Megyn Kelly and other Fox News commenters did not defame a Wisconsin firefighter when they said it was “not right,” “disgusting,” and a “fraud” that he “exploited [a] supposed injury” to collect disability benefits “for life,” according to a recent Wisconsin Court of Appeals decision. The court found these comments to be “simply a collection of opinion statements based on fully disclosed … substantially true facts” and therefore not actionable under Wisconsin defamation law. The court’s ruling is an unusually strong statement of support for the right to comment on issues of legitimate public interest, even when the commentary is “sarcastic, belittling and impolite.”
The case, Marjala v. Fox News Network LLC, No. 2015AP1831 (Dec. 20, 2016), arose from news media reports on a North Shore Milwaukee firefighter, Aaron Marjala, who received duty disability benefits because of an ulnar nerve (funny bone) injury, but went on to compete in ironman triathlons and to enjoy waterskiing. The injury caused a deteriorating nerve condition that, even after two surgeries, left Marjala unable to lift a ladder or tie a knot. Two physicians for the state of Wisconsin independently examined Marjala and certified him as permanently disabled from work as a firefighter. After being told that there was no desk job available for him in the fire department, Marjala drew disability benefits and went back to school to become a licensed home inspector. Under Wisconsin’s duty disability system, his income from that work will be offset against, and could entirely displace, his right to disability benefits.
Marjala claimed he was defamed by Fox News because his injury and disability were genuine and not a fraud, and he was not claiming disability for life, but had launched a new career with income that might completely offset any disability benefits. The trial court granted a motion to dismiss his claims and the court of appeals affirmed.
Wisconsin has long held that expressions of opinion on matters of legitimate public interest are protected under a conditional privilege of fair comment. Our courts have cited the Restatement (Second) of Torts, which holds that a statement in the form of an opinion is actionable as defamation “only if it implies the allegation of undisclosed defamatory facts as the basis of the opinion.” But in sharp contrast to the Marjala opinion, the Wisconsin Supreme Court’s discussion of this privilege has emphasized its limitations. Thus, the Supreme Court has written that the “[c]onditional privilege … does not go beyond fair criticism in respect to the relations of persons to the public” and “does not extend to false statements of fact or unjust inferences, nor taunts, nor contemptuous and insulting phrases.”
Beyond the fact that the ulnar nerve is popularly called “the funny bone,” there was no evidence in the Marjala case that the firefighter’s injury, surgeries, and resulting condition were anything but genuine. Nor was there any proof that Marjala’s ability to participate in sports like triathlon and waterskiing rendered “not right” or a “fraud” the medical findings that he could no longer reliably handle ladders and ropes in lifesaving situations. The court, nonetheless, found the Fox News opinion statements about “fraud” and “supposed injury” to be permissible expressions of opinion on disclosed facts. The court also justified the statements by referring to the broader context of the news program, which included a discussion of New York’s problems with fraudulent disability claims.
The Marjala ruling is an unpublished per curiam opinion that may not be cited either as precedent or for its persuasive value in Wisconsin courts. It is, nonetheless, a resounding victory for the news media and an indication of the courts’ growing tolerance for even contemptuous commentary on issues of public concern. For those concerned about increasingly savage treatment of individuals in cable news and other media coverage, however, Marjala suggests there will be more to come.
David M. Lucey
Partner
Milwaukee, Wisconsin
414.297.5511
dlucey@foley.com
Max B. Chester
Partner
Milwaukee, Wisconsin
414.297.5573
mchester@foley.com
