Saturday, July 15, 2006

Blogging the Wisconsin Supremes, Part. I

The problem with recent cases involving political figures is that so many of the Justices recuse themselves that it's hard to assess what will happen in the next case - when a fuller complement of the Court participates. That was true in Lassa v. Rongstad, a case that grew out of Rep. Judith Lassa's defamation suit against a political consultant named Todd Rongstad. The majority opinion was written by Bradley with Abrahamson joining. Butler concurred. Prosser dissented. Three did not participate.

Rongstad, on behalf of a group called the Wisconsin Alliance, put out some material connecting Lassa to Chuck Chwala and, essentially, wondering whether she was corrupt as he was then alleged to be? It was ham handed, but far from the worst we've all seen.

She sues and the case eventually settled. The issue before the court were sanctions that had been imposed on Rongstad for refusing to reveal the Wisconsin Alliance's donors (actually it turned out that there was one; Lassa's primary opponent). But the question of compelled revelation of the identity of donors and members of advocacy groups has always been sensitive because of a concern that publicity will chill the exercise of free speech and assembly rights. The leading case involved an order that sought to compel the disclosure of the names of members of the NAACP in Alabama in 1958. The Supreme Court put the kibosh on that and since then courts have had to, more or less, balance the need for disclosure against the threat of retaliation, humiliation, etc.

The issue was complicated here by the fact that defamation suits by public officials face a huge uphill battle rooted in the First Amendment. The subtext of this case was that Lassa's case was a piece of crap. There was no way she was going to win. It was all about the names.

The Court did say that, in the future, courts should normally decide a motion to dismiss before ordering that names be divulged. But they didn't apply that rule in this case for reasons that are almost too lame to summarize. Essentially, they said that the trial court wasn't asked to do so (but as the dissent points out, he was) and that this is a new rule that the judge couldn't be expected to anticipate (which is also weak; reversing a judge is not punishment). (The latter was apparently based in the idea that this is all a matter of discretion - which now should be exercised one way - but whatever.) It's not unfair to suggest that the majority wanted Rongstad to get his.

As Bill Christofferson points out, folks are getting different takeaways from this. Lassa and her lawyer, Ed Garvey, think the court sent a message to people who want to slime their opponents in campaigns. WMC thinks that the Court struck a blow for the First Amendment. Both have a point.

Going forward, the case will help people in Rongstad's position although perhaps not as much as is needed. A motion to dismiss is decided on the pleadings. You take everything the plaintiff says as true and determine whether that adds up to a case that can be won. If not, there is no reason to find out if it's true. Case dismissed. In this case, the motion to dismiss was whether the words of the ad were capable of a defamatory interpretation. The trial judge said they were. In the context of a political campaign, he was wrong.

But defamation cases brought by public officials are more often stopped by the "actual malice" rule. If you write in a blog that Rick Esenberg is whoremonger, all I have to do when I sue for your libel (and I will) is to prove that it is defamatory and untrue. You may have sincerely believed it was true. You may have thought you had an unimpeachable source. It doesn't matter. You pay me.

This is because I am not a public official and am probably not a public figure (although that's not clear). But if I were say, a member of he state assembly from Stevens Point, I would be a public figure and I'd have to show that you knew it was false or acted in reckless disregard of its truth. That's why public officials rarely win defamation cases.

The reason for this is not, as Justice Prosser put it in his dissent, that we hate public officials, it's that we love freedom of expression more. People should be free to comment on public officials and issues of public importance without worrying about getting sued - unless they've really acted egregiously.

But that issue can't really be decided on a motion to dismiss. You need some discovery. So the Court's rule only offers some protection against the kind of abuse that Lassa's case represented.

In addition, the fact that the majority went out of its way to ensure that Rongstad got clipped will be noted by activists around the state. Who is to say it won't happen again?

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