5.23.24

The News: The Wisconsin Institute for Law & Liberty (WILL) has filed an appeal on behalf of Scarlett Johnson, a Wisconsin Moms for Liberty Activist, who is being sued for defamation for criticizing her school district on social media for employing a “social justice coordinator.” WILL filed this appeal because Ms. Johnson’s posts are protected by the First Amendment. She should not have to endure a costly, pointless, and incoherent jury trial. 

The Quotes: WILL Deputy Counsel, Luke Berg, stated, “The case against Ms. Johnson should have been promptly dismissed. She was expressing her opinion, and the First Amendment gives her the right to do so. We hope the Court of Appeals allows her to appeal to avoid a misguided trial.”   

Scarlet Johnson, stated, “We have a right to free speech in this country and no one should be treated differently under the law because of their political beliefs. I am hopeful that we can establish what is a clear protection of the 1st Amendment.”  

Additional Background: The lawsuit involves a defamation claim for run-of-the-mill social media posts on X and Facebook. The posts in question criticized a school district for having a “social justice coordinator,” and described people who hold such positions as “woke,” “white savior[s]” with a “god complex,” “woke lunatics,” and “bullies.” Statements like these are pervasive on social media; indeed, they were more restrained than a lot of online speech. Nevertheless, the Plaintiff, who previously held the position, chose to respond with a defamation lawsuit.  

Why is this not Defamation: It is well- established, black-letter law that, to be actionable for defamation, a statement must be “provably false.” See Milkovich v. Lorain J. Co., 497 U.S. 1, 20 (1990). That is, a comment must directly state or clearly imply an objective, binary truth claim that listeners would reasonably understand to be either true or false.  

Courts regularly hold that nebulous concepts like “woke” and “bully” that are routinely and indiscriminately thrown about in public discourse are not actionable precisely because their meaning depends on one’s opinion and viewpoint. The statements Scarlet made fall squarely into the non-actionable, not-provably-false category.  

WILL’s petition asks the Court of Appeals to allow her to appeal, now, to prevent a costly and inappropriate trial over First Amendment protected speech. We are asking the Court to hold that statements like these are not actionable as defamation under Wisconsin law and are constitutionally protected. 

ABOUT WILL: We litigate, educate and participate in public discourse. Our case categories include Individual Liberties, Equality Under the Law, Constitutional Government and the Rule of Law, Economic Freedom, and Education Reform. We have prevailed in roughly 80% of the matters we have undertaken. Our record of winning is indisputable. WILL’s winning reputation has allowed us to settle other matters without ever filing a lawsuit. Find out more at: will-law.org. 

Read More: 

• Motion for Permissive Appeal