• March 9, 2015

WhisperingDefinitions of Defamation under Minnesota law:

 (1) Defamatory matter is anything which exposes a person or a group, class or association to hatred, contempt, ridicule, degradation or disgrace in society, or injury to business or occupation. Minn. Stat. § 609.795 (“Criminal Defamation”).

(2) In order for a statement to be considered defamatory it must be communicated to someone other than the plaintiff, it must be false, and it must tend to harm the plaintiff’s reputation and to lower him in the estimation of the community. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980). (“Common Law Defamation”)

See a key difference?

The criminal statute does not include the requirement that the “defamatory matter” be false. (!)

So, in theory, I could be prosecuted under this statute if I were to say, “Lawyer A.G. was suspended from the practice of law for a whole lot of unethical conduct,” even if it were true? I could still be charged with “criminal defamation”?

Of course not. There are many statutes out there where a strict reading would allow or prohibit certain conduct but they do not mean to, they are not interpreted that way, and there’s just a lot of imprecise stuff in legal cases and statutes.

Representative Debra Hilstrom (DFL)(District 40B), has now proposed a fix to the criminal defamation statute. I am puzzled, however, that her proposed amendment does not change the definition of “defamatory matter.” Instead, she inserts the amendment in subsection 2 of the statute, entitled “Acts Constituting:”

Whoever with knowledge of its false and defamatory character orally, in writing or by any other means, communicates any false and defamatory
matter to a third person without the consent of the person defamed is guilty of criminal defamation and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.

The problem with that is that it precludes criminalizing reckless and false rumor spreading.

Mens rea is “[t]he state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness * * *. Mens rea is * * * [an] essential element[ ] of every crime at common law.” Black’s Law Dictionary 999 (7th ed.1999).

In re Welfare of C.R.M., 611 N.W.2d 802, 806 (Minn. 2000).

In other words, under Rep. Hilstrom’s formulation, seems to me that I might say, “Ms. _________ was put on trial and she was convicted of [heinous crime]. The jury deliberated for less than 10 minutes.” (When you make stuff up, it helps to put in a little detail for verisimilitude.) I might have no factual basis for this unflattering statement. But let’s say it is theoretically possible. I don’t know that it is false. My state of mind might be that I think it is likely that the statement is false but I have no idea. That is the definition of “recklessness.” A synonym is “thoughtlessness.” Shouldn’t that kind of reckless, intentionally malicious and damaging conduct, be criminally punishable under the “criminal defamation” statute?

I agree with Representative Hilstrom that the criminal defamation statute, as written, has a glaring problem. But why can’t it be fixed by changing the definition of “defamatory matter,” reconciling it to the common law definition, making “falsity” an element of the crime, but not include a requirement that the defamatory statement be made with “knowing falsity”?

I have an email into Rep. Hilstrom’s office to raise the question but I have not gotten a response at this time.



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