¶ 108. {dissenting). This is a SLAPP suit masquerading as a defamation case.1 A SLAPP suit represents an attempt to chill First Amendment rights by bringing a tort suit, such as defamation. Like a defamation case, this suit implicates important issues of constitutional law.
*242¶ 109. The United States Supreme Court has prescribed the standard for reviewing limitations on political speech, declaring that "[wjhen a law hinders core political speech, we apply 'exacting scrutiny' and we uphold the restriction only if it is narrowly tailored to serve an overriding state interest." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347 (1995). Although this case involves review of judicial determinations affecting speech rather than the application of a speech-restrictive statute, the standard we apply should be no less rigorous. New York Times Co. v. Sullivan, 376 U.S. 254, 265 (1964).
¶ 110. The majority sees it differently. It does not apply exacting scrutiny to the circuit court's decision to compel discovery and impose sanctions. Instead, it applies the deferential erroneous exercise of discretion standard, as though this standard adequately safeguards First Amendment freedoms. I cannot agree.
I. BACKGROUND
¶ 111. The facts and context are critical to the proper resolution of the constitutional issues in this case, and thus they are reported at some length.
¶ 112. The plaintiff, Julie Lassa, is a Democratic state senator from Stevens Point. She was elected to the Assembly in 1998, 2000, and 2002, and elected to the Senate in a special election on April 29, 2003.2
¶ 113. In 2002, shortly before the general election, the defendant, Todd Rongstad, caused a mailing to be sent to voters in Representative Lassa's 71st Assembly District, as well as some voters in other areas that make up the 24th Senate District. The mailing con*243sisted of an oversized two-sided postcard. One side of this mailing shows a colored photograph of Lassa jumping, with her shoes off, in the rotunda of the State Capitol, in front of a group of students. The smiling face of then-Senator Charles Chvala is superimposed, like multiple colored masks, on the students' heads.
¶ 114. The bottom of this first side reproduces a Milwaukee Journal Sentinel headline reporting, "Ch-vala charged with extortion, State Senator faces 20 felony counts, up to 85 years in prison." At the top of the jumping picture in bold type is the name "Julie Lassa." At the bottom of the picture is the phrase "When Chuck Said Jump ..."
¶ 115. On the other side of the card the following text is printed over the photograph of Senator Chvala's mug shot:
Lassa Wanted To Be A State Senator, So She Hooked Up With Chuck Chvala.
A Tale of Wisconsin Politics
One day, Julie Lassa decided she wanted to be a state senator. So she asked Senate Leader Chuck Chvala if she could, and he said okay
Nobody knows for sure what she had to promise to gain his approval. But Chuck wanted a more compliant senator, so he got to work.
What he did best was fundraise with unsubtle threats. Populist Chvala even sponsored a Lassa fundraiser at the state's ritziest country club.
Chvala didn't care much for dissent. And he was giddy with the idea of Senator Julie.
Just like the old days when party bosses made decisions for us all.
*244But then Lassa's mentor was charged with 20 felonies and things fell apart.
The End?
Extortion, misconduct in public office, pay to play, lying, cheating and stealing. Wisconsin politics has gone completely astray. Please call Julie Lassa... and the rest and ask them the tough questions — did you compromise your integrity, did you play along with an illegal game, did you misuse tax dollars to win elections?
And, most importantly, will you please clean up your act?
¶ 116. This side of the card also carries two small photographs of Lassa as well as a space for a mailing address. In two places, the mailing indicates that it was produced by "The Alliance for a Working Wisconsin" (the Alliance) with a post office box in Waunakee, Wisconsin.
¶ 117. The mailing was designed to embarrass Lassa by linking her to Senator Chvala, who had recently been charged with several campaign-related offenses. The apparent motive for the mailing was to discourage Lassa from running for the state senate should the 24th District senate seat become vacant, or to weaken her candidacy if she made such a race.
¶ 118. The 2002 mailing had no effect on Lassa's election to the Assembly, as she was re-elected with 73 percent of the vote, a higher percentage than she received in 2000.
¶ 119. At that time, the 24th Senate District was represented by Senator Kevin Shibilski, also a Democrat. Senator Shibilski had angered some members of his party, including Senator Chvala, when he voted for a Republican-sponsored budget "repair" bill in 2002. The residual effect of his vote surfaced later in the year *245when Senator Shibilski was defeated by Barbara Law-ton in a statewide Democratic primary for lieutenant governor.
¶ 120. After the 2002 election, Senator Shibilski was designated by Governor-elect James Doyle as the new Secretary of Tourism. He resigned his senate seat in early January, which led eventually to a special election to fill the vacancy.
¶ 121. On January 16, 2003, Lassa filed suit against Rongstad, alleging defamation. Lassa's complaint stated in part:
[1.] Lassa has not made a decision whether to run for [Shibilski's] vacated seat as of this [date].
[2.] Lassa was not a candidate for State Senate as alleged in the text of the mailer-postcard and Lassa did not ask for help from Chvala to ran for the State Senate, a seat then occupied by Democratic Senator Kevin [Shibilski] . ..
[3.] The message falsely asserts to citizens receiving the mailer-postcard a) that Lassa was running for the Senate; b) that she was doing so at the demand of Chvala who was, at the time of the mailing, under indictment on 20 felony counts; and c) that Lassa was involved in the conduct that led to the indictment of Senator Chvala.
[4.] The bottom of the mailer-postcard shows a picture of Lassa directly to the right of the following text that is superimposed over what appears to be the booking information from the Dane County Sheriffs office for the arrest of Chvala:
Extortion, misconduct in public office, pay to play, lying, cheating and stealing. Wisconsin politics has gone completely astray. Please call Julie Lassa .. . and the rest and ask them the tough questions— *246did you compromise your integrity, did you play along with an illegal game, did you misuse tax dollars to win elections? And, most importantly, will you please clean up your act?
