• October 20, 2022

March 1, 2023: The Minnesota Supreme Court heard oral arguments on 2/28/23. Our view, expressed in the post, below, remains unchanged (or has even gained strength). We have no doubt that the #MeToo movement is a long overdue and welcome development in our culture. But a statement that John Doe committed a sexual assault (when John Doe is not a public figure) is no more (or less) a “matter of public concern” than the allegation that he committed murder. On the one hand, they are both obviously matters of public concern (if true) but it cannot be that serious allegations of wrong-doing are per se “matters of public concern” so that the defamed can only recover on a showing of actual damages (can it?).

Counsel for Ms. Freborg is emphatic that her comments must be seen in the context of the MeToo Movement. But what, exactly, is the MeToo Movement? When did it start? Is it still on-going (we hope so)? When will it end? What are the implications for the falsely accused? We would suggest that the MeToo Movement is a nebulous shorthand for a cultural era. It seems to us that courts are not likely to bend the law on defamation based on whether they fit within such an era but we’ll see.

The issue does not appear so simple or obvious to several of the Minnesota Supreme Court justices. The Court expressed concern for the victims of sexual misconduct and, importantly, the social value of women being encouraged to come forward, highlight their experiences, in the name of public safety.

[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 aren’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. Kaija 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 (someone who is drunk) 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.