The Volokh Conspiracy
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Court Makes It Easier for Plaintiffs to Win Libel Lawsuits Against #MeToo Claimants
A potentially very important 2-1 decision today from the Minnesota Court of Appeals, which held that such a #MeToo post wasn’t on a “matter of public concern,” and was thus less protected by the First Amendment.
From today's decision of the Minnesota Court of Appeals in Johnson v. Freborg, by Judge Lucinda Jesson, joined by Presiding Judge Peter Reyes, with a partial dissent by Judge Sarah Wheelock:
Respondent Kaija Freborg identified appellant Byron Johnson in [a Facebook] post as one of three dance instructors who had sexually assaulted her. Johnson sued Freborg for defamation, and Freborg moved for summary judgment. The district court granted summary judgment to Freborg because it determined that her statement was true and involved a matter of public concern. Because the record, viewed in the light most favorable to Johnson, reveals a material issue of disputed fact regarding the veracity of Freborg's statement, and because the dominant theme of the statement did not involve a matter of public concern, we reverse and remand….
Here are some of the facts:
Johnson is a dance instructor and event promoter. Freborg was the director of a bachelor's program in nursing and assistant professor at Augsburg college, until she relocated to California. She worked as a staff nurse for 17 years before receiving a doctorate in nursing from Augsburg in 2011, after which she spent ten years as a professor.
Freborg took a dance class instructed by Johnson in 2011. The parties began to communicate outside of the dance class a few months after meeting. In 2012, the parties' relationship became sexual. Freborg and Johnson agree that this stage of their relationship was consensual. The relationship lasted until around 2015. The only occurrence before 2015 that Freborg characterized as nonconsensual was an unsuccessful attempt by Johnson to videotape a sexual encounter between the couple.
In early 2015, Freborg attended a party at Johnson's house. She claims that Johnson "approached her while she was intoxicated and alone, grabbed her hand and put it down his pants onto his genitals without [her] consent." Johnson admitted to approaching Freborg while she was intoxicated and placing her hand on his genitals, but he also maintained that he "never engaged in any non-consensual activities with" Freborg.
In May 2015, the parties communicated by text message about the incident. In the exchange, Freborg told Johnson of her recollection that he had approached her while she was intoxicated and put her hand under his shirt and pants. Johnson replied: "If you say so, I definitely don't remember it going that way." Freborg replied, "I do." The parties' relationship ended in 2015 following this incident.
Five years later, in July 2020, Freborg posted a public message on her Facebook profile. In her post Freborg said:
Feeling fierce with all these women dancers coming out. So here goes … I've been gaslighted/coerced into having sex, sexual[ly] assaulted, and/or raped by the following dance instructors: Byron Johnson, Saley Internacional, and Israel Llerena. If you have a problem with me naming you in a public format, th[e]n perhaps you shouldn't do it [three shrugging-person emojis]
#metoo #dancepredators {Freborg "tagged" all three individuals referenced in the post, meaning that the post was linked to their individual Facebook accounts.}
Later that day, Freborg edited her post and replaced the statement "I've been gaslighted/coerced into having sex, sexual[ly] assaulted, and/or raped by the following dance instructors," with the statement "I've experienced varying degrees of sexual assault** by the following dance instructors." Freborg explained that she edited her post after receiving feedback. The second post read:
Feeling fierce with all these women dancers coming out. So here goes … I've experienced varying degrees of sexual assault** by the following dance instructors: Byron Johnson, Saley Internacional, and Israel Llerena. If you have a problem with me naming you in a public format, th[e]n perhaps you shouldn't do it [three shrug emojis]
#metoo #dancepredators
** I was given feedback from a good friend of mine about how words like rape from a white woman can be triggering for black men. {Johnson is Black and Freborg is White.} I want to respect the black men out there reading this and so I have changed the wording on this post. These are important discussions to have and I appreciate the incredible friends I have who are willing to support me and also call me out. Thank you!! [folded-hands emoji]
Johnson responded by posting a message as a comment on Freborg's post. Johnson stated that he was confused and that he "categorically den[ied]" Freborg's accusation. Freborg responded, saying that she was "not interested in any kind of manipulative cat and mouse game with" Johnson and characterized his professed confusion as an attempt to gaslight her. {In a response to an interrogatory, Freborg explained that she understands the term "gaslighting" to mean "the use of tactics such as lying, deflecting blame, blame-shifting, and twisting or reframing conversations to psychologically manipulate someone into questioning their sanity."} A few days later, Freborg deactivated her Facebook account. Before then, her post received 182 comments….
