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. Indeed, the view held by the jury in this case, and left undisturbed by the Minnesota court itself, eerily sounds like "the greater the truth, the greater the libel," doctrine that was inherited by this country from the British crown and then rejected as early as 1735 with the trial of newspaper publisher John Peter Zenger.
The Supreme Court has made clear that otherwise protected speech does not lose its protection even if it leads to economic harm or interferes with contractual relationships. It should apply in this case just as it did during the height of the civil rights movement:
[The protection afforded by the First Amendment] extends to more than abstract discussion, unrelated to action. The First Amendment is a charter for government, not for an institution of learning. `Free trade in ideas' means free trade in the opportunity to persuade to action, not merely to describe facts...The right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself.
N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 910, 914 (1982). See also Roth v. U.S. 354 U.S. 476, 484 (1957) ("The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by people.") The fact that the defendant achieved his aim of getting the plaintiff fired based on his truthful blog posts should not deprive him of the protections his speech was afforded by the Constitution and the Supreme Court.
Ultimately, these points could be raised on appeal and they have a good chance of succeeding. However, two points raised by the court below may insert some doubt into any appellate court and force it to examine the record more carefully.
First, it appears from the court's discussion of the case that the tortious interference claims were based on conduct in addition to the statement that formed as the basis of the plaintiff's defamation claim. The court points to various "behind the scenes" activities by the defendant that contributed to the plaintiff's termination from his job, including threats of negative publicity and lobbying. The direct and circumstantial evidence presented to the jury of this "behind the scenes conduct" may merit closer examination before a final determination is made on the merits of any appeal.
Second, it is unclear whether many of the constitutional arguments raised here were raised at trial. To the extent than that they were not preserved at trial, the appellate court may be limited in changing the result from below.
Regardless of the outcome of any appeal in this case, Moore v. Allen will remain an anomaly in libel jurisprudence. Truth as a defense in libel claims will still be zealously applied whenever it exists and courts will remain vigilant of plaintiffs seeking to circumvent the defense by artful reformulations of the libel claim into other torts.
Itai Maytal is an associate attorney of the New York-based firm Miller Korzenik Sommers LLP and a former First Amendment Fellow at The New York Times Company. He also serves as an assistant professor at the Columbia University Graduate School of Journalism. Any opinions he offers are in his individual capacity, and not as a representative of any institution with which he is associated.