UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GEORGE THOMPSON III,
Case No. 96-C-641
NATIONAL CATHOLIC REPORTER
PUBLISHING COMPANY, THOMAS C. FOX,
LESLIE WIRPSA and CHRIS CURRY,
ORDER GRANTING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT (DOC. #28) AND
DEFENDANTS' SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT
DISMISSING PLAINTIFF'S SECOND AMENDED COMPLAINT (DOC. #51)
AND DISMISSING CASE WITH PREJUDICE
Before the court is the defendants' Motion for Summary Judgment
(doc. #28) and Supplemental Motion for Summary Judgment Dismissing
Plaintiff's Second Amended Complaint (doc. #51). For the reasons
set forth herein, the motions will be granted.
FACTUAL BACKGROUND 1
The plaintiff, George Thompson III, Briggs & Stratton
Corporation, John Shiely, and Thomas Krukowski commenced this
diversity action claiming defamation and invasion of privacy after
the defendants published an article, editorial and graphics
(collectively, the "articles") in the December 1994
issue of the National Catholic Reporter (NCR), captioned "Adios
American Dream." Each of the plaintiffs requested dismissal
of their claims with the exception of Thompson. The articles in
question chronicle layoffs at the Milwaukee plant of Briggs &
Stratton Corporation and relocation of the company's facilities.
In addition, the articles discuss the moral, economic and social
implications of transferring jobs out of a community, both
generally and with respect to Briggs & Stratton.
For example, the editorial states:
This week's cover story shows with stunning clarity how
corporate decisions hurt ordinary people and what they reveal
about decisionmakers who live in either denial or moral blindness.
What makes this week's story on Briggs & Stratton
particularly painful is that among the decisionmakers involved --
among those seemingly blind to the consequences of their choices
-- are Catholics educated in Catholic institutions.
Bill Lange, identified in the article as a Briggs worker and
union activist, states that he "thinks it is contradictory
that many of the executives at Briggs are prominent Milwaukee
Catholics who, he believes, have strayed from the social teachings
of the church. He says their management strategies disregard
tenets outlined, for example, in the U.S. bishops' economic
pastoral, a document developed under the leadership of Milwaukee
Archbishop Rembert Weakland."
Thompson 'is not mentioned by name in either the editorial or
graphics. However, the article mentions him twice:
Briggs & Stratton refused to grant NCR any
interviews to discuss the company strategy; public relations
officials not even make a telephone statement. Spokesman George
Thompson III would only remark Nov. 16 that the company had been
frustrated in the past in trying to tell its side of the story. He
said that reporters only tell the story from the union's side of
the dispute and that no one in the company would be available to
answer NCR's question.
Thompson is also mentioned after Lange's comments referenced
A spokesperson at Briggs & Stratton confirmed that
the company's president, John Shiely, is a Catholic and a graduate
of Marquette University High School, Notre Dame University and
Marquette University law school.
Marquette is the alma mater of other top players in the
controversy, including George Thompson III, director of public
relations, and Tom Krukowski, a lawyer hired by the firm to help
negotiate a settlement. The company refers to Krukowski as a
specialist in "win-win" bargaining. Union members deride
the choice of Krukowski as a "sick joke." One local
newspaper account refers to Krukowski as "a man long
demonized in labor circles as a union-buster."
Thompson contends that he was libeled by implication and
innuendo. He asserts that when viewed in the context of the
article, editorial and graphics, the words "Catholic," "decisionmaker"
and "top player" imply that he "made immoral
unethical decisions, is blind to the consequences of his
decisions, [and] has strayed from the social teachings of the
Church. 2 Thompson further argues that he is
not a limited purpose public figure, but even if he is, the
defendants published the articles with actual malice. Finally,
Thompson asserts that the defendants invaded his privacy under
Wis. Stat. § 895.50(2)(c).
Defendants moved for summary judgment claiming that: 1) Thompson
is a limited purpose public figure who has failed to prove actual
malice; 2) Thompson does not state a claim for invasion of
privacy; and, 3) Thompson failed to give proper notice of the
alleged defamation under Wis. Stat. §895.05(2).
STANDARD FOR SUMMARY JUDGMENT
Summary judgment is proper where "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c); see Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In determining
whether a genuine issue of material fact exists, courts must
construe all facts in the light most favorable to the party
opposing the motion and draw all justifiable inferences in favor
of that party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255,106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986). However,
neither "the mere existence of some alleged factual dispute
between the parties," Anderson, 477 U.S. at 247, 106
S.Ct. at 2510, nor the demonstration of "some metaphysical
doubt as to the material facts," Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348,
1356, 89 L.Ed.2d (1986), will sufficiently demonstrate a genuine
issue of fact. In that regard, the "mere existence of a
scintilla of evidence in support of the plaintiff's position will
be insufficient." Anderson, 477 U.S. at 252, 106
S.Ct. at 2512.
