Government Officials Should Not Shut Down Public Debate With Bogus Lawsuits

There’s an old saying 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 suit himself and, given the state of defamation law, it’s unlikely he would be awarded any damages. But his critic isn’t an attorney and just hiring a lawyer to defend herself would mean a significant expense. It’s a crafty plan and the city attorney almost got away with it.

Before getting into the details, filing a lawsuit to silence your opposition is not a new strategy—it even has an acronym: SLAPP. A Strategic Lawsuit Against Public Participation is a civil suit that’s main purpose is to intimidate someone into withdrawing from an argument. The party filing the lawsuit is not always a politician or government official, but many of the most well-known examples of SLAPP lawsuits involve politics.

Kelly Gallaher lives in Mount Pleasant, Wisconsin. If you’ve heard of Mount Pleasant, it is almost certainly because the village is the home of 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 take homes.

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

The measure passed, but Kelly and her friends started gathering signatures for a petition to put initiative on the next ballot. They were successful.

While Kelly and other opponents painted the council’s move as a sudden power grab, the village attorney told a local newspaper that “discussion of [the change] began in 2018.” As someone who closely followed the council, that struck Kelly as inaccurate.

At this point, many people would be inclined to call out the village attorney as 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 by saying it had only been discussed at one 2021 meeting before it was proposed in 2022.

Armed with this information that Kelly reached out to the reporter to make the case that the attorney lied. She also shared the critique on her Facebook and Twitter accounts. The village attorney immediately threatened Kelly with a lawsuit claiming that her statements were “false and defamatory.”

Concerned that she could not afford a legal battle, Kelly retracted the statements but continued to vigorously engage in the issue. But despite complying with his demands, the village attorney filed a suit against Kelly anyway, claiming that her criticism of the government had caused him “emotional distress.”

Again, the village attorney did not hire another lawyer to draft and file the suit, he did everything himself. According to a law firm that specializes in these suits, a contested case can cost $4,000 to $6,000 per month. So other than the cost of his own time, the village attorney thought he found a free way to punish Kelly and convince her to completely disengage in the political battle.

But last week, the Institute for Justice (IJ) stepped up 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 attorneys in her corner, not everyone who faces a SLAPP suit is lucky enough to get a national non-profit to take up their case. Across the country, 31 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 quickly move to dismiss the lawsuit and, if successful, to have their attorneys’ fees covered by the party that filed the suit.

There’s another old saying, “Politics ain’t beanbag.” In other words, government officials need to recognize that the cost of having power is engaging in vigorous debate. Burying your opponents in court costs is simply un-American. The First Amendment protects the right of people 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 potent reason for them to act now to protect anyone facing a suit that threaten their freedom of speech.