The Wisconsin Court of Appeals recently affirmed the trial court’s dismissal of firefighter Aaron Marjala’s claim for defamation against a news network, Robert Whitaker (chief of the fire department), television journalist Megyn Kelly, and a guest on her show, Lee Armstrong.

Marjala was a firefighter and injured the ulnar nerve in his right arm while on duty. His condition eventually worsened and precluded him from performing certain duties as a firefighter, such as lifting a ladder or tying a knot. Desk jobs with the fire department purportedly were unavailable, prompting Marjala to apply for duty disability benefits. He was certified as permanently disabled and approved for duty disability benefits. Thereafter, Marjala became a licensed national home inspector. Although he was unable to work as a firefighter, Marjala engaged in strenuous physical activities, including marathons and an Ironman triathlon.

Several years after Marjala began to receive duty disability benefits, Robert Whitaker, chief of the fire department, gave an interview for the television station WITI. An excerpt of the WITI interview was broadcast and Marjala’s receipt of disability benefits was discussed during a segment hosted by Megyn Kelly on a television news program. Marjala claims that Whitaker, Kelly and one of her guests, Armstrong made defamatory statements about him.

The appellate court explained that the principle of fair comment insulates one from liability for honest expressions of opinion on matters of legitimate public interest when based on true of privilege statements of fact. In affirming the trial court’s dismissal of Marjala’s claims, the appellate court agreed that Wisconsin’s duty disability system is an issue of public importance, and that both the WITI and Kelly’s broadcasts provided a full factual background about Marjala’s injury and receipt of duty disability.

Against that backdrop, the court found that none of the alleged statements were defamatory. Rather, the court agreed that when the broadcasts were viewed as a whole and in context, the statements were not actionable.

Whitaker’s Statements

Whitaker’s first statement: “To even have that activity come up and questioned, begs in my mind, what is [Marjala’s] current physical status”. Marjala contended that this statement implied that he was lying about his injury. The court found, however, that it was a statement of opinion based on true, disclosed facts. Specifically, Marjala was disabled because of his inability to perform certain tasks as a firefighter involving the ulnar nerve, but nonetheless engaged in activities that required the use of the ulnar nerve.

Whitaker’s second statement: “The system may need some reform”. Marjala argued that this statement implied that he was abusing and defrauding the system. The court disagreed, observing that the statement was made after the narrator of the program observed that the State does not require medical check-ups and that there is “almost no way” to overturn a decision finding that a firefighter is permanently disabled. The court thus interpreted Whitaker’s statement as a critique of the system, and not about Marjala.

Whitaker’s third statement: “[W]e are continually looking into that whether the information we are being provided is accurate.” Marjala asserted that this statement implied that he was being untruthful about his disability. However, the court noted that the statement was unrelated to Marjala’s disability. The court found that when viewed in context, the statement was related to certain representations that Marjala had made concerning his compensation as an inspector.

Whitaker’s fourth statement: “Is there a small part of me that says I’m glad Brian [the reporter] got a tip on this? Yeah, because it needs to be exposed.” Marjala claimed that this implied that his receipt of benefits was improper or illegal. The court observed that it was unclear whether “it” referred to Marjala’s receipt of benefits or income representations. Even if “it” referred to Marjala’s receipt of benefits, however, the court concluded that in the context of the entire broadcast, the statement implied Whitaker’s opinion that the existing duty disability system may be flawed.

Kelly’s and Armstrong’s Statements

Marjala asserted that a series of statements made by Kelly and Armstrong on Kelly’s broadcast were defamatory. Among the statements he alleged was defamatory were:

  • “The Ironman too injured to fight fires”
  • “He’s exploited this supposed injury. . . . [F]irefighters are genuinely injured, really hurt, mentally and physically, and then you have this guy. It’s just not right. There has to be an investigation here. Something needs to be done. This guy should no longer get this money. . . . Somebody has to look into this. It’s disgusting.”
  • “Why should he be excused from the fraud?”
  • “I will blame him. . . . But you blame him because he started this domino. He’s the one who . . . hit his elbow, his pinky became numb and then all of a sudden, he’s permanently disabled. He’s the one who went to the doctor and told them about this supposed limitation so I think the buck does stop with him.”
  • “He’s too hurt to push paper but he can run Ironman triathlons. We’ve seen this time and time again, people taking advantage of the system and it’s wrong, period. He should be forced back to his job, I think that fourteen million Americans would love to have it.”

The court found that, viewed in context, the program was a collection of opinion statements based on fully disclosed true or substantially true facts, rendering the opinions nonactionable. For instance, the court found that the implication that Marjala claimed total disability because of hitting his funny bone was substantially true because he injured her ulnar nerve which resulted in a finding of permanent disability as a firefighter.

While Marjala focused on Kelly’s question about being “excused from the fraud,” the court explained the question had to be viewed in context. Specifically, when a guest on the segment suggested that the system, rather than the individual, should be critiqued, Kelly essentially asked why individual should get a pass even if there is systemic problem.

The court acknowledged that the broadcasts likely were embarrassing and unflattering to Marjala. The court nonetheless concluded that “while the commentary may have been sarcastic, belittling, and impolite, that does not make it defamatory. ‘[I]t is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.’”