Byron Johnson v. Kaija Freborg, A21-1531, Supreme Court, September 20, 2023
Opinion text
STATE OF MINNESOTA
IN SUPREME COURT
A21-1531
Court of Appeals Chutich, J.
Dissenting, Gildea, C.J., Anderson, Hudson, JJ.
Byron Johnson,
Respondent,
vs. Filed: September 20, 2023
Office of Appellate Courts
Kaija Freborg,
Appellant.
________________________
Scott. M. Flaherty, Taft Stettinius & Hollister LLP, Minneapolis, Minnesota; and
John G. Westrick, Samuel A. Savage, Savage Westrick, PLLP, Bloomington, Minnesota,
for respondent.
Alan P. King, Daniel E. Hintz, Natalie R. Cote, Goetz & Eckland P.A., Minneapolis,
Minnesota, for appellant.
________________________
SYLLABUS
1. Analysis of the totality of the circumstances—including the content, form,
and context of defendant’s Facebook post that accused the plaintiff in this defamation
action and two other dance instructors of sexual assault—shows that her speech involved
a matter of public concern, namely, sexual assault in the context of the #MeToo movement.
1
2. Because a genuine issue of material fact exists as to the truth or falsity of
defendant’s alleged defamatory statement, we cannot resolve the issue of actual malice
upon appeal; accordingly, we remand the matter to the district court for trial on the issues
of veracity and actual malice.
Reversed and remanded to the district court for further proceedings.
OPINION
CHUTICH, Justice.
This case involves a defamation claim brought by respondent Byron Johnson—a
private figure—against appellant Kaija Freborg. Johnson sued Freborg after a post on
Freborg’s Facebook page accused Johnson and two other dance instructors from the Twin
Cities dance community of varying degrees of sexual assault. Johnson was one of
Freborg’s dance teachers, and the two previously had a casual sexual relationship that
lasted for about a year.
The district court granted Freborg’s motion for summary judgment, finding that
Freborg’s speech was true and, alternatively, that her speech involved a matter of public
concern and was not made with actual malice. The court of appeals reversed. It held that
the truth or falsity of Freborg’s statement presented a genuine issue of material fact. The
court of appeals further held, in a divided opinion, that because the dominant theme of
Freborg’s post involved a matter of private concern, Johnson was not required to prove
actual malice to recover presumed damages. The court of appeals remanded the case to
the district court for further proceedings.
2
We granted Freborg’s petition for review on whether her statement involved a
matter of public concern. Because the overall thrust and dominant theme of Freborg’s
post—based on its content, form, and context—involved a matter of public concern,
namely, sexual assault in the context of the #MeToo movement, her statement is entitled
to heightened protection under the First Amendment to the United States Constitution.
Before Johnson may recover presumed damages, he must therefore show that Freborg’s
speech was not only false, but also that the post was made with actual malice.
Accordingly, we reverse the court of appeals on the issue of public concern and
remand the case to the district court for further proceedings to determine the veracity of
Freborg’s post and, if the post is found to be false, whether the making of the post meets
the constitutional actual-malice standard.
FACTS
Freborg and Johnson met in 2011, and Freborg, then a faculty member at a local
university, began to take dance lessons from Johnson at a Twin Cities dance studio.
Sometime in 2012, the parties began a casual sexual relationship. Freborg agrees that many
of their sexual encounters were consensual. She claims, however, that not all of their
interactions were consensual, including an allegation that Johnson approached her in 2015
at his home during a party “while [she] was intoxicated and alone, grabbed [her] hand and
put it down his pants onto his genitals” without her consent. This allegation, and its
veracity, is at the heart of her Facebook post and the litigation.
After the 2015 party, Freborg and Johnson ended their sexual relationship and
continued to contact one another only in the context of dance lessons; these dance-related
3
communications lasted until sometime in 2017. By 2020, they had not spoken to one
another for several years.
On July 14, 2020, Freborg posted the following public message 1 on her Facebook
page:
After receiving feedback about her message, Freborg clarified in the post’s
comment thread that she was not accusing Johnson of rape (“[t]his type of coercion [rape]
has nothing to do with [Johnson]”). She also edited her post 2 days later to exclude
allegations of rape:
1
Johnson alleges Freborg’s post reached thousands of Facebook users, many of
whom were not Facebook “friends” with Johnson or Freborg.
4
Johnson posted a response on Freborg’s public Facebook thread:
5
Freborg posted the following response on the thread:
Over 300 people “reacted” to Freborg’s posts, 182 readers commented on them,
and they were publicly “shared” 16 times.
Some of the response to Freborg’s posts was positive. Commenters told her that
she was “brave” and a “survivor.” Others seemingly reinforced her posts by explaining
their own negative experiences in the Twin Cities dance community. For example, one
commenter noted that Freborg was “not the only one of us who has been sexually assaulted
in the dance world.” Another commented that she does not “dance in certain spaces within
the [Twin Cities] because of feeling diminished, preyed upon, unvalued, etc.”
Other commenters, however, came to Johnson’s defense. One person, for example,
explained that people should “wash [their] laundry at the COURTS” and only come
forward on social media “after the person [accused of sexual assault] is PROVEN guilty.”
Another accused Freborg of slander and criticized her unwillingness to engage with
Johnson’s response to her posts.
In response to the varied comments to her posts, Freborg later explained that she
“did this for the safety of other women, and really to show that we as women can disrupt
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the status quo by calling sh*t out.” On July 27, 2020, just shy of 2 weeks after the original
post was published, Freborg deactivated her Facebook account, removing the post and its
thread from public view.
Johnson sued Freborg for defamation. He claimed that both Freborg’s original and
edited posts accused Johnson of raping Freborg, thereby painting him as a rapist. Johnson
argued that his reputation suffered as a result and that he lost business because of the posts.
After discovery, Freborg moved for summary judgment claiming that: (1) her speech was
true; (2) her speech was a matter of public concern; and (3) Johnson failed to show that her
speech was made with actual malice.
To support her summary judgment motion on the issue of public concern, Freborg
presented the following evidence about the global impact of the #MeToo movement. The
#MeToo movement was conceived to allow women to share their experiences of sexual
assault and harassment and to seek accountability from their abusers. 2 The hashtag collects
the posts and enables a community discussion to occur on the subject of sexual abuse. One
study submitted by Freborg stated that the movement “was exceptionally effective in
rapidly increasing awareness around sexual misconduct,” and that researchers have opined
that “social movements [like #MeToo] can rapidly affect the norms for behavior by
changing perceptions of a societal problem.”
Freborg also submitted information about sexual assault specifically in the dance
community. She submitted a blog titled “Dance Predators” that provided suggestions on
2
Freborg submitted articles in support of her summary judgment motion showing
that the movement gained international attention—particularly on social media—in 2017
during the Harvey Weinstein sexual abuse scandal in Hollywood.
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how to combat predatory behavior by dance instructors; a news story by Minnesota Public
Radio about sexual assault in a local Twin Cities dance studio; and seven other social media
posts from dancers, two posted the same day as Freborg’s post in July, that called out the
predatory behavior of three prominent international dance instructors in the global dance
community.
Johnson also moved for partial summary judgment on the issues of liability and
actual malice. Additionally, he moved to amend his complaint to add a claim for punitive
damages. Johnson claimed that Freborg’s posts involved a matter of private, not public,
concern because even if the #MeToo movement qualifies as a matter of public concern,
Freborg’s specific posts were personal in nature. He asserted that the sources Freborg
relied upon about the dance community were insufficient to show that her speech involved
a matter of public concern. Johnson also argued that Freborg’s posts suggested that
Johnson raped her even though she openly admitted he had not, so Freborg acted with
actual malice because she knowingly posted false information. He asked the district court
for a jury trial only on the issue of damages.
The district court granted Freborg’s motion for summary judgment. First, the court
found that Freborg’s statements were true. Second, the court rejected Johnson’s claim that
the posts were too personal in nature to be a matter of public concern, specifically relying
on Freborg’s use of the #MeToo hashtag and the context of the posts. The court also noted
that “[t]he record is replete with other content regarding this specific problem [sexual
assault] in this specific community [the Twin Cities dance community].” Finally, the
district court found that—even if Freborg’s speech was false—Johnson failed to show
8
actual malice, which is required to recover presumed damages for defamatory statements
that involve a matter of public concern.
The court of appeals reversed. Johnson v. Freborg, 978 N.W.2d 911 (Minn. App.
2022). The court held that a genuine issue of material fact existed about the veracity of
Freborg’s posts, making summary judgment inappropriate. Id. at 917–18. In a divided
opinion, the court further held that Freborg’s speech was a matter of private, not public
concern. Id. at 923. The court therefore did not reach the issue of actual malice. Id. at 923
n.25.
One judge dissented, stating that the totality of circumstances showed that Freborg’s
statements relate to a matter of public concern. Id. at 924–29 (Wheelock, J., concurring in
part, dissenting in part). Considering the content, form, and context of the speech, the
dissent reasoned that 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.” Id. at 926.
Freborg petitioned this court for review on one issue: whether her speech involved
a matter of public concern, which we granted. She does not challenge the court of appeals’
conclusion that a genuine issue of material fact exists about the veracity of her speech and
agrees that a remand to the district court is appropriate on this issue. Consequently, we do
not address the veracity issue further here and limit our analysis to the claim that her speech
involved a matter of public concern.
ANALYSIS
We review the district court’s grant of summary judgment de novo. Maethner v.
Someplace Safe, Inc., 929 N.W.2d 868, 874 (Minn. 2019). To decide whether summary
9
judgment is appropriate, we must determine “whether the district court erred in its
application of the law to the facts.” Id. (citation omitted) (internal quotation marks
omitted). In addressing whether a statement involves a matter of public concern, federal
courts have viewed the issue as a question of law, see Connick v. Myers, 461 U.S. 138, 148
n.7 (1983), and we likewise review the question of whether speech involves a matter of
public concern de novo. We also review de novo the determination of “[w]hether evidence
in the record is sufficient to support a finding of actual malice.” Maethner, 929 N.W.2d at
879 n.7.
I.
