The Minnesota Supreme Court issued a controversial decision on September 20, 2023 in a defamation dispute captioned as Johnson v. Freborg, No. A21-1531. The Court held that a Facebook post alleging sexual assault was a matter of “public concern.” Freborg, the defendant in the lawsuit, posted the following on her Facebook account: “Feeling fierce with all these women dancers coming out. So here goes…I’ve been gaslighted/coerced into having sex, sexual assaulted, and/or raped by the following dance instructors:” she then named three individuals, including Johnson, and included the hashtag #metoo. She edited her post two days later to remove the word “rape.”
Johnson sued for defamation. The district court granted summary judgment for Freborg, finding that the post was true and, even if it were false, Johnson failed to show malice, which is required to recover presumed damages for defamatory statements that involve a matter of “public concern.” The Court of Appeals reversed, finding a genuine issue of material fact as to the veracity of the post and holding that the speech was a matter of private, not public concern. The Minnesota Supreme Court accepted review only on the question of whether the post was a matter of public concern.
Historically, defamation fell outside the scope of the First Amendment protecting free speech. In New York Times v Sullivan, 376 U.S. 254 (1964), however, the U.S. Supreme Court held that “the reputational interests protected by state libel law must yield when in conflict with the central meaning of the First Amendment.” The Court in Sullivan held that speech by the press that criticized public officials for their official conduct was so valuable that, even if it were defamatory, the First Amendment required that the speech be given some protections so that the speech was not unnecessarily chilled. It created a new standard under which public officials cannot recover damages for defamation unless the statement was made with “actual malice.”
In Johnson v. Freborg, the Court held that discussions of sexual assault on Facebook related to the international #metoo movement involved a matter of “public concern” such that the plaintiff would need to show actual malice under the Sullivan standard. It noted that whether speech is a matter of public or private concern in a particular case is “based on the totality of the circumstances” including content, form, and context of the speech.
Notably, Chief Justice Gildea wrote a 25-page dissent, joined by Justices Anderson and Hudson. Chief Justice Gidea noted that the Sullivan case was premised on the connection of the speech to principles necessary for a successful democracy, such as the citizenry’s ability to comment freely on the performance of their government. The fact pattern in Johnson v. Freborg certainly seems far removed from the New York Times v. Sullivan case. Johnson is not a public figure, the case did not involve traditional “media” (although it was posted on social media), and the topic did not involve the government. The majority wrote that the narrow holding in Sullivan had been expanded over the five decades following that landmark decision.
The Minnesota Supreme Court’s decision in Johnson v. Freborg means that in many defamation cases, perhaps most, even those involving communications between private citizens, defendants will assert that the subject matter is one of public concern, and that argument will need to be addressed on a case-by-case basis. Overall, this likely means that plaintiffs will have more difficulty prevailing on claims of defamation under Minnesota law.
Please contact V. John Ella to discuss the issues above.
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