That’s been pointed out to Mr. Bangstad and he keeps using the term.” 

Similarly, Fernholz said, Bangstad has been told there’s no basis to assert that Walker is a misogynist. 

“We’ve asked him to withdraw the statement,” he said. “He has not. He continues to use it without evidentiary support. And most damning of all, he has admitted he was mistaken when he attributed the use of the word ‘retarded’ to my clients when describing Krystal Westphal.”

While it is true that failure to investigate by itself is not enough to establish actual malice, Fernholz said, it can be an indicia of actual malice, and it is not enough for the defendant to simply say, “Well I thought this was true, so it’s OK that I said it.”

Rebuttals

In rebuttal, Melms reiterated his opening assertions, countering that in a motion to dismiss, all of the pleadings are taken as true, and the plaintiff had pled that Walker was in fact a public figure.

“He owns and publishes two successful newspapers,” he said. “I think if you go though the [court’s] factors, you’ll find that that meets that, and that by the plaintiff’s very own definition, he is a public figure. So once it is established that he is a public figure, it is not enough to say ‘Well the defendant said defamatory things, and he should have known better.’ That’s not the standard for reckless disregard.”

That standard is an incredibly high standard, Melms said. 

“It’s not negligence,” he said. “It’s not that he should have known or even that we told him because, again, the failure to investigate is not enough. It is knowledge or near knowledge, and there are no facts pled in the complaint to that effect and those facts need to be in the complaint for the complaint to be legally sufficient.” 

In his summation, Fernholz said failure to investigate can be probative evidence of recklessness. 

“It’s not enough but certainly, given Mr. Bangstad’s commentary in newspapers that he falsely made this statement about publishing the word ‘retarded,’ and given Mr Bangstad’s refusal to back down in the face of cease-and-desist letters on misogyny and crook comments, that does meet the actual malice standard if the court were to apply it.”

Richard Moore is the author of “Dark State” and can be reached at [email protected].