To determine whether Freborg’s speech involved a matter of public concern, we
start with some general principles involving defamation. “Under the common law, a
plaintiff pursuing a defamation claim ‘must prove that the defendant made: (a) a false and
defamatory statement about the plaintiff; (b) in [an] unprivileged publication to a third
party; (c) that harmed the plaintiff’s reputation in the community.’ ” Maethner,
929 N.W.2d at 873 (alteration in original) (quoting Weinberger v. Maplewood Rev.,
668 N.W.2d 667, 673 (Minn. 2003)). Certain types of speech, like accusations of “criminal
behavior or moral turpitude”—including accusations of sexual assault—are considered
“defamation per se.” Id. at 875 (citing Richie v. Paramount Pictures Corp., 544 N.W.2d
21, 25 (Minn. 1996) (internal quotation marks omitted). If a statement is found to be
defamatory per se, we then presume harm to a plaintiff’s reputation without requiring the
plaintiff to prove actual damages. Id. Johnson asserts that he is entitled to presumed
damages under this standard.
10
Like all laws regulating speech, however, “the doctrine of defamation per se
cannot offend the constitutional guarantees of the First Amendment.” Id. We have long
recognized that “personal reputation has been cherished as important and highly worthy of
protection.” Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 491 (Minn. 1985).
But we cannot “offer recourse for injury to reputation at the cost of chilling speech on
matters of public concern, which ‘occupies the highest rung of the hierarchy of First
Amendment values, and is entitled to special protection.’ ” Maethner, 929 N.W.2d at 875
(quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011)).
Given this commitment to “uninhibited, robust, and wide-open” debate on issues of
public concern, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), “a private
plaintiff may not recover presumed damages for defamatory statements involving a matter
of public concern unless the plaintiff can establish actual malice.” Maethner, 929 N.W.2d
at 878–79. To meet this constitutional actual-malice standard, “a statement must be ‘made
with the knowledge that it was false or with reckless disregard of whether it was false or
not.’ ” Id. at 873 (quoting Weinberger, 668 N.W.2d at 673) (internal quotation marks
omitted). Freborg contends that this heightened standard applies to her speech because her
posts involved a matter of public concern.
In Maethner, a defamation case, we held that the determination of whether speech
is of public or private concern in a particular case is “based on a totality of the
circumstances.” Id. at 881. In particular, “courts should consider the content, form, and
context of the speech.” Id. “No single factor is ‘dispositive;’ rather, courts should ‘evaluate
all the circumstances of the speech, including what was said, where it was said, and how it
was said.’ ” Id. (quoting Snyder, 562 U.S. at 454). In addition, in weighing the
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circumstances of the speech, we must make “an independent examination of the whole
record.” Snyder, 562 U.S. at 454 (citation omitted) (internal quotation marks omitted).
Maethner involved statements by Maethner’s ex-wife—posted on her private
Facebook page under the name Jacki Hansen Maethner—identifying herself as a survivor
of domestic violence, as well as an article published in a newsletter of a domestic
violence organization describing the “Survivor Award” that she had received. Maethner,
929 N.W.2d at 871. Maethner’s ex-wife and the organization also posted pictures on
Facebook of her holding the award. Id.
Even though he was not named in the posts, Maethner claimed that, given the use
of his distinct last name by his ex-wife, the speech essentially accused him of domestic
violence. Id. at 872. We recognized that “as a general proposition,” speech relating to
domestic violence is a matter of public concern. Id. at 881. But, in addition to the subject
of the speech, we explained that “the form and the context of the speech must also be
considered, as well as any other relevant factors.” Id. Because neither the district court
nor the court of appeals had specifically addressed the issue of public concern, we
remanded the case back to the district court “to decide in the first instance whether the
challenged statements involve a matter of public or private concern.” Id. at 881–82.
Similar to Maethner, we recognize that “as a general proposition,” speech relating
to sexual assault is a matter of public concern. See also Richie, 544 N.W.2d at 26
(concluding that “discussion of sexual abuse of children by their parents and legal recourse
available to the abused child” were “certainly of public concern”). But Maethner clearly
instructs us that no per se rule applies to suggest that statements about sexual abuse (or any
other crime) are always matters of public concern. Instead, we must, on a case-by-case
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basis, apply the totality of the circumstances test and balance the content, form, and context
of the speech, as well as any other pertinent factors, to determine whether speech involves
a purely private matter or is a statement about a matter of public concern intended to
influence public discussion about desired political or social change. Balancing the totality
of the circumstances of the Facebook posts here, we conclude that, although the speech
involved personal aspects, the predominant theme of Freborg’s speech involved a matter
of public concern, namely sexual assault in the context of the #MeToo movement.
A.
We begin with the content—the “what”—of Freborg’s speech, and we review the
entire thread of the Facebook postings when determining whether “a forbidden intrusion
on the field of free expression” has occurred. See Sullivan, 376 U.S. 284–86; see also
Snyder, 562 U.S. at 453–54. The subject of the Facebook posts involved accusations of
sexual assault by three dance instructors in the local Twin Cities dance community. In her
first post, Freborg stated that she had been “gaslighted/coerced into having sex, sexual[ly]
assaulted, and/or raped” by three specific dance instructors, including Johnson. She
amended her post 2 days later to delete the word “raped,” stating instead that she had
“experienced varying degrees of sexual assault” by the three dance instructors, again
including Johnson. 3 The last line of the original and amended posts stated, “If you have a
problem with me naming you in a public format, then perhaps you shouldn’t do it.”
3
Freborg’s amended post stated that she changed the wording of her original post
based on feedback from a good friend that the word “rape” could be a trigger word. She
also acknowledged in the Facebook thread and in private Facebook messages that Johnson
never raped her.
13
In evaluating whether these personal portions of Freborg’s posts—the identification,
tagging, and admonishing of the three instructors—make the speech a private affair, we
must weigh these statements against the remaining text. First, the original and amended
post prominently begin with this statement: “Feeling fierce with all these women dancers
coming out.” Then, before listing the varying degrees of sexual assault that she says she
experienced, Freborg states, “So here goes . . . .” This introduction suggests that she was
encouraged by other women speaking out about sexual assault in the dance community to
reveal her own experience and to add her voice to the community conversation.
Second, Freborg ends her posts with the well-known #MeToo hashtag and a
#DancePredators hashtag, connecting her experience directly to the dance community and
the broader #MeToo movement. This social movement is characterized by survivors of
sexual abuse creating social media posts disclosing their experiences with sexual violence
and identifying their abusers. Benedetta Faedi Duramy, #MeToo and the Pursuit of
Women’s International Human Rights, 54 U.S.F. L. Rev. 215, 217 (2020). The movement
seeks to connect survivors, encourage victims to tell their story, and increase awareness of
the scope of the problem of sexual assault. JoAnne Sweeney, Social Media Vigilantism,
88 Brook. L. Rev. 1175, 1219–21 (2023). “ ‘For many #MeToo claimants, what they want
is to tell their story.’ Indeed, the phrase ‘me too’ is inherently about connection; it tells
others that they are not alone and that they are understood. Such affirmations can be
healing in their own right as a form of social support.” Id. at 1219 (citation omitted).
Third, her subsequent explanation of her motives in the post thread—that she made
the posts “for the safety of other women” and to show how “women can disrupt the status
quo”—suggests that her posts were an attempt to raise awareness for other women,
14
including women in the dance community, and inspire social change. These three factors,
considered together, in addition to the broader context and response to the posts, show that
Freborg frames her Facebook posts “as her contribution to the larger discussions occurring
at the time of the #MeToo movement.” Coleman v. Grand, 523 F. Supp. 3d 244, 259
(E.D.N.Y. 2021).
Johnson claims that the explicit use of “you” three times in the last line of the initial
and amended post to condemn the instructors’ alleged abusive behavior, and Freborg’s
reply to his comment on her posts, show that the content of Freborg’s speech was not to
add her voice to the #MeToo movement but to get “vengeance” on him. He asserts that
Freborg’s posts—identifying him and two other instructors in the local dance
community—were too limited in scope to implicate the broader #MeToo movement. He
further contends that his preexisting relationship with Freborg shows that she used the
movement to mask a purely private attack on his character. He cites the Supreme Court’s
decision in Snyder to show that the content of Freborg’s posts was personal in nature.
A preexisting relationship—or the lack thereof—is certainly a consideration in
weighing whether the speech involves a matter of public concern. See Snyder, 562 U.S. at
455 (stating that there was no prior relationship between the Westboro Baptist Church and
the soldier “that might suggest Westboro’s speech on public matters was intended to mask
an attack on Snyder over a private matter”). Here, however, two considerations cause us
not to heavily weigh Johnson’s assertion that Freborg’s speech was a matter of private
concern because she was a “jilted former lover, who waited five years before publicly
attacking Johnson.” First, the passage of that many years between the end of the parties’
relationship, which Johnson described as a “casual sexual relationship,” and the post
15
suggests that the speech was not a personal attack in response to the relationship ending.
Second, the inclusion of two other dance instructors implies that the post had less to do
with Freborg’s previous relationship with Johnson, and more about speaking up about
alleged sexual abuse in the Twin Cities dance community generally.
Johnson cites the Supreme Court’s decision in Snyder to show that the content of
Freborg’s post was personal in nature. In Snyder, the issue was whether the speech of the
leader of the Westboro Baptist Church could receive First Amendment protection when he
organized a protest with offensive placards near the funeral of a soldier killed in the Iraq
war. The signs included general messages such as “God Hates the USA/Thank God for
9/11,” “America is Doomed,” “God Hates Fags,” and “Priests Rape Boys.” Snyder,
562 U.S. at 448, 454. The Court held that the signs addressed “matters of public import”
including “homosexuality in the military, and scandals involving the Catholic clergy.” Id.
The Supreme Court acknowledged, however, that the content of a few signs like “You’re
Going to Hell” and “God Hates You” could be viewed as containing personal messages to
the dead soldier and his family. Id. The Court concluded, however, that the few personal
messages did “not change the fact that the overall thrust and dominant theme of Westboro’s
demonstration spoke to broader public issues.” Id.