[5.] The message falsely and maliciously asserts to her constituents that Lassa engaged in "extortion," "misconduct in public office," "pay to play," as well as "lying, cheating and stealing."
[6.] Lassa has not engaged in such illegal activity... and is not involved in the Chvala matter in any way.
[7.] The mailer-postcard was published out of ill will and an intent to destroy Lassa's political reputation in the community and any opportunity she might have to run for the State Senate and other political positions in the future.
[8.] Defendants have caused to be communicated and published a false and malicious statement regarding Plaintiffs conduct.
[9.] Plaintiff has been injured by the false and malicious communication by lowering her in the estimation of her constituents and other citizens of the state.
[10.] As a direct and proximate result of the defamatory statements, Plaintiff has suffered compensatory damages, including but not limited to loss of future earnings and opportunities, humiliation, damage to her reputation, emotional distress, pain and suffering and costs incurred in bringing this action, all in amounts to he determined.
¶ 122. The summons issued to Rongstad advised him that he had 45 days after service to file a written answer to the complaint. However, on January 16, the *247same date as the filing, the plaintiffs attorney, Edward Garvey, issued a subpoena duces tecum commanding Rongstad to appear at Garvey's office on January 30 for a deposition. The subpoena also commanded Rongstad to bring "any and all documents relating to the Complaint filed in this matter."
¶ 123. On January 23, Rongstad's attorney, Michael E Crooks, advised Attorney Garvey that the January 30 date was not convenient, either for him or for defendant Rongstad. Having received no response by January 27, Attorney Crooks filed a motion with the court for a protective order postponing the deposition. In this motion, Attorney Crooks asserted that the action and subpoena were not served upon the defendant until January 22, the day before he wrote to Attorney Garvey. Thus, he claimed, the plaintiff had "subpoenaed Defendant Rongstad for a deposition scheduled 39 days before he is even required to file an answer."
¶ 124. In the January 27 brief accompanying the motion, Attorney Crooks asked for time to answer the complaint. "Defendants also anticipate filing a motion to dismiss the summons and complaint. Again, forcing Defendant Rongstad to undergo a deposition prior to a resolution of these preliminary matters subjects him to annoyance, oppression, undue burden and expense." (Emphasis added.)
¶ 125. In a second filing on January 28, Attorney Crooks swore in an affidavit:
That as mentioned in the initial moving papers, your affiant plans on filing a motion to dismiss the complaint in its entirety, as the same fails to state a claim upon which relief can be granted. [The] defendants request an adjournment of any depositions until after the Court *248has an opportunity to hear said motion. (Emphasis added.)
¶ 126. On January 28, Defendant Rongstad also filed an affidavit with the court, explaining why January 30 was inconvenient and stating, "[Y]our affiant has ordered his attorneys to file a motion to dismiss the case, based upon his belief that it is meritless and done for political purposes, rather than for pursuit of actual damages." (Emphasis added.)
¶ 127. On January 29, 2003, Dane County Circuit Judge Michael N. Nowakowski heard the motion to quash Attorney Garvey's subpoena for the January 30 deposition. Attorney Crooks began his presentation with the observation that "within the lawsuit I think we're . .. entering real dangerous grounds. If the Court allows this to go forward, the Court is essentially sanctioning a system where we put process ahead of what is purported to be a legitimate lawsuit."
¶ 128. Rongstad's attorney argued that the purpose of the suit was political. "[W]e intend to file a motion to dismiss the entire lawsuit within a week to 10 days.... [To] subject [Rongstad] to the deposition process under the guise of a legitimate lawsuit is not right." (Emphasis added.)
¶ 129. The circuit court was not impressed. The court chastised counsel for not knowing whether he and Rongstad, who was not present, were available for a January 31 deposition, yet it refused counsel's request to call his office. The court said:
I will make this point with respect to some of the contentions that you've raised. There is no basis under the law to say that simply because someone has only recently been served and represents that they intend to file a motion to dismiss the case that they are therefore immune from or not subject to having their deposition *249taken. That simply is not a principle of law that applies. (Emphasis added.)
The other thing that is apparent... is that there are other defendants who have not been served, have not been named and have only been identified as Does that Mr. Garvey and his client are entitled to try and find out who they are ....
¶ 130. Ultimately, the parties agreed to a deposition on Monday, February 3, 2003. At that deposition, Rongstad declined to answer certain questions on constitutional grounds, on the advice of counsel.
¶ 131. At a hearing the following day, February 4, Rongstad's attorney stressed that Rongstad accepted full responsibility for the mailing, but he objected to comprehensive questioning about membership in Rongstad's organization and the speed with which the discovery was proceeding.
¶ 132. In rebuttal, Attorney Garvey argued: "There is a special election that is coming up. We now know that that seat is vacant, and therefore, I think it is extremely important that we get to the bottom of this as quickly as possible."3
¶ 133. The court declared:
This is a private lawsuit in which an individual citizen seeks injunctive relief and damages on the basis of her allegations that she has been defamed .... The suit asserts common law rights ...
... [T]he interests to be weighed are different in this setting than in the pure government enforcement arena.
*250¶ 134. The court distinguished NAACP v. Alabama, 357 U.S. 449 (1958), cited by Rongstad, on grounds that Lassa represented a different kind of interest than the state government of Alabama:
The purely private interest of any citizen in his or her good name has long been recognized as worthy of the careful protection of the law. While the plaintiff by voluntarily injecting herself into the public spotlight by becoming a candidate for public office is expected to live with certain attacks on her good name that a purely private person might not have to suffer, she does not forfeit entirely the law's protection.
