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Perspectives: Defamation duels demonstrate diverse doctrines

“I have lost my reputation …. the immortal part of myself, and what remains is bestial.”

 William Shakespeare, Othello, Act I, scene iii (1605)

Despite the many obstacles they face, claimants continue to pursue defamation cases and have prevailed in a few appellate court rulings recently here in Minnesota.

While often suffering setbacks, they are bolstered by murmurs that the U.S. Supreme Court may be leaning in favor of revisiting existing law and perhaps modifying it to make it more accommodating for claimants, particularly high-level public officials and public figures who are subject to the rigorous standard of “actual malice,” meaning knowing falsity or reckless disregard for the truth under the New York Times doctrine established nearly 60 years ago in New York Times v. Sullivan, 376 U.S. 254 (1964).

But while that relaxation has not yet occurred, and may never transpire, there have been a bevy of recent defamation duels decided by the federal and state appellate courts for Minnesota, so many in fact during the past few months that 2022 could be characterized as “The Year of Defamation.” The cases reflect the diverse doctrines that permeate defamation law, including high profile matters featuring well-known institutions or subjects.

Fitting final

In light of the unusually sizable number of defamation cases in 2022, the year ended fittingly with a defamation ruling by the Minnesota Court of Appeals in one of its final decisions of the year, reversing a defamation dismissal by the Crow Wing County District Court in Anick v. Bonsante, 2022 WL 17574578 (Dec. 12, 2022)(unpublished).

The lawsuit was brought by an employee at the State Department of Human Services (DHS) against her former co-worker for defamation and intentional interference with prospective business relations based upon statements he made to the claimants supervisor, that she had acted in an “unprofessional” way and used “vulgar language.”

Overturning summary judgment, the appellate panel held that the challenged statements were not constitutionally protected expressions of “opinion” because the “vulgarity” reference was a “factual statement,” not an opinion because it was “specific and precise.” It also was not subject to a qualified privilege and, even if so, the privilege may be “defeated by malice.” The tortious interference claim also was actionable if any of the offending remarks were “fabricated,” which raised a disputed factual issue remand.

Reversal ruling

A pair of defamation cases arose out of law enforcement actions. One of them received a lot of attention; the other went beneath radar.

The high-profile one was Aromashodu v. Swarovski N. America Ltd., 2022 WL 16544381 (Minn. 2022)(unpublished). See “Court reopens defamation case” in the Nov. 3, 2022, edition of Minnesota Lawyer. The Minnesota Court of Appeals allowed a Black Muslim woman to pursue her defamation and discrimination claims arising out of her removal from an airplane at the Twin Cities airport due to a report by a retail store in the terminal that she stole jewelry there. Overturning dismissal by the Hennepin County District Court, the appellate court held that the two claims could proceed, while a claim of negligent infliction of intentional distress was not maintainable due to lack of “severe” emotional harm.

In addition to permitting a discrimination claim to proceed based on race and religion, the defamation claim also was sustainable because a factual dispute exists as to the retailer’s motivation for accusing her of a crime. There was sufficient evidence that the retailer “was motivated to accuse [the woman] of committing a crime … by discriminatory animus” which would defeat a qualified privilege based on “good faith or a proper motive.”

The low-profile case was a ruling by the 8th U.S. Circuit Court of Appeals arising out of a traffic stop that the driver alleged involved violation of his civil rights in Weeks v. City of Lake Norden, 2022 WL (Minn. 2022)(unpublished). The dismissal of his claims against the police chief and the municipality was reversed on grounds that the pro se claimant “sufficiently” pleaded that he was threatened to be murdered during one of the incidents.

But a defamation claim was properly dismissed because statements made by the chief to other law enforcement personnel that the driver started an altercation was “absolutely privileged.”

Assault action 

In yet another high-profile defamation case, a woman who posted on social media allegations that a former dance instructor and romantic partner, had sexually assaulted her, failed in an attempt to dismiss the lawsuit in Johnson v. Freborg, 978 N.W.2d 911 (Minn. Ct. App. July 25, 2022).

The claim against the woman for her Facebook posting was dismissed by the Hennepin County District Court on summary judgment on grounds that it was true and that because the postings regarded a matter of “public concern,” coupled with the absence of proof of “actual malice.”

The appellate court reversed, holding, as a threshold matter, that there is a genuine issue of material fact regarding the truth or falsity of the accusation. The statements do not involve a matter of “public concern” that would actuate the high standards of the New York Times standard. Although the topic of sexual assault certainly is a matter of public concern, the dominant theme of the woman’s Facebook posting was “personal,” rather than involving a matter of “general concern to the public” under the reasoning of Maethner v. Someplace Safe, 929 N.W.2d 868 (Minn. 2019), which holds that the New York Times standard of “actual malice” must be met if a defamatory accusation involves a “matter of public concern.”

Based upon the totality of circumstances, the Facebook postings did not reach the “public concern” level as a “personal matter” allowing the lawsuit to proceed on remand. But the liability for #me2 postings is still unresolved as the state Supreme Court granted review and will decide the case later in 2023.

Duluth defamation

 A contentious controversy that attracted considerable attention in Duluth concerned a historic building, which experienced several iterations of zoning-related litigation, bred a defamation lawsuit that resulted in a partial success and partial defeat for the claimant in Ringsred v. City of Duluth, 2022 WL 4295372 (Minn. Ct. App. Sept. 19, 2022)(unpublished).

The lawsuit was brought by a longtime critic of the historic preservation efforts, which included multiple lawsuits against the city over the past several years. The most recent one arose out of the critic’s desire to restore the historic Kozy Bar and Apartment, facility, claiming that the former city attorney defamed him on multiple occasions, as did certain media which allegedly perpetuated the defamation by republishing derogatory statements: municipal officials how interfered with his First Amendment right by making false statements and engaging in negative conduct toward him as retaliation for his prior lawsuit; media conspiring to infringe his First Amendment rights by publishing the false remarks.

The procedural history was as contorted as the underlying dispute. The St. Louis County District Court dismissed the media defendants on a Rule 12 motion under Rule 12 of the Rules of Civil Procedure and partially granted a motion by the municipal parties, resulting in a dismissal of the entire case, except for two remaining defamation claims. The claimant then sought to amend the complaint to add additional parties and assert additional claims against the media and municipal officials, which the trial court denied on grounds that the proposed amendments were flawed and futile.

A subsequent motion by the municipal defendants to dismiss the remaining defamation claims was granted on grounds that the city attorney was no longer in office and the new city attorney had not been substituted. That precipitated a motion by the claimant to amend the complaint to include the current city attorney, which was denied and the claim dismissed.

The Court of Appeals reversed, in part, holding that the complaint sufficiently asserted both defamation claims against the media defendants by republishing three statements that the former city attorney allegedly knew were false, concerning the status of the building and the claimant’s prodigious efforts to rehabilitate it. Although the media defendants did not make the statements, they were subject to liability under the “republication doctrine,” which creates liability “for repeating the defamatory statements of another” if they “knew or had reason to know” that the material was false and defamatory. Since the complaint “expressly alleges” culpable knowledge by the media that the attorney’s statements were false, it plausibly states a cause of action that should not have been dismissed and warrant reinstatement.

The media defendants also asserted alternative grounds for dismissal, including privilege for reporting about a “limited-purpose public figure,” and the “fair and accurate reporting privilege.” But neither of these defenses applied based upon the allegations that media defendants published the disputed statements with knowledge that they were false, “which is the very definition of actual malice,” entitling a “limited public figure” like the claimant to proceed. Further, the “fair and accurate reporting” tenet did not apply because the complaint did not indicate that the challenged statements were made in a “public context.”

The complaint also stated a viable First Amendment claim against the municipal parties for retaliating against the claimant for “engaging in protected speech,” which precipitated a series of allegedly retaliatory behavior by city personnel. The trial court’s dismissal of the retaliation claim on grounds that it transgressed the statute of limitations period was wrong because the applicable statute of limitations is six years for a claim of this type. Although some of the retaliation dates back to 2014, which would be barred by statutes of limitations, the claimant “alleged retaliatory action [that] constituted a continuing violation … that “is sufficient to toll the statute of limitations.”

Dismissal of the retaliation claim because it was not adequately pleaded also was overturned because the allegations as a whole “support inferences” of various adverse actions against the claimant, both directly and indirectly, over a number of years comprising a “form of policy or accepted custom … to retaliate for his litigation and public outcry against the city.” Therefore, the complaint retaliation claim “is not subject to dismissal for failure to state a claim.”

While the claimant agreed to dismiss his retaliation claim against the media parties, the district court abused its discretion by denying his right to amend his complaint against a pair of city council members, and the mayor, but not as to a new party that had not previously been represented in the litigation.

Finally, summary judgment was appropriate as to remaining defamation claims against the municipal parties because the city attorney who made the allegedly offensive statements was no longer in office and the claimant “did not substitute his successor as a defendant,” as required by Rule 25.04 of the Minnesota Rules of Civil Procedure.

Therefore, when the appellate dust cleared, the historical prosecution advocate was allowed to proceed with most of the lawsuit, along with filing an amended complaint asserting defamation claims against media defendants, a First Amendment retaliation claim against municipal parties, and First Amendment retaliation claims against two city council members, and the mayor.

Twins tussles

Another well-known institution also was at the core of a defamation tussle: the Minnesota Twins baseball team. The appellate court upheld dismissal of a lawsuit by a fan at a Twins game who sued the Star Tribune newspaper and writers of letters to the editor of the newspaper due to an incident that occurred at the Twins’ Target Field home four years ago.

The lawsuit was directed to news articles about the fan being banned from the ballpark for a year for alleged disruptive behavior by trying to grab baseballs thrown to fans in the stands and a column by a newspaper sports reporter and a pair of readers’ letters about the ensuing brouhaha.

The case, which followed on the heels of another unsuccessful suit by the claimant — also was dismissed on summary judgment by the Hennepin County District Court, and the Court of appeals affirmed in Gabbert v. StarTribune Media Co., 2022 WL 2911884 (Minn. Ct. App. July 25, 2022)(unpublished). The claim about the newspaper articles was barred by the “fair reporting privilege” for “news reports that accurately and fairly summarize statements about a matter of public concern.”

The charges against the sports columnist and the editorial page letter writer also were nonactionable, but on different grounds. Those assertions were not maintainable because the challenged statements constitute “pure opinion,” consisting of expressions of “a subjective view … rather than claiming to be [based on] objectively facts.”

Religious rules

The First Amendment doctrine that bars lawsuits against religion with religious beliefs and practices that might entail “excessive judicial entanglements” with ecclesiastic issues snuffed out a defamation lawsuit by a member of a Baptist church in Fergus Falls in the north part of the state against three church leaders in Svendsen v. Lobb, 2022 WL 16910596 (Minn. Ct. App. Nov. 14, 2022)(unpublished) in Otter Tail County District Court.

The pro se claimant asserted that the leadership trio harmed his reputation by asserting that he “needed to be excommunicated and banned” from attending worship services.

Affirming a lower court dismissal ruling, the appellate court held that the lawsuit was not maintainable because it would be impermissible to require the court to interpret church doctrine, transgressing the “ecclesiastic-abstention” doctrine.

Amendment appeals

A pair of other defamation appeals were unsuccessful, along with corresponding requests to amend the pleadings.

A dispute between neighbors regarding an easement on property in the City of Marine on St. Croix revolved around claims that a pair of homeowners had stated that a neighbor was “physically and verbally threatening them” and that he had a “violent criminal history,” among other disparaging comments. The Washington County District Court dismissed the lawsuit, along with a request by the claimant to amend his complaint.

The Court of Appeals affirmed in Norusis v. Goodfellow, 2022 WL 3348689 (Minn. Ct. App. Aug. 15, 2022)(unpublished). The statement about the physical and verbal threatening behavior failed because it did not satisfy the requirement that a defamatory statement has “harmed” a subject’s reputation in the community, and did not provide any “direct evidence of that harm.” Another statement that the claimant had physically confronted residents and nonresidents in the area who felt physically threatened, also was not actionable because it was “substantially true” and also was supported by the claimant’s own testimony that he had interaction with numerous individuals, along with the “lack of evidence that [the plaintiff’s] reputation had suffered.”

The trial court’s denial of a request to amend the complaint under Rule 15.01 of the Minnesota Rules of Civil Procedure also was upheld on grounds that the trial court properly refused to allow the addition of two statements that he claimed were defamatory; that the claimant was “belligerent,” was devoid of evidence that such a statement had been uttered and, furthermore, even if such a remark had been made, it amounts to “name calling,” which is not actionable.

A second statement that was part of the effort to amend, that one of the defendants told others that she felt “threatened” by the claimant, also was not viable because “statements of how people felt” are statements of opinion, not of fact, and are constitutionally protected. The trial court also properly refused to allow a claim for punitive damages because the claimant “had shown neither injury to his reputation” or that the two defendants making the statement “had the reckless state of mind to deliberately disregard” the plaintiff’s right to safety, which is required to establish punitive damages under Minn. Stat. § 549.20, subd. 1(a).

An employee of a company developing senior living facilities and handling existing client relationships, was unsuccessful in her claim against the company based upon alleged discrimination and reprisal in violation of the Minnesota Human Rights Act because of statements made by her supervisor in Kerber v. Recover Health of Minnesota, Inc., 2022 WL 4074806 (Minn. Ct. App. Sept. 6, 2022)(unpublished). The Hennepin County District Court dismissed the claim and also refused to allow the claimant to amend her complaint to include a claim for defamation.

The dismissals of the discrimination and reprisal claims was proper because the claimant “failed to present specific evidence of her disability” and “insufficient evidence of a causal link” between raising the complaint that she made to management and any adverse action taken against her. The proposed defamation claim was barred by statute of limitations, which is two years under Minn. Stat. § 541.07(1). The alleged statements were made in October 2017, in an exchange of emails, but the attempt to amend the complaint was not brought until March, 2021, more than 40 months after the statements were made.

The contention that the statute of limitations should have been tolled under the discovery rule, when the plaintiff found out about the statements were made, was rejected because that doctrine has been “narrowly applied” in Minnesota to medical malpractice claims, but not to other types of claims, “in the absence of fraud.” The claimant’s request that the court “establish new law” was rejected because it is “not a function” of the appellate tribunal, whose role is “limited to identifying errors and then correcting them.”

These cases reflect the diverse dimensions of defamation litigation and varied results of it that occurred in the latter portion of last year in Minnesota jurisprudence.

PERSPECTIVES POINTERS

Factors in a First Amendment retaliation claim

  • Plaintiff engaged in protected activity.
  • Government defendant caused injury to plaintiff that would deter continued protected activities.
  • Retaliatory conduct is official policy or governmental “custom” or “usage.”
  • Causal connection between retaliatory “animus” and “chilling effect.”

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.

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