Government officials should not interrupt public debate with bogus lawsuits

There’s an old adage that “a man who is his own lawyer has a fool for a client,” but what if the point of representing yourself in court isn’t to win? In Wisconsin, a city attorney is suing one of his critics for defamation. He filed the lawsuit himself, and given the state of defamation law, he is unlikely to get damages. But his critic is not a lawyer and simply hiring a lawyer to defend himself would mean a significant expense. It’s a clever plan and the city attorney almost got away with it.

Before we get into the details, taking legal action to silence your opposition is not a new strategy, it even has an acronym: SLAPP. A strategic lawsuit against public participation is a civil lawsuit whose primary purpose is to intimidate someone into backing out of an argument. The party suing is not always a politician or government official, but many of the best-known examples of SLAPP lawsuits involve politics.

Kelly Gallaher lives in Mount Pleasant, Wisconsin. If you’ve heard of Mount Pleasant, it’s almost certainly because the village is home to a planned mega-factory for Chinese manufacturer Foxconn. Kelly became civically engaged as residents tried to bring greater transparency to the plans for the factory and the potential use of eminent domain to forcibly bring back homes.

While the Foxconn facility never really took off (despite a big kickoff from President Trump and stacks of tax credits), Kelly continued to shine a spotlight on village council activities. Last year, she was shocked when the board suddenly decided to extend the terms of its members from two to three years.

The measure passed, but Kelly and his friends began collecting signatures for a petition to put the initiative on the next ballot. They succeeded.

While Kelly and other opponents described the council’s decision as a sudden power grab, the village lawyer told a local newspaper that “the discussion about [the change] started in 2018.” As someone who followed the advice closely, that seemed inaccurate to Kelly.

At this point, many people would be inclined to call the village lawyer a liar, but Kelly didn’t shoot from the hip. Instead, she filed an open records request asking for any discussion of the term extension effort. The attorney eventually responded saying it was only discussed at a meeting in 2021 before being proposed in 2022.

Armed with this information, Kelly contacted the reporter to prove that the lawyer had lied. She also shared the criticism on her Facebook and Twitter accounts. The village lawyer immediately threatened Kelly with legal action claiming his statements were “false and defamatory”.

Fearing she couldn’t afford a legal battle, Kelly backtracked on her statements but continued to vigorously engage with the issue. But despite complying with her demands, the village lawyer still sued Kelly, saying his criticism of the government had caused him “emotional distress”.

Again, the village lawyer did not hire another lawyer to draft and file the lawsuit, he did it all himself. According to a law firm that specializes in such lawsuits, a contested case can cost anywhere from $4,000 to $6,000 per month. So, costing his time aside, the village lawyer thought he had found a gratuitous way to punish Kelly and convince her to disengage from the political battle altogether.

But last week, the Institute for Justice (IJ) stepped in to defend Kelly, asking the judge to dismiss the case. IJ and Kelly had worked together several years ago during the potential eminent domain battle over Foxconn.

But while Kelly now has lawyers in her corner, not everyone facing a SLAPP lawsuit is lucky enough to have a national nonprofit take up their case. Across the country, 32 states and the District of Columbia have passed “anti-SLAPP” laws, but Wisconsin is not among them. These laws allow defendants in cases like Kelly’s to move quickly to dismiss the lawsuit and, if successful, to have attorney fees covered by the party who filed the lawsuit.

There’s another old saying, “Politics is not a poof.” In other words, government officials must recognize that the cost of power engages in vigorous debate. Burying your opponents in court costs is simply un-American. The First Amendment protects people’s right to engage in political debate, but SLAPP lawsuits have the potential to eviscerate that right. Wisconsin and other states should see Kelly’s story as another powerful reason for them to act now to protect anyone facing a lawsuit that threatens their free speech.

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