Stenz denies gag order in Bangstad defamation case

The judge presiding over a defamation suit filed by Lakeland Times publisher Gregg Walker and his newspaper companies against Minocqua Brewing Company owner Kirk Bangstad has denied Walker’s motion to prohibit Bangstad from making and posting statements about the ongoing case, but the judge said Walker might receive a parting gift.

“Sometimes that just happens, the client that you have can’t control, and he [Bangstad] makes these statements and continues to make them, and what it’s going to do is end up hurting him, so I guess the consolation … is that you may lose this battle but you may win the war if you just let him keep on talking,” presiding judge Leon Stenz told Walker’s attorney, Matthew Fernholz, last week.

Walker has sued Bangstad, alleging that Bangstad defamed Walker with false accusations on multiple Facebook posts and continued to do so despite numerous letters and warnings to cease and desist.

Bangstad has continued to post remarks about the ongoing lawsuit, raising concerns that his extra-judicial comments could prejudice the jury pool for the trial, prompting Walker’s motion to impose the gag order.

“Candidly this is the first time I’ve had to bring a motion like this, but it’s the first time I’ve been encountered with a scenario where a party to a lawsuit is posting about the lawsuit and commenting about the lawsuit,” Fernholz told Stenz. “My concern is, the nature of these comments are disparaging toward the judiciary and they contain misleading information.”

In the end, Stenz said he did not think Bangstad’s commentary rose to that prejudicial level — yet — and, that being the case, he said he could not deny Bangstad’s First Amendment right to make the statements, even if they were harming Bangstad’s own case.

And that’s exactly what they were doing, in Stenz’s opinion.

“Quite frankly, I would have been pulling my hair out if my client kept going on like this,” Stenz said. “… I can’t protect Mr. Bangstad from himself. I can’t deprive him of his First Amendment right to make whatever comments he wants.”

At one point in the hearing, Stenz said he could not understand why Bangstad posted some of the comments he posted, one example being commentaries that Stenz said seemed to suggest fraud on Bangstad’s part, though the judge stressed he did not have enough context or facts to form a firm opinion.

“I don’t know all the facts but I’m just looking at his [Bangstad’s] statements and they suggest to me there’s some fraud going on,” Stenz said. 

Stenz said Bangstad suggested that he had started a funding page for the lawsuit and accepted tens of thousands of dollars for legal defense, only to acknowledge that he didn’t have to pay for his attorney because his insurance was going to pay.

“Now that seems certainly somewhat suspicious that you’re soliciting  money to pay for an attorney that you don’t have to pay for,” Stenz said. “Why would he make those statements? … I don’t know what the background to this is or all the underpinnings. I’m just reading this cold from the statements that were provided. Maybe there’s some context to it, I don’t know, it certainly seems curious that he would do that.”

Walker’s motion 
In making Walker’s motion to prohibit Bangstad from making extra-judicial statements about the case, Fernholz acknowledged that it was an unusual motion.

“But it is an unusual situation where we have a party to a lawsuit disparaging the judge, disparaging opposing counsel — and look, I have thick skin, I can handle it — but he is misleading his readers as to what is going on, he is not giving accurate portrayals of what is occurring in the case, and then he is going on to threaten the court and he is encouraging his followers to threaten and harass my clients for filing this lawsuit,” Fernholz said.

Fernholz cited a Bangstad post from December 8, 2022, shortly after he was deposed in the case, in which Fernholz said Bangstad “bashed’  the court, saying the lawsuit should have been dismissed long ago.

“He says judicial integrity is hanging by a thread in Wisconsin,” Fernholz said. “[He says] ‘I’ve got a member of the old boys network of Oneida County as a judge.’ He says he will never get a fair shake in rural northern Wisconsin.”

Fernholz said his concern was that the case is venued in Oneida County, it’s a jury trial, and residents of Oneida County will be empaneled for the jury.

“Mr. Bangstad is notorious in the region,” he said. “He has a large social media presence. He’s bashing the court and he’s saying he’s not going to get a fair shake. That potentially prejudices the jury pool.”

Fernholz also addressed comments made by Bangstad about Fernholz in a post after Bangstad was deposed.

“I was doing the general introductory questions that I always do in a deposition, where I asked if he was married and had children, and immediately Mr. Bangstad got uncomfortable and didn’t want to answer questions about if he had children or the name of the mother of his child,” he said. “I have never really run into that in a deposition. I got the information needed after Mr. Johnson [Timothy Johnson, Bangstad’s attorney] instructed him to answer and we moved on.”

However, Fernholz continued, Bangstad requested confidentiality for that information, and Fernholz said he agreed to that request.

“It was then surprising to me that he goes to social media, after complaining so much in the deposition that he didn’t want this information to get out, he goes on social media and posts about it and says he was being treated like a caged animal and it was totally unfair,” Fernholz said. “It’s disingenuous for him to complain in the deposition and then go on social media, treating it as if I berated him and asked these questions to embarrass him publicly.”