In Anderson, the Supreme Court made clear that the same
burden of proof applies at the summary judgment stage as would
apply at trial. Therefore, if the court concludes that the
plaintiff is a public figure, the plaintiff must set forth facts
that would permit a reasonable finder of fact to conclude by clear
and convincing evidence that the defendants published the
defamatory statements with actual malice. Anderson, 477 U.S. at
1. The plaintiff is a limited purpose public figure
As an initial matter, the court must determine whether Thompson
is a public figure. 4 An individual may be a
public figure for all purposes due to general fame or notoriety.
But, more commonly, one achieves the status of a public figure by
involvement in a particular public issue or controversy. In these
instances, the person becomes a public figure for a limited range
of issues. Wiegel v. Capital Times Co., 145 Wis.2d 71, 426
N.W.2d 43, 48 (Ct. App. 1988). "Absent clear evidence of
general fame or notoriety in the community, and pervasive
involvement in the affairs of society, an individual should not be
deemed a public personality for all aspects of his life."
Gertz v. Welch, 418 U.S. 323, 352 (1973). But "an
individual [who] voluntarily injects himself or is drawn into a
particular public controversy thereby becomes a public figure for
a limited range of issues." Id. at 351.
Neither side argues that Thompson is a general purpose public
figure, even though there is evidence to support that conclusion.
5 Therefore, the court will focus on whether
the plaintiff is a limited purpose public figure. This threshold
issue is resolved by the court as a matter of law, not by a jury
as a question of fact. Lewis v. Coursolle Broadcasting,
127 Wis. 2d 105, 377 N.W.2d 166, 168 (1985).
Wisconsin courts have adopted the "federal analysis"
for determining whether a defamation plaintiff is a limited
purpose public figure. Under this analysis, the court: (1)
isolates the controversy at issue; (2) examines the plaintiff's
role in the controversy to ensure that it is more than trivial or
tangential; and, (3) determines if the alleged defamation was
germane to the plaintiff's participation in the controversy. Bay
View Packing Co. v. Taff, 198 Wis. 2d 653, 543 N.W.2d 522, 531
(1995); Van Straten v. Milwaukee Journal, 151 Wis. 2d 905,
447 N.W.2d 105, 108 (Ct. App.1989). The federal analysis
deemphasizes the voluntariness of the plaintiff's involvement in
the controversy, but retains the underlying presumption that a
public figure plaintiff is usually one whose status ensures easy
access to the media and the opportunity to rebut defamatory
a. With fears of NAFTA looming, Briggs & Stratton's
decision to move jobs from Milwaukee constituted a public
The court must initially determine whether a public controversy
existed. Dispositive of this issue is whether the dispute has "an
impact outside of those immediately interested in the dispute."
Denny v. Mertz, 106 Wis. 2d 636, 318 N.W.2d 141, 148
(1982). The question is not whether the issue is only of 'general
or public interest', Gertz, 418 U.S. at 346, or is merely "newsworthy,"
Waldbaum v. Fairchild Publications, 627 F.2d 1287, 1296
(D.C. Cir. 1980). "[I]t must be a real dispute, the outcome
of which affects the general public or some segment of it in an
appreciable way." Id. Hence, "[i]f the issue was being
debated publicly and if it had foreseeable and substantial
ramifications for non-participants, it was a public controversy."
In this case, it is indisputable that a public controversy
existed. 6 Beginning in the late 1980's,
Briggs & Stratton, once the largest employer in metropolitan
Milwaukee, began transferring jobs from its Milwaukee area plants
to plants in Murray, Kentucky; Poplar Bluff, Missouri; and Juarez,
Mexico. On May 17, 1994, in the wake of the North American Free
Trade Agreement, the company announced the transfer of 2,000
Milwaukee area jobs to non-union locations in the southern United
States while the corporation was earning record profits. Briggs &
Stratton's decision to eliminate 2,000 Milwaukee jobs attracted
widespread public comment and controversy, including pleas from
community and religious leaders to reverse the decision.
b. The plaintiff's role in the controversy was more than
trivial or tangential.
As the Director and Vice-President of Corporate Communications
for Briggs & Stratton, the plaintiff's role in this
controversy is unquestionably more than trivial or tangential.
