The Volokh Conspiracy

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Free Speech

Minnesota Supreme Court Holds That Nonmedia Speakers Are Fully Protected by First Amendment

Prior Minnesota precedents had said that some First Amendment protections against defamation liability applied only to media speakers.


From today's Minnesota Supreme Court decision in Maethner v. Someplace Safe, Inc.:

[In Richie v. Paramount Pictures Corp.,] we described Supreme Court precedent [especially Gertz v. Robert Welch, Inc.] as holding that "in a private plaintiff defamation action against a media defendant speaking on a matter of public concern, states may not constitutionally 'permit recovery of presumed … damages, at least when liability is not based on a showing of falsity or reckless disregard for the truth.'" … According to the court [below], "Richie is inapposite …" … [to cases involving] statements made by a private individual and "a non-profit organization that was soliciting donations." …

[We conclude that] the proper focus regarding the availability of presumed damages is not on the status of the defendant as a media or nonmedia defendant. Rather, the dispositive inquiry is whether the matter at issue is one of public concern. The fact that the defendant is a member of the media may be relevant to determining whether a matter is one of public concern, but it is not, as the court of appeals suggested, the dispositive inquiry.

Although we did reference "the media" in announcing the legal rule in Richie for defamation actions that involve a matter of public concern, neither the Supreme Court nor our court makes a media/nonmedia distinction in defamation cases brought by public officials or public figures. The rule should not be different when the plaintiff is a private individual but the matter nonetheless raises an issue of public concern.

[Footnote:] [In a 1980] case involving a private individual who brought an action against his prior employer for making defamatory statements about his work record—we stated that "we believe that Gertz … applies only to media defendants." Stuempges v. Parke, Davis & Co.… "[F]ive members of the [U.S. Supreme] Court expressly rejected a distinction between media and nonmedia defendants" in Dun & Bradstreet v. Greenmoss Builders. In a subsequent private plaintiff defamation case, however, the Supreme Court specifically declined to decide whether suing a nonmedia defendant makes a difference. Phila. Newspapers, Inc. v. Hepps (1986). But cf. Citizens United v. Fed. Election Comm'n (2010) (declining to draw "constitutional lines based on the particular media or technology used to disseminate political speech from a particular speaker")….

Although we have clarified that the media- versus nonmedia-defendant distinction is not in and of itself determinative as to whether a private defamation plaintiff must establish actual harm to reputation in Minnesota, the distinction may have relevance in analyzing whether the challenged statements involve a matter of public concern. For example, the Supreme Court has explained that "[s]peech deals with matters of public concern" when the speech relates to "'a subject of legitimate news interest.'" Cf. Bowman v. Pulaski Cty. Special Sch. Dist. (8th Cir. 1983) (stating that "media coverage" is "a good indication of the public's interest")….

Sounds largely right to me, and indeed we so argued in an amicus brief that we filed in this case (both urging the Minnesota Supreme Court to hear the case, and later in urging it to reverse the decision below). Many thanks to our local counsel John Arechigo (Arechigo & Stokka, P.A.), my student Jason Lawler, who worked on the brief, and my cosignatories on the brief: Minnesota (or former Minnesota) law professors Dale Carpenter, Raleigh Hannah Levine,  Michael Stokes Paulsen, and Gregory C. Sisk; prominent bloggers Howard J. Bashman (How Appealing), Scott W. Johnson (Powerline), Glenn Harlan Reynolds (InstaPundit); Scotusblog Delaware, Inc. (the corporation that publishes Scotusblog); and Daniel Epps and Ian Samuel, who at the time did the First Mondays podcast about the U.S. Supreme Court.

If you're interested in whether the First Amendment has been historically understood as securing special rights for the institutional press, you can read my 2012 University of Pennsylvania Law Review article on the subject, which concludes that the Amendment does not secure such special rights. As best I can tell, only a small handful of states take a contrary view. If you are litigating a case in which you're challenging a state law rule that denies various First Amendment protections (such as those offered by Gertz) to non-professional-media speakers, please let me know; I might be able to file an amicus brief on the question.

The Minnesota Supreme Court's opinion also deals with another interesting issue; I hope to blog more about that later today.