But Bangstad was the one disclosing all the information, Fernholz said: “My clients didn’t make an issue of it. They didn’t run a story on it. I certainly didn’t identify anything in that deposition publicly. It was Mr. Bangstad that decided to do that. My concern here is, he is giving misleading information about proceedings in the case and that is going to have a potential impact on my client’s right to have a fair, impartial jury.”

Since then, Fernholz continued, Bangstad had made veiled threats against the court. 

“I noted that he had a post that said part of the reason he went public about this is that we hope the judge reads it and knows there’s going to be a lot of eyes watching him throughout this trial,” Fernholz said. “I don’t know what Mr. Bangstad is trying to accomplish with that, but it is a not-so-veiled threat against the court.”

Later on, Fernholz said, Bangstad encouraged people to write letters to the editor of The Lakeland Times to tell the newspaper what they thought about the plaintiffs’ use of the legal system. 

“And sure enough, my client has received some offensive and harassing emails that Mr. Bangstad is instigating,” Fernholz said.

All totaled, Fernholz said there was good cause to restrict Bangstad from making extra-judicial statements about the proceedings and prevent him from further inciting his supporters to send hate mail to his clients.

Johnson retort
Timothy Johnson, Bangstad’s attorney, said that, as an officer of the court, he was sensitive to the type of motion being made, and to the statements that had been made as well. But he said he disagreed that the commentary was very unique in a lawsuit or in a politically charged dispute, such as the one at hand.

“I want to be clear, your honor, that I am not countenancing the substance of the comments,” Johnson said. “What I am objecting to is the idea that statements like this, that are commenting on the litigation — and that we do not have proofs in the record that a potential jury would be negatively affected by these statements — can therefore be a standard to essentially gag one of the parties from really exercising First Amendment rights here.”

Johnson reiterated that he was not countenancing what the statements were or how they were made.

“But again, I don’t see a party’s commentary in the public on ongoing litigation as so fundamentally troubling that, under these facts, it requires a gag order,” he said. “Now, as Mr. Fernholz said, we are in a little bit of uncharted territory and that’s why our written submission to the court really kind of fell back on the standards that courts have applied to party counsel.”

That is to say, there has to be what the Supreme Court and American Bar Association rules, and state ethical rules, deem a substantial likelihood that the comments would prejudice the jury and make it difficult for the jury to remain impartial. 

“I just don’t think we have that here,” he said. “My client’s statements, albeit potentially harmful to himself, as the court noted in our last time together a couple of weeks ago, and perhaps unwise, do not warrant a gag order here.”

Johnson said he disagreed about the characterization of the comments as threats on the court.

“As the court mentioned I think during the last hearing in December, something to the effect of, this isn’t the first time the court maybe has faced some extrajudicial statements and of course the court is going to review the facts and apply the law properly, as it should, so I’m not concerned about the integrity of the court, …” he said.

But, Johnson argued, “that quantum of proof” that the standards in case law require just doesn’t exist in the case at hand.

In response, Fernholz said Bangstad was likely to continue to talk and that would have an ever-larger impact in a smaller county.

“He [Bangstad] has shown that he will post about anything and everything related to this lawsuit, and the longer it is allowed to continue the harder it is to make sure that we can get a jury pool from a smaller county, but get a jury pool of people who haven’t been following the case,” he said. “It’s going to make it more difficult to draw 12 jurors in this case, the more Mr. Bangstad blasts out about this case on social media.”

But, again, Johnson said the ultimate impact on the jury was simply unknown.

“When there are cases that are so-called higher profile and the court is faced with requests to change venue, for instance, due to media coverage, or some similar type of issue, in my experience often the court even puts off that decision because of this very issue, because the material effect on the potential jury pool is simply unknown,” he said. “And it may diminish over time, it may change over time, or of course it might in fact be there, where a change of venue or a jury from a different county would have to come in.”

None of that might happen in this case, Johnson said.

“But this gets back to my point, I don’t see this as the proper time or the proper proofs upon which to offer the relief that the plaintiffs are asking for,” he said.

The decision
In his decision, Stenz agreed, after reviewing Bangstad’s comments, that the situation was unique.

“His stated intent of trying to sway the judge, trying basically to put pressure on the court to see things his way — and I think that’s pretty much in one of the affidavits — he’s attempting to influence the judge and that’s the whole purpose of these clearly inappropriate [comments],” Stenz said. “I’m not influenced by his statements.”

Stenz also said he did not interpret the comments as threats against him.

“I think it was suggested by Mr. Fernholz that he was threatening the court or the judge,” he said. “I don‘t interpret those as threats nor am I tempted to be swayed by his suggestion that a lot of eyes will be watching me, so I want to make that clear right away.”

Stenz said the court does not usually try to muzzle litigants and that it would different if one of the attorneys was making the comments.