During the period in question, the plaintiff frequently and
publicly defended the company's layoff decisions. He was quoted in
a number of publications before and after the National Catholic
Reporter published its December 2, 1994, articles on Briggs'
decision to move jobs out of the Milwaukee area. 7
See doc. #33, p. 574, 582, 586, 592, 599 and 601;
Defendants Summary Judgment Appendix, Vol. 3, p. 860-865; Supp.
Aff, of Laura Olsen Dugan, doc. #54. Thompson's access to the
media, as described above, as well as his job description, which
includes public relations and media communications on matters
involving Briggs & Stratton, strongly weigh in favor of
finding that he is a limited purpose public figure.
c. The alleged defamation was germane to the plaintiff's
participation in the controversy.
Finally, the court must conclude that the editorial, article and
graphics were germane to the plaintiffs participation in the
controversy. The articles were published to emphasize the social
and economic consequences of job transfers, both with respect to
Briggs & Stratton and other companies. The articles further
emphasize that "Corporate America has responsibilities that
go beyond the next quarter's profits." The plaintiff asserts
that the defendants defamed him by implying that he was one of the
parties responsible for transferring jobs from Milwaukee, and for
the consequences of those job transfers. Because Thompson is a key
public spokesperson and Vice President of Corporate Communications
for Briggs & Stratton, the purportedly defamatory statements
are germane to the plaintiff's participation in the controversy.
3. The plaintiff has failed to prove by clear and convincing
evidence that the defendants published the article, editorial and
graphics with actual malice
Because the plaintiff is a public figure, Thompson must prove by
clear and convincing evidence that the defendants acted with
actual malice. Masson v. New Yorker Magazine, 501 U.S.
496, 508 (1991). Actual malice exists if the defendants published
defamatory statements with knowledge of their falsity or with
reckless disregard for their truth. New York Times v. Sullivan,
376 U.S. 254, 280 (1964). Knowledge of falsity means that the
defendants were actually aware that the publication was false.
Reckless disregard of the truth or falsity of a publication
occurred if the defendants "in fact entertained serious
doubts as to [its] truth," St. Amant v. Thompson, 390
U.S.,727, 731 (1968), or a high degree of awareness of [its]
probable falsity." Garrison v Louisiana, 379 U.S. 64,
74-75 (1964). As a result, proof of journalistic negligence is
never enough. St. Amant, 390 U.S. at 733.
As the Seventh Circuit has noted:
Probative evidence of recklessness includes a
publisher's knowledge of serious factual inconsistencies, as well
as his failure to investigate or independently verify disputed or
questionable factual assertions. Recklessness may be found, for
example, where there are clear reasons to doubt the truthfulness
of the informant or the accuracy of his reports or where a story
is fabricated by the defendant or is based entirely on an
unverified anonymous telephone call. At the same time, proof of
failure to investigate, by itself, is not sufficient to establish
a publisher's reckless disregard for the truth or falsity of the
Woods v. Evansville Press Co., Inc., 791 F.2d 480, 485
(7th Cir. 1986).
The plaintiff has failed to satisfy this standard. First, the
plaintiff has not proven that the statements at issue are
defamatory. There are three basic components of a defamatory
communication in Wisconsin 8:
a. the statement is false;
b. the statement is communicated by speech, conduct, or in
writing to a person other the person defamed, and
c. the communication is unprivileged and tends to harm one's
reputation as to lower him in the estimation of the community or
to deter third persons from associating or dealing with him.
Restatement (Second) of Torts § 559 (1977). Furthermore, "[i]n
determining whether the language is defamatory, the words must be
reasonably interpreted and must construed in the plain and popular
sense in which they would naturally be understood in the context
in which they were used and under the circumstances they were
uttered." Tatur v. Solsrud, 174 Wis.2d 735, 498
N.W.2d 232 (1992).
The plaintiff argues that the articles defamed him by
implication by attributing the jobs transfers, as well as the
social consequences of those decisions, to him personally, and by
questioning the morality of those decisions. More specifically, he
asserts that the articles designated him as a "prominent
Milwaukee Catholic," as well as a decisionmaker and top
player for Briggs & Stratton. As the parties concede, there is
nothing inherently defamatory about calling someone a "prominent
Milwaukee Catholic," or a decisionmaker or top player at
Briggs & Stratton. Therefore, the court must examine whether
the statements, when viewed in the context of the article,
editorial and graphic, defame the plaintiff.
