SILHA: Minnesota Courts Address Defamation Claims Stemming from Blog Posts and Online Review

Standard

FALL 2012

“Minnesota Courts Address Defamation Claims Stemming from Blog Posts and Online Review”

Cassie Batchelder, Silha Research Assistant

Silha Center For The Study Of Media Ethics And Law

University Of Minnesota School Of Journalism And Mass Communication

Image-University-Of-Minnesota

Novel questions about the First Amendment and the law of defamation related to speech individuals post online have come before Minnesota courts in recent months. The Minnesota Court of Appeals reversed a $60,000 jury verdict for tortious interference against John “Johnny Northside” Hoff after a statement he posted on his blog resulted in the subject’s firing. In addition, the Minnesota Supreme Court heard arguments in a case in which a doctor’s alleges patient’s son posted a defamatory review of the doctor online.

Minnesota Court Of Appeals Overturns $60,000 Jury Verdict For Tortious Interference With Contract Against A Local Blogger

An Aug. 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.

Duluth Doctor’s Claim For Defamation Based On An Online Review Reaches The Minnesota Supreme Court

Displeased by the treatment his father received in the hospital, Dennis Laurion took his complaint online. Laurion wrote a review of Dr. David McKee, a neurologist who treated his father at St. Luke’s Hospital in Duluth, Minnesota. following a stroke, on a rate-your-doctor website.

Laurion wrote in the online review that his family was displeased with McKee’s “bedside manner.” The review read, “When I mentioned Dr. McKee’s name to a friend who is a nurse, she said, ‘Dr. McKee is a real tool!’” according to a March 24, 2012 story in the Minneapolis Star Tribune. Laurion’s complaint focused on Dr. McKee’s “body language and comments” when he treated Laurion’s father on April 20, 2010.

McKee reportedly read the comments online after another patient alerted him to their existence. McKee responded by filing a lawsuit for defamation and sought more than $50,000 in damages in district court in Duluth. He claimed he has spent $7,000 attempting to eliminate the comments from the Internet. “It’s like removing graffiti from a wall,” McKee’s lawyer, Marshall Tanick, a partner with Mansfield, Tanick & Cohen, P.A. told the Star Tribune. He argues Laurion has continued to distort the facts of the situation, both online and in complaints he has filed with various medical groups since the original online complaint. “He put words in the doctor’s mouth,” and made McKee “sound uncaring, unsympathetic or just stupid.”

In St. Louis County District Court in Duluth, District Judge Eric Hylden agreed with Laurion, writing, “The statements in this case appear to be nothing more or less than one man’s description of shock at the way he and in particular his father were treated by a physician.” Hylden dismissed McKee’s lawsuit in April 2011. The Minnesota Court of Appeals, however, disagreed. The court reversed and remanded the dismissal in January 2012, finding that some of Laurion’s comments could subject him to liability for defamation.

Laurion appealed the decision to reverse and remand the case to the Minnesota Supreme Court, which heard arguments on September 4, 2012. The issue in McKee’s appeal is whether statements Laurion published describing McKee’s treatment of his father are not pure opinion but, rather, factual assertions capable of being proven true or false. This is the standard the United States Supreme Court set forth in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), for what establishes opinion protected by the First Amendment.

“I argued that the posting to a website is part of the context that colors or shapes what Mr. Laurion was trying to do, and the essential nature of one of these websites is to provide subjective feedback and people get lots of subjective feedback from different perspectives and from different experiences,” John Kelly, an attorney with Hanft Fride, P.A., who represented Laurion before the Minnesota Supreme Court, told the Duluth News Tribune for a September 5, 2012 story.

“We argued to the court that Mr. Laurion published both on the Internet and to approximately 20 others, including medical organizations, false statements about Dr. McKee that disparaged his professional abilities and hurt his reputation,” Tanick, who also represented McKee before the Minnesota Supreme Court, told the Duluth News Tribune. “We asked the court to affirm the decision of the Court of Appeals so that Dr. McKee has the opportunity to present this to a jury and get his day in court.”

