Free Speech

Minnesota Order Banning "False or Defamatory Statements" Limited to Knowingly False And Defamatory Statements

So says the Minnesota Court of Appeals, as to a "harassment restraining order."

|The Volokh Conspiracy |

The rest of the opinion is interesting, too; from State v. Bianco, decided this week by the Minnesota Court of Appeals, in an opinion by Judge Frisch (joined by Judges Johnson and Reyes):

Appellant Quintin Isaiah Bianco was formerly in a relationship with victim's daughter, who is under victim's guardianship. Victim petitioned for a harassment restraining order (HRO) following escalating incidents of harassment by Bianco. On August 17, 2018, the district court issued an HRO prohibiting Bianco from (1) harassing victim; (2) having direct or indirect contact with victim; or (3) "mak[ing] false or defamatory statements about [victim], including to the public, to [victim's] employer, or on-line."

Between February 10, 2019, and March 25, 2019, multiple posts containing various allegations about victim originated from Bianco's Facebook account. On March 25, 2019, Bianco called social services alleging that victim abused her daughter and denied her daughter medical care.

The state charged Bianco with violation of the HRO. Bianco entered into a plea agreement, and the district court held a plea hearing. At the hearing, the state attempted to elicit sworn testimony from Bianco to establish a factual basis for the offense. When Bianco denied certain facts, the district court took over questioning of Bianco, accepted his plea, and adjudicated him guilty. Bianco now appeals and seeks reversal of his conviction, arguing that the district court should not have accepted his guilty plea because the facts to which he admitted do not establish that he violated the HRO….

To be constitutionally valid [under Minnesota law], a guilty plea must be accurate, voluntary, and intelligent. A guilty plea is inaccurate if it is not supported by a proper factual basis…. When a defendant "makes statements that negate an essential element of the charged crime," the plea is inadequate "because such statements are inconsistent with a plea of guilty." …

Bianco argues that he did not admit to knowingly making false statements or prompting third-party contact by reporting victim to social services. The state responds that Bianco's report to social services violated the HRO's prohibition against direct or indirect contact with victim and making false statements.

At the plea hearing, Bianco testified that he called social services at the request of victim's daughter to report alleged abuse. Bianco maintained that he had reason to believe the allegations were true when he made the report.

We have never held that a report of alleged illegal activity may constitute indirect contact in violation of an HRO. Rather, such a report is presumptively valid when the report is objectively reasonable and made through the proper channels. To overcome the presumption, a district court must find that the defendant acted with an improper intent. Here, Bianco reported domestic and child abuse, implicating public-safety and child-welfare concerns. The plea colloquy does not establish that Bianco acted with improper intent, and the district court did not make such a finding. Accordingly, the testimony at the plea hearing did not establish that Bianco's report to social services amounted to indirect contact or a false statement in violation of the HRO….

The state next argues that Bianco admitted to posting false statements about victim on Facebook in violation of the HRO. The HRO prohibited Bianco from "mak[ing] false … statements about [victim], including to the public … or on-line." Bianco argues that, while he admitted to posting certain statements about victim on Facebook, he did not admit that he knew that any of those statements were false at the time he posted them. Bianco also references his testimony that his Facebook account was hacked and that he did not remember posting particular comments about victim…..

The transcript shows that—despite repeated efforts of the state and the district court to elicit a factual basis from Bianco to substantiate his guilty plea—Bianco clearly, expressly, and repeatedly denied posting statements that he knew to be false. Bianco denied authoring many of the posts. As to the posts that he admitted to writing, Bianco testified that his posts were based on what he believed to be truthful information.

Although Bianco admitted that he should not have posted statements on Facebook that he did not know to be true—and he further admitted that he was unaware whether some of the information was true at the time—such admissions do not amount to a violation of the HRO, which only prohibits Bianco from making "false or defamatory" statements….

{Citing State v. Winchell (Minn. 1985), the state argues that Bianco attempted to plead "not very guilty." But [t]here, the defendant admitted to the facts necessary to support his guilty plea, only challenging facts relevant to sentencing.}

The state alternatively argues that Bianco admitted to making defamatory statements about victim. While the HRO prohibits false or defamatory statements, Bianco did not admit to facts showing that he made defamatory statements. Criminal defamation requires knowledge of the false and defamatory character of the statement. See Minn. Stat. § 609.765, subd. 2 (2018) ("Whoever with knowledge of its false and defamatory character … communicates any false and defamatory matter to a third person … is guilty of criminal defamation …." (emphasis added)). As set forth herein, Bianco did not admit that he knew his statements were false at the time he made them.

Because Bianco did not admit the facts that establish a violation of the HRO, we reverse and remand to allow Bianco to withdraw his plea.

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  1. Regulatory agencies should be held to the same standards as in criminal procedure. No investigation should be allowed in the absence of probable cause, based on evidence.