The court concludes they do not. Some of the purportedly
objectionable phrases do not concern the plaintiff, and are not
defamatory per se. See Luthey v. Kronschnabl, 239
Wis. 375, 1 N.W.2d 799, 801 (1942) ("certainty as to the
person who is defamed must appear from the words themselves, for
no innuendo can render certain that which is uncertain"). For
example, the article does not state that Thompson is a prominent
Milwaukee Catholic, only that he graduated from Marquette
University. Similarly, the articles do not explicitly call
Thompson a "decisionmaker" at Briggs & Stratton.
Instead, he is referred to as Briggs & Stratton's Director of
Corporate Communications and a "top player" in the
Furthermore, the plaintiff has failed to prove the falsity of
some of the statements in the articles. See Philadelphia
Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (burden of proof
to prove falsity on plaintiff). For example, Thompson states that
there is no formal record that he was baptized in the Catholic
church, 9 but concedes that he has attended
Catholic services sporadically throughout his life. Furthermore,
Thompson does not state unequivocally that he is not, and has
never considered himself, Catholic. Furthermore, the plaintiff has
not established that he is not a top player in the controversy. As
Briggs & Stratton's Vice President of Corporation
Communications, Thompson regularly spoke publicly on behalf of the
company defending its decision to move jobs. Under the
circumstances, it is reasonable to conclude that George Thompson
was a "top player" in the controversy.
Finally, the court concludes as a matter of law that no
reasonable person could find that George Thompson was a
decisionmaker at the company, responsible for the job transfers at
issue and their social and economic consequences. This court does
not believe that a rational person would think that Briggs &
Stratton's public relations spokesperson was responsible for
cutting 2,000 jobs at Briggs & Stratton. Hence, the plaintiff
cannot establish his defamation claim.
Even if the articles are defamatory, the plaintiff has failed to
prove by clear and convincing evidence that the defendants acted
with actual malice. The plaintiff has submitted no evidence that
the defendants, then or now, doubt the veracity of the articles.
Nothing suggests that the defendants knew they were "writing
falsehoods or feared that [they] might be doing so but barged
ahead without checking." Underwager v. Salter, 22
F.3d 730, 735 (7th Cir. 1994). There is no allegation that anyone,
even Bill Lange, was misquoted. See Def. Proposed Findings
of Fact, ¶ 69.
In fact, it is clear that the defendants thoroughly investigated
the facts underlying the articles. Leslie Wirpsa wrote the article
about Briggs & Stratton's layoff decision. Wirpsa reviewed
news accounts of the controversy, spent four days in Milwaukee
conducting nearly two dozen interviews, and compiled an extensive
file of notes and published materials which she used in writing
the news articles.
Furthermore, the defendants repeatedly attempted to get
Thompson's comments on the story. Wirpsa requested interviews with
Briggs & Stratton officials on several occasions before
writing her story, but the company, by its spokesperson, Thompson,
refused her requests. Neither did the company or Thompson respond
to the newspaper's requests for news releases or any other
information about the company's perspective on the controversy.
Before the article went to press, Wirpsa's immediate editor, Tom
Roberts, called Briggs & Stratton in an effort to "do
anything necessary -- fly anywhere at any time -- to accommodate
the company's representative in order to get Briggs &
Stratton's side of the story. Thompson again refused comment.
Based on the foregoing, this court is satisfied that there is not
clear and convincing evidence that the defendants acted with
4. The defendants are entitled to summary judgment on the
plaintiff's invasion of privacy claim.
Finally, the plaintiff assert that the defendants invaded his
privacy under Wis. Stat. § 895.50(2)(c) 10.
The plaintiff asserts that the defendants invaded his privacy
reasonably expected that his religious beliefs and
adherence vel non thereto were private matters specifically with
respect to 'the social teachings of the church.' Accordingly the
investigation into the religious affiliation of the plaintiff and
the publication of whether or not the plaintiff adhered to the
'social teachings of the church,' designating him as a 'prominent
Milwaukee Catholic' who was a 'decisionmaker' at Briggs &
Stratton and was 'seemingly blind to consequences of (his)
choices' constitute invasion of privacy.
Second Amended Complaint, ¶ 21.
It appears that these assertions attempt to bootstrap Thompson's
defamation claim onto Wis. Stat. § 895.50. The court has
already ruled that the articles do not state that Thompson is
either Catholic or a decisionmaker at Briggs & Stratton.
Similarly, the court finds that the articles do not state that
Thompson violated the social teaching of the Catholic church, or
is blind to the consequences of his choices. Because the
purportedly objectionable phrases do not specifically identify
Thompson, his invasion of privacy must fail.
