In a post almost one year ago, Minnesota Litigator took the position that an accusation on Facebook of sexual wrong-doing, posted with a hash-tag, “#MeToo,” did not, by inclusion of the hash-tag convert the Facebook post into a “matter of public concern,” warranting heightened protection from a common law defamation claim.
Today, a majority of the Minnesota Supreme Court decided otherwise.
The “heightened protection” given to statements made about a matter of public concern is the requirement that the defamation plaintiff prove “actual malice.” This is a legal term that does not mean what the words, “actual malice,” mean outside of the legal context. In the legal context, it means a statement must be made “with the knowledge that it was false or with reckless disregard of whether it was false or not.” In other words, someone, reasonably believing what they are saying is true, but consciously wishing harm to another person (that is, speaking with “actual malice” in the non-legal sense), could not be found to have spoken with “actual malice” in the legal sense.
The Minnesota Supreme Court decided the question of whether Ms. Freborg’s post “involved a matter of public concern” using a “totality of the circumstances” analysis. This is an extraordinarily vague, imprecise, non-reproduceable standard. (One might even argue that it is not a standard at all.) In a sense, the standard is an abdication of an appellate court’s responsibility to articulate rules or guidelines, one might say, to help trial court judges decide cases going forward. It brings to mind Justice Potter Stewart’s famous line about obscenity (“I know it when I see it.”). (To be less critical/judgmental about this so-called legal standard, some supposedly legal issues (like “obscenity” or what is or is not “a matter of public concern”) might simply be unsuited for bright-line rules. As we all know, they are “moving targets.”)
The majority of the Minnesota Supreme Court held that Ms. Freborg’s Facebook post “fit well within the context of a legitimate social movement.”
As for actual malice, which Mr. Johnson has to prove on remand, the Minnesota Supreme Court majority suggests, “the constitutional actual-malice standard may not pose much of an additional burden” (p. 27, ftn. 10). In all due respect, LOL. As we read the Johnson v. Freborg case, the Plaintiff Mr. Byron Johnson will not be able to meet the heightened standard that the Minnesota Supreme Court ruled today is applicable. He would have to prove that Ms. Freborg’s statement was false or that she said it with reckless disregard to its truth or falsity.
From the Court of Appeals decision:
In early 2015, Freborg attended a party at Johnson’s house. She claims that Johnson “approached her while she was intoxicated and alone, grabbed her hand and put it down his pants onto his genitals without [her] consent.” Johnson admitted to approaching Freborg while she was intoxicated and placing her hand on his genitals, but he also maintained that he “never engaged in any non-consensual activities with” Freborg.
Mr. Johnson admits this incident occurred. He simply argues that it was consensual. Can he really convince a jury that Ms. Freborg went onto Facebook and made these allegations knowing they were false or with reckless disregard of their truth of falsity? Good luck with that.
This is undoubtedly an extraordinarily complicated and certainly “triggering” issue in our culture right now, for the past decade or so and for years to come, we expect, with shifting standards of behavior in our most intimate (private) sexual interactions. There is no doubt that #MeToo is a widely recognized social/cultural phenomenon and, in our view, heralding critically important and long overdue social change. So, although we disagree with today’s Minnesota Supreme Court’s decision, maybe we’re wrong. To the extent this decision is an almost impossible one and our Supreme Court was forced to balance the harm(s) of “false positives” (i.e., false allegations protected from liability due to heightened legal protection) or “false negatives” (victims of real sexual assault keeping silent due to fear of tort liability), maybe the Court got it right.
To conclude on a candid but cynical note, if one is to post allegations of wrong-doing (“naming names”) on social media, don’t forget the hashtag linking your post to “a matter of public concern” or a “legitimate social movement.”