Does Private Defamation Get Extra Protection If It’s A Matter of Public Concern?

During the height of #MeToo, random stories, true or false, honest or exaggerated or completely fabricated, made the rounds with almost no pushback. After all if you were accused, that was all others needed to know to demand that your job be lost, your friends abandon you and your future be ruined. Good times. But are such accusations immune from attack because of the public concern surrounding #MeToo?

Kaija Freborg decided to post an implicit accusation of rape(?) against her dance instructor and sexual partner, Byron Johnson, on Facebook. She was being #MeToo fierce.

Johnson was not cowed.

Freborg amended her initial accusation to remove the word “rape” so that black men wouldn’t be offended by the accusation of rape from a white woman. Still, she wasn’t done with Johnson.

Johnson sued Freborg for defamation in Minnesota state court, where the court granted Freborg summary judgment. The case went up to the Minnesota Supreme Court.

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 Supreme Court held that because Freborg’s defamatory speech was about #MeToo, it was a matter of public concern, and was therefore provided greater protection than private speech.

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.

At Volokh Conspiracy, Eugene provides some background on the law, which he kindly refers to as “quite mushy.” Indeed it is.

“[A]s a general proposition,” speech relating to sexual assault is a matter of public concern. But … no per se rule applies to suggest that statements about sexual abuse (or any other crime) are always matters of public concern. Instead, we must, on a case-by-case basis, apply the totality of the circumstances test and balance the content, form, and context of the speech, as well as any other pertinent factors, to determine whether speech involves a purely private matter or is a statement about a matter of public concern intended to influence public discussion about desired political or social change. Balancing the totality of the circumstances of the Facebook posts here, we conclude that, although the speech involved personal aspects, the predominant theme of Freborg’s speech involved a matter of public concern, namely sexual assault in the context of the #MeToo movement….

The content of her Facebook post was what would ordinarily be between the accuser and accused, and what, if anything, transpired between them would be of no particular public concern. But Freborg used the hashtag. To the court, this changed everything.

[As to content, i]n evaluating whether [the] personal portions of Freborg’s posts—the identification, tagging, and admonishing of the three instructors—make the speech a private affair, we must weigh these statements against the remaining text. First, the original and amended post prominently begin with this statement: “Feeling fierce with all these women dancers coming out.” Then, before listing the varying degrees of sexual assault that she says she experienced, Freborg states, “So here goes ….” This introduction suggests that she was encouraged by other women speaking out about sexual assault in the dance community to reveal her own experience and to add her voice to the community conversation.

Second, Freborg ends her posts with the well-known #MeToo hashtag and a #DancePredators hashtag, connecting her experience directly to the dance community and the broader #MeToo movement….

Third, her subsequent explanation of her motives in the post thread—that she made the posts “for the safety of other women” and to show how “women can disrupt the status quo”—suggests that her posts were an attempt to raise awareness for other women, including women in the dance community, and inspire social change….

By wrapping her defamatory accusation in a pink #MeToo bow, the court concluded that her intent was to raise public awareness, which thus elevated her otherwise private defamatory assertion to the level of public interest, thus raising the burden of proof to that established in New York Times v. Sullivan. The dissenters refused to engage in the #MeToo gymnastics and instead pointed out the obvious.

[T]he animating principle in New York Times v. Sullivan (1964) [which first articulated the “actual malice” standard] was the connection of the speech to principles necessary to a successful democracy, such as the citizenry’s ability to comment freely on the performance of their government. Freborg’s speech has nothing whatsoever to do with the government or government officials, and nothing in New York Times supports the majority’s extension of the actual malice standard to the speech at issue here.

I acknowledge, as we have recognized in other cases, that as a general proposition speech discussing crime can be speech on a matter of public concern. But Freborg was not discussing crime in general, the prevalence of crime in our society, or the government’s response to crime. Rather, she made a specific accusation of criminal conduct on Facebook—that a person she identified by name sexually assaulted her. Although the public may be interested in Freborg’s allegations, I would hold that such speech is not a matter of public concern for First Amendment.

The dissent went on the point out that no matter how “important” #MeToo was, or how prevalent sex assaults against women may be, the First Amendment doesn’t change because the subject matter is really, really important. A specific accusation of a crime against another person becomes no more protected because the #MeToo hashtag is included, no matter how much #MeToo is valued.