    We are in the Inquisition 2.0 thanks to the scumbag, traitor lawyer profession, with endless investigations in bad faith, for lawfare purposes. Any government official initiating an investigation should pay for damages, including infliction of emotional distress, from personal funds. Today, the taxpayer has to pay for the misconduct of these scumbag lawyer traitors 99% of the time. That is not fair. Investigations for lawfare are not part of the government job description.

    For example, the Democrat Party and the House of Representatives should pay President Trump $billion in personal damages for its impeachment. That payment should all come from the personal assets of the Democrats in Congress.

    End all sovereign immunity. It protects the biggest criminal enterprise in the world. Its originating justification was psychotic. Henry of Bracton, in his Notebook, said, Edward I, another French scumbag, mass murderer of Jews, Scot, Irish, and Welsh people, spoke with the voice of God. He spoke with the voice of the Mafia. He killed a million people to impose his sick power, and to enrich himself. Edward I was Longshanks in the movie Braveheart. Also, you gays, remember what he did to the friend of his sensitive son? He threw him from the parapet. Then, he slapped his sensitive son around.

    That is who sovereign immunity is designed to protect. Meanwhile, in Germany, you could sue Emperor Barbarossa, and his lawyer would show up in court to defend him. Sovereign immunity is the self dealing of a criminal mob, and not self evidently justified.

    OK, Edward killed a million people for his criminal enrichment. The Democrat Governors killed 135 million people by starvation by their election prank, shutting down their economies to defeat President Trump. They took out $4 trillion from the world GDP in 2020. No American may get snooty about Edward I, nor about the German people of the 1930’s. I am especially shocked by the collaboration of Jewish voters with the biggest and quickest genocide in history. Most American Jewish leaders are of German origin, so I should not be so shocked. They are not even real Jews, they are cold hearted Germans.

    1. Regulatory agencies should be held to the same standards as in criminal procedure. No investigation should be allowed in the absence of probable cause, based on evidence.

      Unfortunately, your mail order law diploma has led you astray. Probable cause is not the standard for undertaking a criminal investigation.

      1. Hi, David, I invite you to read the Fourth Amendment. This is from high school education, not from law school. I will not comment on your indoctrination, since such a personal remark violates the Fallacy of Irrelevance.

        Then ask people about regulatory acts. Which would they prefer 30 days in jail, or losing an occupational license, or in this case, how about losing a child? How about losing a farm? How about losing $billions?

        The Supreme Court, being the stupidest people in the country, a bunch of know nothing bookworms, do not understand this. Regulatory acts are as punitive and as painful as criminal procedures. The standards should not be lower.

        Replacing these horrible, Ivy indoctrinated traitors, in insurrection against our constitution, with wine besotted bums puking in the gutter would result in an immediate upgrade in the quality of the decisions, and in the clarity of the writing. The lawyer profession is the most toxic occupation in our country. Every year the lawyer breathes, it destroys $2 million in economic value. No one who has passed 1L should ever be allowed in any responsible policy position.

        1. Could we be confusing the standard for investigating and the standard for what essentially is a conviction?

          I’ll agree that I don’t like the civil standard of “preponderance” being used for state action — e.g. seizing property in cases where they can’t meet the higher standard for a conviction. Etc….

        2. The fourth amendment says

          The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

          Which part do you think means that “No investigation should be allowed in the absence of probable cause, based on evidence”?

          1. “secure in their persons, papers, effects.”

            Lend me you laptop for an hour. I can get you decades in prison, and $millions in fines, even if you are a toddler. Rummaging around your laptop should not be allowed in the absence of a solid accusation with good evidence.

            1. “secure in their persons, papers, effects.”

              Lend me you laptop for an hour. I can get you decades in prison, and $millions in fines, even if you are a toddler. Rummaging around your laptop should not be allowed in the absence of a solid accusation with good evidence.

              What is your job, Noscitor?

            2. Okay? What does that have to do with the claim we were discussing?

  2. Courts are wonderful things:
    Male = female
    or = and

    The truly scary thing about 1984 was never the cameras; it was/is newspeak.

    1. Not mentioned is why the daughter was in a guardianship — as the court describes the Social Services report as one of “child abuse”, I’m guessing it’s because she’s an unemancipated minor.

      Which raises the question of what Bianco’s age might be…

    2. The issue is not that “or = and”. The issue is that the law requires “and” but the prosecutor tried to impose an “or” standard in the plea deal.

  3. Criminal defamation requires knowledge of the false and defamatory character of the statement.

    This is a little out of left field since Bianco wasn’t charged with criminal defamation. Better reasoning would be that the relevant part of the order would be unconstitutional if applied to statements that were not both false and defamatory, it gets to the same result without the sidetrack.

  4. Is there something in the excerpts which explains how “false” became “knowingly false”?

    1. “As set forth herein, Bianco did not admit that he knew his statements were false at the time he made them.”[emphasis added]

      My reading of the decision is that the court was making a distinction between factually false and what he knew at the time to be false.

