Criminal defamation charge against Bangstad dismissed

A circuit court judge has dismissed a criminal defamation charge against Minocqua Brewing Company owner Kirk Bangstad, a ruling based on lack of probable cause, according to online court records.

Vilas County judge Martha Milanowski, who was hearing the case, made the oral ruling Friday, granting Bangstad’s motion to dismiss.

Bangstad was arrested and charged last October over a Facebook post — published multiple times — that included false and manipulated images of Lakeland Times publisher Gregg Walker and Times general manager Heather Holmes in a pornographic rendering.

Criminal defamation, a misdemeanor, occurs when a person “with intent to defame communicates any defamatory matter to a 3rd person without the consent of the person defamed.” Defamatory matter is defined as anything that exposes the other to hatred, contempt, ridicule, degradation or disgrace in society or injury in the other’s business or occupation.

The misdemeanor charge is Class A, the most serious of non-felony charges. Upon conviction, it carries a maximum penalty of nine months in jail and a $10,000 fine, or both.

However, in her ruling, Milanowski determined that the Facebook posts at issue did not meet the standard for defamation. The judge observed that the post was labeled “parody,” and because of that, in her view, no reasonable person would believe the images in the post were actual representations of Walker and Holmes.

Making the defamation case harder to prove was Milanowski’s determination that both Walker and Holmes were “limited public figures” for purposes of the case. While Walker is the publisher of the newspaper and in the public eye, Milanowski ruled that Holmes was also a limited public figure because of her employment with the newspaper.

That makes defamation harder to prove. In defamation claims, a private person does not have to show that a defendant acted with actual malice, only that the statement was false and injurious. Public figures, including limited public figures, must prove that a defendant acted with actual malice, that is, that the defendant acted with the knowledge that it was false or with reckless disregard of whether it was false or not.

The standard that determines whether one is a limited public figure was determined in a 1974 court case, Gertz v. Robert Welch, in which the court broadly defined a category of people known as limited public figures.

“In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts,” the court ruled. “More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy, and thereby becomes a public figure for a limited range of issues. In either case, such persons assume special prominence in the resolution of public questions.”

Courts have been all over the place since that vague ruling. Some judges have ruled that a limited public figure simply has to be well-known in a community and associated with the issue at hand; others have ruled that a person is not a limited public figure unless that person voluntarily injects themselves into the issue.

In any case, Milanowski’s ruling raised the bar for the defamation claim, and she determined that the evidence did not clear it.

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