We have covered defamation cases on Minnesota Litigator a lot. We do so because, for the past twenty years, the “publication costs” for disseminating information have dropped by orders of magnitude to very nearly $0.00. In our view, there has been an explosion of false and harmful disinformation because of the sharp drop in dissemination costs. (Some would suggest that the Russian government caught on to the misinformation revolution early and consequently, we now have a compromised, incompetent, ignorant, buffoon in the White House. But we digress and take no position on politics of the day.)

There’s no reason one cannot defame the old fashioned low-tech way, of course, orally and person-to-person. If one is defamed the old-fashioned way, what must one plead in a defamation complaint? Must one recite the “who, what, where” of the alleged defamation precisely?

[I]n late September 2015, [Mr. Mark] Fodness, ‘while acting in the course and scope of his employment’ as the Bemidji State University tennis coach, [allegedly] ‘made false and defamatory statements about Paul Swartwood to the members of the Bemidji State University women’s tennis team and others.

Mr. Fodness allegedly told the tennis team to “stay away from Paul Swartwood because he was a sexual predator who acted inappropriately around young women.” Mr. Swartwood, at the time, was a local tennis instructor and president of the Bemidji Area Tennis Association.

Beltrami County District Court Judge Shari R. Schluchter threw out Mr. Smartwood’s defamation case against Mr. Fodness on a motion to dismiss finding the allegations of defamation were insufficient. “No further information is provided in the complaint as to the exact statement made, which individuals heard the statement, where the alleged defamation occurred, or even any context in which the alleged statements were made.” The district court continued, “This description of the defamation is imprecise and vague.”

The Minnesota Court of Appeals correctly reversed the trial court’s decision in favor of Mr. Fodness’ motion to dismiss.

It simply cannot be that the victim of oral defamation must provide greater detail or “the exact statement made” to justify the bringing of a defamation claim. It must be sufficient to allege, as Mr. Smartwood did, the speaker (Mr. Fodness), the audience (the BSU tennis players), the time (September, 2015), and the general nature of the communication (that Mr. Smartwood was a sexual predator).

Of course, we have no idea what Mr. Fodness really said. We have no idea whether what he said was true. On the other hand, if Mr. Fodness falsely communicated the idea that Mr. Smartwood, a tennis instructor, was a sexual predator, the harm of such a statement should be self-evident. The requirement of an exact transcription of the communication would impose a palpably unreasonable and normally impassable obstacle to legitimate defamation claims.

We end by noting that the Court of Appeals decision is an “unpublished” decision, meaning that it cannot be relied on as precedent. In our view, this is unfortunate. If Judge Schluchter got it wrong, might other Minnesota trial court judges get the same issue wrong in other cases? Shouldn’t the analysis of this appellate decision bind other Minnesota trial court judges? Why not?

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