Friday, December 21, 2012

$60,000 Ruling Against Truthful Blogger Tests Limits of the First Amendment

"...[S]peech does not lose its protection – as the jury in Hoff's case seemed to conclude – merely because it has an effect on those it criticizes. To conclude otherwise would give true speech less protection than false speech since it is more likely to do harm."

$60,000 Ruling Against Truthful Blogger Tests Limits of the First Amendment
September 12th, 2011

One of the first things I learned as a journalist, and later again as a media lawyer, was that under the First Amendment the "truth" could not be subject to a viable defamation claim. True statements are simply constitutionally immune and plaintiffs cannot sidestep all of the common law and constitutional protections for true speech through creative pleadings that would merely re-label defamation as another cause of action. The Supreme Court has flatly held as much in a long line of cases going as far back as the 1980s.

Enter then the seemingly bizarro Minnesota case of Moore v. Allen.

In a recent ruling, the Minnesota District Court in that case refused to set aside a jury verdict awarding the plaintiff $60,000 in damages against a blogger who posted truthful information about him that contributed to his losing his job. In other words, although the jury found the statement at issue was truthful and therefore not defamatory, they still ruled in favor of the plaintiff under a claim of "tortuous interference with employment contracts." This ruling seems on its face to be a flagrant violation of a constitutional precept and a prime candidate for reversal on First Amendment grounds. Yet this strange decision out of Hennepin County, Minnesota, merits a closer look.

According to public court filings and news reports, Jerry Moore sued John Hoff and six others in June 2009 for five allegedly biased and defamatory statements on Hoff's blog "The Adventures of Johnny Northside." The blog seeks "to help with a process of turning a rapidly revitalizing neighborhood into something approaching Urban Utopia" and is said to attract about 300 to 500 visitors daily.

Mr. Moore claimed in case filings, reported as well in various news reports, that he had lost his job at the University of Minnesota's Urban Research and Outreach/Engagement Center, where he was hired to study mortgage foreclosures, a day after Mr. Hoff posted statements that claimed Moore had been involved in "a high-profile fraudulent mortgage."

According to the Minnesota Star Tribune, District Judge Denise Reilly dismissed four out of the five statements saying that they were either non-actionable opinion or comments authored by others on the blog, which are not the blogger's liability. With respect to the remaining statement, the jury found that it was true but still an unlawful interference with Moore's employment at the university. They awarded the plaintiff $35,000 for lost wages and $25,000 for emotional distress. The court subsequently rejected a motion by the defendant to set aside the jury verdict or start a new trial, noting that it found "direct and circumstantial evidence adduced at trial ‘supports the findings of the jury and can be reconciled.'"

This is not the first time where a court has permitted liability for truthful speech. See e.g., Johnson v. Johnson, 654 A.2d 1212 (R.I. 1995)(man calling former wife a "whore"; court held statement was true but actionable); Noonan v. Staples, Inc., 556 F.3d 20, 26 (1st Cir. 2008)("Massachusetts law . . . recognizes a narrow exception to [the otherwise absolute] defense [of truth]; the truth or falsity of the statement is material, and the libel action may proceed, if the plaintiff can show that the defendant acted with ‘actual malice [in the constitutional sense of entertaining serious doubts as to truth] in publishing the statement."); Young v. First Bank of Bellevue, 516 N.W.2d 256 (1994)(dicta)(truth not an absolute defense under Nebraska statute, permitting liability for true defamatory statements made in malice). Yet, the fact that this case has some company, if few and far between, does not make it any less constitutionally suspect.

As forcefully argued in its amicus brief to the court, the Minnesota Pro Chapter of Society of Professional Journalists pointed out that the case appears to be a textbook example of a plaintiff making an end run around a prohibited lawsuit by re-labeling the same tort under a different name. Citing to the 1988 Supreme Court case Hustler Magazine v. Falwell, 485 U.S. 46, 57 (1988), the brief argued that "injuries to reputation are defamation-type damages, for which plaintiffs must prove the elements of a defamation claim regardless of how the claim is labeled." Such requirements did not seem to be imposed by the Minnesota court, according to filings.

Moreover, speech does not lose its protection – as the jury in Hoff's case seemed to conclude – merely because it has an effect on those it criticizes. To conclude otherwise would give true speech less protection than false speech since it is more likely to do harm...

Another defamation case in Minnesota: The WWII Vet vs. The Doctor

Dr. David McKee v. Dennis Laurion

After the District Court dismissed defamation charges, the plaintiff appealed seeking separate adjudication of interference with business.

I wonder how the results of Moore v Allen will compare to the results of McKee v Laurion.


Chicago Brick said...

The Top Lawsuits Of 2013
by Steve Kaplan
December 20, 2013

Never Shout "He's a Tool!" On a Crowded Website?

Dr. David McKee, a Duluth neurologist, was not laughing when he saw what one former client wrote about him on a doctor-rating website. The reviewer, Dennis Laurion, complained that McKee made statements that he interpreted as rude and quoted a nurse who had called the doctor “a real tool.” As these statements echoed through the Internet, McKee felt his reputation was being tarnished. He sued, and so began a four-year journey that ended this year in the Minnesota Supreme Court.