After weighing the personal aspects of the posts here with those elements addressing
broader public issues, we reach a similar conclusion about content: even though Freborg
named, tagged, and admonished three specific instructors in her post, these personal
messages do not outweigh the dominant theme of her speech—to discuss sexual assault in
the dance community, a matter of public import.
16
The dissent takes a narrow view of a “matter of public concern,” essentially
limiting those matters “to self-government,” “government officials,” or “government
performance.” But that narrow perspective is rooted primarily in decades-old Supreme
Court case law. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v.
Robert Welch, Inc., 418 U.S. 323, 334 (1974); Time, Inc. v. Firestone, 424 U.S. 448 (1975).
The dissent’s narrow perspective disregards the development of the law over the past five
decades and the Supreme Court’s broader view of matters of public concern. According
to a more recent case, “Speech deals with matters of public concern when it can ‘be fairly
considered as relating to any matter of political, social, or other concern to the community,’
or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and
of value and concern to the public.’ ” Snyder, 562 U.S. at 453 (citations omitted), quoted
in Maethner, 929 N.W.2d at 880. 4 As we noted in Maethner, speech involving a matter of
4
The dissent suggests that because Snyder involved a claim for intentional infliction
of emotional distress, the public concern test from Snyder does not apply in the context
here, a defamation action. But we have previously articulated the exact same public
concern test from Snyder in a defamation action: “that ‘[s]peech deals with matters of
public concern when it can be fairly considered as relating to any matter of political, social,
or other concern to the community’ or when the subject of the speech is ‘of general interest
and of value and concern to the public.’ ” Maethner, 929 N.W.2d at 880 (quoting Snyder,
562 U.S. at 453). We explained that “[t]he facts of Snyder are particularly helpful in
illustrating how to analyze whether statements are ones of public concern” and cited Snyder
for the articulation of “ ‘some guiding principles’ ” for distinguishing between a public and
a private concern. Id. (quoting Snyder, 562 U.S. at 452). And we specifically explained
that these guiding principles apply “in determining the constitutional protections afforded
to speech in tort actions,” without distinguishing between actions for intentional infliction
for emotional distress and other tort actions like defamation. Id.
We are not alone in relying on Snyder to guide the public concern determination in
tort actions generally. For example, in considering whether speech qualified as a matter of
public concern, the Second Circuit explained that the Snyder public concern test applies to
“any tort alleging reputational harm,” “regardless of the claim at issue, be it defamation,
intentional infliction of emotional distress, or negligence.” Dongguk Univ. v. Yale Univ.,
734 F.3d 113, 129 (2d Cir. 2013) (emphasis added); see also, e.g., Cousins v. Goodier,
17
public concern is within “the core of First Amendment protection . . . to assure the
unfettered interchange of ideas for the bringing about of political and social changes
desired by the people.” Maethner, 929 N.W.2d at 879 (citation omitted) (internal quotation
marks omitted) (emphasis added). 5
Consistent with Snyder, we conclude that Freborg’s Facebook post fits this broader
conception of public concern.
Finally, although not binding upon us when weighing the content of Freborg’s
speech, we find persuasive a recent defamation case with similar facts. Fredin v.
Middlecamp, 500 F. Supp. 3d 752 (D. Minn. 2020), aff'd, 855 F. App’x 314 (8th Cir. 2021)
(per curiam) (unpublished). In Fredin the federal district court, applying Minnesota law,
283 A.3d 1140, 1149–52 (Del. 2022) (applying the Snyder public concern test to hold that
a claimed defamatory email was “speech that addressed a matter of public concern: the
ongoing national debate about the use of American Indian iconography in sports logos,”
noting that “the First Amendment’s Free Speech Clause can serve as a defense in state tort
suits” generally (emphasis added)); Monge v. Univ. of Pa., ___ F. Supp. 3d ___, No.
CV22-2942, 2023 WL 3692935, at *2 (E.D. Pa. May 26, 2023) (applying the Snyder public
concern test to a defamation claim). Overall, it is the nature of the speech itself that guides
our public concern inquiry, not the nature of the claim.
5
Even if we were to view matters of public concern as relating primarily to
“self-government” or “government performance,” there are strong indications that the
#MeToo movement has catalyzed government action. For example, since 2017, several
federal laws have been amended or passed in direct response to the movement. See, e.g.,
Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 13307, 26 U.S.C. § 162(q)(1)
(removing tax deductions for “any settlement or payment related to sexual harassment or
sexual abuse if such settlement or payment is subject to a nondisclosure agreement”);
Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Pub. L.
No. 117-90, § 2(a), 136 Stat. 27 (2022) (amended the Federal Arbitration Act, 9 U.S.C.
§ 402, to make any “predispute arbitration agreement or predispute joint-action waiver”
for sexual harassment claims unenforceable); Speak Out Act, 42 U.S.C. §§ 19401–04
(recognizing that because “[s]exual harassment and assault remain pervasive in the
workplace and throughout civic society,” 42 U.S.C § 19401(1), “no nondisclosure clause
or nondisparagement clause agreed to before the dispute arises shall be judicially
enforceable” 42 U.S.C § 19403(a)).
18
found that a post on a public Twitter account that included pictures of a person and
explicitly accused him of repeated sexual harassment and rape qualified as a matter of
public concern. Id. at 777. In weighing the totality of the circumstances, the district court
found that “[t]he content of the speech here addressed harassment and rape, and more
specifically, the subject of women coming forward to share their experiences in this
regard.” Id. The court therefore concluded that the speech was entitled to the actual malice
standard of protection. Id. We believe the same conclusion about content is justified here.
In sum, although Freborg’s speech identifies and addresses Johnson directly and has
some aspects of airing a personal dispute, the dominant theme of her posts speaks to the
broader issue of sexual abuse in the context of the #MeToo movement, a matter of public
concern. After seeing other women share their experiences, she offered her own story,
hoping to raise awareness about the prevalence of sexual assault, to keep other women safe,
and to show that women “can disrupt the status quo” to bring about social change.
B.
Turning next to the form—the “where”—of Freborg’s speech, this factor further
supports a conclusion that Freborg’s posts were on a matter of public concern. 6 Freborg
disseminated her speech on her Facebook account, making her post publicly available to
anyone. The use of the internationally recognized hashtag for the #MeToo movement
allowed her message to be disseminated publicly and broadly on Facebook. Here, the
6
Notably, at oral argument before us, Johnson agreed that the form of Freborg’s
speech pointed to the posts being a matter of public concern, although he noted that no one
factor is dispositive.
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#MeToo hashtag does what a public account, blog, or journal dedicated to these issues
would by spreading the message to an unlimited audience.
The Supreme Court has acknowledged the power of Facebook, declaring that today
“the ‘vast democratic forums of the Internet’ . . . and social media in particular” provide
the “most important places . . . for the exchange of views.” Packingham v. North Carolina,
582 U.S. 98, 104 (2017) (quoting Reno v. Am. C.L. Union, 521 U.S. 844, 868 (1997)). The
Court further noted that social media acts as the “modern public square” and that sites like
Facebook “allow a person with an Internet connection to ‘become a town crier with a voice
that resonates farther than it could from any soapbox.’ ” Id. at 107. It follows that Freborg
specifically chose this modern public square as a way for her message “to reach as broad a
public audience as possible.” Snyder, 562 U.S. at 454; see also Fredin, 500 F. Supp. 3d at
777. Accordingly, this factor weighs in favor of concluding that Freborg’s speech involved
a matter of public concern.
To be clear, attaching a hashtag—even the well-recognized #MeToo hashtag—to
the end of a social media post is not in and of itself determinative of whether the speech
involves a matter of public concern. The use of a hashtag is only one relevant consideration
in balancing the totality of the circumstances. 7 Importantly, when courts are reviewing the
use of a specific hashtag, they should consider all other relevant factors, including content
7
Just as the use of a hashtag does not automatically transform a matter into one of
public concern, the naming of a specific person does not mechanically characterize the
matter as one of private concern. Such a binary approach would ignore the crux of the
inquiry—whether balancing the totality of the circumstances shows that a matter is one of
public concern.
20
and context. 8 A hashtag, even the globally recognized hashtag at issue here, can never
provide blanket First Amendment protections. The critical question will remain: based
upon the totality of the circumstances in light of the record as a whole, does the speech
involve a matter of public or private concern?
C.
Finally, the full context—the “how”—of Freborg’s posts also weighs in favor of
holding that her speech involved a matter of public concern. Johnson agrees that we can
and should look at the entire thread associated with Freborg’s posts. He asserts, however,
that it engendered “no discussion about how to engage in democratic self-governance,”
which he maintains would help support Freborg’s theory that the context of her post was
intended to raise awareness and bring accountability.
The responses to the posts refute that claim on its face. The posts generated much
discussion and mixed reactions: some gave Freborg their full support and validated the
claims in her posts by citing their own negative experiences, while others were critical of
the posts and how Freborg chose to speak about what happened to her. These reactions
facilitated conversations about the appropriate measures that victims should take when
speaking out and how to properly support sexual assault victims generally. The robust and
unfettered discussion in the thread following the initial post supports the conclusion that
the form and context of this speech makes this speech a matter of public concern, rather
than a purely private matter.
8
Here, for example, the hashtag at issue is at the heart of the #MeToo movement—
so much so that the hashtag itself is directly in the name of the movement and critical to
the dissemination of its message and goals.
21
As discussed above, the context of the #MeToo movement is a key factor in our
analysis. The #MeToo movement has had a direct impact on society and how communities
address sexual assault across industries. Data shows, for example, the number of sexual
harassment complaints the U.S. Equal Employment Opportunity Commission received
jumped by 13.6 percent after #MeToo went viral. Sweeney, Social Media Vigilantism,
88 Brook. L. Rev. at 1222. Further, reports now show that more people believe that “those
who commit harassment or assault are now more likely to be held responsible and victims
are more likely to be believed.” Anna Brown, More Than Twice as Many Americans
Support Than Oppose the #MeToo Movement, Pew Rsch. Ctr. 12 (Sept. 29, 2022). And
Congress has taken steps to lessen the shroud of secrecy that surrounds settlements relating
to sexual harassment or sexual abuse. See Speak Out Act, 42 U.S.C. §§ 19401–04; Tax
Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 13307, 26 U.S.C. § 162(q)(1).
