Today is February 2—Groundhog Day—and for folks in Punxsutawney, Pennsylvania, it’s one of the biggest days of the year. Groundhog Day was first celebrated on February 2, 1887, at a place called Gobbler’s Knob in Punxsutawney, PA, which to this day hosts a three-day celebration honoring its town’s long-standing tradition. Legend has it, if a groundhog leaves its burrow on February 2 and sees its shadow, it gets scared and returns to its hole, indicating six more weeks of winter. If the groundhog does not see its shadow, it suggests an early Spring. In reality, male groundhogs emerge from their burrows in early February to scope out any potential mates before returning underground to hibernate once more until March. Regardless of his intentions, Punxsutawney Phil garners a crowd of tens of thousands of people each year who are eager to see their favorite rodent meteorologist look for his shadow.
Groundhog Day has been celebrated for over 130 years, and each reiteration of Punxsutawney Phil has had but one job: to tell us whether the cold will soon be over, or whether we will have to continue to brace ourselves against the brutal winter. According to the Groundhog Club’s available archives, Punxsutawney Phil has predicted 104 forecasts of more winter and only 20 early springs (with 9 years being unaccounted for). Data from the Stormfax Almanac suggests that Phil’s predictions have only been correct about 36-39% of the time.
There is no question that Punxsutawney Phil has a tough job. With little to no formal training or education in meteorology, one could say that Phil’s predictions are about as good as mine or yours (or perhaps even worse). Whatever his vocational flaws may be, he doesn’t deserve the hate that he has received from many who have voiced their frustrations against him online (links here and here). So, does Punxsutawney Phil have any recourse?
In Wisconsin, a defamation claim can be made when a person makes a false statement of “fact” to a third person that causes harm to the reputation of the person about whom the statement was made. Defamation broadly consists of the twin torts of slander (defamation by verbal speech) and libel (defamation by written speech).
This cause of action consists of three main elements. The first element is that the statement made must be false. A true statement, while it might sound harsh, cannot be defamatory. Truth is what we call a “complete” or “absolute” defense. So, citing statistics, as long as they are true, to criticize Punxsutawney Phil’s job performance is likely incapable of being defamatory. This element also requires that the statement is capable of being proved as true or false. A pure expression of opinion, for the most part, cannot be defamatory (e.g., “I think that Punxsutawney Phil is terrible at his job”).
The second element requires that the statement be published to a third party. This means that you cannot defame someone by speaking to them alone with no one else to hear or see what you said. The statement does not need to be “published” in the traditional sense; it just needs to be seen or heard by someone.
The final element of defamation is that the statement must tend to harm an individual’s reputation as to lower him/her in the estimation of the community or to deter others from associating with him/her. The statement can be insulting, hyper-critical, or even downright mean without being defamatory—to truly be defamatory, the statement needs to do some damage to the person’s reputation.
A class of plaintiffs that have the most difficult time bringing defamation suits are public figures. Plaintiffs who are deemed to be public figures (think celebrities, politicians, high-ranking officials, influencers, or even local celebrities) have an “extra” element to prove. Public figures must also show that the alleged defamatory statement was made with actual malice, meaning that the alleged defamer intended to do harm to the public figure’s reputation and either knew that the statement was false or acted with reckless disregard as to whether the statement was true or false. For defamation purposes, Punxsutawney Phil is almost certainly a public figure, so he will have to prove that he was maliciously defamed.
Unfortunately for Punxsutawney Phil, he is going to have some high hurdles to overcome if he wants to bring a defamation claim against his naysayers, especially given that he is a public figure. But if you believe that you have been the victim of defamation, our attorneys at Levine Eisberner LLC may be able to help. Call us for a consultation at 608-621-2888.