Minn. Sup. Ct. to Decide: Do Ordinary Speakers Have Lesser First Amendment Rights Than Newspapers?

In 1980, the Minnesota Supreme Court said "yes"; yesterday, it agreed to hear a case that might lead it to reconsider.


I'm delighted to repoirt that yesterday the Minnesota Supreme Court agreed to hear Maethner v. Someplace Safe, Inc., the case I blogged about last week. The lower court held that a libel plaintiff could recover presumed damages—i.e., damages not supported by specific evidence of lost business opportunities or other harms stemming from injury to reputation—even without a showing that the defendants knew the statements were false or likely false. In Gertz v. Robert Welch, Inc. (1974), the Supreme Court held that this was not allowed when it comes to statements on matter of public concern, even when the plaintiff is a private figure. But Minnesota precedents, starting with Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 258 n.5 (Minn. 1980), say that this doesn't apply to speech outside the institutional media.

Since Stuempges, the U.S. Supreme Court, the Eighth Circuit U.S. Court of Appeals (which deals with federal cases from, among other states, Minnesota), and many other federal circuit courts have rejected the Stuempges approach, and concluded that the First Amendment equally covers non-institutional-media speakers as well as the institutional media. (Some state statutes may offer broader protection to professional media, or even particular kinds of media, such as newspapers, but that's a separate question.) I think this equal-First-Amendment-rights approach is correct, and Stuempges is mistaken.

With the help of pro bono local counsel John Arechigo of Arechigo Stokka (many thanks!) and my student Jason Lawler I filed a motion for leave to file an amicus brief (quoted here), and now we will indeed be filing such a brief, on behalf of various Minnesota-connected law professors, Scott Johnson of the Minnesota-based Powerline blog, and myself. I'll blog the brief when it's ready, though its content will be quite similar to that in the motion.

NEXT: SCOTUS Released Same-Day Oral Argument Audio. Guess What Happened Next?

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  1. Since the Minnesota Supreme Court can’t overrule the U. S. Supreme Court, then if it adopts the nondiscriminatory interpretation – the correct one, IMHO – then it will have to forbid presumed damages for non-media defendants in cases of public concern.

    But what basis did the U. S. Supreme Court have to forbid presumed damages in any case? I’m asking in originalist terms, not “what the judge smoked that morning” terms.

  2. Might I refer you to the “originalist” prosecution of Daniel Defoe for seditious libel? There is ample precedent for the view that certain private forms of “whistleblowing” are not constitutionally protected.

    And indeed, is the “nondiscriminatory” interpretation really correct? Often, only an institutional context allows us to know when a satire is really a satire.

    Thus, anyone who reads a professional Onion parody generally knows that that it’s satire. But when we read emails or tweets distributed by amateurs in the “names” of others, then we are dealing with a very serious matter. If a “satire” written by an amateur is not “clear,” and if it is not sufficiently “puerile,” and can be construed as having been written with the intent to damage a reputation rather than convey an “idea,” then it is unprotected conduct rather than speech, and its author ? if he is enough of an amateur ? should be arrested, prosecuted, and jailed, unless he can prove beyond a reasonable doubt that his intent was satirical. Eugene himself has basically made the same point in the past. In this regard, allow me to vehemently protest the recent refusal of the New York Criminal Court to jail our nation’s leading criminal “parodist.” Such a decision conveys more than a small degree of disrespect for the prosecutorial institution, and should be viewed accordingly. See the documentation at:

    1. Note: this was in reply to Eidde above.

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