Many other jurisdictions also have acknowledged the importance of #MeToo speech
in the context of the First Amendment. Fredin, 500 F. Supp. 3d 752; Coleman v. Grand,
523 F. Supp. 3d 244, 259 (E.D.N.Y. 2021) (finding that the open letter that the defendant
circulated accusing the plaintiff of abuse and sexual harassment involved a matter of public
concern); Dossett v. Ho-Chunk, Inc., 472 F. Supp. 3d 900, 908 (D. Or. 2020) (finding that
the publication of workplace-related #MeToo allegations involved a matter of public
concern); Fells v. Serv. Emps. Int’l Union, 281 A.3d 572, 584 (D.C. App. 2022) (holding
that there was a prima facie showing that the publication of workplace-related #MeToo
allegations involved a matter of public concern); Goldman v. Reddington, No. 18-CV-
3662, 2021 WL 4099462, at *4 (E.D.N.Y. Sept. 9, 2021) (finding that a defendant’s
22
LinkedIn and Facebook posts accusing plaintiff of sexual assault concerned “more than a
purely private matter” (internal quotation marks omitted)).
In addition, Freborg provided adequate evidence of the #MeToo conversations
happening about predatory behavior in the dance community, including a series of similar
posts made on and around the time of her own July 14, 2020 post. Her statements fit well
within the context of a legitimate social movement. 9
Johnson cites other contextual factors to show that Freborg’s posts are not a matter
of public import. As noted above, he contends that his previous relationship with Freborg
demonstrates that the nature of her speech was private. But the mere existence of a
previous relationship is not a dispositive factor in assessing the nature of the speech, and it
does not negate the importance of speaking out against sexual assault in society. Many
victims who come forward to speak about their experiences of sexual assault often have a
preexisting relationship with their abusers. See, e.g., Fredin, 500 F. Supp. 3d at 763–64
(granting summary judgment to one of the women named in the plaintiff’s defamation
lawsuit who previously had been romantically involved with the plaintiff); see also Lauren
R. Taylor & Nicole Gaskin-Laniyan, Sexual Assault in Abusive Relationships, 256 Nat’l
Inst. of Just. 12, 12–14 (Jan. 2007). In Minnesota, for example, a grim statistic shows that
9
Noting its concern that the #MeToo movement can be manipulated to launch false
accusations against innocent persons, the dissent references striking historical examples of
the shocking violence that resulted from false interracial allegations of inappropriate
behavior. It also references a more current case of false accusations, where the person
making the false accusations faced criminal consequences.
It is true that false accusations of sexual assault can cause serious harm to the person
accused. It is also true that research shows that these types of false accusations of sexual
assault are rare. Caitlin K. Cervenka & Christine M. Crow, Lawyering in the #MeToo Era,
109 Ill. B.J. 30, 31 (2021) (“[W]hile false allegations of sexual violence do occur, they are
rare; studies have shown that the rate of false allegations is between 2 and 10 percent.”).
23
one in every three women will experience violence, rape, or stalking by an intimate partner
in their lifetime. Domestic Violence in Minnesota, Nat’l Coal. Against Domestic Violence
(2020). If we were to hold that the mere existence of a previous relationship between
Johnson and Freborg makes Freborg’s speech private in nature, the impact would be an
unnecessary chilling effect on the exercise of free speech by victims of sexual assault and
their ability to effect social change.
Johnson next contends that, unlike Westboro Baptist Church and the owner of the
account used to tweet about Fredin, Freborg had no prior history speaking out about the
#MeToo movement or sexual abuse and harassment generally. We do not give this
contention much, if any, weight. To hold that victims of sexual assault can only speak out
about their experiences if they themselves are already advocates would certainly chill other
alleged victims from coming forward. See Fredin, 500 F. Supp. 3d at 777 (noting the
importance of and protecting speech that addressed “harassment and rape, and more
specifically, the subject of women coming forward to share their experiences in this
regard” (emphasis added)). Johnson’s argument also fails to consider that every alleged
victim, be they an advocate or not, must make a first statement. If we were to conclude
that Freborg’s speech was private in nature simply because she had no history of advocacy,
that would discourage any person not already engaged in advocacy work from telling their
story about what happened to them and adding their voice to the desire for social change
because they could be liable for per se defamation.
Moreover, even with the heightened protection of the actual-malice constitutional
standard, the speech of victims of sexual assault may well be chilled. Given the potential
threat and costs of defending a defamation lawsuit, many victims of sexual assault may
24
choose not to speak out at all. See Shaina Weisbrot, The Impact of the #MeToo Movement
on Defamation Claims Against Survivors, 23 CUNY L. Rev. 332, 352–53 (2020)
(explaining that while #MeToo has empowered more people to speak out, this speech has
led to more defamation lawsuits, especially if the accused has significant power or
resources).
Finally, Johnson cites Maethner and a lack of media coverage of Freborg’s posts to
show that the posts concerned a private matter. Maethner does not require, however, that
Freborg’s speech be later disseminated by the media for it to be considered a statement of
public import. There, we held that the dispositive inquiry regarding the availability of
presumed damages “is not on the status of the defendant as a media or nonmedia defendant”
but “whether the matter at issue is one of public concern.” Maethner, 929 N.W.2d at 877.
We later cited Eighth Circuit cases that noted that “media coverage is a good indication of
the public’s interest” and stressed “the importance of journalistic freedom in investigating
and reporting on matters of public interest.” Id. at 881 (citations omitted) (internal
quotation marks omitted). We then noted that dissemination of statements in the news
media is “one of many relevant factors in determining whether the statements involve a
matter of public concern.” Id. Our discussion in Maethner therefore suggests that this
non-dispositive factor serves to protect journalists in traditional media by adding another
consideration to identify speech on a matter of public concern. Given this background and
that Freborg’s posts were made on Facebook, a website that Packingham describes as a
“powerful mechanism” for the robust exchange of views, 582 U.S. at 107, the fact that no
news media reported Freborg’s posts is not a decisive factor in assessing the public import
of the speech.
25
After considering the context of Freborg’s posts, we conclude that this factor shows
that her speech involved a matter of public concern.
D.
In sum, weighing the content, form, and context of Freborg’s statements in light of
the whole record, we conclude that the overall thrust and dominant theme of the posts
involved a matter of public concern. We therefore hold that Freborg’s speech is subject to
heightened protection under the First Amendment. Accordingly, to prevail on his
defamation claim for presumed damages, Johnson must show that Freborg’s posts not only
were false, but that they were made with actual malice.
II.
Turning to the issue of actual malice, we note that the court of appeals did not rule
on this issue because it held that Freborg’s speech involved a matter of private concern.
Freborg, 978 N.W.2d at 923 n.25. Nor did Freborg raise the issue of actual malice in her
petition for review. Consequently, the parties agree that, if we conclude that the challenged
speech here involved a matter of public concern, we should remand the case to the district
court for a trial on the veracity of Freborg’s speech and actual malice. We agree for the
following reasons.
The district court concluded as a matter of law that the record contained insufficient
evidence of actual malice. But the court of appeals held that a genuine issue of material
fact existed as to the veracity of Freborg’s speech, making summary judgment improper.
Id. at 918. Given the fact issue on falsity—and because Freborg was both the speaker and
the publisher of the alleged defamatory statements—if a jury finds that Freborg’s speech
was false, sufficient evidence may allow the jury to further find that Freborg made the
26
statements with actual malice. 10 We therefore reverse the district court’s ruling on actual
malice and remand this case for further proceedings.
CONCLUSION
For the foregoing reasons, we reverse the decision of the court of appeals and
remand the case to the district court for further proceedings.
Reversed and remanded.
10
To succeed in a defamation case, a plaintiff must always prove that a statement is
false. We note that when the alleged sexual abuse involves a private interaction between
two people, if the plaintiff shows that the allegations were false, the constitutional
actual-malice standard may not pose much of an additional burden. This is so because the
standard requires that the statement be made with the “knowledge that it was false or with
reckless disregard of whether it was false or not.” Maethner, 929 N.W.2d at 873 (citation
omitted) (internal quotation marks omitted).
27
DISSENT
GILDEA, Chief Justice (dissenting).
In this defamation case, we are asked to decide whether heightened First
Amendment protections apply to Kaija Freborg’s accusation that Byron Johnson, her
former dance instructor and romantic partner, “gaslighted/coerced [her] into having sex,
sexual[ly] assaulted, and/or raped” her. The question is not whether Freborg’s speech is
protected at all; it is. Existing precedent already dictates those protections. See Gertz v.
Robert Welch, Inc., 418 U.S. 323, 347 (1974) (noting that states may “not impose liability
without fault”); Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 492 (Minn.
1985) (adopting negligence standard in response to Gertz). The narrow question here is
whether Freborg’s speech is so central to the purpose of the First Amendment that it is
entitled to the heightened protections reflected in the constitutional actual malice standard.
The majority concludes that the actual malice standard applies to Freborg’s speech because
Freborg wrote about sexual assault and included #MeToo in her post. I disagree. In my
view, Freborg’s personal Facebook post, on her personal Facebook page, concerning
private conduct between two people with a private relationship, is not speech that the
constitutional actual malice standard protects. Accordingly, I dissent.
A.
Historically, defamatory speech, such as allegations of criminal behavior akin to
those made here, fell outside the scope of the First Amendment. Moreno v. Crookston
Times Printing Co., 610 N.W.2d 321, 328 (Minn. 2000) (noting that “defamatory
comments were, by definition, not protected speech under the First Amendment.”). But in
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New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court said, “that the
reputational interests protected by state libel law must yield when in conflict with the
central meaning of the First Amendment.” Jadwin v. Minneapolis Star & Trib. Co.,
367 N.W.2d 476, 481 (Minn. 1985) (citing New York Times, 376 U.S. at 273–75). The
New York Times Court adopted the actual malice standard to strike a balance between
reputational interests and First Amendment protections. 1
The majority concludes that Minnesotans’ reputational interests must yield here
because Freborg’s speech is a matter of public concern and therefore worthy of the
heightened First Amendment protection of the constitutional actual malice standard. I
disagree. Providing redress for Minnesotans who have been accused by name of sexual
assault does not conflict with the “central meaning of the First Amendment.” Jadwin,
367 N.W.2d at 481. Accordingly, under Supreme Court precedent, the constitutional actual
malice standard does not apply. Examination of the Court’s precedent and application of
the required totality of the circumstances test confirms this.
