Wednesday, September 20, 2023

A Matter Of Public Concern

The Minnesota Supreme Court has held that a Facebook post alleging that a dance instructor had sexually assaulted the poster involves a "matter of public concern" and thus is protected speech unless the dance instructor can establish "actiual malice" in his defamation lawsuit

This case involves a defamation claim brought by respondent Byron Johnson—a private figure—against appellant Kaija Freborg. Johnson sued Freborg after a post on Freborg’s Facebook page accused Johnson and two other dance instructors from the Twin Cities dance community of varying degrees of sexual assault. Johnson was one of Freborg’s dance teachers, and the two previously had a casual sexual relationship that lasted for about a year.

The district court granted Freborg’s motion for summary judgment, finding that Freborg’s speech was true and, alternatively, that her speech involved a matter of public concern and was not made with actual malice. The court of appeals reversed. It held that the truth or falsity of Freborg’s statement presented a genuine issue of material fact. The court of appeals further held, in a divided opinion, that because the dominant theme of Freborg’s post involved a matter of private concern, Johnson was not required to prove actual malice to recover presumed damages. The court of appeals remanded the case to the district court for further proceedings.

We granted Freborg’s petition for review on whether her statement involved a matter of public concern. Because the overall thrust and dominant theme of Freborg’s post—based on its content, form, and context—involved a matter of public concern, namely, sexual assault in the context of the #MeToo movement, her statement is entitled to heightened protection under the First Amendment to the United States Constitution. Before Johnson may recover presumed damages, he must therefore show that Freborg’s speech was not only false, but also that the post was made with actual malice.

Accordingly, we reverse the court of appeals on the issue of public concern and remand the case to the district court for further proceedings to determine the veracity of Freborg’s post and, if the post is found to be false, whether the making of the post meets the constitutional actual-malice standard.

The court majority

After weighing the personal aspects of the posts here with those elements addressing broader public issues, we reach a similar conclusion about content: even though Freborg named, tagged, and admonished three specific instructors in her post, these personal messages do not outweigh the dominant theme of her speech—to discuss sexual assault in the dance community, a matter of public import.

Chief Justice Gildea dissented

Based on the totality of the circumstances here, I would hold that the actual malice standard does not apply to Freborg’s speech. Freborg posted on her personal Facebook account that a person she identified by name raped her. Freborg and Johnson knew each other personally, they first met through a personal hobby, they had a personal and private sexual history, and the speech at issue here accuses another of a crime. The mere fact that Freborg made these allegations amid a social movement and included #MeToo in her post does not convert her otherwise private speech into speech on a matter of public concern entitled to heightened First Amendment protection. Accordingly, I dissent.

Justices Anderson and Hudson joined the dissent.

The Court of Appeals opinion is linked here. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2023/09/a-matter-of-public-concern.html

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