Update (June 28, 2019): The Minnesota Supreme Court has spoken on the case discussed below.

The quick background: Defamation defendant Jorud holds herself out as a victim of domestic abuse. Someplace Safe, a non-profit set up to fight this widely recognized social ill, quoted and recognized Ms. Jorud with a “Survivor Award” at a fund-raising banquet. Ms. Jorud’s ex-husband, Mr. Kurt A. Maethner, sued his ex-wife and Someplace Safe for defamation, arguing that, in context, the community would conclude that Mr. Maethner was guilty of domestic abuse and, he alleged, the allegations were false and defamatory.

“[W]hether speech involves a matter of public or private concern is based on a totality of the circumstances,” the Minnesota Supreme Court held (here at p. 22) and sent the lawsuit back to the district court to determine whether the “speech” in the Jorud case involved “a matter of public or private concern.” [Editor’s comment: It involved a matter of public concern. ]

Notwithstanding that “Editor’s Comment,” we also note: Ka-ching!!!

Standards like “the totality of the circumstances” are money for civil litigators because they are, by definition, impossible to divine a bright-line rule in many cases. Such determinations are not easily made quickly or cheaply in many cases.

Justice Thissen dissented on the question of whether the advocacy group defendant, Someplace Safe, Inc., was off the hook for the amount of care that it took before publishing the allegedly defamatory statements. The majority of the Court decided that Jorud, the alleged abuse victim “and Someplace Safe had a preexisting relationship and that, from that relationship, Someplace Safe had no reason to question the accuracy of Jorud’s accounting of her history of suffering domestic abuse.” Absent any other evidence, the Supreme Court majority found this amount of “care” a reasonable amount of care as a matter of law.

We’re being glib by pointing out that a nebulous standard enriches civil litigators, of course. The conflict of First Amendment free speech protection and common law defamation law is insoluble on any kind of global or bright-line basis. Of necessity, it is an extremely delicate balance demanding careful case-by-case judgment and, in our view, the Court got the balance right in this case.

Update (October 3, 2018): The Minnesota Supreme Court accepted the petition for review of the case described below and the case has gotten some national attention. On Monday, the Minnesota Supreme Court heard oral argument.

The issue on appeal is, on one level, extremely simple: if Debbie Defendant falsely accuses Peter Plaintiff of domestic abuse and Peter Plaintiff offers no evidence of actual damages, does Peter still have an actionable defamation claim under the “defamation per se” doctrine?

Peter J. Bursch argued on behalf of defendant Jacquelyn Jorud.

Mr. Bursch argued that “defamation per se” doctrine is antiquated and should be wiped off the jurisprudential map; its origins are in English ecclesiastical court and it makes no sense in our current legal system.

His back-up arguments were that the defamation defendants in Maethner v. Someplace Safe should enjoy the same protections that “media” defendants get under established U.S. First Amendment Constitutional law and/or the court should hold that an earlier Minnesota Supreme Court decision, Richie v. Paramount Pictures, should apply, requiring “a reputational harm prerequisite.”

The case is complicated because a non-profit, Someplace Safe is a defamation co-defendant for statements it made in a newsletter and as part of an awards ceremony to an alleged domestic abuse survivor (Ms. Jorud).

In the 21st century, what differentiates “media defendants,” who are given an extra layer of free speech protection from the rest of us? From a disseminator of a “newsletter” made available on-line, like Somplace Safe? With the internet, we all have the power to disseminate statements instantaneously and world-wide. Should we all get the protections afforded to “media defendants”?

Further, this case is complicated because of the specific subject matter of the allegedly defamatory statements: domestic abuse. The question is whether statements made in this context are per se “matters of public concern,” triggering First Amendment protections. Domestic abuse is widely considered a serious social ill in which victims face tremendous risk in reporting abuse. Clearly, it troubles some of the Minnesota Supreme Court justices that accused abusers might “re-abuse” by suing abuse victims and enjoying the substantial advantage of “defamation per se” law.

Justice Lillehaug, at argument, said that he found the Court of Appeals decision (finding that Someplace Safe had no qualified privilege or immunity protecting it from defamation claims) “hard to stomach.”

Justice McKeig seemed particularly concerned that such defamation cases brought by accused abusers might present a serious threat to abuse victims requiring some kind of judicial consideration (or even intervention?).

Justice Gildea seemed the most concerned about (1) deviating from established law (with regard to abolishing the defamation per se doctrine), and (2) the defamation plaintiff’s interests, that is, the accused/alleged abuser. Justice Gildea read from Jadwin v. Minneapolis Star Tribune & Co. :

Given that such an individual’s sole means to vindicate his or her reputation may be judicial determination that the injurious statement is in fact false, to foreclose that redress by adopting the actual malice standard seems to us to go too far in extinguishing the only protection a private individual may invoke.

“A Tough Knot to Crack” (photo by Jay Fanelli)

We cannot handicap or predict the result of this appeal, aside from the fact that there is a significant possibility of a subsequent appeal to the U.S. Supreme Court, regardless of who wins.

Original post (February 16, 2018): There has been an explosion of defamation claims since, thanks to the internet and social media, every one of us has become a worldwide publisher. Defamation has been a frequent topic on Minnesota Litigator

In addition to the world-wide warp, we seem to live in a polarized cultural moment where we disagree about basic values and permissible conduct such as what constitutes “abuse,” and “verbal abuse,” in particular.

Kurt Maethner’s ex-wife, Jacquelyn Jorud, appears to have publicly described herself as a survivor of domestic abuse, implying that Mr. Maethner abused her. Mr. Maethner has sued Ms. Jorud and, also Someplace Safe, Inc. a non-profit “offering a myriad of services to victims and survivors of crime, families, and communities.” Mr. Maethner has sued them for defamation. [Editorial aside: Somplace Safe might want to revise that to say, “offering a myriad of services to victims and survivors of crime, as well as services to victims’ and survivors’ families, and communities.”]

It is consistent with our experience that Ms. Jorud might strongly believe that she was the victim of abuse, that Mr. Maether might strongly believe that he never abused Ms. Jorud or anyone else, i.e., that neither is knowingly lying. And there is no absolute arbiter of the truth.

Assuming that is the case, how will this play out in a court of law?

Without knowing the detailed factual allegations, who can say? One can certainly imagine a jury being swayed either way depending on the evidence.

But let’s assume that a jury concludes that Mr. Maethner did not abuse Ms. Jorud and concludes that Ms. Jorud, therefore, defamed him. What are his legal damages? How much money could a jury award him?

A private plaintiff in defamation may only recover compensation for actual injury supported by competent evidence when he or she proves only that the defendant acted negligently in publishing the defamatory matter. Maethner offered evidence that he suffered from anxiety, sleeplessness, and was upset. Although he did not seek medical treatment for these conditions, the record created a question of fact for the jury to determine whether Maethner is entitled to damages.

(here at page 16)(internal cites and quotes removed).

What is “actual injury”? What is “competent evidence”? If a jury believes that Ms. Jorud defamed Mr. Maethner and believes that this caused Mr. Maethner to suffer anxiety, sleeplessness, and upsetness, how will a jury convert that into a dollar amount to award?

Moreover, the Court held in Maethner that the allegations of criminal misconduct “were…defamation per se and actionable without proof of actual damages.” (here at page 17). If this is the case, is there any limit on a jury’s financial award?

A jury might be instructed to consider: [1] the plaintiff’s standing in the community, [2] the nature of defendant’s statements made about the plaintiff, [3] the extent to which the statements were circulated, [4] the tendency of the statement to injure a person such as the plaintiff, and [5] all of the other facts and circumstances in the case.

See Cantu v. Flanigan, 705 F. Supp. 2d 220, 227 (E.D.N.Y. 2010) (citing Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems § 10.5.1 (2008) (discussing factors a jury may consider when awarding damages for harm to reputation); see Sack & Tofel, First Steps Down the Road Not Taken: Emerging Limitations on Libel Damages, 90 Dick. L. Rev. 609, 611 (1986) (“[M]illion-dollar-plus awards have become routine.”)(collecting cases).

(In the Cantu case, the U.S. District Court for the Eastern District of New York affirmed a $150,000,000 award for the defamation plaintiff’s non-economic damages.)

LEVENTHAL pllc is experienced in defamation cases for both plaintiffs and defendants. For many legal disputes, clients only need one really good lawyer. You would be surprised what an experienced trial lawyer can do for you. When you work with LEVENTHAL pllc, you don’t pay for what you don’t need. But you get what you pay for. Call for a free consultation about your case: 612-234-7349.

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