In support of a motion for summary judgment after Johnson sued for defamation,
Freborg attached Johnson's responses to her requests for admission, including one in which he admitted approaching her at his home while she was intoxicated, grabbing her hand, and placing it on his genitals. She also produced text messages in which the parties discussed a separate occasion during which Johnson tried to record the two during a sexual encounter without her consent….
The trial court held that Freborg's statement was true, but the court of appeals concluded that a reasonable jury could conclude that it was false:
[W]hile Johnson admitted to having sexual contact with Freborg, his admission did not address whether the act was consensual. {We recognize that a person may be so intoxicated that they are not capable of consenting to sexual contact, but Freborg did not allege that was the case here.} And in a separate response, he stated that "I have never engaged in any non-consensual activities with [Freborg]." Further, Johnson disputed Freborg's characterization of the incident in the text exchange in May 2015, and he responded to Freborg's Facebook post denying her allegations.
Nevertheless, the court determined as a matter of law that Johnson had nonconsensual sexual contact with Freborg, and stated that "describing this nonconsensual contact as sexual assault is substantially accurate, if not completely truthful." Generally, sexual contact between adults must be nonconsensual to constitute sexual assault. Reviewing Johnson's statement in the light most favorable to him—the party against whom relief was granted—whether Freborg's statement is true presents a genuine issue of material fact.
We are not persuaded otherwise by the text messages in which Johnson and Freborg discussed him attempting to videotape her without consent. This evidence may be persuasive to a jury evaluating the issue of consent…. [But] the truth or falsity of Freborg's statement is for the jury to decide….
Now even if the statement is false, if it were on a matter of public concern, Johnson wouldn't be able to recover damages unless (1) he could show some demonstrated harm caused by the statement, or (2) he could show that Freborg knew the statements were false or likely false (satisfying the so-called "actual malice" standard). But if it were on a private concern, then Johnson would be able to recover "presumed damages"—and even punitive damages, though the court didn't focus on them here—even in the absence of demonstrated harm or "actual malice" (see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985)). And the appellate court concluded that Freborg's allegation "did not involve a matter of public concern":
Sexual assault—like domestic violence—is generally a matter of public concern. That does not end our inquiry. Turning first to the content of the speech here, we note that it is more singularly directed at an individual than the speech in Snyder v. Phelps [which held that picketing near a military funeral, with signs such as "God Hates Fags," was speech on a matter of public concern]. Unlike the few placards arguably directed at the soldier and his family, the bulk of Freborg's statement directly accused Johnson (and two others) of sexual assault…. The only portions of the post not directly aimed at the three men were the opening phrase "feeling fierce with all these women dancers coming out," and the addition of the hashtags: #metoo, and #dancepredators.
As to the form and context of the speech, the use of the hashtags, which are designed to expose a post beyond the user's immediate network, certainly demonstrates that Freborg sought to share her views in a manner designed to reach a broad public audience. On the other hand, the parties' prior relationship also factors into our examination of context. See Snyder (explaining that because there was no prior relationship between Westboro and the soldier, the Court was "not concerned" that "Westboro's speech on public matters" was meant to disguise a personal attack). And context requires us to consider two other factors: was the Facebook post in response to a public discussion and did it result in media dissemination?
