The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.