Were I to sustain the objection to the questions at issue... the practical effect would be to grant these unknown participants in the alleged defamation ... the absolute immunity that the Supreme Court was so careful to eschew.
The objections are overruled, and the defendant Rongstad is ordered to answer all questions inquiring as to the names and behavior of any other persons involved in the preparation, funding or distribution of the mailing. (Emphasis added.)
¶ 135. Early on, the court rejected Rongstad's request to file briefs on the issues, and, after its ruling, the court rejected a stay so that Rongstad could seek a supervisory writ.4 The court underlined its position: "The suggestion that [Rongstad] and his counsel have been denied the opportunity to make presentation on the two issues that were alluded to by Mr. Crooks is simply unfair, is an unfair characterization of what *251transpired... when I was unexpectedly confronted with this issue."
¶ 136. On February 6, after "roughly 10 hours" and over 400 pages of deposition, Rongstad asked the court to hear a motion for reconsideration. Attorney Crooks argued that Lassa claimed that she was defamed "in the context of her position as a State Representative and potentially a State Senator. She is an officer of the State of Wisconsin, and I believe as a result of that that the state action cases are applicable to the Court's analysis." Moreover, he said, the court's order itself constituted "state action."
¶ 137. The court denied the motion for reconsideration and stated, "[I]t's a sad day in our political system when somehow this kind of activity is covered up and evaded. Seldom have I seen such an abuse."
¶ 138. On February 10, Rongstad filed an answer to the complaint. For affirmative defenses, Rongstad asserted that the complaint failed to state a claim upon which relief may be granted; the statements in the postcard were not defamatory; the statements in the postcard were substantially true; the defendant's conduct was privileged; and the statements, because they related to Lassa's "actions as a public official," were entitled to greater protection from liability than if they had been made against a private individual.
*252¶ 139. The following day, February 11, Attorney Crooks filed a motion to dismiss, together with a 15-page brief discussing the constitutional principles and facts supporting the motion.5
¶ 140. On February 18 the court heard argument on a motion by Attorney Garvey for a protective order to quash a subpoena to depose Lassa. The court granted the motion, delaying any deposition of Lassa until after March 15.
¶ 141. On February 21 Lassa moved for sanctions. She requested that Rongstad be held in contempt and that the court impose forfeitures for any continuing violation of the court's orders. Hearings were held on February 28 and March 11. The court imposed a sanction of more than $32,000 in attorney fees and ordered, beginning March 13, that Rongstad pay a forfeiture of $1000 per day until he complied with the court's orders.
¶ 142. On April 1, Lassa handily won a Democratic primary election for the senate, defeating Attorney Alex Paul, who was ultimately exposed as having financed the 2002 mailing. In expensive primary advertising, Paul promoted themes that paralleled the postcard, prompting Attorney Garvey to publicly threaten to depose Paul's campaign to determine whether Paul had anything to do with the mailing. Paul, Lassa squabble over ads, Stevens Point J., Mar. 21, 2003. In the April 29 special election, Lassa was elected to the senate, winning more than 61 percent of the vote.
*253¶ 143. On July 8, 2003, long after the election, a different Dane County judge denied the defendant's February 11 motion to dismiss. On August 15 the court granted Senator Lassa's motion for default judgment. By stipulation, the amount at stake in this review is $65,000.
II. ANALYSIS
¶ 144. This case was commenced as a defamation suit by a public official who was criticized during a contested election campaign. Because of its facts, the case is at the epicenter of First Amendment principles, inasmuch as it involves not only the heavily protected freedom to criticize government officials, Herbert v. Lando, 441 U.S. 153 (1979) and Sullivan, but also the right to facilitate political speech through the expenditure of money, Buckley v. Valeo, 424 U.S. 1, 19, 22-23, 47-51, 54, 57-58 (1976); the right to anonymous speech, McIntyre v. Ohio Elections Commission, 514 U.S. 334, 342 (1995); the right to associate with others for expression purposes and the right to privacy in those associations, NAACP, 357 U.S. at 462.
¶ 145. Because this case involves review of judicial determinations affecting political speech, this court must apply exacting scrutiny to these determinations. Sullivan, 376 U.S. at 265. From the outset, before it acceded to Lassa's request to compel Rongstad to disclose the membership of the Alliance, the circuit court should have ensured that its discovery order was "narrowly tailored to serve an overriding state interest." McIntyre, 514 U.S. 347.
¶ 146. The majority identifies two state interests, the interest of a candidate for public office in being free from defamation, and the state's interest in ensuring accurate information during election campaigns. Major*254ity op., ¶ 41. The majority then reaches the surprising conclusion that the order requiring Rongstad to disclose the membership of the Alliance, who would then be named as defendants in a highly publicized defamation suit, did not chill First Amendment rights. Majority op., ¶¶ 67-68. As a result, the majority concludes that it need not balance the competing interests to determine whether the circuit court's decision to compel disclosure was narrowly tailored. Majority op., ¶ 71. I cannot agree.
¶ 147. First, although I agree that affording candidates a means to relief from defamation and ensuring accurate information during election campaigns are legitimate state interests, I disagree that compelling Rong-stad to disclose the membership of the Alliance advanced either interest. Second, I believe that compelling Rong-stad to disclose the membership information, effectively guaranteeing that the unmasked individuals would become defendants in this lawsuit, substantially chilled First Amendment rights. Consequently, I conclude that the circuit court could not have concluded that the state interests outweighed Rongstad's assertion of privilege without first determining that Lassa's claim was capable of a defamatory meaning. Thus, I conclude the order compelling disclosure was not narrowly tailored and cannot support the imposition of sanctions.
A. No Compelling State Interest Justified Disclosure
¶ 148. Lassa's suit implicates two state interests, the interest of a candidate for public office in being free from defamation, and the state's interest in ensuring accurate information during election campaigns. Majority op., ¶ 41. At the time the circuit court ordered Rongstad to disclose the membership of the Alliance, neither interest was compelling.