“Had an attorney made some of the statements, I would think that it does basically become a substantial likelihood that it would prejudice the case,” he said. “There’s a substantial likelihood that it would be impacted, but, as Mr. Johnson has suggested, you never know that until we try picking a jury.”

The fact is, Stenz continued, it wasn’t an attorney making the comments but Bangstad himself.

“Had these been said by Mr. Bangstad perhaps in court and perhaps present before the court, they may have been the basis for contempt, I don’t know,” he said.

It really didn’t matter anyway, Stenz said, because that wasn’t the situation, either. The bottom line, Stenz said, he could not find the correct standard to use in making the decision.

That said, though, Stenz said he did not believe he was powerless to address the issue simply because it wasn’t an attorney making the statements.

“The court has always had the inherent authority to preserve the integrity of the judicial system, protect the rights of each of the litigants to a fair trial, and I think in certain circumstances the court does have the ability in certain cases to issue the gag order requested by Mr. Fernholz,” he said. “I don’t know what the standard would be. I think the standard applied toward attorneys is maybe appropriate, but once again the regular public or the litigants aren’t subject to those standards.”

The standards applied to attorneys about commenting on cases involve rules of professional conduct, Stenz said, which would not apply to Bangstad. 

“So I’m suggesting that we may be in uncharted waters,” he said. 

The real question was, Stenz asked, what to do with some of Bangstad’s statements?

“I’m not sure how wise it was of Mr. Bangstad to make these statements,” he said. “I don’t know the political underpinnings of Oneida County. I don’t know if it leans Republican or Democrat. I simply don’t know.”

Pitching conspiracy theories to his base
In reading the comments, Stenz said it seemed like Bangstad was making a political argument to his base.

“It is possible that some members of the jury may be supportive of his position and may find some comfort in the statements that he’s saying,” he said. “They may share his conspiracy theory. But it’s equally likely that others of the jury are going to be part of the right-wing Republicans that he is so critical of and they may have supported the right-wing good-old-boy network of Oneida County. So he makes these statements and in fact may alienate a greater portion of the jury by making them, and I wonder why he would do that.”

Stenz said it was also curious why Bangstad would be critical of the judge who is going to be sitting on the case.

“Once again I don’t know why he would make the statements that he has made, suggesting that I’m political and I’m uneducated and I’m part of the same good-old-boy network,” he said. “I’m not even from this county, … so it is problematic in some respects.”

The judge wondered, too, about the aforementioned statements that Stenz said at least suggested fraud in fundraising for the lawsuit.

“Once again, I don’t know that it’s necessarily the wisdom that we’re talking about,” he said. “I’m going to deny the motion. I don’t know if it’s appropriate for the court to tell Bangstad he can’t make statements with respect to these issues.”

Stenz said it was unknowable about the potential impact of the statements on a jury.

“Like I said, there’s likely to be supporters of Mr. Bangstad, supporters of Mr. Walker, but I would certainly hope that voir dire [jury selection] will be the appropriate mechanism by which we can filter out those who may have prejudged the case,” he said. “Mr. Bangstad does have the right to make the statements he wishes to make.”

That being said, Stenz said the plaintiffs should just be content to let Bangstad talk.

“Quite frankly, I looked at this initially and I’m thinking to myself, ‘Why even bring the motion? Let him keep on talking. Every time he opens his mouth he’s sinking his own case,’” he said. “I mean all these statements, …I authorized an amended complaint to be filed and now he faces additional counts. Many of the statements he made may be admissible. All these statements, in my opinion, and looking at this as an outsider if you will, seem to support Mr. Fernholz’s case.”

Place it all in front of a jury and you’re going to see he’s got an ulterior motive, Stenz said.

“He‘s trying to run up the bill on poor Mr. Walker, … saying that he needs money when he really doesn’t and he’s hoping that, as a result of that, Mr. Walker will incur more expense,” Stenz said. “He’s got conspiracy theories. Everybody’s out to get him.”

But Bangstad has a right to make all those statements, the judge added.

“Every time he posts something I’m sure you’re going to be looking for it and it’s going to fit right into his pattern, same motive, same intent, same plan,” he said. “I can’t protect Mr. Bangstad from himself. I can’t deprive him of his First Amendment right to make whatever comments he wants.”

Stenz said the comments, at the moment, did not rise to the level of impacting the trial, and there were other remedies, such as restraining orders, if Bangstad harassed and threatened the plaintiffs.

Then, too, given the small number of emails sent to The Times after Bangstad implored his followers to send such correspondence to the newspaper, Stenz said he doubted Bangstad had a very large following anyway.

“I don’t know how widespread he is, or what sort or following he has, I just don‘t know,” he said. “If those are the only emails you got in response, you got a handful, he doesn’t have a very wide following nor is he able to sway those to send emails to harass and intimidate the plaintiff.”

Maybe if there were hundreds or thousands, it would be different, Stenz said.

“But I don’t see that evidence before me now,” he said.

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.