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REVIEW of a decision of the Court of Appeals. Reversed.

¶1 ANN WALSH BRADLEY, J. The petitioners, Action Wisconsin, Inc., and Christopher Ott, seek review of an unpublished court of appeals decision reversing a circuit court judgment that required attorney James R. Donohoo to pay costs and attorney fees for filing and maintaining a defamation lawsuit that was frivolous.[1] The defamation lawsuit was commenced in response to a press release issued by Action Wisconsin.

¶2 Two statements in the press release formed the basis of the defamation lawsuit. One statement indicated that at an "International Conference on Homo-Fascism" a "speaker made sounds like gunfire as if he were shooting gay people . . . ." The other statement referenced the presence of a state senator at the conference and noted that the senate leadership would be appalled to find a colleague "in the audience for a speech apparently advocating the murder of his own constituents."

¶3 Action Wisconsin contends that the court of appeals should be reversed for two reasons: First, the court of appeals incorrectly concluded that the circuit court erred in determining that the lawsuit was frivolous. Second, the court of appeals committed error in sua sponte reviewing the circuit court's summary judgment decision on the merits of the case when that decision had not been appealed.

¶4 We conclude that the circuit court did not err in determining that the defamation suit was frivolously commenced and continued under Wis. Stat. §§ 802.05 and 814.025 (2003-04).[2] It determined that Donohoo had failed to conduct a reasonable inquiry before commencing the lawsuit and that there was no basis in fact or law that would support Donohoo's claim that Action Wisconsin's statements were made with actual malice. In this regard, we conclude that the court of appeals committed error when it reversed the circuit court's determinations.

¶5 However, we conclude that the court of appeals did not commit error in addressing the circuit court's summary judgment decision. The court of appeals did not sua sponte reverse a grant of summary judgment that was never appealed. Rather, it addressed the summary judgment decision only to the extent that it was necessary to address the substantive issues of the case in order to review the circuit court's determinations of frivolousness.

¶6 Accordingly, because we conclude the circuit court did not err in determining that the defamation suit was commenced and continued frivolously, we reverse the court of appeals.

¶7 The basic facts of this case are not complex and not in dispute. They are essentially set forth in the audio recording and transcript of a speech of the plaintiff, Grant E. Storms, and in the press release of Action Wisconsin describing the speech.

¶8 Storms is the pastor of a church in Louisiana. He hosts a talk show on a New Orleans radio station, and he has appeared on radio shows hosted by others in Louisiana, on a nationally broadcast radio show, and on Internet radio shows. Storms considers himself a Christian activist, and he has engaged in protest activities "against the homosexual agenda."

¶9 In October 2003, Wisconsin Christians United hosted a conference in Milwaukee titled "International Conference on Homo-Fascism." Storms was invited to speak at the conference. During his speech, Storms described his efforts to curb the "homosexual movement," and admonished his audience to take an active role in such an effort.

¶10 During the speech Storms drew an analogy between the homosexual movement and the Philistine army in the story of Jonathan and his armor bearer. Storms described Jonathan, an Israelite, leaving his army's encampment without permission from Saul, the leader of the Israelites, and confronting the Philistines with his armor bearer.

¶11 Several passages from Storms' speech are of particular importance here. He warned his audience of the strength of the homosexual movement, in part based on its unity.

There's an uncanny unity in solidarity amongst the homosexuals. . . . They're solidified. They're single minded. Don't underestimate them.

He further warned of the movement's contempt and hatred.

They are a scornful people. They hate us. They have contempt for us. . . . We need to understand that. Don't think you're going to tiptoe out there and say hey, repent. They will want to kill you.

¶12 In describing the conflict between his movement and the homosexual movement, Storms indicated that one side or the other must prevail, and that coexistence was not possible:

They are a stubborn people and they don't care. They want to trample us. . . . Here it is. It's us or them. There's no in between. There's no having this peaceful co-existence. They have to eliminate us and the Word of God if they want to succeed. It's almost like communism and capitalism. It's going to be one or the other. You can't have both. You can't peacefully co-exist.

Storms stated that the alternative to succeeding was being crushed, silenced, killed, or imprisoned.

Either we're going to succeed or they're going to succeed. Whether it's going to be a homosexual, anti-God nation, or it's going to be a nation that stands for God and says that that thing is sin. It can't be both. Won't be both. Something's going to happen. Either they'll crush us and have laws and silence us and kill the ones that won't be silenced or imprison the ones that won't be silent, or the church or the Lord Jesus Christ will rise up and say this is a Christian nation. This is the way it will remain. Go back in the closet.

¶13 In drawing the analogy between the story of Jonathan and his armor bearer and the subject matter of the conference, Storms described the homosexual movement as a Philistine army that wants to eliminate those like Storms and his audience. He compared contemporary Christians to the Israelites resting under a pomegranate tree, rather than battling the Philistine army.

There is a Philistine Army out there, it's called the homosexual movement. Whether you can see it or not, understand it or not, they want to eliminate us. This is no time to be under a pomegranate tree. . . . They [the Israelites] were a bunch of Tiny Tims tiptoeing through the tulips. And that is the church today unfortunately. When we're supposed to be out to battle, when we're supposed to be battling the enemy, we're under some stinking pomegranate tree shaking in our boots. That's where the church is. The church is hiding. The Christians are hiding.

Storms told his audience that he no longer listens to such Christians: "I just don't listen to Christians anymore. They will try to talk you out of going and beating up the Philistine Army on your own."

¶14 Storms lamented the lack of progress for his cause in legislatures and in courts. He indicated that for 20 years efforts have been made to influence bad legislators and convince wicked judges, but that now it was time to begin "taking it to the streets."

You know I'm sick of appealing all this stuff. Why do good people have to go to these stinking wicked judges and beg them to please do the right thing. No forget the appeals. Forget the petition. We've been petitioning for 20 years. Signing petitions for 20 years, making phone calls for 20 years. We've been begging bad legislators and bad judges to try to do the good thing. Enough is enough. My friend. Just start taking it to the streets.

¶15 In telling the story of Jonathan and the armor bearer, Storms related the part of the story in which Jonathan kills the Philistines. Storms then shouted "Let's go through the drive-thru at McDonald's" and "get the rest."

Wheeew! Come on. Let's go. God has delivered them all into our hands. Hallelujah! Boom, boom, boom, boom, boom. There's twenty. Whew. Ca-Ching. Yes. Glory. Glory to God. Let's go through the drive-thru at McDonald's and come back and get the rest.

¶16 Action Wisconsin responded to the speech. It describes itself as an organization dedicated to advancing and protecting the civil rights of lesbian, gay, bisexual and transgender people. At all times relevant to this case, Christopher Ott was the executive director of Action Wisconsin and Timothy O'Brien was president of the Action Wisconsin board of directors. As executive director, Ott reported directly to O'Brien, and as president, O'Brien was an authorized spokesperson for Action Wisconsin.

¶17 Action Wisconsin learned that a state senator had attended the conference and Storms' speech. Because the senator's attendance concerned O'Brien, he obtained audio recordings of the conference speakers, which were available for sale on the Wisconsin Christians United website.[3]

¶18 O'Brien listened to all of the speeches from the conference, and he listened to Storms' speech in its entirety. In an affidavit, O'Brien stated that he was shocked by the violent imagery and "derogatory and false statements about gay and lesbian people and the gay and lesbian community" in Storms' speech. He explained that he was disturbed in particular by "Storms' claims that gay and lesbian people wanted to kill members of Storms' audience, and what I understood to be corresponding suggestions that members of his audience kill gay and lesbian people." O'Brien thought it "obvious that [Storms] was drawing a parallel between the Philistines who were slain, literally, by the Israelites, and gay and lesbian people, who, completing the analogy, should be literally killed . . . ."

¶19 At O'Brien's request, Ott and Joshua Freker, another member of Action Wisconsin's staff, listened to portions of the speeches from the conference. They agreed with O'Brien's interpretation of Storms' speech.

¶20 Action Wisconsin issued a press release in response to the speech. Two statements from the press release are the subject of this lawsuit. First, referring to Storms, the press release stated that a "speaker made sounds like gunfire as if he were shooting gay people, saying, 'God has delivered them into our hands . . . Boom boom boom . . . there's twenty! Ca-ching! Glory, glory to God.'" Second, in reference to the state senator in attendance, the press release stated that "[w]e trust that Senator Panzer will be as appalled as we were to find one of her colleagues in the audience for a speech apparently advocating the murder of his own constituents." It then quoted several passages from Storms' and others' conference speeches.

¶21 Attorney Donohoo, acting on Storms' behalf, sent a letter to O'Brien stating that the two statements in the press release were false and defamatory. The letter requested that Action Wisconsin retract the statements and remove the press release from its website. When Action Wisconsin did not respond, Donohoo sent a second letter stating that Storms had authorized him to file a complaint for defamation.