Lawsuits like McKee’s are rare, Eric Goldman, professor at Santa Clara University School of Law told the Star Tribune. However, Goldman said “they’ve been popping up around the country as patient review sites such as Vitals and Rate Your Doctor have flourished.” Lawsuits claiming defamation are “kind of the nuclear option,” Goldman said. “It’s the thing that you go to when everything else has failed.” Goldman tracks lawsuits healthcare providers file against online reviewers, and told the Reporters Committee for Freedom of the Press (RCFP) for the Fall 2012 issue of The News Media and The Law that, of the 28 lawsuits he has tracked, courts dismissed 16 of them, six settled, and the other six are still pending.

In one such suit, an Arizona cosmetic surgeon, Dr. Albert Carlotti III, won a $12 million verdict against a former patient in February 2012, according to a Feb. 20, 2012 post by the American Medical Association on its website. The patient wrote reviews on numerous websites and created her own website stating Carlotti disfigured her face, was not board-certified, and was being investigated by the state medical board, although no records of such investigations exist; the patient is appealing the judgment.

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, California, 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.” The Minnesota Supreme Court is expected to release its decision in early summer.

SOURCE

Amicus Brief On Behalf Of John Hoff

Court of Appeals Decision About Moore V. Hoff

Defendant Dennis Laurion’s Web Posting

Defendant Dennis Laurion’s Patient Complaint

Plaintiff David McKee’s Reply To Patient Complaint

Plaintiff David McKee’s Cease And Desist Letter To Defendant Dennis Laurion

Defendant Dennis Laurion’s Complaint To Minnesota Board Of Medical Practice

Plaintiff David McKee’s Complaint To Sixth Judicial District Duluth Court

Plaintiff David McKee’s Response To Minnesota Board Of Medical Practice

Defendant Dennis Laurion’s Answer To Plaintiff David McKee’s Complaint

Defendant Dennis Laurion’s Motion For Summary Judgment

Defendant Dennis Laurion’s Deposition Extracts

Plaintiff David McKee’s Deposition Testimony About Circumstances Before Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony About Circumstances After Encounter With Laurion Family

Plaintiff David McKee’s Deposition Testimony In Response To Questions By Marshall Tanick

Affidavits By Defendant Dennis Laurion’s Parents

Defendant Dennis Laurion’s Supplemental Motion For Summary Judgment

Plaintiff David McKee’s Motion To Oppose Summary Judgment

Defendant Dennis Laurion’s Reply Memo In Support Of Motion For Summary Judgment

Sixth Judicial District Court’s Order On Motion For Summary Judgment

Plaintiff David McKee’s Appeal Of Order On Motion For Summary Judgment

Plaintiff David McKee’s Brief To Minnesota Court Of Appeals

Defendant Dennis Laurion’s Brief To Minnesota Court Of Appeals

Plaintiff David McKee’s Reply Brief To Minnesota Court Of Appeals

Minnesota Court Of Appeals Order To Strike Portion Of Plaintiff David McKee’s Reply Brief

Minnesota Court Of Appeals Announces Decision

Defendant Dennis Laurion’s Petition For Review By Minnesota Supreme Court

Plaintiff David McKee’s Opposition To Review By Minnesota Supreme Court

Defendant Dennis Laurion’s Brief To Minnesota Supreme Court

Plaintiff David McKee’s Brief To Minnesota Supreme Court

Defendant Dennis Laurion’s Reply Brief To Minnesota Supreme Court

Minnesota Supreme Court Decision On David McKee MD V. Dennis K. Laurion

David McKee MD v. Dennis Laurion 2010

David McKee MD v. Dennis Laurion 2011

David McKee MD v. Dennis Laurion 2012

David McKee MD v. Dennis Laurion 2013

McKee V Laurion Is A Textbook Case

 

 

 

 

 

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