• October 20, 2022

[October 20, 2022]: Is a claim of sexual assault on Facebook “speech on a matter of public concern” requiring proof of actual malice in a defamation case? Minn. Supreme Court will take on the thorny issue. (The stunningly minimal opposition to Ms. Freborg’s petition for Supreme Court review is here.)

[Follow-up Post (December 22, 2022)]: After a careful reading of the Court of Appeals decision in Johnson v. Freborg (authored by Minn. Ct. of Appeals Judge Lucinda Jesson), we reluctantly agree with that decision, meaning that we agree that the Plaintiff’s case should not have been dismissed on summary judgment. One cannot avoid liability on a defamation claim for sexual assault by virtue of the fact that our culture is actively grappling with this terrible social ill (the broad and pernicious exploitation and mistreatment of women by men). Clearly, this is a matter of great public concern. But so isn’t crime, corporate malfeasance, and child abuse. It cannot be that comments in these contexts are carved out of the reach of defamation law. (But see the dissent by Minnesota Court of Appeals Judge Sarah Wheelock (starting at p.21 of this PDF).)

We are reluctant to agree with Judge Jesson’s opinion because, again, on careful reading of the decision, it seems that Ms. Freborg might have an overwhelmingly strong defense against Mr. Johnson’s claim: truth. Mr. Johnson appears to have admitted that he took Ms. Freborg’s hand at a party (when she was drunk) and put her hand in his pants on his genitals. (He claims this was a consensual act, however.)

On these apparently uncontested facts (or almost uncontested, maybe because Mr. Johnson suggests grabbing someone’s hand at a party and putting it down his pants was consensual), it seems to us that the greater injustice here is forcing Ms. Freborg to defend against Mr. Johnson’s defamation lawsuit rather than Mr. Johnson’s case being thrown out of court. But our legal system is rule-based and, in any rule-based system, the application of the rules in some (hopefully very small) number of cases will produce regrettable and regrettably unavoidable bad outcomes.