• May 24, 2017

If I wish to harm a person’s reputation, what is to stop me from simply making things up (for example, that the person was involved in a far-reaching financial fraud, that the person engages in bizarre sexual conduct, that the person is a pathological liar)?

Obviously, such allegations are serious and harmful. They could form the basis of a lawsuit for defamation.

But here’s a twist. Imagine I say something along these lines to several people about John Doe and he sues me. Under Minnesota law, to defend against his claim, do I have to come up with evidence that my statement is true or does Doe have to come up with evidence that the statement is false?

Which makes more sense to you? Lawyers call this “the burden of proof” and lay people often do not appreciate how critical it can be — to be forced to carry the burden or to be relieved of the burden.

It makes more sense that a person saying a damaging and negative thing about a person, and called to answer for it through a claim of defamation, should have to come forward with evidence of the truth of the statements. Truth is a defense to a claim for defamation, right?

Also, how is the defamation plaintiff to come up with evidence that something did NOT happen? How is John Doe going to prove that he was not involved in some unsolved crime du jour or that he does not engage in bizarre sexual conduct?

As we all know, often there is no evidence of non-events.

Readers may be surprised to learn that, in Minnesota, there are several cases suggesting that defamation plaintiffs have the burden of proving falsity rather than the defamation defendants having the burden of proving truth.

In the linked opinion, note the dissent by Minnesota Court of Appeals Judge James C. Harten.

If this is the law in Minnesota, it is backward and wrong-headed. Along with the disturbingly accurate adage attributed to Mark Twain — “a lie can travel halfway around the world while the truth is putting on its shoes” — the law must also recognize that the expense of fabricating a lie is $0.00; the expense of proving a statement is false, on the other hand, can be enormous. Shouldn’t our law place the burden on those saying harmful and damaging things to have evidence backing up their words rather than placing the burden on those harmed and damaged?

Would imposing responsibility that people have evidence when they accuse a non-public figure of wrong-doing unduly chill free speech? How far do we need to go to protect people’s right to reckless speech?



Leave a Reply

Your email address will not be published. Required fields are marked *