“Minnesota Court Of Appeals Overturns $60,000 Jury Verdict For Tortious Interference With Contract Against A Local Blogger”
Cassie Batchelder, Silha Research Assistant
Silha Center For The Study Of Media Ethics And Law
University Of Minnesota School Of Journalism And Mass Communication
An August 20, 2012 decision from the Minnesota Court of Appeals in Moore v. Hoff, A11-1923, 2012 WL 3553180 (Minn. Ct. App. Aug. 20, 2012), overturned a jury verdict against John Hoff, a north Minneapolis resident who writes a blog about local issues entitled “The Adventures of Johnny Northside.” A jury previously found Hoff liable for tortious interference with a contract after truthful statements on Hoff’s blog resulted in the plaintiff, Jerry Moore, being fired from his job.
Moore formerly directed a community council in north Minneapolis and was fired from that position. The University of Minnesota’s Urban Research and Outreach-Engagement Center then hired Moore in 2009 to study mortgage foreclosures. After Hoff learned the university hired Moore, he penned a blog post alleging that Moore was involved in a fraudulent mortgage resulting in a 16-year prison sentence for Larry Maxwell, a real estate agent. Moore was not criminally charged in that case. The post in question read, “[Moore]—who has been a plaintiff in a lawsuit against JACC [Jordan Area Community Council], and was fired from his executive director position for misconduct, (fistfight, cough cough) is nothing if not a controversial figure in the Jordan neighborhood . . . Repeated and specific evidence in Hennepin County District Court shows [Moore] was involved with a high-profile fraudulent mortgage at 1564 Hillside Ave. N.” The University of Minnesota fired Moore after receiving an email from another blogger, Don Allen, and after Hoff’s blog post was published. Allen’s email was also posted in the comments section of Hoff’s blog. Moore sued Allen, in addition to Hoff, as a result of his firing, but Allen settled before the case went trial and testified against Hoff.
In Hennepin County District Court, Moore’s claim for defamation was dismissed. However, in March 2010 a jury found Hoff liable for tortious interference with a contract, which occurs when one party intentionally damages another party’s contractual relationships. But the jury found that Hoff’s statements about Moore were not false. The jury awarded Hoff $35,000 for lost wages and $25,000 for emotional distress. After the trial, Hoff and his attorney, Paul Godfread, moved for a new trial. District Court Judge Denise Reilly denied the motion and Hoff filed an appeal with the Minnesota Court of Appeals. (For more on the background of the case, see “Defamation Lawsuits Pose Threat to Journalists as Online Communication Complicates First Amendment Analysis” in the Spring 2012 edition of the Silha Bulletin and “Outrageous Speech, ‘Trash Torts’ and the First Amendment” in the Winter/Spring 2011 edition of the Silha Bulletin.)
Godfread and media attorney Mark Anfinson argued on Hoff’s behalf before the Minnesota Court of Appeals. John Borger and Leita Walker, partner and associate, respectively, at Faegre Baker Daniels, submitted an amicus brief on behalf of the Silha Center, the Minnesota chapter of the Society of Professional Journalists, and the Reporters Committee for Freedom of the Press.
Writing for the appellate panel, Judge Jill Flaskamp Halbrooks said, “Because the jury’s verdict is contrary to established law and appellant’s alleged tortious acts are too intertwined with constitutionally protected conduct to avoid infringing on appellant’s First Amendment rights, we reverse and remand.” The court reasoned that the non-defamatory statement made by Hoff could not serve as the basis for a claim of tortious interference, explaining that, to prove tortious interference with a contractual relationship, the plaintiff must establish: (1) that a contracts existed; (2) the defendant’s knowledge of the contract; (3) intentional accomplishment of the contract’s breach; (4) without justification; and (5) damages to the plaintiff. “Hoff’s blog post is the kind of speech that the First Amendment is designed to protect,” Flaskamp Halbrooks wrote. “He was publishing information about a public figure that he believed was true (and that the jury determined was not false) and that involved an issue of public concern . . . Attaching liability to this speech would infringe on Hoff’s First Amendment rights.”
“It’s important to have a strong re-affirmation of the principle that truthful speech does not support a lawsuit for tortious interference,” Borger said in an interview with online news source Twin Cities Daily Planet for a June 5, 2012 story. “We think it is important to recognize and reaffirm when speech is involved and the First Amendment is involved, that the reviewing court needs to apply an independent standard of review looking at all the evidence.”
Itai Maytal, an associate attorney with Miller Korzenik Sommers and a former First Amendment Fellow with The New York Times Company, said the case offered a “welcome vindication of the general principle that truth is an absolute defense to a claim for defamation and to claims for tortious interference with a contract or prospective business advantages arising out of an allegedly defamatory statement,” in an Aug. 30, 2012 commentary for Citizen Media Law Project. “But, it is troubling in as much as the defendant had to incur the time and expense of a jury trial and an uncertain appeal in order to receive the relief he was entitled. In that respect, it offers the cautionary tale to bloggers that reporting the truth, while important and socially valuable, may not come without a price,” Maytal wrote.
The time period for Moore to appeal the appellate court’s decision to the Minnesota Supreme Court has passed without a filing from Moore, so the ruling will stand.
Online reviews of other businesses and services have resulted in lawsuits alleging defamation around the country, as well. For example, an owner of a Sarasota, Fla. computer graphics company sued a reviewer after the reviewer wrote a negative, one-star review on Yelp.com, a website that allows anyone to post reviews of a wide range of businesses. The review called the owner “a scam liar and complete weirdo,” according to a Dec. 18, 2011 report in the Sarasota Herald Tribune. A dentist in Foster City, Calif. filed a similar suit in Santa Clara County Superior Court in 2008 after a patient’s parents posted a negative review on Yelp.com, according to a Jan. 13, 2009 story in the San Francisco Chronicle.
Because online reviewers are subject to defamation lawsuits, Rob Heverly, assistant professor of law at Albany Law School of Union University, wrote a guide for online reviewers on Madisonian.net, a blog focused on law, technology, and culture, which features written contributions from many law professors, on April 13, 2010. “The lesson here is straight forward: if you are making statements online about another person, a business or a service, do not embellish beyond what you can show factually,” Heverly wrote. “Statements of opinion were, in the past, considered absolutely protected, but the U.S. Supreme Court has clarified that opinion-statements backed by implied facts will be actionable where the facts implied are false.”