We were previously counsel of record in a case in which we promoted our expertise. We touted a summary judgment win at the trial court for a defendant against a claim for defamation. (We are no longer involved in the case in any capacity.)

But we had enough humility and experience in civil litigation to qualify the announcement of our victory (“for now, at least,” we said).

As hinted, the case went up on appeal, and, without the involvement of LEVENTHAL pllc, our defamation defendant former client won again at the Minnesota Court of Appeals!

But recently the Minnesota Supreme Court granted the plaintiff’s petition for further review, which could be ominous.

The Minnesota Supreme Court will tackle an interesting legal question: who is a “public figure” for purposes of First Amendment free speech legal analysis? (It is harder for “public figure plaintiffs” to win defamation claims. They must show “malice” (knowing falsity or reckless disregard for the truth). In common law defamation, one can be liable for defamation for saying something false and damaging even if one had a sincere good faith belief in the truth of the statement after reasonable investigation.

The Court of Appeals “equated coaches with teachers because coaches, like teachers, ‘may affect many lives’ so the ‘public has an interest in coaches’ qualifications and conduct'” (relying onElstrom v. Indep. Sch. Dist. No. 270, 533 N.W.2d 51 (Minn. App. 1995). This sounds right. On the other hand, does this make a piano teacher “a public figure”?

Lawyers for the basketball coach point to Britton v. Koep, 470 N.W.2d 518 (Minn. 1991). Britton sets out a test:

1) public officials are employees performing government duties directly related to the public interest; 2) they are employees holding a position to significantly influence the resolution of public issues; and 3) they are employees having or appearing to the public to have substantial responsibility for or control over the conduct of government affairs.

Does that sound like a high-school basketball coach (or a piano teacher) to you?

Recently, U.S. Supreme Court Justice Clarence Thomas questioned whether anyone should be entitled to heightened protection against common law defamation claims. Justice Thomas’ view, if it were to become law (don’t hold your breath) would be a remarkable and drastic change in First Amendment jurisprudence. Nevertheless, perhaps there is a shifting tide in legal consensus on when the law should step in to protect alleged defamers.

As we have pointed out many times, in the internet age where “publication costs” are near zero, it is at least arguable that there has been a spike in the reputational harm from defamation. It remains to be seen, however, whether this changed social landscape warrants a narrowing of First Amendment protection. It does seem like Minnesota law might be due for a clarification, in any event.

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