Report on anti-gay slur could put Wisconsin news site out of business

The county board meeting in Wausau, Wisconsin, on Aug. 12, 2021, got contentious fast. Nobody disputes that.

But what happened about 12 minutes in, as members of the north-central Wisconsin community squabbled over a resolution intended to promote diversity and inclusion, has become the subject of a bitter legal fight that threatens to bankrupt one of the few remaining sources of local news in the area. First Amendment experts say the case highlights a troubling trend of wealthy and powerful people using defamation law as retribution.

Acting on a tip from a reader, the Wausau Pilot & Review reported that during the meeting, the owner of a shredding and recycling company, Cory Tomczyk, called a 13-year-old boy a homophobic slur. Tomczyk, who is now a Republican state senator, denied using the slur and demanded a retraction. When the Pilot & Review stood by its article, Tomczyk sued.

Three additional people who attended the meeting later gave sworn statements that they had heard Tomczyk use the word. And during a deposition, he admitted having said it on other occasions.

In late April 2023, a judge dismissed the lawsuit, ruling that Tomczyk had not met the legal standard for proving that the report defamed him.

But that was not the end of the matter for the small and financially pinched Pilot & Review, a nonprofit that has already racked up close to $150,000 in legal bills from the case. Tomczyk has filed an appeal. And the publication's founder and editor, Shereen Siewert, said she has no idea how she can continue paying both her lawyers and her staff of four.

"Every time I open the mail," said Siewert, describing how she dreads finding a new bill, "I want to throw up."

"Those dollars could be going to pay reporters for boots-on-the-ground coverage, not paying legal fees for a lawsuit that appears designed to crush us," she added.

As politicians have grown more comfortable condemning media outlets they view as hostile — banning reporters from covering events, attacking them on social media, accusing them of being an "enemy of the people" — some public officials have started using the legal system as a way of hitting back. Former President Donald Trump has filed numerous unsuccessful defamation lawsuits against news organizations. Late last month, a federal judge threw out his latest — a $475 million suit against CNN.

Other prominent Republicans have followed his lead, including Devin Nunes, the former Republican congressperson Trump hired to run his social media network, Truth Social. Nunes has sued several outlets, including the Washington Post and CNN, for publishing stories that were unfavorable to him. In Mississippi, former Gov. Phil Bryant is suing a news organization over its Pulitzer Prize-winning coverage that exposed how he misspent state welfare money to build a volleyball stadium.

The Wisconsin case, First Amendment experts warned, 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.

That is the case with the Pilot & Review, even though there is scant evidence that it reported anything false — let alone that it did so with "actual malice," the long-established burden of proof that public officials such as Tomczyk must meet in a defamation case.

"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," said Rodney Smolla, president of the Vermont Law School, who has represented several prominent plaintiffs in defamation suits against the media. This case, he added is not a "he-said/she-said" matter but "a 'three-said,' and more."

Through his lawyer, Tomczyk declined to comment on the case. The lawyer, Matthew Fernholz, said his client was "categorically denying that he used the word," or any derivative of it, during the meeting.

The Pilot & Review, started in 2017 by Siewert, a former journalist for the Gannett newspaper chain, covers the ups and downs of life in its corner of Wisconsin — ice fishing and high school basketball, but also more serious fare. It quickly established itself as a respectable, enterprising source of news as others were cutting back.

It published scoops on drinking water contamination and the questionable granting of public contracts, helping to fill the considerable news void left by national media chains such as Gannett as they eliminated scores of local journalism jobs in the state.

Before the suit, the Pilot & Review made plans for a modest expansion that would add a third journalist to its staff so it could start covering the smaller communities surrounding Wausau. Two years ago, the biggest local paper, the Wausau Daily Herald, sold the headquarters it had occupied since 1958 and retains a minimal presence in the community.

"We were really humming along," said Siewert. "Then this happened."

After the contentious meeting, as word of the incident lit up the social media feeds of people in and around Wausau, Siewert worked to verify what had happened. As part of her reporting, she obtained a Facebook message from the 13-year-old boy's mother, who had attended to support her son. The mother wrote to a friend that she'd heard a man she didn't know utter the slur.

"I am in tears and livid," her message said. The mother's friend responded, "His name is Cory Tomczyk," court documents show. That message, and a follow-up conversation Siewert had with the mother, gave her the confidence that she had the story "100 percent" accurate, according to court documents. And she published the article.

Tomczyk has acknowledged using the word before. Court filings submitted by the Pilot & Review's lawyer, Brian Spahn, quote Tomczyk as saying in a deposition, "I have a brother who is a gay guy, and I've certainly out of joking and out of spite called him a [homophobic slur] more than once."

Tomczyk, as part of his legal pleadings, argued that the article intentionally damaged his reputation. He cited testimony from a woman who sat next to him during the meeting, who said she had never heard him say the slur or anything about anyone else in attendance. He has also pointed to the fact that no journalists from the Pilot & Review attended the meeting and that the site based its reporting on the accounts of others who were there.

Wisconsin and more than a dozen other states offer little recourse to fight back against punitive lawsuits with little or no merit.

Media lawyers warned that there was little holding this kind of lawsuit back now that conservatives seem to have realized it's in their interest politically to sue, even if it is likely the cases will be dismissed.

"I think we've got a situation now where these lawsuits are so pervasive, and the claims for damages are so astronomical, that chills," said Laura Lee Prather, chair of the media law practice group at the firm Haynes Boone. "A chill not just on the journalists or the news organization that's on the receiving end of the lawsuit, but on anyone else who might be considering writing on the same subject."

And in communities like Wausau, that chill on reporting comes on top of an already hollowed-out local media, decimated by more than a decade of cuts. Often, publications like the Pilot & Review are all that's left of a local press corps.

Some First Amendment advocates said the playbook was relatively easy to replicate: A public official unhappy with the coverage sues, creating crushing costs for an outlet.

"The vulnerabilities these news organizations face from these lawsuits is really, really tremendous," said Vivian Schiller, executive director of Aspen Digital, an organization that focuses on resources for local media and a former executive at the New York Times Co. "And yes, they can be sued into oblivion."