*2551. The State Interest in Protecting Citizens Against Defamation
¶ 149. Two features of Lassa's claim dilute the strength of the state's interest in protecting citizens from defamation. First, during an election campaign the state's interest in preventing defamation is counterbalanced by its interest in promoting political discourse. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). A court's duty to protect speech involving a public figure is heightened during elections. See Roy, 401 U.S. at 272 (stating that the First Amendment "has its fullest and most urgent application precisely to the conduct of campaigns for political office"). Courts must be solicitous of the reality that "[t]he clash of reputations is the staple of election campaigns," and that campaigning necessarily entails bruised reputations.
¶ 150. As the Supreme Court explained:
It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast and the advantages derived are so great that they more than counterbalance the inconvenience of the private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare. The public benefit from publicity is so great and the chance-of injury to private character so small that such discussion must be privileged.
Id. (quoting Coleman v. MacLennan, 98 E 281, 286 (Kan. 1908)).6
*256¶ 151. Second, Lassa's suit presents a defamation claim by a public figure against a media or non-media defendant, "which will always involve a conditional constitutional privilege." See Wis JI — Civil 2500 at 9 (emphasis added).7 The central principles pertaining to public figure defamation were summarized by this court in Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 563 N.W.2d 472 (1997):
The First Amendment imposes a constitutional privilege on the publication of statements about public figures, even when those statements are false and defamatory. The privilege, however, is conditional, and the condition is the absence of actual malice. The requirement that actual malice be proven is a minimal accommodation of the reputational interests of public figures and the community's interest in unfettered public debate.
Proof of actual malice requires a showing that the defamatory falsehood was published with knowledge of its falsity or with reckless disregard for its truth.
Id. at 535-36.
*257¶ 152. To discourage the use of defamation claims as a tool to suppress political speech, candidates for public office must meet a high standard to prove defamation. It is not that we love public officials less, but that we love freedom of expression more, that we must hold any public official to a high standard in a defamation suit.
¶ 153. I doubt that if this court were to engage in a sentence-by-sentence analysis of the Rongstad mailing (or take it as a whole), it would conclude that the mailing was defamatory under the United States Constitution. It is obvious that the majority shares this view, for it assiduously avoids any definitive pronouncement on defamation and attempts to recast the issues so that any such pronouncement is unnecessary.
¶ 154. In my view, the Rongstad mailing was offensive and unfair but not defamatory in a constitutional sense. Lassa had every right to be angry and to take steps to address the criticism she received. On the other hand, she was a public official with access to the news media and ample time before the upcoming April elections to rally people to her defense. There is no discernible reason why the court should have forced Rongstad to answer every question related to the 2002 mailing before determining that Lassa's suit could survive a motion to dismiss.
2. The State Interest in Ensuring Accurate Information During Election Campaigns
¶ 155. The majority's claim that the state had a compelling interest to ensure accurate information during an election campaign proves equally unpersuasive in this case.
*258¶ 156. The nature of the Rongstad mailing undermines any claim that the state had an overriding interest in protecting the public from fraudulent and libelous speech. The fact is, even without a court ruling, the mailing backfired. The mailing was so transparently cartoonish and political in nature that it did not hurt Lassa; it helped her.8 As Bill Berry, a former editor of the Stevens Point Journal, put it, "An outsider doesn't trash a local farm girl up here and get away with it." See Bill Berry, Point counterpoint (Aug. 28, 2003), http://www.FightingBob.com. Lassa's own complaint acknowledges that her voting percentage went up in the election immediately following distribution of the mailing, when its impact was fresh. Accordingly, it is difficult to accept the proposition that Rongstad's mailing misled anyone.
¶ 157. What's more, if the mailing did mislead anyone, Lassa had months to respond and set the record straight. Cf. McIntyre, 514 U.S. at 352 n.16. In McIntyre the Supreme Court distinguished between the need to prevent fraudulent and libelous speech that occurs in the "eleventh-hour" before an election and *259speech that occurs months in advance. Id. Whereas the former affords a candidate no time to respond, the latter gives a candidate adequate time to counter any falsehood. Immediate court action may be necessary to remedy an eleventh-hour attack, but it is less likely to be necessary when the election is several months away.
B. Disclosure Substantially Chills First Amendment Rights
¶ 158. The majority relies upon the test expounded upon in NAACP, decided in 1958, and Buckley to determine whether Rongstad made a factual showing that disclosure would chill First Amendment rights. Factually, however, the present case is very different from NAACP, Buckley, and any of the other cases the majority cites. Unlike the cases cited by the majority, this case concerns a public official's attempt to obtain confidential membership information in the course of a defamation claim for the purpose of adding those anonymous members as defendants in the lawsuit. This distinction matters because the amount of time and money required for private individuals to defend against a defamation claim should be recognized as sufficient to establish an objective, substantial chill upon First Amendment rights. See Torgerson, 210 Wis. 2d at 538-39 n.14 ("The threat of being put to the defense of a lawsuit brought by a popular public official may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself1) (quoting Washington Post Co. v. Keogh, 365 F.2d 965, 968 (D.C. Cir. 1967)).
¶ 159. Since the Supreme Court decided NAACP and Buckley, legislatures, courts, and commentators have come to appreciate just how much lawsuits like this one chill First Amendment rights. Lassa's defama*260tion suit against Rongstad fits within the classic prototype of a SLAPP suit (a Strategic Lawsuit Against Public Participation). Kathleen L. Daerr-Bannon, Cause of Action: Bringing and Defending Anti-SLAPP Motions to Strike or Dismiss, 22 Causes of Action 2d 317, 323 (2003) (noting that libel and slander are among the most common claims alleged in SLAPP complaints). SLAPP suits "are fashioned as traditional lawsuits for tortious misconduct but are in actuality thinly disguised efforts to abuse the litigation process in order to silence citizen discussions on issues affecting the public well-being." Id. at 322. "The purpose of the SLAPP ... is distinctly not to succeed on the merits, but to so intimidate the private citizen (or even the government official) that citizen activity ceases because the expense, risk and anxiety engendered by the process of litigating a SLAPP is too great." Id.; accord In re Discipline of Attorney, 815 N.E.2d 1072, 1074 n.2 (Mass. 2004); Dickens v. Provident Life & Accident Ins. Co., 117 Cal. App. 4th 705, 713, 11 Cal. Rptr. 3d 877, 882 (Ct. App. 2004).
¶ 160. Since the State of Washington enacted the first statute imposing procedural hurdles upon SLAPP suits in 1989,9 at least 19 states have enacted legislation to discourage SLAPP suits (anti-SLAPP statutes). See Daerr-Bannon, supra, at 341-43 (listing 19 states); California Anti-SLAPP Project, http://www.casp.net/ menstate.html (last updated Feb. 6, 2006) (listing 24 states). In addition, as of February 2006 anti-SLAPP legislation was pending in 10 states. California Anti-SLAPP Project, http://www.casp.net/menstate.html (last updated Feb. 6, 2006).
*261¶ 161. Until this case, the term SLAPP suit had been relatively unheard of in Wisconsin jurisprudence.10 Mention of a SLAPP suit is made in only one Wisconsin case. See Vultaggio v. Yasko, 215 Wis. 2d 326, 359, 572 N.W.2d 450 (1998) (Bradley, J., dissenting). In Vultaggio Justice Bradley recognized that "[r]egardless of whether such suits are legitimate grievances or SLAPP suits (Strategic Lawsuit Against Public Participation) the possibility of a multi-million dollar lawsuit may chill democratic participation ...." Vultaggio, 215 Wis. 2d at 359 (Bradley, J., dissenting). I believe that the present suit substantially chills First Amendment rights of speech and association and that the majority seriously errs by refusing to balance the competing interests to determine whether the circuit court should have compelled Rongstad to disclose the membership of *262the Alliance. Cf. Major v. Silna, 134 Cal. App. 4th 1485, 1490-91, 36 Cal. Rptr. 3d 875, 878 (Ct. App. 2005) (noting "the anti-SIAPP law has been applied to actions arising from political literature discussing the qualifications of candidates during elections.").
.. ¶ 162. Use of discovery to obtain confidential information pertaining to the membership of the Alliance, and the majority's response, demonstrate the need for legislation to prevent parties from manipulating the legal system to chill the exercise of First Amendment rights. The legislature should consider the experience of other states that have enacted anti-SLAPP statutes and consider adopting legislation modeled upon the anti-SLAPP statutes in states like California, Cal. Civ. Proc. Code § 425.16 (West 2005), and Massachusetts, Mass. Gen. Laws Ann. ch. 231, § 59H (West 2005). The potential for the strategic abuse of legal process is real. As one court put it:
SLAPP suits function by forcing the target into the judicial arena where the SLAPP filer foists upon the target the expenses of a defense.... The purpose of such gamesmanship ranges from simple retribution for past activism to discouraging future activism. Needless to say, an ultimate disposition in favor of the target often amounts merely to a pyrrhic victory. Those who lack the financial resources and emotional stamina to play out the "game" face the difficult choice of defaulting despite meritorious defenses or being brought to their knees to settle. The ripple effect of such suits in our society is enormous. Persons who have been outspoken on issues of public importance targeted in such suits or who have witnessed such suits will often choose in the future to stay silent. Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.
Gordon v. Marrone, 590 N.Y.S.2d 649, 656 (N.Y. Sup. Ct. 1992).
*263C. The Order Compelling Disclosure Was Not Narrowly Tailored
¶ 163. The circuit court's order to compel disclosure was not narrowly tailored. The court failed to examine with exacting scrutiny the legitimacy of the asserted state interests and dismissed as unsubstantiated Rongstad's assertion that disclosure would chill First Amendment rights. Based upon these errors, the circuit court ordered Rongstad to comply with its discovery order or pay $1000 per day in contempt. Without a prior determination that Rongstad's mailing was capable of a defamatory meaning and that the identity of Alliance members was necessary for Lassa's suit to proceed, I cannot accept that the circuit court's order was narrowly tailored to protect First Amendment rights.
¶ 164. It is difficult to understand how Lassa's interest in being free from defamation was furthered by compelling disclosure of the anonymous speakers at such an early date. Lassa had all the necessary ingredients to clear her name without requiring the disclosure of the Alliance membership. In Doe v. Cahill, 884 A.2d 451 (Del. 2005), cited by the majority, the plaintiff did not know the identity of any of the defendants when discovery was sought; here Lassa knew the identity of the primary defendant. Therefore, because "there is reason to believe that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics[,]" Cahill, 884 A.2d at 457, the circuit court should have protected Rongstad and the anonymous speakers from any potential ulterior motive by considering Rongstad's motion to dismiss before compelling discovery.11 In deciding otherwise, the circuit court and *264the majority appear to have lost sight of the purpose of defamation litigation and the proper balance of the constitutional rights at stake in this case.
¶ 165. To succeed in a defamation claim against a public official, a plaintiff must prove actual malice, which might well require discovery. In this case, however, there are preliminary issues to resolve, such as whether the statements in the mailing were substantially true or simply not defamatory as a matter of law. The sine qua non of public figure defamation is the distribution of false words or statements that damage a person's reputation.