Laurion was unhappy with the way McKee treated his father, who was brought to the doctor after he had a stroke. Laurion went to several rate-your-doctor sites to give his opinion. That’s just free speech, isn’t it?

It sure is, says Laurion’s attorney, John D. Kelly of the Duluth firm Hanft Fride. “The court held that what my client was quoted as saying was not defamatory,” he says. “I do think the Internet makes it much easier for persons exercising poor judgment to broadcast defamatory statements, however… a medium… doesn’t change the quality of a statement from non-defamatory to defamatory.”

But McKee’s lawyer, Marshall Tanick, of Hellmuth & Johnson, says no matter where it was said, defamation is defamation. “The thing that’s often misunderstood is that this was not just about free speech, but about making actual false statements,” Tanick says. “The problem is today’s unfettered opportunity to express opinion, whether or not the substance of what’s said is true or not. We need some boundaries.”

But boundaries were not on the minds of the Minnesota Supreme Court. Free speech was. Chief Justice Lorie Gildea wrote, “The point of the post is, ‘This doctor did not treat my father well.’ I can’t grasp why that wouldn’t be protected opinion.” As to referring to the doctor as “a real tool,” Justice Alan Page wrote that the insult “falls into the category of pure opinion because the term … cannot be reasonably interpreted as a fact and it cannot be proven true or false.”

The takeaway from this case might be the knowledge that behind any rating service lie real people with real feelings. McKee spent more than $60,000 in the effort to clear his name, as he saw it. Dennis Laurion told the Star Tribune he spent the equivalent of two years’ income, some of which he had to borrow from relatives who supplied the money by raiding their retirement funds.

Court Watch said...

“The Streisand Effect.” refers to the consequence of inviting even more negative attention by trying to remove negative attention. (The) inspiration was Barbra Streisand’s objecting to a photo of her house in California being made part of a series documenting coastal erosion. Her complaints made the image far more pervasive online than it would have been had she simply ignored it.

David McKee, M.D., a Duluth, Minn., neurologist, was unaware of this phenomenon at the time he decided to sue Dennis Laurion. Laurion’s father, Kenneth, had suffered a stroke in April 2010; McKee was called in to assess Kenneth’s condition.

McKee asked if Kenneth felt like getting out of bed so he could make an assessment on mobility. He did, though his gown was partially undone in the back. According to the Laurions, McKee was oblivious to Kenneth’s modesty. “His son was right there,” McKee counters. “If he was concerned about the gown, he didn’t get out of his chair to tie it.”

The family exited the room while McKee conducted a brief examination. Laurion says he returned to find his father partially conscious. His head, Laurion asserts, was “pushed against the railing” of the hospital bed, appearing to be a victim of postural hypotension that resulted in a brief fainting spell.

Unaware of any resentment, McKee went to the nurse’s station to dictate notes; an irritated Dennis Laurion consulted with his family to see if his impression of the arrogant doctor was real or imagined. At no point did he approach McKee to clear the air. Instead, he fired off a dozen or more letters to a variety of medical institutions, including the hospital’s ombudsman, the Minnesota Board of Medical Practice, Medicare, and the American Medical Association.

McKee sued Laurion for defamation. A local Duluth newspaper picked up on the story, favoring Laurion’s interpretation of events. McKee claims the writer called him shortly before close of business Friday to solicit a quote; the story ran the following day. “The article was written like I was being reviewed for misconduct,” McKee says. In fact, no action had been taken against him by any of the organizations Laurion had written to.

Two events further demoralized McKee. In April 2011, the judge granted Laurion’s motion for summary judgment, ruling his comments were protected free speech. Worse, a user on posted the newspaper story. Almost overnight, dozens of “reviews” popped up on and other sites with outlandish commentary on McKee, who was referred to as “the dickface doctor of Duluth.” Their software was apparently unable to determine that a surge of opinion over a matter of hours was highly unusual activity for a physician who normally received perhaps three comments in a year.

McKee found no easy way to exit the situation. “You get drawn in,” he says, suggesting his lawyer nudged him into further action. “It’s throwing good money after bad. … I wanted out almost as soon as I got in, and it was always, ‘Well, just one more step.’” McKee appealed, and the summary judgment was overturned. The case, and the measurable impact of being labeled a “real tool,” was now headed for the Minnesota Supreme Court.

Law professor Eric Goldman, who says he feels physicians are “thin-skinned” when it comes to patient complaints, is confident that litigation is never the answer. “I imagine many lawyers saying that’s not good idea,” he says. “Good lawyers, anyway. McKee made a bad call. There are no winners in defamation lawsuits, and you should advise clients of that.”

McKee was rated for several years as a top provider in Duluth Superior Magazine, a well-regarded lifestyle publication that recently folded. But his online reputation will outlive that. “From now until the end of time, I’ll be the jerk neurologist who was rude to a World War II veteran,” the physician says. “I’m stuck with it forever.”

Full article: