Defamation, an umbrella term encompassing both libel and slander, is a legal doctrine that allows a plaintiff to recover damages if the defendant makes a false statement about them to others, harming their reputation and esteem in the community. However, different rules apply when the statements involve public figures or issues, and what is considered “public” may soon be reassessed by the courts due to the changing digital nature of how news and information becomes prominent today.
The case, Johnson v. Freborg, involves allegations of sexual assault between two private individuals. The court will decide whether the forum on which the assault accusation was made – Facebook – or whether it was made within a broader social context – the #MeToo movement – qualify the matter as one of public concern, thus triggering a heightened “actual malice” standard and seriously reducing the likelihood of recovery for defamation.
It is believed that this will be the first state supreme court decision to address this question in the #MeToo context. If the court rules that the accusation is a matter of public concern, it will make it more difficult to recover damages for defamation — assault-related or otherwise — based on online activity connected to broader discussions of societal issues. In essence, participation in online movements could be given enhanced legal protections akin to the news reports of traditional media outlets. In battles over wrongdoing and reputation, viral social media activism and well-known hashtags could be the beneficiaries.
First, a bit of context. These special rules surrounding high-profile defamation arise from the United States Supreme Court’s 1964 landmark decision New York Times Co. v. Sullivan, in which an elected official who oversaw the Montgomery, Ala. police department sued the Times for libel based on statements in a fundraising advertisement placed by civil rights leaders.
The newspaper argued that it could not adequately cover the news if required to independently verify every statement it published about public officials. The Supreme Court agreed, ruling on First Amendment grounds that a public official cannot recover for defamation unless the party making the defamatory statement subjectively and actually knew their statement was false, or had significant reason to question its truthfulness yet recklessly proceeded anyway.
This requirement, which became known as the “actual malice” standard, was later extended to limit or prevent recovery in all cases involving “matters of public concern,” not just those involving public officials. As a practical matter, it is nearly impossible today for a defamation-alleging plaintiff in the public eye to recover damages in such cases if the actual malice standard cannot be met. And proving what somebody actually knew when a statement is made is extremely difficult.
The takeaway: determining whether a statement addresses a matter of public concern has become a game-changer in defamation litigation. So it’s little wonder that in our modern world of online forums, influencers and movements with massive followings, a legal debate has emerged over what can now be reasonably considered publicly important.
The region where this issue is coming to a head is in Minnesota where the Minnesota Supreme Court recently agreed to consider how this decades-old defamation law can be applied to social media posts in the current era, particularly when made in the context of a broader social movement.
Defamation lawsuits are routinely dismissed when the actual malice standard applies. The lawsuit in Freborg originally fared no better. The initial trial court ruled that the context of the post, including how it was hashtagged, transformed the abuse allegation from a private dispute to a “matter of public concern” and that the evidence to meet the actual malice standard was insufficient.
However, the Minnesota Court of Appeals disagreed and reinstated the lawsuit. The appellate court noted that matters of public concern generally involve subjects of legitimate news interest or other issues of political, social or community concerns.
Although this is not an absolute requirement, it’s true that the question of whether a topic is a matter of public concern is often determined by whether it actually received coverage in the traditional media. But determining what is a subject of a “legitimate news interest” in the era of smartphone proliferation is more complex today than the 1960s when these standards were developed.
The court of appeals did not doubt that the #MeToo movement itself represented an important social movement, or that publishing on social media has the potential to reach a vast audience. Instead, it emphasized the relationship history of the parties, and the fact that, prior to the post, there had been no public discourse or media coverage regarding the accusations. Although the post did generate significant discussion between Facebook users in its comments, the court nonetheless determined that this was not the same sort of public engagement as traditional media coverage. As such, it ruled that the accusation was primarily a private matter, not one of public concern, and there was accordingly no obligation to prove “actual malice.”
It’s important to note that the court’s decision was not unanimous. In a dissenting opinion, Judge Sarah Wheelock argued that the majority did not accord proper weight to the post’s context of having been made as part of the online #MeToo movement. In response to the majority’s conclusion that the accusation was private, the dissent countered that the entire purpose of the #MeToo movement is to expose the prevalence of sexual harassment and assault by “shining a light” on individual personal experiences that were generally “secreted” in the past. In this way, the #MeToo hashtag was not merely a convenient feature on a social media platform, but instead became the primary tool to demonstrate the vast number of women choosing to publicly describe their experiences.
Now in the hands of the Minnesota Supreme Court, a big decision looms as to whether the Facebook accusation addresses a matter of public concern. In doing so, the court will have to consider whether an allegation of assault between two private individuals can be considered a public matter in the context of a broader online movement, and to what degree traditional media coverage informs the question in a social media world.
Gregory Bromen is chair of the business litigation department at Nilan Johnson Lewis in Minneapolis. He is not involved in the case of Johnson v. Freborg.