¶ 166. A motion to dismiss raises a threshold challenge to a lawsuit, which a court should adjudicate early on so that meritless suits can be disposed of without the expense and delay of discovery and additional litigation. Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 1349, at 56-57 (3d ed. 2004). Generally, the standard a complaint must meet to survive a motion to dismiss is toothless. A complaint for defamation, however, must meet a higher standard. Not only must a court decide as *265a matter of law that the content complained of can support a defamatory meaning, but "the particular words complained of' must be set forth in the complaint. Wis. Stat. § 802.03(6).
¶ 167. Lassa's complaint made assertions of false statements that are simply not contained in the disputed mailing. The "particular words complained of' were either not identified or consisted of the entire paragraph beginning with the sentence fragment: "Extortion, misconduct in public office, pay to play, lying, cheating and stealing." Yet, this paragraph does not contain an assertion that Lassa herself committed any act in the fist.
¶ 168. The majority acknowledges that a "defamation plaintiff should not be able to employ the rules of discovery to obtain the identity of an anonymous political speaker simply by filing a complaint that is facially unsustainable." Majority op., ¶ 42. The majority reasons that "the use of discovery to uncover the speaker's identity may chill the exercise of the right to free speech." Id. In support of this position, the blue chip amici in this case joined the defendants in urging us to require courts to "decide whether a defamation complaint states a claim on which relief may be granted before imposing sanctions for the refusal to disclose information based on the type of constitutional privilege Rongstad has asserted." Id., ¶ 44 (emphasis added). The majority agrees, determining that:
[U]nder Wisconsin law, requiring the circuit court to decide a motion to dismiss before compelling disclosure and imposing sanctions best addresses the concerns expressed .... When faced with an assertion of constitutional privilege against disclosure of information identifying otherwise-anonymous organization members, the circuit court should decide a pending motion *266to dismiss for failure to state a claim before sanctioning the party for refusing to disclose that information.
Id., ¶ 52.
¶ 169. Unfortunately, the majority fails to apply this rule in the present case even though the defendants requested repeatedly that the circuit court act first on the motion to dismiss. In their January 27 Brief in Support of Motion for Protective Order, the defendants objected to the plaintiffs effort to "unreasonably expedite the discovery process. . . . Plaintiffs counsel has offered no explanation as to why discovery must begin immediately." Defendants asked for a postponement of the deposition until they had the opportunity to answer the complaint and file a motion to dismiss. "[F]orcing Defendant Rongstad to undergo a deposition prior to a resolution of these preliminary matters subjects him to annoyance, oppression, undue burden and expense." (Emphasis added.) The next day, Attorney Crooks requested an adjournment of any depositions until after the court heard the motion to dismiss.
¶ 170. Defendants answered the complaint on February 10 and filed a motion to dismiss on February 11. The court could have asked for earlier filings from the defendants in lieu of expedited discovery. Instead, the defense was tied up for hours and hours of depositions and hearings before it had an opportunity to file and brief the motion to dismiss. At almost the same time, the court relieved the plaintiff of the burden of submitting to a deposition that might have been useful to the defense in establishing the truth of certain controversial statements in the mailing. Notably, the court issued a protective order for the defamation plaintiff but denied the same for the defamation defendants.
*267¶ 171. As the majority concedes, the defense was still attempting to get a decision on its motion to dismiss in late April. Majority op., ¶ 56. Nonetheless, the court made no decision on the motion to dismiss until July 8, long after sanctions had been imposed, and 147 days after the motion to dismiss had been filed.
¶ 172. The majority minimizes the defendants' efforts to obtain a ruling on the motion to dismiss before the court imposed sanctions. We are told that few appellate courts have been asked to determine whether such a procedure should be followed. Id., ¶ 46.
In short, Rongstad did not raise his argument that the circuit court was required to address his motion to dismiss before it compelled discovery until after the court imposed discovery sanctions. Moreover, the argument that the constitutional dimension of the parties' discovery dispute mandated this course of action was a relatively novel one considering existing law at the time. Id., ¶ 58.
Poppycock.
¶ 173. Contrary to the majority's statements, the argument that courts should consider motions to dismiss or motions for summary judgment before compelling discovery in libel suits is not that novel. The "Defamation Law Note for Trial Judges" has contained the following language since 1984:
The initial inquiry in a defamation action is usually whether the words at issue in the lawsuit are capable of a defamatory meaning. This inquiry is for the trial judge and is normally presented on a motion to dismiss. On a motion to dismiss, it is the function of the Court to determine whether a communication is capable of a defamatory meaning.
Wis JI — Civil 2500 at 3 (emphasis added). This precise language was cited to the court in Attorney Crooks's *268February 11 brief, at the beginning of the section titled "ANALYSIS." Counsel went on to state: "The Wisconsin Supreme Court has been clear in advocating the use of summary judgment and motions to dismiss in cases involving defamation." The brief cited and quoted Torg-erson, in which the court said:
Since New York Times [Co. v. Sullivan, 376 U.S. 254 (1964)] summary judgment has played a key role in protecting First Amendment values. Indeed, it has been said that in public figure defamation cases, "because of the importance of free speech, summary judgment is the 'rule,' and not the exception." [citation omitted] The Wisconsin court of appeals has said that "[s]ummary judgment may be particularly appropriate in defamation actions in order to mitigate the potential 'chilling effect' on free speech and the press that might result from lengthy and expensive litigation."
Torgerson, 210 Wis. 2d at 538. See also Mach v. Allison, 2003 WI App 11, 259 Wis. 2d 686, 656 N.W.2d 766 (a Dane County case); Maguire v. Journal Sentinel, Inc., 232 Wis. 2d 236, 605 N.W.2d 881 (Ct. App. 1999).
¶ 174. Furthermore, in 1977, the court in Hutchinson v. Proxmire, 431 F. Supp. 1311, 1329 (W.D. Wis. 1977) (reversed on other grounds), recognized that courts must consider dispositive motions, such as summary judgment, as soon as it becomes clear that a plaintiff cannot succeed with her defamation claim. The court noted that "the court has a special responsibility... to determine if there is any genuine dispute because of the danger that speech may be chilled by the mere fact of litigation." Id. (emphasis added). It follows that courts have a special responsibility to consider motions to dismiss as soon as possible to determine whether the speech is even capable of a defamatory meaning. While proof of actual malice may require *269additional discovery, proof that a mailing is capable óf a defamatory meaning requires at most minimal discovery, and certainly not the unmasking of anonymous speakers.
¶ 175. In Herbert v. Lando, a seminal case on public figure defamation, the United States Supreme Court upheld a defamation plaintiffs demands for civil discovery, but the case involved the search for "actual malice," assuming the existence of "damaging falsehoods." Justice Powell, in concurrence, remarked that a district court, in supervising discovery in a libel suit by a public figure, "has a duty to consider First Amendment interests as well as the private interests of the plaintiff." Id. at 178. "In some instances, it might be appropriate for [the court] to delay enforcing a discovery demand, in the hope that the resolution of issues through summary judgment or other developments in discovery might reduce the need for the material demanded." Id. at 180. Justice Brennan and Justice Marshall made even stronger comments in dissent.
¶ 176. These sentiments are echoed in Sack on Defamation. "A plaintiff should be required to satisfy the court that the claims at issue are not frivolous before infringing on constitutionally based interests." Robert D. Sack, Libel, Slander, and Related Problems § 12.3.2.2 (2d ed. 1994) (citing a host of cases).
¶ 177. In light of the pervasive authority to the contrary, it is hard to accept the majority's conclusion that Rongstad's argument was so novel that the circuit court did not have to address Rongstad's motion to dismiss before compelling discovery or imposing discovery sanctions. Majority op., ¶ 58.
¶ 178. Even if the mailing were capable of a defamatory meaning, however, the court should still have afforded Rongstad a timely ruling on his motion to *270dismiss. While Lassa had an interest under the McIntyre exacting-scrutiny analysis in being free from defamation, Rongstad had a legitimate First Amendment interest in protecting anonymous political speech. See McIntyre, 514 U.S. at 357. Because "anonymous pam-phleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and . .. dissent[,]" the court order compelling disclosure before a ruling on defamatory meaning infringed upon First Amendment rights. Id. When the court refused to timely decide the motion to dismiss, it effectively deprived Rongstad of the opportunity to defend himself and the First Amendment rights of the Alliance membership. It effectively denied him due process of law.12
¶ 179. By losing sight of the proper balance of interests and not applying exacting scrutiny, the majority inappropriately justifies the award of sanctions and *271compulsion of discovery. The majority justifies this decision by asserting that Rongstad's counsel did not properly raise the issues before the court and, therefore, did not assert his constitutional rights. Try as it may, the majority cannot change the context in which Rongstad's counsel presented the issues to the court. The record is clear that counsel for the defense timely advised the circuit court of law and procedure to allow it to respect and conform to First Amendment principles. The court demonstrated such disdain for the defendants, however, that it disregarded these principles.
¶ 180. The right to anonymous speech would mean nothing if courts could require the exposure of an anonymous speaker who did not issue a defamatory statement. At a minimum, the circuit court should have determined whether Rongstad's mailing was capable of a defamatory meaning before ordering discovery and imposing sanctions.
¶ 181. Finally, even if I were wrong in how I balance the interests involved, I cannot understand how the majority can refuse to give Rongstad the benefit of the rule it adopts. Contra Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 625, 563 N.W.2d 154 (1997). In Jacque this court stated that a court should apply a new rule retroactively when refusing to do so would deprive the party who prompted the change of any benefit from its efforts and expense in successfully fighting to change an old rule. Jacque, 209 Wis. 2d at 625-26. The majority does Rongstad a grave injustice by denying him the benefits of his efforts.
III. CONCLUSION
¶ 182. In this case, no court has ever ruled that the 2002 mailing was defamatory. A circuit court judge *272(Maryann Sumi, Judge) ruled that the mailing was capable of defamatory meaning but only after contempt sanctions had been imposed. This procedure denied defendant Rongstad an authoritative judicial ruling on his motion to dismiss before the court required him to submit to total discovery. If the court had made a prompt ruling that the mailing was capable of defamatory meaning, Rongstad might have yielded to the court's order. In any event, the court's ruling would have gone a long way toward protecting Lassa's name before the senate election. The court's unwillingness to make a timely ruling on the motion to dismiss permitted the opposite inference.
¶ 183. In the absence of such a ruling, it is draconian to subject Rongstad to the heavy, heavy financial sanctions at issue in this case. We cannot remedy the procedural wrong that trivialized the defendants' constitutional right to anonymously exercise their right to speak and associate freely. We can and we should, however, nullify the penalty imposed upon the defendants for attempting to assert First Amendment rights.
¶ 184. From the beginning, the circuit court treated this case as though the plaintiff were helplessly chained to a railroad track with a speeding train just around the bend. The facts never supported such urgency. Senator Lassa is a shrewd and savvy legislator with a good reputation and durable popularity. She waited more than two months after she won 73 percent of the vote before she filed suit because she did not have to rescue her good name. She did not file suit in her home county to protect her reputation among her voters. She filed suit in Dane County, where her reputation was never at risk.
¶ 185. The majority sees nothing amiss in socking the defendant $65,000 for advocating the very First *273Amendment principles that this court approves. This case will prove without doubt to be a significant libel case, not necessarily for the law it has promulgated, but for the fact that a public figure defamation plaintiff got everything she wanted without ever proving defamation.