¶22 Receiving no response to the second letter, Donohoo filed such a complaint on behalf of Storms against Action Wisconsin and Ott. Prior to filing the suit, Donohoo listened to and analyzed Storms' speech. He concluded that "no person listening to the speech could have reasonably interpreted [the] speech to mean that [Storms] was re-enacting the shooting of gay people, or that [Storms] was advocating the murder of gay people." Sometime after filing suit, Donohoo had two of his law clerks and two other people review the speech. These people told Donohoo that they did not believe someone listening to the speech could conclude that Storms was advocating the murder of gay people.

¶23 Action Wisconsin answered the complaint and filed a motion for costs and attorney fees pursuant to Wis. Stat. §§ 802.05 and 814.025. At the same time, counsel for Action Wisconsin sent a letter to Donohoo outlining why it thought the lawsuit was frivolous. The letter set forth the legal standards for frivolousness and defamation. It explained that Storms would have to show actual malice and advised that there was no reasonable basis in law or fact to support such a claim. Additionally, the letter indicated that it appeared that Donohoo failed to engage in a reasonable inquiry before filing the lawsuit.

¶24 Action Wisconsin took Storms' deposition. Shortly after, its counsel again wrote to Donohoo outlining why it thought the lawsuit was frivolous. He urged Donohoo to dismiss the case and in exchange "we will not seek sanctions for this frivolous lawsuit." Beyond the reasons offered in Action Wisconsin's first letter, the second letter set forth in detail the parts of the speech that supported its interpretation.

¶25 Donohoo did not answer either of the letters. Counsel for Action Wisconsin filed a motion for summary judgment, after which Donohoo conducted discovery. Donohoo then filed a motion for summary judgment on Storms' behalf. The circuit court determined that Storms had failed to show that Action Wisconsin's statements were false, stating that Action Wisconsin's interpretation of the speech was "not unreasonable" and that Storms' interpretation was "strained and inconsistent with the speech as a whole." It further determined that Storms had failed to present evidence that Action Wisconsin had acted with actual malice.

¶26 Accordingly, the circuit court granted Action Wisconsin's motion for summary judgment, denied Storms' motion for summary judgment, and dismissed the case. That decision was never appealed.

¶27 After the summary judgment decision, Donohoo filed a motion for reconsideration of the summary judgment decision on behalf of Storms. Action Wisconsin submitted supporting materials for its motion for costs and fees, asserting that the lawsuit was frivolous. The circuit court denied the motion for reconsideration, stating that the motion "essentially reargues the motions for summary judgment" and "misstates the decision" of the court.

¶28 The court granted Action Wisconsin's motion for costs and attorney fees pursuant to §§ 802.05 and 814.025. It determined that prior to the filing of the lawsuit, Donohoo knew or should have known that neither the facts nor the law supported the claim of actual malice, which would have to be shown by clear and convincing evidence. It concluded that Donohoo had failed to conduct a reasonable inquiry into the claim before filing the lawsuit.

¶29 In addition, the circuit court stated that Donohoo continued the lawsuit even though he knew or should have known that the claim was brought "without any reasonable basis in law or equity." The court explained that Action Wisconsin had put Donohoo on notice that there was no support for the assertion that Action Wisconsin acted with actual malice. However, Donohoo ignored the warnings, and failed to explain how he proposed to show actual malice. The court determined that the failure to conduct an adequate investigation and the failure to respond to Action Wisconsin's letters detailing the law forced Action Wisconsin "to expend considerable resources in defense." The circuit court concluded that Donohoo "merely dropped his paper 'into the hopper' of the legal system and required this Court and defendants to undertake the necessary factual and legal investigation."

¶30 Donohoo appealed. The majority of the court of appeals determined that Donohoo engaged in a reasonable inquiry into the facts and the law and that there were disputed issues of material fact regarding whether there was actual malice. Donohoo v. Action Wisconsin, Inc., No. 2006AP396, unpublished slip op. and order, ¶¶31-32 (Wis. Ct. App. May 30, 2007). It therefore concluded that the circuit court erred in determining that Donohoo commenced and continued a frivolous action under §§ 802.05 and 814.025 and reversed.[4] Id., ¶33. Action Wisconsin petitioned for review.

¶31 In this case we address a circuit court's determinations that an attorney commenced and continued a frivolous action under Wis. Stat. §§ 802.05 and 814.025. Under section 802.05(1)(a), an attorney's signature on a pleading, motion or other paper certifies the attorney's belief, "formed after reasonable inquiry, the pleading, motion or other paper is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law."[5]

¶32 Section 814.025(3)(b) provides that a circuit court may determine that an attorney commences or continues a frivolous action if the attorney "knew, or should have known, that the action . . . was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law."[6]

¶33 This court has articulated two standards of review for circuit court determinations of frivolousness, one regarding commencing frivolous actions and one regarding continuing frivolous actions.

¶34 This court has determined that "[w]hen made pursuant to Wis. Stat. § 802.05, our review of a circuit court's decision that an action was commenced frivolously is deferential." Jandrt v. Jerome Foods, Inc., 227 Wis. 2d 531, 548, 597 N.W.2d 744 (1999). According to this deferential standard, the nature and extent of investigation undertaken prior to filing a suit are issues of fact, and a circuit court's determinations on such questions will be upheld unless clearly erroneous. Id. The determination of how much investigation should have been done is a question that is within the circuit court's discretion. Id. A discretionary decision by the circuit court will be sustained where the court "examined the relevant facts, applied a proper standard of law and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Id. at 549 (citing Loy v. Bunderson, 107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982)).

¶35 We have explained that reviewing a circuit court's determination under § 814.025 that an action was continued frivolously involves a mixed question of law and fact. Id. at 562. We stated that what an individual or attorney knew or should have known is a question of fact that will be sustained unless clearly erroneous. Id. at 563. Whether the circuit court's determinations of fact support a conclusion that a lawsuit was continued frivolously, however, is a question of law that this court reviews independently of the determinations rendered by the circuit court or court of appeals. Id. [7]

III

¶36 This case is about a circuit court's determinations that a lawsuit was frivolously commenced and continued. In essence, it is about actual malice——whether the circuit court erroneously exercised its discretion in determining that there was no basis in fact or law that would support Donohoo's claim that Action Wisconsin's statements were made with actual malice.

¶37 Because the underlying question concerns the defamation lawsuit filed by Donohoo on behalf of Storms we turn initially to an examination of defamation law. In a common law defamation cause of action that does not involve a public figure, there are only three elements:

(1) a false statement; (2) communicated by speech, conduct or in writing to a person other than the person defamed; and, (3) the communication is unprivileged and tends to harm one's reputation so as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with him or her.

Torgerson v. Journal/Sentinel. Inc., 210 Wis. 2d 524, 534, 563 N.W.2d 472 (1997); see Wis JI——Civil 2500.[8]

¶38 This defamation lawsuit, however, involves a public figure. The United States Supreme Court has determined that the First and Fourteenth Amendments to the federal constitution require that defamation plaintiffs who are public figures must also prove by clear and convincing evidence another element, actual malice. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)). Actual malice does not involve bad intent or ill-will, and therefore differs from the vernacular understanding of malice. Torgerson, 210 Wis. 2d at 536. Rather, actual malice requires that the allegedly defamatory statement be made with "knowledge that it was false or with reckless disregard of whether it was false or not." Sullivan, 376 U.S. at 280.

¶39 Reckless disregard for the truth is not measured by what the reasonably prudent person would publish or investigate prior to publishing. Instead it is a subjective standard. Torgerson, 210 Wis. 2d at 542. It requires showing that the false statement was made "with a high degree of awareness of . . . probable falsity," Garrison v. Louisiana, 379 U.S. 64, 74 (1964), or that the defendant "in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731 (1968).

¶40 The Supreme Court has recognized that such a demanding standard "may permit recovery in fewer situations than would a rule that publishers must satisfy the standard of the reasonable man or the prudent publisher." Id. However, it has emphasized that the importance of open debate regarding public affairs and the conduct of public figures is so great that "neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies." Id. at 732.

¶41 The parties agree that Storms is a public figure, and that to succeed in a defamation suit he would have to show actual malice. The dispute here is focused on the element of actual malice.[9]

¶42 The circuit court determined that prior to commencing the lawsuit Donohoo knew or should have known that a cause of action for defamation would require showing actual malice by clear and convincing evidence and that Donohoo knew or should have known that the law did not support such a claim. It further determined that in light of the straightforward facts of the case and the law of defamation, Donohoo failed to conduct a reasonable inquiry into the claim prior to filing.

