by Bill Lueders, Wisconsin Examiner
August 17, 2023
This is not a great time to be a newspaper. Besides continually meager, often plunging readership and ad revenues, there’s the fact that some people would like nothing more than to shut you down as a way to shut you up.
Last Friday in Kansas, police raided the offices of the local newspaper, the Marion County Record, as well as the home of its publisher, trying to learn who may have served as a source on a story involving a local restaurant. The officers seized computers and cell phones, with the traumatic event precipitating the death of the publisher’s 98-year-old mother, who had been the paper’s co-owner.
In March in Oklahoma, the sheriff and three other McCurtain County officials were caught on tape discussing how they might go about beating, killing and burying the father and son team who ran the local paper, the McCurtain Gazette-News. “I know where two deep holes are dug if you ever need them,” county commissioner Mark Jennings told the sheriff, Kevin Clurdy, who replied “I’ve got an excavator.” (They also waxed nostalgic about the good old days when you could just hang uppity Blacks.) Jennings promptly resigned amid calls for him to do so; the state’s Republican attorney general in June announced that Clurdy will not face charges or removal from office.
And now there is a case in Wisconsin that is drawing national attention as an example of the use of brute force by government officials against a local news outlet. In an article that appeared in Wednesday’s paper, New York Times reporter Jeremy W. Peters looks into the lawsuit brought by Cory Tomczyk, now a Republican state senator from Mosinee, against the Wausau Review & Pilot, a digital newspaper started and edited by Shereen Siewert.
Tomczyk, then just a businessman and former school board member, alleged that the paper defamed him when it published accusations that he had called a 13-year-old boy a “fag” during an Aug. 12, 2021, meeting of the executive committee of the Marathon County board in central Wisconsin. The boy had spoken in favor of a resolution called “A Community for All,” which was meant to reinforce the importance of diversity and inclusivity.
The boy’s mother said she heard a man’s voice behind her calling her son a “fag” and that the source of the comment was later identified to her as Tomczyk. The Pilot & Review, in its initial story on Aug. 21, did not name the individual other than to say it was “a local businessman.” In its story a week later, the paper said Tomczyk was “widely overheard” using this derogatory term.
Tomczyk emphatically denies calling the boy this ugly word. But, in a deposition for the case, he admitted that he uses it regularly: “I have a brother who is a gay guy, and I’ve certainly out of joking and out of spite called him a ‘faggot’ more than once.” Tomczyk was elected to the state Senate in the heavily Republican district last fall.
The case, in which Tomczyk and his shredding and recycling business are the named plaintiffs, was dismissed this April, with a judge finding that Tomczyk had failed to meet the legal standard for defamation.
“[T]he court concludes that Tomczyk was a public figure and, because the plaintiffs cannot establish that the defendants acted with actual malice, their claims must be dismissed,” wrote Marathon County Circuit Court Judge Scott M. Corbett in his six-page ruling granting summary judgment for the Pilot & Review. He said that, based on the available record, “it is not possible to find that the defendants had serious doubts about the truth of the [article],” as would be required to find actual malice.
But Tomczyk is appealing, and Siewert, who told the Times her publication has already incurred nearly $150,000 in legal bills from the case, is not sure where the money to keep defending itself in court is going to come from.
Every time she opens the mail and sees a new bill, she related, “I want to throw up.”
No laws against it
Siewert, formerly a reporter for the Gannett newspaper chain and editor at City Pages, a Wausau alternative publication, founded the Pilot & Review in 2017, and has managed it with just a two-person reporting staff. The newspaper has covered issues regarding contaminated drinking water and questionable public contracts. (Its lead story on Wednesday was about a dispute between the school district and school board over elementary school principals.) She was hoping to hire a third journalist to expand local coverage into nearby communities but then, as she told the Times, “This happened.”
In an email exchange on Wednesday, Siewert said she believed the purpose of Tomczyk’s lawsuit is “to bankrupt me and crush our organization.” She recalled her sense of relief when the lawsuit was dismissed. “But then the realization hit that even if we win, we lose, because there is no way for us to counter sue or recoup our losses in any way … because we live in Wisconsin.”
Unlike 31 other states and the District of Columbia, Wisconsin has no laws on its books to push back against what are known as SLAPP lawsuits, meant to silence critics by presenting them with crushing legal costs that cannot be recovered, even in cases where the suits have little merit. The Times article notes that former President Donald Trump has filed “numerous unsuccessful lawsuits against news publications, including a $475 million lawsuit against CNN that just got thrown out of federal court. And former Mississippi Gov. Phil Bryan is now suing a local news outlet over its coverage of the misuse of welfare funds to build a sports stadium, for which the outlet, Mississippi Today, won a Pulitzer Prize.
According to the Times, First Amendment experts say the Wisconsin case “shows how a single defamation suit can become a cudgel against the media in a way the law never intended. For small local news organizations, many of which are barely getting by financially, the suits threaten to put them out of business.
The Times quoted Rodney Smolla, president of the Vermont Law School, as saying: “It would be an affront to freedom of speech and press to allow Mr. Tomczyk to continue to impose expense and time on The Wausau Pilot.” Smolla has represented prominent plaintiffs in defamation lawsuits against the media.
The Gray Lady also quoted former Times executive Vivian Schiller, executive director of Aspen Digital, an organization that works with local media. “The vulnerabilities these news organizations face from these lawsuits is really, really tremendous,” Schiller said. “And yes, they can be sued into oblivion.”
Tomczyk did not immediately respond to an email sent Wednesday seeking comment for this article — specifically whether his goal is to put the Wausau Pilot & Review out of business. He also declined comment to the New York Times report.
Siewert says the paper has started a Go Fund Me page to help cover its legal defense costs “and keep local reporters working.”
Wisconsin Examiner is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Wisconsin Examiner maintains editorial independence. Contact Editor Ruth Conniff for questions: [email protected]. Follow Wisconsin Examiner on Facebook and Twitter.