    2. It didn’t make it into the excerpt but here you go:

      Bianco attempted to plead guilty to violating the HRO. The elements of this offense are that Bianco (1) knew an active HRO existed, (2) violated a term or condition of the HRO, and (3) knew that his actions violated the HRO. See Minn. Stat. § 609.748, subd. 6; State v. Andersen, 946 N.W.2d 627, 637 (Minn. App. 2020) (holding that state must prove defendant knew his actions violated HRO).

  5. This is what leapt out at me:

    “We have never held that a report of alleged illegal activity may constitute indirect contact in violation of an HRO. Rather, such a report is presumptively valid when the report is objectively reasonable and made through the proper channels.”

    That actually had to be said?!?

    Whiskey Tango Foxtrot…..

    Now there is also a presumption that the “proper channels” will exercise a scintilla of adult judgement in responding to such reports — unfortunately, often a mistaken presumption — but there still is a legitimate public policy interest in an unfettered ability to report objectively reasonable stuff to the authorities.

  6. “Minnesota Order Banning “False or Defamatory Statements” Limited to Knowingly False And Defamatory Statements”

    I respectfully disagree — “or” means that at least one must be true, and my reading of the decision was that the court found that *neither* was true.

    The court did add restrictive adjectives to both words — i.e. “knowingly false” and “criminally defamatory” but that’s something quite different from changing “or” to “and”….

    1. The opinion is not very well-written, but the court held (in the second to last paragraph in the excerpt) that the “defamatory” requirement means that the statement was made with “knowledge of the false and defamatory character of the statement”.

      1. My take on the opinion was the court’s attitude was “you gotta be kidding” and with the reference to a pro se petition in one of the footnotes, I gotta wonder about the adequacy of counsel at the trial level. And state law would apply here, including the underlying law authorizing PHOs in the first place.

        But can there even *be* a false statement that isn’t also somehow defamatory?

        1. In a world where SWATting is a thing, yeah, that needs to be said. And maybe revisited. Not all reports should necessarily be treated as “presumptively valid”.

          Or maybe that should be the presumption but explicitly called out as a weak and rebuttable presumption.

          1. Weird. That comment was intended as a reply to Dr Ed’s comment at 12:31 where he asked “That actually had to be said?!?”

            What I intended to say in reply to the comment at 6:53 is that “Sure, there can be a false statement that is not defamatory. If, for example, I said that ‘I think RAK is a great and rational commentor’, that would be flagrantly false but not defamatory in the slightest.”

            1. ” I said that ‘I think RAK is a great and rational commentor’, that would be flagrantly false but not defamatory in the slightest.”

              That’s an opinion, not a fact.

              Point on SWATting well taken, note my point on presumption of adult judgement on part of authorities.

        2. Sure.
          “Donald Trump is the most educated president we’ve ever had.” (Or, in 3 months, perhaps, “Joe Biden is the most educated president we’ve ever had.” Both are demonstrably false. But giving a sincere (and incorrect) compliment does not seem to meet any of the statutory definitions of “defamatory” that I’ve seen.

          “Mike is a really considerate guy.” is not defamatory . . . even though you and I agree that this Mike guy is actually a bit of an asshat. And even though almost everyone who knows Mike agrees that he’s actually quite a jerk.

        3. But can there even *be* a false statement that isn’t also somehow defamatory?

          Sure. “Dr. Ed knows what he’s talking about.”

  7. My wife and I took in her elderly mother when she could no longer care for herself and my wife’s sister, with whom mother had been living, was unable to care for her. Sister is mildly mentally disabled and had been living with and sponging off mother for many years. Sister didn’t like losing her gravy train and reported my wife to adult protective services. APS cleared my wife after an investigation. Using the logic seemingly at play here, that reporting a person one is involved in a financial or custodial dispute with is not defamatory, allows abusers like sister off the hook because they will rarely admit the motive behind their report.

    1. Using the logic seemingly at play here, that reporting a person one is involved in a financial or custodial dispute with is not defamatory, allows abusers like sister off the hook because they will rarely admit the motive behind their report.

      It means that such a report isn’t per se defamatory, not that it can never be. This holding still allows penalizing a knowingly false report or one made while “the defendant acted with an improper intent.”

      1. It’s also why I mentioned the presumption of a scintilla of adult judgement.

  8. “a guilty plea must be accurate, voluntary, and intelligent”

    accurate – willing to say it’s accurate
    voluntary – volunteers to take the plea rather than risk a higher sentence at trial
    intelligent – sometimes yes, sometimes no

    1. “willing to say it’s accurate”

      But he didn’t….

      He refused to admit to knowing that what he put on Farcebook was false when he posted it, along with not admitting all of the stuff in the account was posted by him (the “hacking” allegation).

      1. I was trying to be more general.

  9. It’s a MINNESOTA Appellate Court. That they stood up for speech by a male in a domestic situation is novel.

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