To answer the first question, we look to the record. In its decision, the court stated that "the record is replete with other content regarding this specific problem in this specific community." We would not characterize the record in this fashion. Only two items attached by Freborg in support of her summary-judgment motion arguably related to the dance community of which Freborg and Johnson were a part. Freborg attached a Minnesota Public Radio news article about an alleged pattern of abuse by a different dance instructor. She also attached a blog post entitled "Dance Predators"—to which she presumably referred in her post—but that blog post is not about a particular community or person. The blog post predates Freborg's statement by two years. And the thrust of the blog involves how to prevent and deal with bad behavior in the dance community. There was no public discussion or article—or even Facebook post—which involved Johnson, to which Freborg was arguably responding.
Nor does the record demonstrate media dissemination of Freborg's accusations. Certainly, the record includes posts made after hers. And she attached comments responding to her post. But [past precedents finding that speech was on a matter of public concern] upon which it relies talk in terms of responsive "media coverage," which differs from responses to speech from members of the public.
Whether Freborg's speech involved a matter of public concern, given the totality of the circumstances, is a difficult balance. In essence, the question is whether it is a public concern when one person accuses her former consensual partner of sexual assault and adds hashtags to facilitate discussion. Certainly, broad dissemination, in and of itself, should not qualify speech as involving a public concern. But does broad dissemination of an accusation during a national discussion of sexual harassment qualify? This national discussion was (and is) important. It relies on collective voices. But does this context override the considerations set out above when balancing protection of personal reputation and free-speech rights here? …
Here, examination of the context provided by the record does not illuminate a pre-existing controversy regarding Johnson and the general Minnesota dance community. No caselaw requires this court to make that leap. Nor have we been presented with persuasive authority that would compel us to do so. The United States Supreme Court's focus on the "thrust and dominant theme" of the communication, cited approvingly by the Minnesota Supreme Court, counsels us that Freborg's statement is personal in nature. To hold that this accusation is a matter of public interest—which would take the question of the truth or falsity of Freborg's statement from the jury—would stretch current Minnesota law, based on the nature of the #metoo movement.
Note that by "would take the question of the truth of falsity … from the jury," the court likely just means that it would allow summary judgment if there's no proof of damages and no proof of "actual malice"; if there is proof of damages or actual malice, a libel claim could still go forward, even as to speech on matters of public concern.
Judge Wheelock concluded that "Johnson offered just enough evidence regarding consent to create a genuine issue of material fact precluding summary judgment on the issue of the falsity of Freborg's statement that Johnson sexually assaulted her," and thus agreed that summary judgment was wrongly granted on the question of truth. But she disagreed as to the public concern inquiry, and took the view that the post was indeed on a matter of public concern (I'm inclined to think her conclusion on this is correct); her opinion is long and detailed, but here's an excerpt:
The allegedly defamatory statement in this case was made as part of the #MeToo movement—a fact to which the majority devotes only passing attention.
The #MeToo movement is characterized by survivors of sexual abuse creating social-media posts disclosing their experiences with sexual harassment and sexual violence and identifying their abusers. Survivors end their posts with the now-ubiquitous hashtag, #MeToo. That hashtag categorizes the posts and allows them to be associated with a community discussion on the subject of sexual abuse…. The district court determined that in July 2020, respondent Kaija Freborg added her voice to the growing chorus of the #MeToo movement….
A key issue before this court is whether Freborg's Facebook post is speech on a matter of public concern. Viewing that post under the totality of the circumstances and in light of its content, form, and context, I conclude that it is. Freborg made the post as part of a now-global conversation about the prevalence of sexual harassment and assault and the need to shine light on once-secreted personal experiences. Freborg submitted with her motion for summary judgment articles about the #MeToo movement, including articles addressed specifically to sexual-assault issues in the dance community. Freborg explained that she was moved to share her own experiences after seeing other women share theirs. This context makes abundantly clear that Freborg's Facebook post involves a matter of public concern.