¶43 Donohoo argues that the circuit court erred in its determination that the law did not support the claim that Action Wisconsin acted with actual malice. The cornerstone of his argument is based on his review of the speech prior to commencing the lawsuit and his conclusion that no one "could have reasonably interpreted it to have advocated the murder of gay people." When the entire speech is examined, he contends, it is "inconceivable" that Action Wisconsin believed that Storms advocated murdering gay people or that he made sounds as if shooting gay people. Donohoo maintains that because it is inconceivable Action Wisconsin believed that Storms advocated murdering gay people, it must have had serious doubts about the truth of the statements in the press release.

¶44 He asserts that Action Wisconsin's interpretation of Storms' speech as advocating the murder of gay people is the result of selecting sentences from the speech and cobbling them together to support its conclusion. Donohoo adduces altogether different passages from the speech in support of another interpretation. He maintains that the following aspects of the speech demonstrate that Action Wisconsin's interpretation is unreasonable and thus serve as a basis for proving actual malice:

· The theme of Storms' speech was that "[y]ou alone, with God's help, can make a difference, no matter what the odds."

· The discussion of "taking it to the streets" was meant to contrast with efforts such as petitions, phone calls, and "begging" legislators and judges. "Taking it to the streets" refers to things like Storms' own efforts to make a difference by videotaping Southern Decadence, sending the video to public officials, sharing the Gospel with homosexuals, and staging protests.

· Tempering Storms' "tak[e] it to the streets" message were admonitions to not be "spiritually reckless" and to do what was in their hearts if it was not sin.

· Storms drew a parallel between the Philistines and the homosexual movement in terms of their characteristics——"solidarity, scornfulness, and stubbornness."

· The term that Storms used throughout the speech was the "homosexual movement," and the homosexual movement was the analogue to the Philistine army, not individual homosexuals.

· When Storms made his "boom, boom, boom" sounds, they were not meant to sound like explosions or gunfire, but were made to enliven the passage and "capture the imagination of the listeners." Similarly, the reference to the drive-through at McDonald's merely illustrated Jonathan and his armor bearer taking a break while God worked.

These aspects of the speech, Donohoo argues, demonstrate that Action Wisconsin's interpretation is "inconceivable" and that the only reasonable interpretation is that Storms did not advocate the murder of homosexuals.

¶45 There is no dispute about what words were spoken at Storms' speech. Rather, the dispute concerns whether Action Wisconsin's interpretation of the speech is a reasonable interpretation of ambiguous statements. If it is, then Donohoo as a matter of law cannot meet his burden of showing actual malice. In essence, Donohoo argues that if his is the only reasonable interpretation of the speech, then there is a basis for the actual malice claim. Thus, Donohoo is arguing that a factual inference can be made about whether Action Wisconsin entertained serious doubts as to the truth of their statements on the ground that Action Wisconsin's interpretation is unreasonable.

¶46 However, as Donohoo recognized during oral argument the determination of whether there is a single reasonable interpretation of the speech or whether the speech is ambiguous is a question of law. In Torgerson, for example, this court determined that the defendant newspaper was entitled to summary judgment in a defamation case because letters from the state Ethics Board were ambiguous. The court determined that the defendant's characterization of the letters was "a rational interpretation of ambiguous statements contained in those letters." 210 Wis. 2d at 546. It concluded that the deliberate choice of that interpretation over another interpretation could not constitute evidence of actual malice, even if the interpretation was provably false. Id. at 545.

¶47 While we do not doubt that Donohoo's is a reasonable interpretation, we cannot agree that it is the only reasonable interpretation. His choice of passages from the speech is no less selective than Action Wisconsin's. He has simply emphasized different passages, namely, those that do not have violent imagery.

¶48 Donohoo fails to address many of the passages emphasized by Action Wisconsin to illustrate the violent tone of the speech. Storms warned his listeners that "[t]hey'll want to kill you," "they don't care," "they want to trample us," "[i]t's us or them," "[t]hey have to eliminate us," and "[t]here's no having this peaceful co-existence." He described how "they" have violent, oppressive, and murderous potential: "they'll crush us and have laws and silence us and kill the ones that won't be silent. . . . " He expressly warned against listening to those that "will try to talk you out of going and beating up the Philistine army on your own." When Storms' exclamation of "boom, boom, boom, boom, boom" is considered in light of such violent descriptions, Action Wisconsin's interpretation is reasonable.

¶49 In addition to being selective, the facets of the speech Donohoo emphasizes do not show that Action Wisconsin's interpretation is unreasonable. Therefore they fail to provide a basis for the claim of actual malice, that is, that Action Wisconsin made a statement with "knowledge that it was false or with reckless disregard of whether it was false or not." Sullivan, 376 U.S. at 279-80. We consider them in turn.

¶50 Regarding his first assertion, Donohoo is correct that the theme of Storms' speech was that "you alone, with God's help, can make a difference, no matter what the odds." That, however, says nothing about what sorts of things one might do to make a difference, despite long odds.

¶51 The next aspect of the speech Donohoo adduces is that Storms' examples of "taking it to the streets" include videotaping, sharing the gospel, and staging a protest. However, Storms is explicit that taking it to the streets is not limited to such activities. He states:

Give me a bombshell, give me a bomb oh God. Give me something Lord that's going to shake the city, and shake the state, and shake this nation. . . .

Do what's in your heart. He's with you. Some of you right now. You have these wild, crazy things you won't even tell anybody about. You have this plan and you can't get away from it. The Lord put that there. The Lord put it there. Go do it.

The speech is open to many interpretations of what these "bombs" and "wild, crazy things" could include.

¶52 Donohoo's assertion that Storms admonished listeners not to be spiritually reckless and not to sin is also unpersuasive and also fails to show that Action Wisconsin's interpretation is unreasonable. It is unclear what Storms meant by the admonition. In one passage he states: "Listen to your heart. Whatever is in your heart. Do it. He's with you. It's not sin. That's the way I look at it. And the wilder the better in my opinion."

¶53 The next claim Donohoo makes is that Storms drew parallels between the Philistine army and the homosexual movement on the basis of shared characteristics. However, Donohoo has failed to offer any explanation for why basing the comparison on such characteristics shows that Storms did not advocate treating the homosexual movement like Jonathan treated the Philistine army.

¶54 Donohoo claims also that Storms carefully referred to the "homosexual movement" rather than individual homosexuals. This, too, fails to show that Action Wisconsin's interpretation is unreasonable. Donohoo is incorrect that Storms refers only to the "homosexual movement." Our review of the speech indicates that Storms does refer to "homosexuals." For example, in describing the strength of Storms' opponent, he warns of the "uncanny unity and solidarity amongst the homosexuals." Similarly, in encouraging his audience to act on their frustrations he states that "if you're frustrated about seeing the homosexuals taking over our nation, that's a good thing."

¶55 Lastly, it is plausible that when Storms made the "boom, boom, boom, boom, boom" sounds he did not intend it to sound like gun shots, and it is plausible that his remarks about the McDonald's drive-through were intended to be about Jonathan taking a rest. However, that is not the only reasonable interpretation. It is also reasonable to conclude that Storms intended his listeners to imagine the story in a modern setting, with modern weapons (guns), modern rest facilities (McDonald's), and a modern opponent (the homosexual movement).

¶56 Thus, while Donohoo has proffered a reasonable alternative interpretation, he has not demonstrated that Action Wisconsin's interpretation is unreasonable. Rather, he has simply emphasized different passages. Both Donohoo's interpretation and Action Wisconsin's interpretation are reasonable. That is, the speech is ambiguous.[10]

¶57 Because the speech is ambiguous, the reasonable alternative interpretation of Storms' speech that Donohoo provides does not permit an inference of actual malice. Action Wisconsin's statements were based on one of at least two rational interpretations. There is ample case law for the proposition that actual malice cannot be inferred from the choice of one rational interpretation over another. [11]

¶58 Time, Inc. v. Pape involved an article describing incidents of police brutality. 401 U.S. 279, 281-82 (1971). The article was based upon a government report, and quoted the summary of a civil complaint contained in the report. However, it removed the word "alleged" from the summary of the complaint, and did not explain that the quote came from an unproven complaint. Id. at 282.

¶59 The Supreme Court determined the omission of the word "alleged" was in essence adopting "one of a number of possible rational interpretations of a document that bristled with ambiguities." Id. at 290. The Court concluded that such a choice did not demonstrate actual malice, even though it may have reflected a misconception. Id. In Masson v. New Yorker Magazine, the Supreme Court explained that the "protection for rational interpretation serves First Amendment principles by allowing an author the interpretive license that is necessary when relying upon ambiguous sources." 501 U.S. 496, 519 (1991).

¶60 This court addressed the issue of choosing between rational interpretations in Torgerson. That case involved a newspaper article stating that the plaintiff, who served in the Office of Commissioner of Insurance and had an interest in a title insurance agency, had ignored letters by the state Ethics Board as "warnings" to "stay out" of title insurance matters. 210 Wis. 2d at 545. Prior articles by the same journalist had described the same letters as "guidelines and limitations" that would "limit" contact with such matters. Id. at 544-45. Citing Time, Inc. v. Pape and Masson, this court determined that the letters were ambiguous, and that the deliberate choice between different interpretations did not show actual malice.