¶ 186. Because I fear the majority decision chills freedom of expression not only for members of the Alliance, but for all Wisconsin citizens, I respectfully dissent.
SLAPP is an acronym for Strategic Lawsuit Against Public Participation. Vultaggio v. Yasko, 215 Wis. 2d 326, 359, 572 N.W.2d 450 (1998) (Bradley, J., dissenting); Briggs v. Eden Council, 969 P.2d 564, 565 n.1 (Cal. 1999).
State of Wisconsin Blue Book at 66 (2005-06 ed.).
Governor Doyle did not issue an executive order for an April 1 primary and an April 29 special election until February 19, 2003. See Executive Order No. 4 (Feb. 19, 2003).
Rongstad promptly asked the court of appeals to stay the circuit court's order "to answer all questions inquiring as to the *251names and behavior of any other persons involved in the preparation, funding or distribution of the mailing." On February 4, the court of appeals denied the petition. On April 1, the court of appeals denied Rongstad's request for leave to appeal and his motion for temporary relief. On the same day, April 1, the court of appeals denied Rongstad's request for a supervisory writ. The majority characterizes Rongstad's actions as failure "to pursue the appeal," majority op., ¶ 16, and failure to "exhaust all available procedures for appellate review." Majority op., ¶ 88, n.27.
The majority plays up the circuit court's February 13 briefing schedule, which gave Lassa only one month to answer Rongstad's brief on the motion to dismiss. Majority op., ¶¶ 17, 55. Lassa filed her reply brief on March 14. By that time, the court had held Rongstad in contempt, imposed attorney fees, and ordered that Rongstad pay a forfeiture of $1000 per day until he complied with the court's orders.
The United States Supreme Court has expressed doubts as to "whether there [even] remains some exiguous area of defamation against which a candidate may have full recourse [during *256elections]." Monitor Patriot Co. v. Roy, 401 U.S. 265, 275 (1971). The Court in Roy noted that " '[i]f actionable defamation is possible in this field, one might suppose that the chief energies of the courts, for some time after every political campaign, would be absorbed by libel and slander suits.'" Id. (quoting Noel, Defamation of Public Officers and Candidates, 49 Col. L. Rev. 875 (1949)).
Although the majority cites several cases involving claims of defamation made by candidates for public office, majority op. ¶ 41 n.14, the majority fails to cite a single case where a candidate succeeded in prosecuting a defamation claim.
A "Law Note" with this identical categorization has been part of the Wisconsin Civil Jury Instructions since 1984.
As the United States Supreme Court noted in McIntyre:
Don't underestimate the common man. People are intelligent enough to evaluate the source of an anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message, as long as they are permitted, as they must be, to read that message. And then, once they have done so, it is for them to decide what is responsible, what is valuable, and what is truth.
McIntyre v. Ohio Elections Comm'n, 514 U.S. at 348 n.11 (internal quotation marks and citation omitted). In their rulings, the circuit court and the majority underestimate voters. In doing so, they do a disservice to us all by cheapening the concomitant rights to freedom of speech and freedom of association, and the right to privacy in those freedoms.
See Wash. Rev. Code Ann. § 4.24.510 (West 2005) (Historical and Statutory Notes).
While the term SLAPP suit is relatively new in Wisconsin jurisprudence, the core concept is not new. The third-party brief filed by Attorneys Friebert and O'Neill on behalf of Alex Paul opened with the observation:
This case is a classic example of much ado about nothing. Plaintiff has attempted to manufacture a defamation claim out of a run-of-the-mill negative political ad accurately pointing out that one of her supporters has been charged with criminal conduct.
Her complaint hinges on an allegation, unsupportable by the actual text of the mailer, that the mailer accuses her of criminal conduct. Based on this tenuous allegation, plaintiff aggressively pursued contentious discovery from defendant Todd Rongstad, for the express purpose of furthering her political goal of running for the State Senate.
Because the concept of a SLAPP suit — though not the term— was before the circuit court, identifying this case as a SLAPP suit does not alter the "constitutional calculus[.]" See Majority op., ¶ 73. Rather, the necessary legal principles were presented to the court by the parties, but the court erred in how it balanced the competing interests.
The fact that Lassa agreed to dismiss her defamation claim with prejudice as part of the settlement agreement *264supports an inference that Lassa was more interested in unmasking her anonymous critics than she was in being free from defamation.
In its brief to the court of appeals as amicus curiae, the American Civil Liberties Union of Wisconsin Foundation referred to Lassa's lawsuit as a SLAPP action, i.e., a "Strategic Lawsuit Against Public Participation." It notes,
Because SLAPP actions are so dangerous to free speech, it is crucial to the continued protection of First Amendment freedoms of speech that courts recognize and dismiss these suits in a timely manner, upon proof of failure to state a claim upon which relief may he granted, before compelling answers to discovery questions that require disclosure of potentially constitutionally protected political associations.
See Lindsey v. Normet, 405 U.S. 56, 66 (1972) ("Due process requires that there be an opportunity to present every available defense") (quoting Am. Surety Co. v. Baldwin, 287 U.S. 156, 168 (1932)); cf. Carey v. Piphus, 435 U.S. 247, 259 (1978) ("Procedural due process rules are meant to protect persons not from the deprivation, but from, the mistaken or unjustified deprivation of life, liberty, or property"); Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970) ("The fundamental requisite of due process of law is the opportunity to be heard.... In the present context these principles require ... timely and adequate notice, and an effective opportunity to defend by confronting any adverse witnesses and by presenting... arguments and evidence orally.") (internal citations and punctuation omitted); William B. Tanner Co. v. Estate of Fessler, 100 Wis. 2d 437, 446, 302 N.W.2d 414 (1981) ("An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections").