• May 28, 2020

Update (May 28, 2020):

We’re going to chalk up the original post, below, as a “win,” that is, as a successful prediction. It’s a bit of a stretch on our part because we did not specifically predict the outcome but we did suggest that a fair analysis would result in the outcome that did, in fact, occur this week.

We predicted (kind of) that the defamation defendant who lost on his motion to dismiss at the district court and the court of appeals should lose at the Minnesota Supreme Court (and he did). On the other hand, as we said in our previous post, even though Mr. Lesch did not win on his motion to dismiss, he might (and maybe he should) win on the merits of the lawsuit.

Original Post (March, 2020):

Mr. John Lesch, a Minnesota legislator (state representative for house district 66B, which includes part of Ramsey County), wrote a private and expressly confidential letter to Mr. Melvin Carter, the Mayor of St. Paul, in which Mr. Lesch expressed concerns and misgivings about Mayor Carter’s hiring of Ms. Lyndsey Olson as City Attorney.

Somehow, Ms. Olson obtained a copy of the letter and she sued Mr. Lesch for defamation based on statements in Lesch’s letter that did not reflect well on Ms. Olson.

On Mr. Lesch’s motion to dismiss, the district court found that Mr. Lesch’s letter did not fall within the immunity provided by Minnesota law for ” any act done in pursuance of legislative duties.”

The Minnesota Court of Appeals agreed with the district court that Mr. Lesch’s letter was not “an act done in pursuance of legislative duties” and Lesch was therefore was not immune from Ms. Olson’s lawsuit.

Now the case is now pending before the Minnesota Supreme Court on the question of whether Mr. Lesch’s letter falls under the immunity for acts done “in pursuance of legislative duties.”

In our view, it is difficult to see Mr. Lesch’s letter as an act done “in pursuance of legislative duties.” Consequently, we think that the district court (Hennepin Cty. Judge Frank McGill) and the Court of Appeals got it right.

On the other hand, in our view, there is a serious question as to whether any of Mr. Lesch’s letter is defamatory. Reading the letter as a whole, it appears to us to have been measured in tone and driven by legitimate concern rather than personal animus or other improper motive (not to speak of the fact that it was sent in (betrayed) confidence).

(We recognize that we might be wrong as to Mr. Lesch’s motive. There might be more to the story.) (We also recognize that “motive” is not necessarily part of the elements of a defamation case.) (We also recognize that Mr. Lesch makes an allegation of misconduct by Ms. Olson and, if false, it could be found to have been defamatory.)

Nevertheless, some might feel that the narrow issue before the court (legislative immunity) favors Ms. Olson while, at the same time, might feel that the merits likely favor Mr. Lesch. These inconsistent dynamics can sometimes cause decision-makers to make bad decisions.

We conclude by questioning whether Ms. Olson thought through the risks of the Streisand Effect. Strictly speaking, the Streisand effect is “when an attempt to stop publicity causes more publicity, when an attempt to hide, remove, or censor information has the unintended consequence of publicizing that information, often via the Internet.”

We have often cautioned potential defamation plaintiffs that defamation lawsuits can be as damaging to reputations (or more damaging) than the underlying alleged defamation and we wonder whether this could be one of those cases…