¶61 The same reasoning applies in the present case. Storms' speech is ambiguous, and Action Wisconsin has chosen one rational interpretation. As a matter of law, that choice does not demonstrate actual malice. Thus, Donohoo's assertion that Action Wisconsin's interpretation demonstrates actual malice is incorrect.

¶62 In addition to his argument that Action Wisconsin's interpretation is unreasonable, Donohoo cites the following as factual evidence of actual malice prior to his filing the complaint:

· Storms did not explicitly state that he advocated murdering gay people.

· Action Wisconsin did not attempt to contact Storms before issuing its press release, and it did not respond to the requests for retraction.

· The language in the press release is of a "serious nature" and showed ill-will toward Storms.

· The press release appeared calculated to advance Action Wisconsin's political agenda.

¶63 These facts are not in dispute. However, they fail to demonstrate a reasonable factual or legal basis for actual malice, and Donohoo makes no argument based in equity. The fact that there is no language in the speech explicitly stating that members of the audience ought to murder homosexuals says nothing about whether Action Wisconsin was reckless in its interpretation of the speech.

¶64 Further, Donohoo has offered no explanation and proffered no case law showing why the facts that Action Wisconsin did not attempt to contact Storms before issuing its press release and did not respond to retraction requests are evidence of actual malice.

¶65 Donohoo's position is also contrary to this court's decision in Van Straten v. Milwaukee Journal Newspaper-Publisher, 151 Wis. 2d 905, 447 N.W.2d 105 (1989). In that case we determined that the repeated publication of a statement after being informed that the statement was false did not constitute actual malice so long as the speaker believed it to be true. Id. at 917-18.

¶66 Donohoo is correct that the statements in the press release are of a serious nature. However, even assuming that Donohoo is correct that Action Wisconsin's press release evinces ill-will toward Storms, he fails to explain how such ill-will shows actual malice. Courts have made clear that actual malice does not mean bad intent, ill-will, or animus. Masson, 501 U.S. at 510-11; Torgerson, 210 Wis. 2d at 536.

¶67 He maintains that such ill-will could provide motivation for Action Wisconsin to "twist" Storms' speech. Placing a greater burden on ideological opponents, however, is contrary to the principles that underwrite the actual malice standard in the first instance. Donohoo's argument is also contrary to the Seventh Circuit's determination that "facial expression, content of speech and body language" that demonstrated a strongly negative disposition to the subject of a statement did not support a claim of actual malice. Underwager v. Salter, 22 F.3d 730, 736 (7th Cir. 1994).

¶68 Donohoo's assertion that actual malice is evinced by the fact that the press release appeared calculated to further Action Wisconsin's political agenda is similarly unpersuasive. The seminal defamation case, New York Times v. Sullivan, involved political speech. 376 U.S. 254. To maintain that where a statement furthers one's political views there is evidence of actual malice would undermine the very protections that justify the actual malice requirement in the first instance.[12]

¶69 Having set forth the above facts and law, we turn to the circuit court's decision that Donohoo commenced this action frivolously. The amount of investigation that Donohoo should have done prior to filing is a determination that is within the circuit court's discretion. Jandrt, 227 Wis. 2d at 548. We will uphold this determination unless it is clearly erroneous. Id.

¶70 The circuit court examined the relevant facts of the case, and it determined that they were not complex. It also examined the law on defamation and determined that the legal issues involved in the lawsuit were not complex. Further, the court reasoned that Donohoo had sufficient time to research the relevant law. It explained that while Donohoo's interpretation of the speech was reasonable, it was less reasonable than Action Wisconsin's. The court determined that the filings Donohoo made on behalf of Storms did not present a plausible view of the law or an argument to extend or modify the law.

¶71 The court examined the relevant facts, applied the proper standards of law, and using a demonstrated rational process reached a conclusion that a reasonable judge could make. In light of the time and lack of complexity of the issues, the court determined that Donohoo had failed to conduct a reasonable inquiry prior to filing the suit. This determination is not clearly erroneous. Additionally, consistent with legal authority, the circuit court concluded that there was no basis in fact or law that would support a claim that Action Wisconsin's statements were made with actual malice. Accordingly, we conclude that the circuit court's determination was not an erroneous exercise of its discretion.

¶72 In addition to its determination that Donohoo commenced the lawsuit frivolously, the circuit court determined that Donohoo continued the lawsuit even though he knew or should have known that the claim was brought "without any reasonable basis in law or equity." Wis. Stat. § 814.205(3)(b). The determination of what an attorney knew or should have known "is a factual question, and the circuit court's findings of fact will not be reversed by an appellate court unless the findings are clearly erroneous. Jandrt, 227 Wis. 2d at 563. Here, the court explained that Action Wisconsin's letters to Donohoo put him on notice that there was no support for the element of actual malice, but that Donohoo ignored the warnings and failed to explain how he proposed to show actual malice.

¶73 Donohoo maintains that the circuit court erred in its determination for several reasons. First, he asserts that Action Wisconsin's interpretation is unreasonable. For the reasons outlined in the previous section, this argument is unpersuasive.

¶74 In addition, Donohoo argues that the following undisputed facts show that Action Wisconsin acted with actual malice:

· Two members of Action Wisconsin did not listen to the entire speech before issuing the press release.

· Action Wisconsin did not consider contacting law enforcement upon hearing Storms' speech.

Donohoo fails to provide a legal basis for these arguments.

¶75 There is no dispute that Ott and Freker did not listen to Storms' speech in its entirety before the press release was issued. The court of appeals relied on Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) to support the view that such failure evinces actual malice.

¶76 Butts involved a libel action against a magazine for publishing allegations that a college football coach was involved in game-fixing. Id. at 135. The sole source of the story was a person known by the publisher to be on probation for writing bad checks, none of the magazine personnel reviewed the source's notes, another person who was with the source when the source heard the story was not consulted, and there was no attempt by any in the organization to screen the films of allegedly fixed games. Id. at 157. The court determined that such evidence could support a determination of actual malice.

¶77 The current case bears no resemblance to Butts. Here, the president of Action Wisconsin's board of directors, O'Brien, listened to the entire speech and was disturbed by what he heard. He then consulted with Ott and Freker, and they confirmed that speech contained the statements that O'Brien described. Together they decided on the response. This is entirely unlike the situation in Butts, where no one made any effort to confirm the claims of a known unreliable source.

¶78 Even if there was a failure of Action Wisconsin to investigate prior to issuing its press release, "mere proof of failure to investigate the accuracy of a statement, without more, cannot establish the reckless disregard for the truth necessary for proving actual malice." Erdmann v. SF Broad. Of Green Bay, Inc., 229 Wis. 2d 156, 170, 599 N.W.2d 1 (Ct. App. 1999)(citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 332 (1974)). For the reasons provided in the previous section, the other arguments Donohoo adduces fail to provide the something more required to establish actual malice.

¶79 Donohoo's argument that Ott and Freker did not think about contacting police regarding Storms' speech, illustrating that "they did not honestly believe that Storms had advocated the murder of gays in his speech," is similarly unpersuasive. Research into the relevant law would have dissuaded Donohoo from this argument.

¶80 Brandenberg v. Ohio involved a conviction under a statute prohibiting advocacy of violent political reform for a speech which included the language "if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken." 395 U.S. 444, 446 (1969). The Supreme Court determined that the First Amendment protects the advocacy of violence that falls short of incitement to imminent lawless action. Id. at 447. Action Wisconsin has not claimed that Storms' speech incited imminent lawless action.

¶81 Accordingly, we determine that the circuit court did not err in concluding that Donohoo continued the lawsuit frivolously. The circuit court explained that Action Wisconsin's letters put Donohoo on notice regarding frivolousness. Further, the facts adduced by Donohoo as evidence of actual malice are not supported by the law, and Donohoo makes no argument based in equity. Thus, the circuit court's factual determination that Donohoo knew or should have known that the lawsuit had no basis in law or equity is not clearly erroneous. Under § 814.025, this factual determination supports the circuit court's conclusion that Donohoo continued the lawsuit frivolously.

¶82 Action Wisconsin also argues that the court of appeals erred in reviewing, sua sponte, the circuit court's summary judgment decision on the merits of the case when that decision had not been appealed. It argues that there were no issues of disputed fact with respect to the defamation claim, and that the questions on appeal concerned legal conclusions based upon undisputed facts.