1.
Our analysis of Supreme Court precedent must begin with New York Times, the case
in which the Court created the constitutional actual malice standard. There, the Supreme
Court recognized that speech by the press that criticized public officials for their official
conduct was so valuable that, even if it was defamatory, the First Amendment required that
1
Under this constitutional standard, a plaintiff cannot recover damages for injury to
reputation unless the plaintiff proves that the defendant made the statement at issue
knowing it was false or with reckless disregard for the statement’s falsity. New York Times
v. Sullivan, 376 U.S. 254, 279-80 (1964).
D-2
the speech be given some protections so that the speech was not unnecessarily chilled.
376 U.S. at 278–79. The Court created the “actual malice” standard to provide that
protection—public officials may not recover damages for a defamatory falsehood relating
to their official conduct unless they prove that the statement was made with “actual
malice.” Id. at 279–80. The Court grounded the result in the fact that the speech at issue—
citizen commentary on the performance of their government—went to the very heart or
“central meaning of the First Amendment.” Id. at 273; see also Gertz v. Robert Welch,
Inc., 418 U.S. 323, 334 (1974) (describing New York Times as “defin[ing] a constitutional
privilege intended to free criticism of public officials from the restraints imposed by the
common law of defamation”).
The majority holds that this actual malice standard from New York Times applies to
Freborg’s allegation that Johnson sexually assaulted her. But the animating principle in
New York Times was the connection of the speech to principles necessary to a successful
democracy, such as the citizenry’s ability to comment freely on the performance of their
government. See New York Times, 376 U.S. at 273, 279–80. Freborg’s speech has nothing
whatsoever to do with the government or government officials, and nothing in New York
Times supports the majority’s extension of the actual malice standard to the speech at issue
here.
The Supreme Court’s jurisprudence on the actual malice standard since New York
Times likewise does not support the majority’s extension of the standard to Freborg’s
speech. The Court discussed the applicability of the actual malice standard in Gertz v.
Robert Welch, 418 U.S. 323 (1974). In Gertz, as in New York Times, the speech was
D-3
grounded in commentary about government performance. See Dun & Bradstreet v.
Greenmoss Builders, Inc., 472 U.S. 749, 756 (1985) (noting that the speech at issue in
Gertz “involved expression on a matter of undoubted public concern” because the article
questioned whether a prosecution of a police officer was part of a Communist campaign to
discredit local law enforcement agencies).
The Gertz Court recognized that states have a “legitimate interest” in providing
compensation to people whose reputations have been harmed by defamation, and that that
interest needed to be balanced against competing First Amendment considerations to
ensure that speech the First Amendment values is not chilled. 418 U.S. at 348–50. When
the plaintiff is a private individual, the Court concluded, the government’s interest in
compensating for reputational harm was greater than in the case of public official/public
figure plaintiffs, such as the plaintiff in New York Times. Gertz, 418 U.S. at 343–44. The
Court held that states have “substantial latitude” in providing remedies to private plaintiffs
for reputational injuries and that “so long as they do not impose liability without fault, the
States may define for themselves the appropriate standard of liability for a publisher or
broadcaster of defamatory falsehood.” Id. at 345, 347. But the Court clarified that “the
States may not permit recovery of presumed or punitive damages, at least when liability is
not based on a showing of knowledge of falsity or reckless disregard for the truth.” Id. at
349.
The Supreme Court limited Gertz in Dun & Bradstreet v. Greenmoss Builders, Inc.,
472 U.S. 749 (1985). Unlike the facts of New York Times and Gertz, Dun & Bradstreet
involved only private, nonmedia parties: the plaintiff was a construction contractor and
D-4
defendant was a credit reporting agency. Dun & Bradstreet, 472 U.S. at 751. The plaintiff
sued the defendant for erroneously reporting to third parties that the plaintiff had filed for
bankruptcy. Id. at 751–52. The plurality opinion reasoned that Gertz applied only to
speech on matters of public concern and that Dun & Bradstreet involved a matter of “purely
private concern.” See id. at 763 (“We conclude that permitting recovery of presumed and
punitive damages in defamation cases absent a showing of ‘actual malice’ does not violate
the First Amendment when the defamatory statements do not involve matters of public
concern.”). Thus, the Court allowed the plaintiff to recover presumed damages without
proving actual malice.
Read together, New York Times, Gertz, and Dun & Bradstreet hold that the actual
malice standard applies to protect speech about a public figure, government official or the
performance of government more generally, but the standard does not apply to speech
about a private plaintiff on a matter of private concern. See Maethner v. Someplace Safe,
Inc., 929 N.W.2d 868, 877–78 (Minn. 2019). 2 For the former, a plaintiff must show actual
malice to recover; for the latter, state law governs. And for speech to be a “matter of public
concern” sufficient to warrant application of the constitutional actual malice standard, that
speech must relate to self-government. See Dun & Bradstreet, 472 U.S. at 759 (noting that
“the role of the Constitution in regulating state libel law is far more limited when the
concerns that activated New York Times and Gertz are absent”); New York Times, 376 U.S.
2
The parties agree that there is no media defendant here as in New York Times, and
they also agree that the parties involved are not public or government figures. Thus, the
only way that the actual malice standard would apply is if Freborg’s Facebook post is
speech on a matter of public concern.
D-5
at 269 (“The maintenance of the opportunity for free political discussion to the end that
government may be responsive to the will of the people and that changes may be obtained
by lawful means, an opportunity essential to the security of the Republic, is a fundamental
principle of our constitutional system.”); see also Elena Kagan, A Libel Story: Sullivan
Then and Now, 18 L. & Soc. Inquiry 197, 212 (1993) (noting that one approach to
understanding the New York Times v. Sullivan line of cases is to “view[] Sullivan as
primarily a case about the speech necessary for democratic governance”).
2.
The majority argues that I have interpreted the Supreme Court’s precedent too
narrowly. For support, the majority essentially equates matters of interest to the public to
those of public concern. Supra at 17. But the Supreme Court has already concluded that
when the issue is the application of the constitutional actual malice standard, there is a
dispositive difference between matters of public interest and matters of public concern.
Time, Inc. v. Firestone, 424 U.S. 448, 454 (1975). In Time, Inc., the Court made clear that
not all matters of interest to the public are matters of public concern for purposes of
applying the First Amendment. See Time, Inc., 424 U.S. at 454, 457 (rejecting petitioner’s
attempt to “equate ‘public controversy’ with all controversies of interest to the public” and
concluding the speech at issue was private speech because it “add[s] almost nothing toward
advancing the uninhibited debate on public issues thought to provide principal support for
the decision in New York Times.”). And the Court confirmed that Gertz had “repudiated”
the view that the “New York Times privilege should be extended to falsehoods defamatory
of private persons whenever the statements concern matters of general or public interest.”
D-6
Id. at 454; see also Gertz, 418 U.S. at 346 (rejecting “[t]he ‘public or general interest’ test
for determining the applicability of the New York Times standard” because that test
“inadequately serves both of the competing values at stake”); cf. Waldbaum v. Fairchild
Pub., Inc., 627 F.2d 1287, 1296 (D.C. Cir. 1980) (“A public controversy is not simply a
matter of interest to the public.”). Time, Inc. involved a news magazine article that included
reports that the defendant had extramarital affairs. The Court declined to apply the New
York Times “actual malice” standard, opting instead for the standard requiring some proof
of fault from Gertz. Time, Inc., 424 U.S. at 457; see also id. at 469–70 (Powell, J.,
concurring). In short, the Court in Time, Inc. continued the long line of cases including
New York Times, Gertz, and Dun & Bradstreet, that hold that speech about governance and
self-government is speech on a matter of public concern for purposes of the constitutional
actual malice standard.
I acknowledge, as we have recognized in other cases, that as a general proposition
speech discussing crime can be speech on a matter of public concern. See Maethner,
929 N.W.2d at 881 (noting that as a “general proposition” “speech relating to domestic
violence involves a matter of public concern”); Richie v. Paramount Pictures Corp.,
544 N.W.2d 21, 25–26 (Minn. 1996) (noting that child sexual abuse is matter of public
concern). 3 But Freborg was not discussing crime in general, the prevalence of crime in our
3
Importantly, neither Maethner nor Richie adopts a per se rule. In Maethner, we did
not disagree with the “general proposition” that “speech relating to domestic violence
involves a matter of public concern,” but we declined to address whether the speech in that
case (all of which discussed domestic violence) was speech on a matter of public concern.
929 N.W.2d at 881. Instead we noted that the district court did not reach a conclusion on
the question and remanded the case to the district court for further consideration. Id. Richie
D-7
society, or the government’s response to crime. Rather, she made a specific accusation of
criminal conduct on Facebook—that a person she identified by name sexually assaulted
her. Although the public may be interested in Freborg’s allegations, I would hold that such
speech is not a matter of public concern for First Amendment purposes. Bierman v. Weier,
826 N.W.2d 436, 462 (Iowa 2013) (holding that book author’s allegation that identified
person committed sexual assault was not a matter of public concern for First Amendment
purposes); W.J.A. v. D.A., 43 A.3d 1148, 1157–58 (N.J. 2012) (holding that defendant’s
speech on website he created where he alleged that his uncle sexually abused him was not
a matter of public concern).
The majority disagrees but it makes no real attempt to connect Freborg’s Facebook
post to commentary that goes to an issue important to self-government or to the “central
meaning of the First Amendment.” See New York Times, 376 U.S. at 273; see also Jadwin,
367 N.W.2d at 481. Instead, the majority focuses its analysis on how the broader MeToo
movement related to social change. I acknowledge the important contributions the MeToo
movement has made to our society. But this case is not about the MeToo movement; it is
about a Facebook post where Freborg accused Johnson of sexual assault and then included
“#MeToo.” We are tasked with evaluating whether Freborg’s single Facebook post was
speech on a matter of public concern, not the entire MeToo movement. Moreover, the
majority cannot connect Freborg’s post to any particular change in statute, nor do the
involved media defendants, which is a material difference to application of the
constitutional actual malice standard. Richie v. Paramount Pictures Corp., 544 N.W.2d
21, 23 (Minn. 1996). In short, we did not hold in either case that speech about sexual abuse
and harassment is always entitled to First Amendment protection. See supra at 17.
D-8
changes to federal law cited by the majority—changes that concern settlement, arbitration,
and nondisclosure—even apply to this case. The focus of those changes is apparently on
workplace sexual assault and harassment, and has nothing to do with sexual violence
committed at a private party between people with a personal relationship who met through
a hobby. 4
The majority also supports its focus on the importance of the MeToo movement
generally with statistics that show the prevalence of sexual violence and domestic abuse
against women. Supra at 22–24. This reliance on statistics and the MeToo movement
generally reveals a values-based approach to applying the First Amendment that is not
consistent with the First Amendment’s prohibition on “viewpoint discrimination.” See
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 383–84, 391 (1992) (noting that unprotected
categories of speech “can, consistently with the First Amendment, be regulated because of
their constitutionally proscribable content (obscenity, defamation, etc.)—not that they are
categories of speech entirely invisible to the Constitution, so that they may be made the
vehicles for content discrimination unrelated to their distinctively proscribable content”).
I see no reason to apply the First Amendment differently in the MeToo context.
4
For similar reasons, the majority’s reliance on statistics about the increase in Equal
Employment Opportunity Commission complaints and the fact that “people who commit
sexual harassment or assault in the workplace are now more likely to be held responsible
for their actions” are misplaced. See supra at 22; Anna Brown, More Than Twice as Many
Americans Support Than Oppose the #MeToo Movement, Pew Rsch. Ctr. 4 (Sept. 29,
2022). Freborg’s speech was not about workplace sexual violence.
D-9
3.
Snyder, a case about intentional infliction of emotional distress—not defamation—
does not compel a contrary conclusion. Anthony List v. Dierhaus, 779 F.3d 628, 632
(6th Cir. 2015) (observing that Snyder was not a defamation case and suggesting that
Snyder was of limited application to defamation cases). 5
In Snyder, the U.S. Supreme Court held that a claim for intentional infliction of
emotional distress will not lie in the face of a First Amendment challenge when the
allegedly distress-causing conduct is speech about a matter of public concern. Speech
intended to inflict emotional distress does not fall into the category of speech that was
5
In Maethner, we said that the test discussed in Snyder, which looks at the form,
content, and context for the alleged tortious activity, should be considered but that no one
factor was dispositive and that our test would require an examination of the totality of the
circumstances to decide whether the actual malice standard applied. 929 N.W.2d 881. The
majority’s focus on the result in Snyder to compel a result in this case is not consistent with
that direction.
The majority also cites three cases to support its reliance on Snyder to compel the
result here. Supra at 17–18 (citing Dongguk Univ. v. Yale Univ. 734 F.3d 113 (2d Cir.
2013), Cousins v. Goodier, 283 A.3d 1140 (Del. 2022), and Monge v. Univ. of Pa., ___ F.
Supp. 3d ___, No. CV22-2942, 2023 WL 3692935 (E.D. Pa. May 26, 2023)). These cases
are inapposite. Dongguk is of no help because the defendant in that case “concede[d] that
the defamatory statements addressed public figures and matters of public concern.”
734 F.3d at 122. And the court’s use of Snyder was confined to the negligence claim stated
in the complaint. In other words, unlike the majority here, the Second Circuit in Dongguk
did not use Snyder to resolve the plaintiff’s defamation claim. Id. at 127. Cousins is
likewise unhelpful to the majority because Cousins, like Snyder, is not about the actual
malice standard in a defamation case. The defamation claim in that case was dismissed
because the plaintiff could not prove that the alleged defamatory statement was false.
283 A.3d at 1160. And Monge involves a media defendant and criticism of a university
professor’s performance. 2023 WL 3692935, at *1. The court did not use Snyder to
compel a conclusion on the application of the constitutional actual malice standard (which
is what the majority does here). Id. at *3. Rather, the court relied on Snyder’s public-
concern analysis for the proposition that the plaintiff had to prove falsity, something that
is not at issue here. Id.
D-10
historically unprotected by the First Amendment, whereas defamatory speech does. See
Snyder, 562 U.S. at 451 n.3. This makes the State’s interest in preserving a cause of action
weigh more heavily here than in Snyder, and the First Amendment interest in protecting
speech weigh less. Maethner, 929 N.W.2d at 870–71 (noting that the purpose of the
content, form, and context inquiry is “to strike a delicate balance between the State’s
interest in providing redress for citizens claiming reputational injury and the free speech
protections the First Amendment provides”).
Another important distinction between defamation and intentional infliction of
emotional distress also influenced the Court’s analysis in Snyder. An element of
intentional infliction of emotional distress is the outrageousness of the conduct. But
outrageousness can have important value to speech, and permitting liability based on the
“outrageousness” of speech permits juries to discriminate on speech based on its content
or the viewpoint conveyed. See Snyder, 562 U.S. at 458 (“ ‘Outrageousness,’ however, is
a highly malleable standard with an inherent subjectiveness about it which would allow a
jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis
of their dislike of a particular expression.”) (citation omitted) (internal quotation marks
omitted)). The Court found the risk of chilling speech based on a malleable standard of
outrageousness “unacceptable” because “ ‘in public debate [we] must tolerate insulting,
and even outrageous, speech in order to provide adequate “breathing space” to the
freedoms protected by the First Amendment.’ ” Id. (citing Boos v. Barry, 485 U.S. 312,
322 (1988)). In other words, it was important to the Court’s analysis that the
D-11
outrageousness element of the tort of intentional infliction of emotional distress risked a
jury verdict on the basis of jurors’ opinions and subjective judgments.
That risk is much lower in a defamation case. In a defamation case, a jury will
consider the content of the speech only to evaluate its truth or falsity. Unlike the
intentional-infliction-of-emotional-distress context, the jury in a defamation case cannot
impose liability based on their own subjective judgments about the outrageousness of the
speech. 6
Finally, regarding the relevance of Snyder to the result here, the Court said in Snyder
that it was writing a “narrow” holding, one “limited by the particular facts” of Snyder.
562 U.S. at 460. The case did not even discuss the constitutional actual malice standard,
6
The majority disagrees that the cause of action affects our application of Snyder,
arguing that the “form, content, and context” test should apply in exactly the same way in
an intentional infliction of emotional distress case as in a defamation case. See supra at 17
n.4. The reason for the “form, content, and context” inquiry is “to ensure that courts
themselves do not become inadvertent censors.” See Snyder, 562 U.S. at 452. And the
risk of becoming inadvertent censors turns on the cause of action. See id. at 458 (balancing
the First Amendment against the state’s interest in preserving a cause of action for
“outrageous” speech). The touchstone of the test in a defamation case is balancing the First
Amendment protections against the state’s interest in preserving a cause of action for
damage to reputation, whereas the touchstone in an intentional infliction of emotional
distress case is balancing the First Amendment with the state’s interest in maintaining a
cause of action for infliction of emotional distress. See id. at 462–63 (Breyer, J.,
concurring) (“To uphold the application of state law in these circumstances would punish
Westboro for seeking to communicate its views on matters of public concern without
proportionately advancing the State’s interest in protecting its citizens against severe
emotional harm.”). The cause of action necessarily affects the balance.
D-12
and the majority is unable to explain how a case that does not even mention the standard
compels the conclusion that the standard applies here. 7
4.
Even though Snyder cannot compel the result here, we have recognized that
analyzing the form, content, and context of the speech, as the Court did in Snyder, can be
a helpful piece of the totality of the circumstances analysis. Maethner, 929 N.W.2d at 881.
i.
The “form” asks where the speech occurred. The parties agree that the speech here
occurred on a social media platform that was publicly viewed by many people, and that the
use of a hashtag made the post more accessible to the public. 8 The fact that the speech was
made in a “modern public square” is a relevant consideration in assessing whether the
speech is deserving of First Amendment protection. See Packingham v. North Carolina,
582 U.S. 98, 107 (2017). But it is not dispositive. Indeed, even though the speech at issue
in Time, Inc. appeared in a national news magazine, the Supreme Court held that the speech
did not rise to the level of warranting First Amendment protection. Time, Inc., 424 U.S. at
457.
7
Snyder is, as the majority notes, more recent than New York Times Gertz, and Time,
Inc. Supra at 17. But nothing in Snyder can be fairly read as modifying the analysis courts
should follow for application of the constitutional actual malice standard, a standard that
was not even mentioned in the case.
8
The majority considers Freborg’s use of #MeToo as relevant to the form, content,
and context of her post. I consider it relevant only to form.
D-13
ii.
Turning next to the “content” of Freborg’s Facebook post, I conclude that the
“overall thrust and dominant theme” of Freborg’s Facebook post was to accuse Johnson of
sexual violence. Maethner, 929 N.W.2d at 880–81. Specifically, Freborg identifies
Johnson and two others by name, accuses them of sexual violence, and speaks directly to
them in her post. She also “tags” Johnson in the post, which made sure that her post would
be linked to him through his own Facebook presence. By tagging Johnson in the post,
Freborg further confirms that Johnson—and not some broader societal issue—is the target
of her speech.
But, according to the majority, the thing that separates Freborg’s Facebook post
from any other speech accusing another of sexual assault is that Freborg included #MeToo
(and to a lesser extent, #DancePredators), which shows that she intended to participate in
a hashtag-based social movement. 9 I disagree.
While use of a hashtag makes the post available more broadly to the public, it does
not change the overall thrust of Freborg’s speech. Freborg’s speech included #MeToo, but
the post made no mention of government policy changes or systemic problems. Moreover,
the content of Freborg’s speech was disconnected from the MeToo movement. Unlike the
9
The majority also states that “attaching a hashtag—even the well-recognized
#MeToo . . . is not in and of itself determinative of whether the speech involves a matter
of public concern.” But this characterization misrepresents the majority’s analysis. The
only thing the majority points to as connecting Freborg’s post to a movement is #MeToo,
and the matter of public concern that the majority cites to is “sexual assault in the context
of the #MeToo movement.” In other words, the matter of public concern is the MeToo
movement and the connection to the MeToo movement was Freborg’s use of #MeToo. So
it seems that in this case at a minimum, the use of a hashtag was determinative.
D-14
individual defendant in Maethner, Freborg did not include generalized education about
crime, a general call to action, or highlight her work with an advocacy organization relevant
to the MeToo movement. See Maethner, 929 N.W.2d at 871–72 (describing posts).
Instead Freborg focused on allegations of criminal conduct against her, stating “I’ve been
gaslighted/coerced into having sex, sexual[ly] assaulted, and/or raped by the following
dance instructors . . . ” Johnson is specifically identified by name and Freborg accuses him
of sexual violence against her. Freborg even speaks directly to Johnson and the other
alleged perpetrators, saying, “If you have a problem with me naming you in a public format,
then perhaps you shouldn’t do it.” (Emphasis added.) Freborg’s own words make clear
that the overall thrust of her speech was to call out private people for private behavior.
iii.
Finally, I consider the context of Freborg’s post. The context of Freborg’s post is
the subject of much debate in this litigation. The majority places Freborg’s post in the
context of the MeToo movement. The majority acknowledges that Freborg and Johnson
had a prior personal relationship but dismisses that because the relationship ended years
earlier, and so, the majority concludes, Freborg’s intent was not to level a “personal attack”
against Freborg. See Snyder, 562 U.S. at 455.
While I agree with the majority that parts of Freborg’s speech are connected to the
MeToo movement in the sense that she included #MeToo in her post, the context of her
post was personal. The record reflects no history from Freborg of speaking out against
sexual violence. She and Johnson knew each other through the dance community, which
Freborg’s counsel admitted during oral argument was a “hobby.” Freborg’s post does not
D-15
implicate Johnson’s public or workplace conduct, but his conduct at a private party. And
Freborg and Johnson had a prior personal relationship. 10 In this litigation, Freborg asserted
that at various times during their relationship Johnson requested to have unprotected sex,
then had sex with other women after they agreed to be monogamous, gave Freborg a
sexually transmitted disease, blamed Freborg for giving him a sexually transmitted disease,
laughed at Freborg, called her dumb, and suggested she “made it all up in her head.”
Regardless of whether the purpose of Freborg’s post was to mount a “personal attack” or
to participate in the MeToo movement, there is an undeniable personal element to the
Facebook post at issue here, and the personal nature of the dispute permeates this litigation.
Moreover, even accepting that Freborg’s post occurred in the context of the MeToo
movement, her post is different from the protest in Snyder. In Snyder, the speech at issue
10
I do not “mechanically characterize the matter as one of private concern” based on
the nature of Freborg and Johnson’s relationship. Instead I consider it a factor in the totality
of the circumstances analysis that the First Amendment commands. Because this is a
totality of the circumstances analysis, I agree with the majority that “the mere existence of
a previous relationship is not a dispositive factor in assessing the nature of the speech.”
And I acknowledge that sexual violence often occurs between people with preexisting
relationships. But the fact that perpetrators of sexual violence often have relationships with
their victims does not mean that we should ignore the personal relationship between
Freborg and Johnson in our analysis of whether the speech was on a matter of public
concern in a defamation case.
The existence of a prior relationship, while perhaps commonplace in this specific
type of defamation case, is still important to consider in our analysis. We must consider
all of the facts—this is a balancing test that weighs First Amendment interests against the
State’s interest in providing a remedy for damage to reputation. See Gertz, 418 U.S. at 341
(“The legitimate state interest underlying the law of libel is the compensation of individuals
for the harm inflicted on them by defamatory falsehood. We would not lightly require the
State to abandon this purpose, . . . the individual's right to the protection of his own good
name ‘reflects no more than our basic concept of the essential dignity and worth of every
human being—a concept at the root of any decent system of ordered liberty.’ ” (quoting
Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring opinion))).
D-16
was the entire protest. Snyder’s father sued the protest organizer, the participants of the
protest, and the Westboro Baptist Church for the protest. 11 Snyder, 562 U.S. at 448–49
(noting that the Westboro Baptist Church was the defendant, and that the church
“frequently communicates its views by picketing”). If the MeToo movement is an online
protest, then the proper parallel for the Westboro Baptist Church’s protest is the entire
MeToo movement—Freborg’s individual post is akin to one protester holding just one sign.
The Snyder court even suggested that some of the individual signs might be private speech
if they were viewed standing alone. See Snyder, 562 U.S. at 454 (“[E]ven if a few of the
signs—such as “You're Going to Hell” and “God Hates You”—were viewed as containing
messages related to Matthew Snyder or the Snyders specifically, that would not change the
fact that the overall thrust and dominant theme of Westboro's demonstration spoke to
broader public issues.” (emphasis added)).
The context of the speech is also different from Richie and Maethner, which were
cases involving media or advocacy organizations. Freborg, in contrast, is not a member of
the media and she did not post on a public Facebook page for an advocacy organization
with a mission to help victims of domestic violence. She is a private person posting on her
personal Facebook page. See Richie, 544 N.W.2d at 26 (noting that the defendants were
members of the media); Maethner, 929 N.W.2d at 871 (involving speech by an advocacy
organization).
11
In its discussion of Snyder v. Phelps, the majority suggests that only the leader of
the Westboro Baptist church, the man who organized the protest, was a party to the lawsuit.
But Snyder sued the leader, his daughters (who participated in the protest), and the church.
See Snyder, 562 U.S. at 449–50.
D-17
In sum, Freborg was a private person, leveling an allegation of private conduct at a
private event, against a person with whom she had a personal relationship, all on her
personal Facebook page—a page with no history of discussing issues of sexual violence.
Consistent with the animating principle from the Supreme Court, we should not apply the
actual malice standard to Freborg’s speech because it does not fall within the central
purpose of the First Amendment. The majority disagrees, but it has not cited a case where
a court has applied the constitutional actual malice standard to speech where a private
individual accuses an identified person of a crime in a private social media post that
includes a hashtag. 12 Considering the form, content, and context of Freborg’s speech, I
12
The majority describes Fredin v Middlecamp, as “a recent defamation case with
similar facts.” See supra at 18 (citing 500 F. Supp. 3d 752, 777, 798 (D. Minn. 2020),
aff'd, 855 F. App’x 314 (8th Cir. 2021) (per curiam) (unpublished)). But in Fredin, two
defendants had secured harassment restraining orders against the plaintiff and a third
defendant reported about those harassment restraining orders on a social media account.
500 F. Supp. at 760; see Cox Broad. Corp. v. Cohn, 420 U.S. 469, 495 (1975) (concluding
that the First Amendment precludes states from imposing civil liability based on the
publication of true information in public, official court records); Quigley v. Rosenthal,
327 F.3d 1044, 1060 (10th Cir. 2003) (noting that “the existence of a civil lawsuit” is a
“relevant factor” to reviewing whether speech concerns a matter of public concern). The
social media account in Fredin was generally dedicated to addressing “subjects of online
and real life misogyny, harassment, [and] rape culture.” Fredin, 500 F. Supp. 3d at 770
(internal quotation marks omitted). And the media reported on the social media posts. In
short, Fredin is a markedly different case in that it involved accusations made in public
judicial proceedings that were reported in the media. Here, by contrast, the accusations are
made in a personal social media post.
The anti-SLAPP cases that the majority relies on likewise do not compel the result
majority reaches. See Fells v. Serv. Employees Int’l Union, 281 A.3d 572, 581 (D.C. App.
2022) (noting a statutory definition for public interest); Goldman v. Reddington, No. 18-
CV-3662RPKARL, 2021 WL 4099462 (E.D.N.Y. Sept. 9, 2021); Dossett v. Ho-Chunk,
Inc., 472 F. Supp. 3d 900 (D. Or. 2020); Coleman v. Grand, 523 F. Supp. 3d 244 (E.D.N.Y.
2021). Although these laws incorporate the constitutional standard under the First
Amendment to some extent, anti-SLAPP laws are state statutes, and cases interpreting state
statutes are distinguishable on that ground alone. See, e.g., Fells, 281 A.3d at 581 (noting
D-18
would hold that her speech is not a matter of public concern. See Kristofek v. Vill. of Orland
Hills, 832 F.3d 785, 794 (7th Cir. 2016) (“While none of the three factors is dispositive,
content is the most important.”).
B.
Ultimately, as we have recognized, the question of public concern is based on the
totality of the circumstances, and the purpose of the analysis is to balance the state’s interest
in preserving a cause of action for damages to reputation against preserving speech the
First Amendment values. Maethner, 929 N.W.2d at 881; Gertz, 418 U.S. at 343–44. One
of the circumstances that must be considered is the consequences of embracing the broad
hashtag rule that the majority writes. See Snyder, 562 U.S. at 452 (explaining that “the
boundaries of the public concern test are not well defined” and that the form, content, and
context test and standards articulated by the Supreme Court are “guiding principles”
that the statute “defines ‘[i]ssue of public interest’ as ‘an issue related to health or safety;
environmental, economic, or community well-being; the District government; a public
figure; or a good, product, or service in the market place.’ ”); Coleman, 523 F. Supp. 3d at
259 (explicitly stating that New York law defines public concern broadly, as “a dispute
that in fact has received public attention because its ramifications will be felt by persons
who are not direct participants” (citation omitted) (internal quotation marks omitted)).