The content and form of Freborg's post also demonstrate that it involved a matter of public concern. As to content, the text of Freborg's post clearly reflects her intent to participate in the #MeToo conversation. She began the post: "Feeling fierce with all these women dancers coming out." And she ended the post with two hashtags: #MeToo and #dancepredators. As to form, Freborg's made her post "public" on her Facebook page, meaning that anyone on Facebook could see and share her post, even if they were not her Facebook "friend." A screenshot of Freborg's post shows that 305 people reacted to her post, 182 commented, and 16 shared it. Presumably, many more people read her post without reacting to it via Facebook's interactive options.
The majority agrees that sexual assault is a matter of public concern, but then engages in further analysis that I believe inappropriately separates Freborg's statement from its context within the #MeToo movement. The majority focuses on a perceived lack of public concern regarding Freborg's specific allegations against Johnson, which the majority characterizes as private. But the Maethner analysis requires us to consider the alleged defamatory statement under the totality of the circumstances, including, in this case, the critical context of the #MeToo movement. When Freborg's Facebook post is properly so considered, the inescapable conclusion is that it involves a matter of public concern. There are at least five specific areas where I diverge from the majority's analysis of the issue of whether the speech here is on a matter of public concern.
First, the majority reads [an earlier Michigan Supreme Court precedent] to require courts to consider whether statements were "disseminated in the news media" as a factor that may be dispositive. But the supreme court's discussion of whether statements were disseminated in news media goes to the question of whether the subject discussed, e.g., child sexual abuse, domestic abuse, etc., is a matter of public concern; it does not require that the challenged speech was itself disseminated after being published to a third party. Moreover, the supreme court held … that the media-defendant versus nonmedia-defendant distinction was not determinative in and of itself, but it "may have relevance in analyzing whether the challenged statements involve a matter of public concern." In other words, dissemination in the news media can be a factor in determining if a statement was a matter of public concern but is not dispositive; rather, this factor is intended to protect journalistic freedom by adding another tool to identify speech regarding a matter of public concern.
Second, the majority's reliance on [caselaw discussing] whether a public controversy existed in order to determine if the plaintiff was a limited-purpose public figure [is misplaced]. Whether a person is a public figure is a distinct issue from whether speech regards a matter of public concern, and the former issue is not relevant to the question before this court….
Third, … the United States Supreme Court [in Snyder] stated that the lack of a prior relationship or conflict between the Westboro Church and the individual soldier allayed any concern it might have that "Westboro's speech on public matters was intended to mask an attack … over a private matter." The lack of a prior relationship or conflict relieved the Court from engaging in an analysis about the extent to which such a relationship or conflict would impact its determination regarding the nature of Westboro's speech, but that fact did not dictate the Court's ultimate holding that Westboro's speech involved a matter of public concern. The Court said as much, which the majority acknowledges, when it stated that even if some of the messages were directed at the individual soldier or his family, "that would not change the fact that the overall thrust and dominant theme of Westboro's demonstration spoke to broader public issues." Here, the "overall thrust and dominant theme" of Freborg's speech is participation in the #MeToo movement to experience community support and to empower and protect other women who have had similar experiences, as opposed to masking an attack over a private matter with Johnson….
[Moreover,] Freborg's Facebook post cannot be picked apart—the speech is inextricably intertwined and must be analyzed under the applicable totality-of-the-circumstances test as a whole. When the test is applied to the full statement, there is no doubt that the thrust and dominant theme of Freborg's speech is about a matter of public concern.
Finally, I have grave concerns about the potential chilling effect that the majority's approach will have on the exercise of free speech with regard to #MeToo. I agree with the majority that the stakes of balancing the interests in cases such as this are high for individuals on both sides of the issue. And while I also agree that a person cannot render his or her speech a matter of public concern merely by adding a hashtag to a social-media post, I further conclude that naming an individual in a post does not require that a court determine that the speech is not a matter of public concern…. Here, where Johnson would have an opportunity to prevail under the second prong of the test allowing him to show that Freborg's speech was made with actual malice, the balance tips in favor of protecting Freborg's free-speech rights and speech associated with the #MeToo movement as a matter of public concern….