IT IS ORDERED that the defendants' Motion for Summary Judgment
(doc. #28) and Supplemental Motion for Summary Judgment Dismissing
Plaintiff's Second Amended Complaint (doc. #51) are granted.
IT IS FURTHER ORDERED that this case is dismissed with prejudice.
Dated at Milwaukee, Wisconsin, this 10th day of April,
BY THE COURT
C. N. CLEVERT
U. S. District Judge
This 10th day of April, 1998, pursuant to Rule 77(d) Federal
Rules Of Civil Procedure, copies of this document were mailed to
the following parties:
Robert J. Dreps
One East Main Street
P.O. Box 2719
Madison, WI 53701-2719
Robert E. Sutton
Sutton & McNamara-McGraw
2631 North Downer Ave.
Milwaukee, WI 53211-4245
1 Pursuant to Local
Rule 6.05(d), the court has concluded that there is no genuine
material issue as to findings of fact to which there was no
response. Any factual statements which are disputed and do not
have support in the record were disregarded for purposes of this
decision. If a disputed fact proposed by the plaintiff is
supported by the portion of the record cited, the court accepted
the plaintiff's version as true. To the extent the plaintiff's
objections to the proposed findings of fact failed to cite
specific evidentiary support, the objection was given no weight.
The district court need not scour the record to determine whether
there exists a genuine issue of fact to preclude summary judgment.
L.S. Heath Sons, Inc. v. AT&T, 9 F.3d 561, 567 (7th
2 Incidentally, the
court has already ruled that it does not have subject matter
jurisdiction over this suit to the extent the plaintiff is asking
the court to interpret church laws, policies or practices. To the
extent that the articles can be construed as charging the
plaintiff with dishonorable or unethical conduct, not related to
religion per se, his claims will go forward. see doc. #24.
3 Because the court
concludes that the plaintiff has not proven his defamation claim,
the court does not reach this issue.
4 Whether a plaintiff
is a public figure or simply a private person is a question of
federal constitutional law and Supreme Court rulings are
controlling. However, because the Supreme Court has not defined
the contours of who constitutes a public figure and because states
are entitled to provide a broader, though no more constricted,
meaning to public figures, resort to Wisconsin case law is
appropriate in this diversity action. Harris v. Quadracci,
48 F.3d 247, 250 (7th Cir. 1995).
5 The plaintiff
admits to achieving celebrity as one of Marquette University Coach
Al McGuire's first star basketball players in the 1960's. He
played professional basketball with Pittsburgh and Memphis of the
American Basketball Association (ABA) and the Milwaukee Bucks of
the National Basketball Association (NBA). See Thompson
Affidavit, ¶ 10.
6 In fact, the
plaintiff appears to concede this fact. See Defendant's
Proposed Findings of Fact, ¶16, which is uncontroverted.
7 An individual who
was once a public figure with respect to a controversy remains a
public figure for latter commentary on that controversy. Milsap
v. Journal Sentinel, Inc., 100 F.3d 1265, 1269-7 (7th Cir.
defenses to defamation claims are irrelevant unless state law
creates liability. Underwager v. Salter, 22 F.3d 730, 733
(7th Cir. 1994). Federal courts decide constitutional questions
only when necessary. Id.
9 Paragraph 19 of
Thompson's second amended complaint filed December 19, 1997,
states he "was baptized in the Roman Catholic Church as an
infant ... " This was disavowed during Thompson's deposition
on January 5, 1998, when he says "there is no official record
of that ... I guess my attorney just assumed that. he probably
just made a mistake. I never told him that ... Well, I know I have
not been officially baptized in the Catholic Church."
However, Thompson concedes he has not checked St. Peter Claver
Parish in New York, which he attended as a child to see if it has
a baptismal record for him. see Sutton Affidavit (Doc.
#69), Ex. 4, at p. 46. In Thompson's affidavit, he adds that as a
child he and his family frequently attended St. Peter Claver Roman
Catholic Church, that he played Catholic Youth Organization
basketball at the church, and that he also belonged to the boy
scout troop at St. Peter Claver. See Thompson Affidavit,
Doc. #43, pp. 1-2.
10 Wis. Stat. §
(2) In this section, "invasion of privacy"
means any of the following:
(c) Publicity given to a matter concerning the private life of
another, of a kind highly offensive to a reasonable person, if the
defendant has acted either unreasonably or recklessly as to
whether there was a legitimate public interest in the matter
involved, or with actual knowledge that none existed. It is not an
invasion of privacy to communicate any information available to
the public as a matter of public record.