Moms for Liberty activist beats defamation suit by DEI employee over 'woke,' 'white savior' jabs

A Moms for Liberty activist in Wisconsin described a onetime "social justice coordinator" in the local high school as a "white savior" and "woke" woman with a "god complex." 

She said the employee is emblematic of diversity, equity and inclusion specialists who earn more than the district's teachers, "woke lunatics … bullying you into silence and compliance," and should "forfeit her job to a person of color" if she "really wants to promote equity."

Scarlett Johnson spent nearly 1,100 days defending herself against a defamation suit by the coordinator, Mary MacCudden, before a divided state appeals court cleared her name this week, overturning a lower court that said a jury should consider whether Johnson's hyperbolic language implied factual assertions about MacCudden.

The duration of the litigation shows the ongoing legal and financial peril for parental rights activists who criticize government employees using language typical of conservatives against those they consider progressive, authoritarian and hypocritical.

"The defamation lawsuit against her was meritless and should have been promptly dismissed," Wisconsin Institute for Law and Liberty deputy counsel Luke Berg, whose group represented Johnson on appeal, said in announcing Tuesday's verdict, three years to the day after MacCudden filed the complaint in Milwaukee County Circuit Court.

WILL called the pending trial "costly, pointless, and incoherent" when the appeals court agreed to hear the case last year.

MacCudden initially demanded "tens of thousands of dollars" from Johnson to avoid litigation but did not get more specific after that, Berg told Just the News. He said possible penalties at trial would have depended on what MacCudden could have proven. (Johnson didn't answer a direct message about the cost of defending herself for three years.)

"Courts have regularly held that nebulous concepts like 'woke' and 'bully' that are routinely and indiscriminately thrown about in public discourse are not actionable precisely because their meaning depends on one’s opinion and viewpoint," the public interest law firm said.

Lawyers for MacCudden did not respond to queries. The appeals court directed Circuit Judge Glenn Yamahiro to enter summary judgment in favor of Johnson, and the docket for his court shows the next action in the case is a status conference Nov. 21.

A mother of five, ages 11 to 24, and self-proclaimed "accidental activist," Johnson says she speaks out on social media because schools are "obsessed with identity politics" and "I am tired of hiring six-figure administrators that just tell teachers what to do." 

She's Puerto Rican but her husband and father of her children is white, "so what does that say when my kids go into classrooms and they're told that to be white is to be evil, and to be brown is somehow inherently good" or always a victim, she said in a WILL video.

Johnson also serves as M4L's social media manager and a White House new-media journalist. This month she received tips about police arresting a Wisconsin man – already being prosecuted for public exposure – for allegedly masturbating across the street from a high school pool, after the district let him repeatedly use its girls' locker room.

Posts 'imply the allegation of undisclosed defamatory facts'

MacCudden's complaint alleged Johnson posted "derogatory and defamatory statements" on Twitter and Facebook Oct. 6, 2022, with the educator's "image and likeness" and Linkedin work experience, but she only specifically contested the factuality of Johnson's claim that MacCudden still worked at the high school or in the Mequon-Thiensville School District.

Five days later, Johnson reshared her original posts on both platforms despite acknowledging MacCudden was no longer an employee, and together the posts received more than 250 shares and 130-140 comments, the suit alleges.

"Johnson knew or should have known what constituted defamatory words and language," the suit says, because she had been sued for defamation a year earlier by Bridge the Divide, a nonprofit that promotes "racial reconciliation" but appears to be defunct. 

Johnson was running for school board and called that suit an out-of-district "political hit job." The docket shows the Ozaukee County Circuit Court approved Bridge the Divide's stipulation for dismissal three days after MacCudden filed her suit in Milwaukee County.

MacCudden's complaint is vague on exactly what was false in Johnson's social media posts. She claimed the "statements … had no basis in fact," that Johnson "knew or should have known that one or more of her statements were false" and that "all" were made "with express malice" to harm MacCudden. 

She suffered financial losses and emotional distress, paid attorney's fees and experienced a "devalued" reputation among the district's parents, teachers and administrators, and sought punitive damages against Johnson.

Judge Kristy Yang, hearing the case before Yamahiro, disposed of much of MacCudden's suit by finding certain of Johnson's statements were "at least substantially true."

MacCudden's role was indeed funded by the district, and she failed to update her LinkedIn profile, upon which Johnson relied, for several months after leaving the school. She admitted being "at least partly white." – like Johnson, MacCudden has some Puerto Rican ancestry — and identifying as a woman, while other Johnson statements are just opinions.

But Yang concluded "a genuine issue of material fact exists" as to whether the other statements, such as "woke," "white savior" and MacCudden's field being "lunatics" and "bullies," constitute "mixed opinions" directed toward an employee, not a district as Johnson claimed.

A jury could find they "imply the allegation of undisclosed defamatory facts," and an employer could read them as "an indication that MacCudden abuses her position of power over students," as "the terms taken in their literal expression can be defamatory," the judge said.

While Johnson often commented on the district as a whole, she repeatedly singled out MacCudden even after learning the plaintiff wasn't employed by the district, which a jury could deem "express malice," Yang said. Three of MacCudden's friends saw Johnson's posts, and she did a dozen sessions with a therapist about how they affected her.

'Woke' is sometimes a compliment

The majority appeals opinion by Chief Judge Maxine White and Deputy Chief Judge Joe Donald found nothing said by Johnson was defamatory, so it didn't address "whether a defamation trial would violate her First Amendment rights," as WILL had argued.

"Even if we assume Johnson’s statements were about MacCudden" – Johnson belatedly claimed she was referring to the "type of person who holds" a social justice coordinator position – "we conclude that the statements are not provably true or false," the opinion says.

It cites a long line of cases, most recently last year in the U.S. Court of Appeals for the D.C. Circuit, that deem variations of "bully" and "lunatic" with nothing more specific as subjective. "Woke," "white savior" and "god complex" are also too vague to be defamatory, and "woke" can even be a compliment, the opinion notes.

Judge Yang is stretching to find plausible "mixed opinions" in Johnson's statements that imply MacCudden "abused her position of power or was unfit to teach," the duo said. "Johnson was not commenting on MacCudden’s teaching record or qualifications" and explicitly pointed to her LinkedIn profile as the basis for her comments.

MacCudden simply has no grounds to argue defamation from the "negative connotations" she perceived from Johnson's posts, the opinion concludes.

Judge Pedro Colón's dissent agreed with Yang about the implication of "undisclosed defamatory facts" in Johnson's posts specifying a particular person and position. They were not "merely general statements that Johnson did not support public school systems having a social justice coordinator position or that Johnson found woke ideology offensive."

Johnson does not know more about MacCudden than she said in the posts, lawyer Berg told Just the News, but even if she did, "I’m not aware of any case holding that a vague suggestion that the speaker might be aware of some unspoken bad act – without something more specific – is actionable."