These cases do not purport to interpret the First Amendment and are therefore not helpful
here. Moreover, many of these cases involve direct criticism of government actors or
public persons, making the speech at issue in these cases akin to that at issue in New York
Times. See Goldman, 2021 WL 4099462, at *4 (also applying New York’s broad definition
of “matter of public concern” and noting that the defendant’s speech included “extensive
criticism of the law enforcement investigation of her sexual-assault complaint”); Dosset,
472 F. Supp. 3d at 908 (explaining that the speech at issue concerned “alleged workplace
misconduct by the highest-ranking legal officer of the oldest and largest organization of
American Indian and Alaska Native tribal governments”); Fells, 281 A.3d at 584
(concluding that plaintiff was a public figure because he “voluntarily thrust” himself into
the debate on sexual harassment as the workplace as “interim President of the National Fast
Food Workers’ Union”).
D-19
(citation omitted) (internal quotation marks omitted)). Applying the majority’s rule, any
speech that includes a hashtag is a matter of public concern and subject to the heightened
actual malice standard. This is troubling. 13
Minnesota has a long and deep history of recognizing and protecting reputational
interests. See Maethner, 929 N.W2d at 875 (“We have recognized that ‘personal reputation
has been cherished as important and highly worthy of protection’ throughout history.”
(quoting Jadwin, 367 N.W.2d at 491)). The reasons for protecting reputational interests
extend beyond financial compensation, because defamation can also cause “personal
humiliation, and mental anguish and suffering.” See Time, Inc., 424 U.S. at 460; see also
Richie, 544 N.W.2d at 28 (“[E]motional damages are not compensable absent harm to
reputation.”). We should not be so quick to abandon this history.
Important in our consideration of Minnesota’s history of protecting reputational
interests is an acknowledgement that false accusations of rape and sexual assault have been
used as a weapon to damage reputation and sometimes—even in recent history—resulted
in death or wrongful imprisonment. 14 See Mark Curriden & Leroy Phillips, Jr., Contempt
13
For example, under the majority’s rule of law, a father who accuses the mother of
his children of child abuse on social media using #FathersRights in his post would have
the benefit of the actual malice standard.
14
The majority suggests that reputational interests are less important in the context of
sexual assault allegations because “research shows that these types of false accusations of
sexual assault are rare.” Supra at 23 n.9. Then the majority cites to Caitlin K. Ceryenka
& Christine M. Crow, Lawyering in the #MeToo Era, 109 Ill. B.J. 30, 31 (2021) for the
proposition that “while false allegations of sexual violence do occur, they are rare; studies
have shown that the rate of false allegations is between 2 and 10 percent.” In turn,
Ceryenka & Crow cite to David Lisak et al.’s article False Allegations of Sexual Assault:
An Analysis of Ten Years of Reported Cases, 16 Violence Against Women 1318 (2010).
D-20
of Court 36, 166 (1999) (discussing historic inequality in discussion and prosecution of
rape); Hon. Victoria A. Roberts, The Scottsboro Boys, 80 Mich. Bar J. 62, 62–64
(explaining that, in 1931, nine young Black men were falsely accused of raping two white
women on a train; eight of the boys were tried and sentenced to death); Alexander v.
Oklahoma, 382 F.3d 1206, 1211–12 (10th Cir. 2004) (discussing the Tulsa Race Riot, a
24-hour riot in 1921 that left as many as 300 people dead and was prompted by a rumor
that a Black man assaulted a white woman); Julianne McShane, Stanford University
Employee Charged with Making 2 False Sexual Assault Allegations, NBC News (Mar. 16,
2023, 3:02 PM), https://www.nbcnews.com/news/crime-courts/stanford-university-
employee-charged-making-2-false-sexual-assault-all-rcna75264 (discussing a complaint
that alleged the defendant “twice made false accusations of rape against someone matching
Lisak et al. conducted a review of the number of women who falsely reported sexual
assaults to the police at “a major university in the Northeastern United States” and
concluded that approximately 6 percent of the cases reported to police were demonstrably
false. Lisak at 1327, 1329–30. Lisak went on to conclude that a fair estimate of the number
of false reports of sexual assault made to police was somewhere between 2 and 10 percent.
Freborg’s Facebook post is not akin to a report to a police officer. Id. at 1330. A person
reporting sexual assault to a police officer faces more barriers than someone posting to
Facebook, and presumably expects an investigation. Thus the majority’s assertion that
“false accusations are rare” and therefore unimportant is unsupported by any relevant
citation.
More to the point, even accepting that false reports may be uncommon, the
infrequent nature of false report crimes does not diminish the importance of preserving a
civil action to protect reputational interests when falsely reported crimes do occur. This is
particularly so if the truth or falsity of the allegation is an element of the cause of action. I
have faith in the ability of Minnesota juries to carefully consider defamation cases
involving accusations of sexual violence. We do not need to extend First Amendment
protection to all speech accusing anyone of a crime that uses a hashtag. As discussed
above, the Supreme Court’s First Amendment precedent does not command the majority’s
result, and we should be cautious in adopting such a sweeping rule of law.
D-21
the description of a Black male co-worker”); see also Samuel R. Gross et al., Race and
Wrongful Convictions in the United States 2022, Nat’l Registry of Exonerations 18
(Sept. 2022) (“Two thirds of those misidentified rape defendants were Black men, most of
whom were misidentified by white victims.”); Amanda Holpuch, 4 Black Men Exonerated
in False Case of Rape in ’49, N.Y. Times, Nov. 23, 2021, at A15 (noting that four Black
men were falsely accused of rape in Florida in the late 1940’s, and that one was killed by
a mob and one was fatally shot by law enforcement). 15
It is also important to recall that the constitutional actual malice standard was born
out of concern for chilling speech about government, speech that is essential to the vibrancy
of our democracy. 16 New York Times, 376 U.S. at 265–83; Maethner, 929 N.W.2d at 877–
78. Freborg’s accusation that Johnson raped her comes nowhere close to such speech. And
a consequence of the majority’s hashtag rule will likely be more posts like hers—posts
accusing others of violence and bad behavior. In some circumstances, posts on social
media that single out and accuse others of wrongdoing go by another name: cyberbullying.
15
None of this analysis is intended to suggest that Freborg herself is lying. I agree
with the majority that the truth or falsity of Freborg’s statements is a question for the jury.
I share this history only to emphasize that the State’s interest in protecting reputation is
serious—it can have life-or-death and life-or-liberty consequences. Accordingly, we ought
to proceed with caution in extending First Amendment protection to statements that accuse
others of crimes.
16
I agree with the majority that sexual assault and sexual violence are societal
problems and that crimes of violence against women are underreported. What I fail to see
is why this problem requires us to extend additional First Amendment protection to
Freborg’s Facebook post accusing a particular person of a particular instance of sexual
violence. The majority’s statistics show that crime happens; the statistics do not show that
speech about rape, sexual assault, and sexual violence are uniquely entitled to First
Amendment protection.
D-22
See What Is Cyberbullying, stopbullying.gov, https://www.stopbullying.gov/cyber
bullying/ what-is-it (last updated Nov. 5, 2021) (“Cyberbullying includes sending, posting,
or sharing negative, harmful, false, or mean content about someone else. It can include
sharing personal or private information about someone else causing embarrassment or
humiliation.”). We should not lightly open the floodgates for more speech like this—
especially because one in five teenage girls experience cyberbullying, and medical experts
agree that cyberbullying is one of several factors contributing to a mental health crisis
among teenagers. Azeen Ghorayshi & Roni Caryn Rabin, Teen Girls Report Record Levels
of Sadness, N.Y. Times, Feb. 14, 2023, at A16; see also The Relationship Between Bullying
and Suicide, CDC (Apr. 2014) (discussing the link between bullying and adolescent mental
health). Earlier this year, the U.S. Surgeon general noted a need for greater protections for
children, including government regulations on social media companies. See U.S. Surgeon
General, Social Media & Youth Mental Health: The U.S. Surgeon General’s Advisory,
U.S. Dep’t of Health and Hum. Servs. (2023). By extending broad First Amendment
protection to Freborg’s Facebook post—and especially by basing this extension primarily
on the use of hashtags—the majority unnecessarily restricts the government’s ability to
address the growing cyberbullying crisis. Cf. New York Times, 376 U.S. at 277 (“What a
State may not constitutionally bring about by means of a criminal statute is likewise beyond
the reach of its civil law of libel.”).
This is not to say that Freborg’s speech should be left entirely unprotected—and it
is not. Historically, a defendant in a defamation per se case needed to prove that the
statements at issue were true. See Matthew L. Schafer, In Defense: New York Times v.
D-23
Sullivan, 82 La. L. Rev. 81, 114 (2021) (“While the rule prevailing at common law was
that even truth was no defense to a libel, . . . cases show early courts realizing that for a
republican government to be successful, some of the more draconian aspects of libel law
had to be relaxed.”). The burden now rests with the plaintiff to prove falsity. Richie,
544 N.W.2d at 25. And, consistent with Gertz, even in the context of defamation per se,
the plaintiff must prove that the defendant was negligent in making the defamatory speech.
See Gertz, 418 U.S. at 347 (“[S]o long as they do not impose liability without fault, the
States may define for themselves the appropriate standard of liability for a publisher or
broadcaster of defamatory falsehood injurious to a private individual.”); Jadwin,
367 N.W.2d at 492 (adopting a simple negligence standard in response to Gertz). In other
words, Johnson must prove that Freborg’s accusation was false and that Freborg did not
act with reasonable care when she falsely accused him of sexually assaulting her.
C.
Based on the totality of the circumstances here, I would hold that the actual malice
standard does not apply to Freborg’s speech. Freborg posted on her personal Facebook
account that a person she identified by name raped her. Freborg and Johnson knew each
other personally, they first met through a personal hobby, they had a personal and private
sexual history, and the speech at issue here accuses another of a crime. The mere fact that
Freborg made these allegations amid a social movement and included #MeToo in her post
D-24
does not convert her otherwise private speech into speech on a matter of public concern
entitled to heightened First Amendment protection. Accordingly, I dissent.
ANDERSON, Justice (dissenting).
I join in the dissent of Chief Justice Gildea.
HUDSON, Justice (dissenting).
I join in the dissent of Chief Justice Gildea.
D-25
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