¶83 To address this issue requires that we examine three questions. The first concerns whether the court of appeals erred in addressing the substantive issues of the case. Those issues were decided by the circuit court on summary judgment, but were not before the court of appeals insofar as summary judgment was not appealed. This court has addressed the question before. Jandrt involved questions about sanctions for frivolousness in a case where the underlying suit was voluntarily dismissed. 227 Wis. 2d at 538-39. The court was required to address the merits of the underlying claim to address the frivolousness issue. Id. at 572-73.

¶84 A similar issue arose in Lassa v. Rongstad, 2006 WI 105, 294 Wis. 2d 187, 718 N.W.2d 673. That case involved discovery and contempt sanctions levied against the defendant in a defamation case where the defendant was asserting a constitutional privilege against disclosures sought by the plaintiff. Id., ¶1. The merits of the underlying case were settled. The lead opinion determined that the court had to get to the issues of privilege in order to reach the question of whether the sanctions were appropriate, on the ground that the privilege was a defense against the sanctions. Id., ¶33.

¶85 Similarly, whether frivolous sanctions were proper in the present case turns on whether the underlying suit was frivolous. It was therefore proper for the court of appeals to address that issue despite the fact that summary judgment was not appealed.

¶86 The second question is whether the court of appeals erred by reversing the circuit court's summary judgment order. Action Wisconsin asserts that the court of appeals "ignored the finality of the . . . summary judgment decision" and "took jurisdiction of the issue." As we explain in footnote 4 above, the court of appeals reversed the judgment and order of the circuit court. This would appear to include the part of the order denying Donohoo's motion for reconsideration. The text of the opinion makes clear, however, that the court of appeals reversed only the grant of sanctions. Donohoo concedes that the denial of the motion for reconsideration was not reversed.

¶87 The third question concerns whether there remain any disputed questions of material fact to be resolved with respect to the defamation issue. The parties agreed at oral argument that there were no factual disputes on the issue. We agree that all of the disputes regarding the defamation claim are legal in nature. Thus, we conclude that although the court of appeals was incorrect in determining that there were disputed facts, it did not err in addressing the facts underlying the circuit court's summary judgment decision. Rather, it addressed the summary judgment decision only to the extent that it was necessary to address the substantive issues of the case in order to review the circuit court's determinations of frivolousness.

¶88 In sum, we conclude that the circuit court did not err in determining that the defamation suit was frivolously commenced and continued under Wis. Stat. §§ 802.05 and 814.025. It determined that Donohoo had failed to conduct a reasonable inquiry before commencing the lawsuit and that there was no basis in fact or law that would support Donohoo's claim that Action Wisconsin's statements were made with actual malice. In this regard, we conclude that the court of appeals committed error when it reversed the circuit court's determinations.

¶89 However, we conclude that the court of appeals did not commit error in addressing the circuit court's summary judgment decision. The court of appeals did not sua sponte reverse a grant of summary judgment that was never appealed. Rather, it addressed the summary judgment decision only to the extent that it was necessary to address the substantive issues of the case in order to review the circuit court's determination of frivolousness.

¶90 Accordingly, because we conclude that the circuit court did not err in determining that the defamation suit was commenced and continued frivolously, we reverse the court of appeals.

By the Court.—The decision of the court of appeals is reversed.

¶91 PATIENCE DRAKE ROGGENSACK, J. (dissenting). Subsequent to Grant Storms' speech at a meeting of Wisconsin Christians United, Action Wisconsin, Inc. published the following statement on its website:

We trust that Senator Panzer will be as appalled as we were to find one of her colleagues in the audience for a speech apparently advocating the murder of his own constituents.

Based in part on Action Wisconsin's statement that he was "apparently advocating [] murder" during his speech to Wisconsin Christians United, Storms began this defamation lawsuit. The majority opinion concludes that Storms' lawsuit was frivolous when filed and frivolous when continued.[13] The dispositive questions presented by this review are: whether a reasonable attorney in Attorney Donohoo's position could have concluded that no reasonable jury could find the following facts: (1) Action Wisconsin's statement is false; (2) the statement defamed Grant Storms; and (3) when it made the statement, Action Wisconsin did not believe the statement was true, or made it with reckless disregard as to its truth. See Baumeister v. Automated Prods., Inc., 2004 WI 148, ¶28, 277 Wis. 2d 21, 690 N.W.2d 1. Because the law of defamation is complex and often unclear, I conclude that a reasonable attorney in Attorney Donohoo's position could have believed that a reasonable jury could answer "yes" to these questions.[14] Such a jury then would have found that Action Wisconsin published the statement on its website with actual malice, thereby defaming Grant Storms.[15] Milsap v. Journal/Sentinel, Inc., 100 F.3d 1265, 1270 (7th Cir. 1996) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)). Accordingly, I would affirm the court of appeals, and I respectfully dissent from the majority opinion.

I. BACKGROUND

¶92 This review arises from Grant Storms' lawsuit against Action Wisconsin as a result of statements that Action Wisconsin published on its website, subsequent to a speech that Storms made to Wisconsin Christians United. Storms' speech spoke of his personal opposition to homosexual lifestyles and his belief that the Bible teaches that homosexuality is a sin.

¶93 Action Wisconsin supports gay rights, and was, at the time of the statement on its website, heavily lobbying the legislature against passage of the constitutional amendment, Article XIII, Section 13, that denies marital status to same-sex partners.[16]

¶94 The statement that formed the basis for this lawsuit was made on Action Wisconsin's website as a "press release" captioned: "State Senator Attends 'Homo-Fascism' Conference, Action Wisconsin Asks Majority Leader Panzer to Investigate." The press release continued, "[t]oday Action Wisconsin sent a letter to Senate Majority Leader Mary Panzer, calling on her to investigate, identify, and discipline the state senator who attended the 'International Conference on Homo-Fascism' in Milwaukee on October 10, 2003." The press release continued, "[t]he attendance of a state senator at this conference is similar to a senator attending a Ku Klux Klan rally or a neo-Nazi conference, and should receive tremendous scrutiny . . . . We are deeply concerned that a state senator would feel comfortable attending a conference that espoused such frenzied, hysterical hatred." Christopher Ott, Executive Director of Action Wisconsin, is then quoted in the press release as saying:

We trust that Senator Panzer will be as appalled as we were to find one of her colleagues in the audience for a speech apparently advocating the murder of his own constituents. We also hope that every legislator will think twice before supporting any more hate-inspired legislation.

Storms subsequently found handbills affixed to telephone poles in his hometown of New Orleans, Louisiana, that contained his picture and below the picture it said: "Why does Pastor Grant E. Storms of Christian Conservatives for Reform advocate the murder of gays?" The handbill referred readers to Action Wisconsin's website.

¶95 Before Attorney Donohoo filed the defamation action on behalf of Storms, he twice requested Action Wisconsin to retract the statement. Action Wisconsin did not respond. Also prior to filing this lawsuit, Attorney Donohoo listened to and analyzed Storms' speech and he concluded that no reasonable person would conclude that Storms was advocating the murder of homosexuals.

¶96 After the lawsuit was filed, an attorney for Action Wisconsin wrote Attorney Donohoo threatening him with her intent to seek an award of attorney's fees under Wis. Stat. § 814.025 and to report him to the Office of Lawyer Regulation if he did not dismiss the lawsuit. The basis for these threats was the attorney's conclusion that the lawsuit was frivolous because "the Defendants did not say that Mr. Storms advocated murder, but rather that he appeared" to be doing so. The attorney italicized the word "appeared" and asserted that the statement that Storms was apparently advocating murder was Action Wisconsin's reasonable opinion and therefore not actionable. Action Wisconsin's attorney further asserted that she believed Storms was a public figure and therefore, Storms would have to prove actual malice in order to succeed in his lawsuit. She asserted "there is no evidence from which you can even argue actual malice."

¶97 After the lawsuit was commenced, Attorney Donohoo had two of his law clerks and two others persons listen to Storms' speech. Each person told Attorney Donohoo that he did not believe Storms was advocating the murder of gay people.

¶98 The circuit court dismissed Storms' lawsuit upon Action Wisconsin's motion for summary judgment. In so doing, the circuit court found numerous facts, even though the matter was before the court on summary judgment. It found that Storms failed to prove Action Wisconsin's statement was false; that Action Wisconsin's interpretation of Storms' speech was not unreasonable; and that Storms had failed to present evidence of actual malice. Without articulating the legal standard that is to be applied to motions to conclude that an action was frivolous to commence or to continue, the circuit court so concluded and awarded Action Wisconsin more than $87,000 in costs and fees against Attorney Donohoo.

¶99 Attorney Donohoo appealed and the court of appeals reversed. Donohoo v. Action Wis., Inc., No. 2006AP396, unpublished slip op. (Wis. Ct. App. May 30, 2007). It concluded that "This case is not about whether the trial court correctly decided the summary judgment issue. . . . [T]he case is controlled by the frivolous action standards, which are different than those governing summary judgment." Id., ¶9. The court of appeals concluded that the circuit court erred in three respects: (1) there were disputed issues of material fact relative to the issue of actual malice; (2) damage to reputation is presumed when defamation based on libel is proved; and (3) Attorney Donohoo engaged in a reasonable inquiry prior to and subsequent to filing Storms' lawsuit.

II. DISCUSSION

A. Standard of Review

¶100 We review whether the commencement or continuation of a lawsuit is frivolous and therefore a violation of Wis. Stat. § 814.025, as a mixed question of fact and law. Jandrt v. Jerome Foods, Inc., 227 Wis. 2d 531, 562, 597 N.W.2d 744 (1999). What an attorney knew or should have known is factual. Id. at 562-63 (citing Juneau County v. Courthouse Employees, 221 Wis. 2d 630, 638-39, 585 N.W.2d 587 (1998)). A circuit court's determinations of historical facts will be overturned only if they are clearly erroneous. Wis. Stat. § 805.17(2). The ultimate conclusion of whether the factual findings meet the legal standard of frivolousness is a question of law. Jandrt, 227 Wis. 2d at 563.

¶101 Whether a lawsuit is commenced in violation of Wis. Stat. § 802.05 is a discretionary determination of the circuit court. Id. at 548. Section 802.05 applies only to commencing a lawsuit; it does not apply to the continuation of a lawsuit. Id. at 547. We will not reverse a circuit court's discretionary determination unless an erroneous exercise of discretion has been shown. Id. at 549. Applying an incorrect legal standard is an erroneous exercise of discretion. City of Brookfield v. Milwaukee Metro. Sewerage Dist., 171 Wis. 2d 400, 423, 491 N.W.2d 484 (1992).

¶102 Whether a communication can reasonably be understood as defamatory, is a question of law. Starobin v. Northridge Lakes Dev. Co., 94 Wis. 2d 1, 10, 287 N.W.2d 747 (1980) (citing Martin v. Outboard Marine Corp., 15 Wis. 2d 452, 461, 113 N.W.2d 135 (1962)). We review questions of law independently, but benefiting from the prior decisions of the court of appeals and the circuit court. Marder v. Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159, ¶19, 286 Wis. 2d 252, 706 N.W.2d 110.

B. Frivolous Action Principles

¶103 An attorney files or maintains a frivolous action when the attorney "knew, or should have known" that there was no "reasonable basis in law or equity" for it. Wis. Stat. § 814.025(3)(b). Only when there is no reasonable basis for the claim, in fact, or in law and no basis for a reasonable extension of the law to include such a claim, may a court conclude that it is frivolous under § 814.025(3)(b). Jandrt, 227 Wis. 2d at 573. A similar lack of basis in fact or in law causes a claim to be frivolous under Wis. Stat. § 802.05. Id. at 550. In determining whether a claim is frivolous, a court must balance the integrity of the judicial process, id. at 572; Sommer v. Carr, 99 Wis. 2d 789, 799, 299 N.W.2d 856 (1981), with the desire to encourage "ingenuity, foresightedness and competency of the bar," Radlein v. Industrial Fire & Casualty Insurance Co., 117 Wis. 2d 605, 613, 345 N.W.2d 874 (1984). All doubts about the reasonableness of a claim must be resolved against the party asserting that the action is frivolous, unless the claim was brought solely to harass or injure the other party.[17] Baumeister, 277 Wis. 2d 21, ¶28.

C. Defamation Principles

¶104 An action for defamation requires proof of the following elements:

Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 534, 563 N.W.2d 472 (1997). When a public figure is the person defamed, actual malice must also be proved. Id. at 535.

¶105 The requirement of proving actual malice arises because "[t]he First Amendment imposes a constitutional privilege on the publication of statements about public figures, even when those statements are false and defamatory." Id. This privilege, which is grounded in the First Amendment, is not absolute, but rather, conditional. Id. That the declarant make his or her statement without actual malice is the condition that is imposed on the privilege. Id.

¶106 In order to prove actual malice, a plaintiff must show that the defamatory statement was published with knowledge that it was untrue or with reckless disregard as to its truth. Sullivan, 376 U.S. at 279-80. The test for whether the defendant had actual malice is subjective. Torgerson, 210 Wis. 2d at 542. The plaintiff must show that the defendant either knew the statement was false or "entertained serious doubts as to the truth" of the statement. Id. Actual malice can be shown by proof that the defendant had "obvious reasons to doubt the veracity" of the statement. Id. at 543 (citing St. Amant v. Thompson, 390 U.S. 727, 732 (1968)).

¶107 The defamation at issue here is in the form of libel because the statement was written. Martin, 15 Wis. 2d at 456. As such, the statement is "actionable without alleging or proving special damages."[18] Id. at 460-61. As Martin explained, "We adhere to and adopt the common-law rule of libel, as stated in sec. 569 of the Restatement, 3 Torts, Defamation, that all libels are actionable without alleging or proving special damages." Id. Damages are presumed from proof of the defamation by libel. Id.

¶108 However, whether a statement is capable of a defamatory meaning is a separate question. Id. at 461. This determination is initially for the court. Id. If a court concludes that the only possible meaning of the statement is defamatory, the court may hold the statement defamatory as a matter of law, and no question goes to the jury. Id. at 461-62. However, if the libel is "capable of an innocent meaning as well as a defamatory meaning, it is then for the jury to determine whether the communication capable of a defamatory meaning was so understood by its recipient." Id. at 462.

¶109 Statements phrased as opinions are not beyond the reach of a defamation claim. Converters Equip. Corp. v. Condes Corp., 80 Wis. 2d 257, 263, 258 N.W.2d 712 (1977). As we have explained, writings that add words such as "apparently" and "appear to be" change nothing. Id. "The authorities agree that communications are not made nondefamatory as a matter of law merely because they are phrased as opinions, suspicions or beliefs." Id. at 263-64. Accordingly, such words as "apparently," which Action Wisconsin used here, at most, create a jury issue in regard to whether the statement defamed Storms. See id. at 264.

D. Storms' Defamation Claim

¶110 Action Wisconsin's statement on its website that Storms was "apparently advocating the murder" of homosexuals is the focus of this lawsuit. The handbills distributed by an unknown person in Storms' hometown of New Orleans, Louisiana, repeated Action Wisconsin's assertion by asking, "Why does Pastor Grant E. Storms of Christian Conservatives for Reform advocate the murder of gays?" Action Wisconsin's website was listed at the bottom of the handbill. A copy of the handbill was attached to Storms' complaint.

1. False statement

¶111 The circuit court based its decision in part on its finding that Storms failed to prove Action Wisconsin's statement was false. However, whether a statement is false or substantially true is a factual determination unsuitable for summary judgment, unless no reasonable person could conclude otherwise than that the statement was false. See Martin, 15 Wis. 2d at 462.

¶112 Action Wisconsin does not assert that its statement is true; rather, it asserts it is insulated from a defamation claim because it used the word, "apparently," before its statement that Storms was advocating the murder of homosexual people. It implies that the word, "apparently," shows that the statement was Action Wisconsin's opinion.

¶113 However, "apparently" has been defined as, "in an apparent manner," and "apparent" has been defined as, "capable of easy perception" and "real or true and supported by credible evidence." Webster's Third New International Dictionary, 102-03 (1961 ed.). Moreover, as we explained in Converters, using the word, "apparently," before a statement that is false does not insulate the declarant from a defamation action. Converters, 80 Wis. 2d at 263-64. Furthermore, "One may be libeled by implication and innuendo quite as easily as by direct affirmation." Id. at 264. Employing "apparently" before a statement that is false can do no more than create a jury issue in regard to whether the statement defamed the person about whom the statement was made. Id. at 263-64.

¶114 Here, the publisher of the handbills had seen Action Wisconsin's statement, as is shown by the reference to Action Wisconsin's website at the bottom of the handbill. It interpreted Action Wisconsin's statement to mean that Storms was advocating the commission of crimes: the killing of homosexual people. Four people who listened to Storms' speech at Attorney Donohoo's request all concluded that Storms was not advocating murder. A jury reviewing Storms' entire speech to Wisconsin Christians United could find that Storms was not advocating the murder of gay people; and therefore, Action Wisconsin's statement was false.[19] Therefore, a reasonable attorney in Attorney Donohoo's position, could conclude that Action Wisconsin's statement was false. On the record before us, it remains, at most, a fact question for the jury.[20]

¶115 Prior to filing this lawsuit, Attorney Donohoo listened to Storms' speech and analyzed it under legal principles relating to defamation. The court of appeals did so as well. Both Attorney Donohoo and the court of appeals and three members of the Wisconsin Supreme Court have concluded that a reasonable attorney in the position of Attorney Donohoo could have concluded that a reasonable jury could find that Action Wisconsin's statement was false.

2. Defamatory meaning

¶116 A statement is defamatory when it tends to "'diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him.'" Starobin, 94 Wis. 2d at 10 (quoting Prosser on Torts 756). A statement that implies that the defendant has committed a crime may be defamatory. Bauer v. Murphy, 191 Wis. 2d 517, 524, 530 N.W.2d 1 (Ct. App. 1995). Here, Action Wisconsin's statement has been interpreted by at least one person, the printer of the handbills referenced above, to mean that Storms was advocating the murder of homosexuals.

¶117 Whether a statement could be interpreted in a defamatory sense is initially a question of law for the circuit court to address. Martin, 15 Wis. 2d at 461-62. When libel is capable of an innocent and a defamatory meaning, a jury question is presented. Id. at 462. The court of appeals concluded that Action Wisconsin's assertion that Storms was apparently advocating murder of homosexual people was capable of a defamatory meaning. Donohoo, No. 2006AP396, unpublished slip op., ¶17. I conclude that a reasonable jury could find that Action Wisconsin's statement has been received as reporting that Storms was advocating the killing of gay people. Accordingly, a jury question is presented in regard to whether the statement was defamatory.

¶118 However, the relevant question for this review is whether a reasonable attorney in the position of Attorney Donohoo could conclude that a reasonable jury could find that Action Wisconsin's statement defamed Storms. Radlein, 117 Wis. 2d at 612. Prior to filing the lawsuit, Attorney Donohoo investigated the law relating to libel, as is shown by the detailed letters he wrote to Action Wisconsin requesting retraction. Once the lawsuit was underway, he had four individuals listen to the full recording of Storms' speech and none interpreted the speech as Storms' advocating the murder of homosexual people. Attorney Donohoo also obtained a copy of the handbills that were distributed after Action Wisconsin posted the statement on its website. Both Attorney Donohoo and the court of appeals and three members of the Wisconsin Supreme Court have concluded that a reasonable attorney in the position of Attorney Donohoo could have concluded that a reasonable jury could find that Action Wisconsin's statement was defamatory.

3. Actual malice

¶119 When a public figure claims defamation, he or she must prove that the declarant made the statement with actual malice, that is, that the declarant knew the statement was false or made it with reckless disregard as to the truth. Sullivan, 376 U.S. at 279-80. Because actual malice involves the subjective state of mind of the declarant, Torgerson, 210 Wis. 2d at 542, here Ott, it may be proved by showing that the declarant had "obvious reasons to doubt the veracity" of the statement. St. Amant, 390 U.S. at 732. Proof of actual malice involves the circumstances under which the statement under examination was made. See Van Straten v. Milwaukee Journal Newspaper-Publisher, 151 Wis. 2d 905, 917, 447 N.W.2d 105 (Ct. App. 1989).

¶120 The context in which Action Wisconsin's statement was published is relevant, both in regard to where and when it was made. See St. Amant, 390 U.S. at 733. First, Ott's statement was made in a "press release" by Action Wisconsin that requested Senator Panzer to take action against members of the legislature. It began by asserting, "State Senator Attends 'Homo-Fascism' Conference, Action Wisconsin Asks Majority Leader Panzer to Investigate." It did not ask her to investigate whether Storms was advocating murder, but rather to "investigate, identify, and discipline the state senator" who attended the religious convocation of Wisconsin Christians United, which convocation Action Wisconsin characterized as a "homo-fascism conference." After making the statement that Storms asserts is libelous, Ott focused on potential legislation and said, "We also hope that every legislator will think twice before supporting any more hate-inspired legislation."

¶121 Second, the statement was made during the course of the legislative initiative to amend the Wisconsin Constitution to limit marriage to heterosexuals and to prevent civil unions for homosexual couples. Action Wisconsin saw such an amendment as contrary to the civil rights of homosexuals, whom it supports. The "marriage amendment" was a highly emotional topic on both sides of the issue and the political pressure placed on members of the legislature was intense. Therefore, Action Wisconsin's call to action to make "every legislator [] think twice before supporting" the upcoming constitutional amendment can be read as an effort to make voting for the proposed amendment more difficult, rather than as a call to action based on Action Wisconsin's belief that its statement about Storms was true. Furthermore, there is nothing in the record to show that Action Wisconsin turned the recording of Storms' speech over to law enforcement and requested an investigation of his activities, which one might expect it would have done if it truly believed Storms was advocating murder.

¶122 Given the context of where (as a press release placed on the internet) and when (during the legislative debate on a highly charged issue on which Action Wisconsin had taken a position), Action Wisconsin had an obvious reason to make legislative members uncomfortable for their association with Storms and his beliefs, even while doubting the truth of its allegation against Storms. St. Amant, 390 U.S. at 732 (citing Curtis Publishing Co. v. Butts, 388 U.S. 130, 169-70 (1967) (Warren, C.J., concurring in the result)). Stated otherwise, a reasonable attorney in the position of Attorney Donohoo could have believed that a reasonable jury could find that Action Wisconsin knew the statement was not true or made it with reckless disregard as to its truth, because the statement was part of Action Wisconsin's attempt to promote one side of a highly charged political issue. If the jury so found, then Attorney Donohoo would have proved that Action Wisconsin published the statement on its website with actual malice.

¶123 I agree with the court of appeals that this action was not commenced in violation of either Wis. Stat. § 814.025(3)(b) or Wis. Stat. § 802.05; nor was it continued in violation of § 814.025(3)(b). A determination of frivolousness involves a delicate balance. The question of whether an action was commenced or continued in violation of a statute is not determined in the same way that a motion for summary judgment or a motion to dismiss is determined, see Stoll v. Adriansen, 122 Wis. 2d 503, 509, 362 N.W.2d 182 (Ct. App. 1984); yet, the circuit court did not articulate or apply a different standard for these differing legal issues.

¶124 In order to be frivolous under either Wis. Stat. § 814.025(3)(b) or Wis. Stat. § 802.05, a circuit court must conclude that no reasonable attorney in Attorney Donohoo's position could have concluded that a reasonable jury could find in favor of the plaintiff. Swartwout v. Bilsie, 100 Wis. 2d 342, 350, 302 N.W.2d 508 (Ct. App. 1981). Any doubts about how a jury could find must be resolved against the person claiming that the action was frivolous. Id. While the record is a long way from proof of the claim that Attorney Donohoo asserted, I cannot conclude that no reasonable attorney in Attorney Donohoo's position could have concluded that a reasonable jury could make the findings necessary to support a verdict in favor of Storms' defamation claim. Accordingly, the defamation claim is not frivolous.

III. CONCLUSION

¶125 The dispositive questions presented by this review are: whether a reasonable attorney in Attorney Donohoo's position could have concluded that no reasonable jury could find the following facts: (1) Action Wisconsin's statement is false; (2) the statement defamed Grant Storms; and (3) when it made the statement, Action Wisconsin did not believe the statement was true, or made it with reckless disregard as to its truth. Because the law of defamation is complex and often unclear, I conclude that a reasonable attorney in Attorney Donohoo's position could have believed that a reasonable jury could answer "yes" to these questions. Such a jury then would have found that Action Wisconsin published the statement on its website with actual malice, thereby defaming Grant Storms.

¶126 Because the majority opinion concludes otherwise, I respectfully dissent.

¶127 I am authorized to state that Justices DAVID T. PROSSER and ANNETTE KINGSLAND ZIEGLER join this dissent.

[1] See Donohoo v. Action Wisconsin, Inc., No. 2006AP396, unpublished slip op. and order (Wis. Ct. App. May 30, 2007)(reversing judgment and order of the circuit court for Milwaukee County, Patricia D. McMahon, Judge).

[2] All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

Effective July 1, 2005, Wis. Stat. §§ 802.05 and 814.025 (2003-04) were repealed, and Wis. Stat. § (Rule) 802.05 (2005-06) was recreated. Supreme Court Order 03-06, 2005 WI 38, 278 Wis. 2d xiii. The new rule is procedural and there is a presumption that it applies retroactively, including to motions for frivolousness where the conduct that is the subject of such a motion occurs before the effective date of the new rule, but where the motion is filed after the effective date of the new rule. Trinity Petroleum, Inc. v. Scott Oil Co., 2007 WI 88, ¶52, 302 Wis. 2d 299, 735 N.W.2d 1. The parties agree that this case is controlled by §§ 802.05 and 814.025 (2003-04). Action Wisconsin's motion for costs and attorney fees based on frivolousness was filed before the effective date of § (Rule) 802.05 (2005-06).

[3] In fall and winter of 2003, Action Wisconsin publicly opposed state legislation and an amendment to the state constitution explicitly reserving marriage for opposite-gender couples and prohibiting the recognition of marriages not composed of an opposite-gender couple. See Wis. Const. art. XIII, § 13 ("Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.")

[4] Donohoo's notice of appeal indicated that he was appealing both the order awarding costs and attorney fees to Action Wisconsin and the order denying the motion for reconsideration. The mandate line of the court of appeals opinion states simply "[j]udgment and order reversed." However, the text of the court of appeals opinion explains that the case "is not about whether the trial court correctly decided the summary judgment issue," slip op., ¶9, and explicitly reverses only the order granting Action Wisconsin's motion seeking attorney fees, slip op., ¶33. Further, Donohoo concedes that there was no appeal of the summary judgment determination and that the issue before this court is limited to frivolousness. Thus, we do not address the order denying the motion for reconsideration except insofar as it is relevant to the issue of frivolousness.

[5] Wisconsin Stat. § 802.05 provides in relevant part:

Every pleading, motion or other paper of a party represented by an attorney shall contain the name . . . of the attorney . . . and shall be subscribed with the handwritten signature of at least one attorney of record in the individual's name. . . . The signature of an attorney or party constitutes a certificate that the attorney or party has read the pleading, motion or other paper; that to the best of the attorney's or party's knowledge, information and belief, formed after reasonable inquiry, the pleading, motion or other paper is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and that the pleading, motion or other paper is not used for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . . If the court determines that an attorney or party failed to read or make the determinations required under this subsection before signing any petition, motion or other paper, the court may, upon motion or upon its own initiative, impose an appropriate sanction on the person who signed the pleading, motion or other paper, or on a represented party, or on both. The sanction may include an order to pay to the other party the amount of reasonable expenses incurred by that party because of the filing of the pleading, motion or other paper, including reasonable attorney fees.

[6] Wisconsin Stat. § 814.025 provides in relevant part:

Costs upon frivolous claims and counterclaims.

(1) If an action or special proceeding commenced or continued by a plaintiff or a counterclaim, defense or cross complaint commenced, used or continued by a defendant is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs determined under s. 814.04 and reasonable attorney fees.

. . . .

(3) In order to find an action, special proceeding, counterclaim, defense or cross complaint to be frivolous under sub. (1), the court must find one or more of the following:

. . . .

(b) The party or the party's attorney knew, or should have known, that the action, special proceeding, counterclaim, defense or cross complaint was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

[7] We note that the repeal of §§ 802.05 and 814.025 (2003-04) and recreation § (Rule) 802.05 (2005-06) may call into question the existence of different standards of review for commencing and continuing frivolous claims. This is particularly so insofar as § (Rule) 802.05 is patterned after federal rule of civil procedure 11. See Trinity Petroleum, Inc. v. Scott Oil, Co., 2007 WI 88, ¶49, 302 Wis. 2d 299, 735 N.W.2d 1. Federal courts review the imposition of sanctions under Rule 11 for erroneous exercise of discretion. Mars Steel Corp. v. Cont'l Bank N.A., 880 F.2d 928, 933 (7th Cir. 1989).

[8] The court of appeals in the present case listed four elements, following other court of appeals decisions and the Restatement (Second) of Torts § 558 (1981): (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Slip op., ¶15; slip op., ¶40 (Curley, J., dissenting); see Van Straten v. Milwaukee Journal Newspaper-Publisher, 151 Wis. 2d 905, 912, 447 N.W.2d 105 (Ct. App. 1989).

As this court noted in Torgerson v. Journal/Sentinel, Inc., if the two sets of elements are at all different, such distinctions are not important in the present case. 210 Wis. 2d 524, 535 n. 9, 563 N.W.2d 472 (1997).

[9] The dissent focuses much of its attention on another element of a defamation claim, namely, whether Action Wisconsin's statements have defamatory meaning, such that they tend to "diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him." Dissent, ¶116 (quoting Starobin v. Northridge Lakes Dev. Co., 94 Wis. 2d 1, 10, 287 N.W.2d 747). It points out that Donohoo, the court of appeals, and three members of this court have determined that the statement is defamatory.

The parties, however, neither dispute nor examine whether the statements are capable of defamatory meaning because it is irrelevant to the issue at hand. The only element that is at issue here is actual malice. The dissent's discussion appears to obfuscate the real issue.

[10] To assist the reader, a copy of the transcript of Storms' speech is attached as an appendix to this opinion. The transcript and a compact disk recording of the speech were attached by Attorney Donohoo to Storms' brief in opposition to Action Wisconsin's motion for summary judgment.

[11] The dissent asserts that whether Action Wisconsin's statements were false "remains a fact question for the jury," and that a reasonable jury could determine that the statements were false. Dissent, ¶114. A reasonable jury could therefore also determine that the statements were true according to the dissent's view.

However, Attorney Donohoo's primary argument is that the statements were so obviously false that Action Wisconsin must have acted with actual malice. His contention appears to be at odds with the dissent's view. The dissent's assertion implicitly acknowledges that a reasonable attorney, and hence Attorney Donohoo, should have known that he could not prove actual malice, and thus that the suit was frivolous. How could he show that Action Wisconsin knew the statements were false or acted in reckless disregard of the truth if the underlying premise——the falsity——is so uncertain that it presents a question of fact for the jury?

[12] The dissent maintains that a reasonable attorney could believe that Action Wisconsin's statements were made with actual malice "because the statement was part of Action Wisconsin's attempt to promote one side of a highly charged political issue." Dissent, ¶122. The effect of the dissent's view is to make it easier to find actual malice in cases of speech regarding contentious political issues. Such issues, however, are where First Amendment protections are at their apex. Buckley v. Valeo, 424 U.S. 1, 14 (1976).

[13] Majority op., ¶4.

[14] The majority claims that I "implicitly acknowledge[] that a reasonable attorney, and hence Attorney Donohoo, should have known that he could not prove actual malice." Majority op., ¶57 n.11. I do no such thing. First, I recognize, contrary to the majority's suggestion, that the inquiry must be focused on what a reasonable attorney would have believed, not what Attorney Donohoo, specifically, believed. See infra, ¶¶24, 28, 34. Second, I conclude, contrary to the majority's suggestion, that a reasonable attorney in Attorney Donohoo's position could have believed that a reasonable jury could have concluded that Action Wisconsin made false statements with actual malice.

[15] Both parties assume that Grant Storms is a public figure. Therefore, even though a complete analysis of this question may not end with that conclusion, I do not address the issue in this dissent.

[16] Article XIII, Section 13 of the Wisconsin Constitution, Marriage Between One Man and One Woman, had not yet reached the voters when Action Wisconsin published its statement about Storms' speech.

[17] Action Wisconsin maintained that Storms' defamation action was frivolous because there was no basis in law or in fact for it.

[18] This is contrary to the rule in regard to defamation in the form of slander, where special damages must be pleaded and proved. Martin v. Outboard Marine Corp., 15 Wis. 2d 452, 461, 113 N.W.2d 135 (1962).

[19] This writer has listened to the entire recording of Storms' speech.

[20] The statements in ¶56 n.11 of the majority opinion exemplify the incorrect standard that the majority opinion has applied throughout its opinion in determining whether Storms' defamation claim is frivolous. The question is not whether a reasonable jury would find for Storms on each element he had to prove in his defamation claim, but rather, whether a reasonable attorney in the position of Attorney Donohoo could believe it was possible for a reasonable jury to find in Storms' behalf. Baumeister v. Automated Prods., Inc., 2004 WI 148, ¶28, 277 Wis. 2d 21, 690 N.W.2d 1. As we explained in Baumeister, "This court does not look at whether one can prevail on his claim, but whether the claim is so indefensible that the party or his attorney should have known it to be frivolous." Id.


Case No.:		2006AP396
Complete Title:
		In the matter of attorneys fees in: Grant E. Storms, plaintiff, v. Action Wisconsin Inc. and Christopher Ott, defendants. James R. Donohoo, Appellant, v. Action Wisconsin, Inc. and Christopher Ott, Respondents-Petitioners.


		REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 303 Wis. 2d 744, 735 N.W.2d 192 (Ct. App. 2007-Unpublished)

Opinion Filed:		June 5, 2008
Submitted on Briefs:
Oral Argument:		January 15, 2008

Source of Appeal:
	Court:	Circuit
	County:	Milwaukee
	Judge:	Patricia D. McMahon

Justices:
	Concurred:
	Dissented:	ROGGENSACK, J., dissents (opinion filed). PROSSER and ZIEGLER, JJ., join the dissent.
	Not Participating:

Attorneys:

(L.C. No.	2004CV2205)
STATE OF WISCONSIN :		IN SUPREME COURT

In the matter of attorneys fees in: Grant E. Storms, plaintiff, v. Action Wisconsin Inc. and Christopher Ott, defendants. James R. Donohoo, Appellant, v. Action Wisconsin, Inc. and Christopher Ott, Respondents-Petitioners.			FILED JUN 5, 2008 David R. Schanker Clerk of Supreme Court