An Encouraging SLAPP

On Tuesday, the Minnesota Court of Appeals released a decision affirming that when someone speaks with an intention to change the way government operates, the law will try to protect the speech even if it borders on being defamatory.

The case arose in Marshall County in southwestern Minnesota where a resident whose land was “taken” by a governmental “Watershed District” sued but then settled the lawsuit.  The settlement required the landowner and the District to “endeavor to establish a positive and collaborative relationship” with each other.  A year later, the District sued the landowner alleging that he had breached the agreement by interfering with funding, making statements with intent to harm the project, and filing requests for public documents.

The landowner sought to have the lawsuit dismissed and wisely cited Minnesota’s “anti-SLAPP” statute, a little-known and little-used provision that requires courts to dismiss lawsuits involving “lawful conduct or speech that is genuinely aimed in whole or in part at procuring favorable government action.  SLAPP stands for “Strategic Lawsuits Against Public Participation.”  Anti-SLAPP statutes generally work to ensure that ideas freely flow when the ideas involve government.  California has led the way in fighting against lawsuits of this type, and in 1994 Minnesota’s anti-SLAPP statute took effect.

But barely anyone knows the law is on the books.

In Marshall County, the trial court let the lawsuit go forward, but on Tuesday the Minnesota Court of Appeals held that the trial court had to dismiss the case unless the District could demonstrate by “clear and convincing evidence” that the anti-SLAPP provision did not apply.

It remains to be seen whether the governmental entity can and will be able to do that.  In the meantime, though, the Court of Appeals has provided an important reminder that when one speaks out against government, the law should — and will — offer protection.

Look For The Union Label

Are you a union member thinking about suing your boss for writing up a false report about you?  Good luck.  Write your congressman.

 

This month, the Minnesota Court of Appeals just made it extremely more difficult for employees who are covered by collective bargaining agreements to sue over job-performance reviews, even if the review contains something false.

 

The case arose at Bethesda Hospital in St. Paul, where a registered nurse got a written warning based on a patient’s complaint that the nurse had failed to administer a prescription drug to a patient.  But it turns out that she had given the drug.  Also,aA month earlier, the nurse had received a verbal warning after a patient accused her of being “short, abrupt, nasty and sharp.”  According to the nurse, that patient was well-known for making false complaints, and she filed a union grievance.

 

She also went to court, alleging that the Director of Nursing had defamed her.  A trial court threw out the case, and earlier this month the appeals court agreed that the dismissal was proper.  The reason?  Because a federal law, the Labor Management Relations Act, “preempts” state defamation law when—get ready—the “defamation claim is substantially dependent on the interpretation of a provision of the CBA.”  If it’s not “substantially dependent,” then you can sue under state defamation law, saith the appeals court.

 

Hmm.  This is a toughie.  The Labor Management Relations Act dates to the mid-1940s, and it generally aims to govern relations between union and management nationwide.  Makes sense.  But the federalization of our law is running rampant, something that our nation’s founders would find disturbing.  I am quite confident in saying that early American leaders never dreamed that that an employee could not go to local court to use her boss for defamation.

 

But times change, and so does the law, and so does the nation.

Don’t Bank On Defamation Law To Help

This week the Eighth Circuit Court of Appeals released a decision demonstrating how tough it can be to invoke defamation law when the person alleging defamation was the one who asked for the allegedly false information in the first place.

The federal case from Minnesota involved a loan dispute between a small business and one of Minnesota’s largest banks.  Court cases were pending in both Hennepin and Ramsey County courts, one involving an alleged $35,000 loan default and the other involved alleged bank overdraft charges.  The business defended against and settled the first lawsuit involving the loan.  But the business did not defend against the second suit involving the overdraft charges, which prompted the bank to seek a default judgment and to begin garnishing the business’ other bank accounts.

Then, in reponse to the business owner’s request, the bank sent a fax suggesting that the $35,000 loan was unpaid.  The business owner filed a defamation case containing a variety of allegations, including that the fax contained false information that was communicated to potential investors and caused the business to lose $4.2 million in profits

The Eighth Circuit rejected the defamation claims one by one.  Most importantly, the court concluded that the fax was “absolutely privileged”–in other words, it could not provide a basis for a defamation claim even if the information was false–because the business owner had consented to it being sent.

Strib In The Middle

The proverbial fan blades have been encrusted with a nasty substance in the U.S. Senate race between Norm Coleman, Al Franken, and don’t forget Dean Barkley.  And the state’s largest newspaper is in the middle of it.

First, the latest.  The Star Tribune is reporting this morning that there are now two lawsuits alleging that a close friend of Coleman’s has “used a marine company in Texas” to pay money to the senator through a Minneapolis insurance company where Coleman’s wife works.  There also are signs that Franken, or at least his party, are using the revelations for political gain.  Says a note on the Strib web site:

The Democratic Senate Campaign Committee is running TV ads featuring a Star Tribune reporter questioning Sen. Norm Coleman about a lawsuit noted in this report. The video in the ad was filmed without the knowledge or consent of the Star Tribune.

Says Coleman, in a statement: “Each and every allegation in this lawsuit relating to me and my wife is false and defamatory.”  A spokeswoman further stats that the Strib “is actively participating in the destruction of the reputation of Senator Coleman and his wife.”

Speaking of false and defamatory, Coleman also has filed a complaint with the Minnesota Office of Administrative Hearings alleging that Franken is to be blamed for ads claiming that Coleman is the fourth most corrupt senator in the country and gets too good of a deal on a Capitol Hill apartment.  I cannot find the petition online, but it must have been filed pursuant to Chapter 211B of Minnesota Stautes.  Take a read.

OK, some quick analysis from this journalist turned lawyer, with more to come later as developments warrant.    First, Coleman has an uphill battle if he wants to sue over a lawsuit.  Generally, a litigant can say whatever he wants in a lawsuit.  It is, in legalese, subject to an absolute privilege.  But of course, there are limits to everything, and someday a court might confront this precise issue.

Second, it’s ironic that the Star Tribune is concerned about video of its reporters taken without its “knowledge and consent.”  Newspapers take pictures of persons without their knowledge and consent all the time.  As long as the photos or video are taken on public property and are not used in a way that invades the subject’s privacy, it’s all fair game.

Third, Coleman’s claims.  I could start a blog just to discuss Chapter 211B of Minnesota Statutes and similar federal requirements.  Anyone who values free speech should scrutinize these laws.   And if you do, an intriguing revelation emerges. Chapter 211B makes it a crime –a gross misdemeanor — to actively “participate” in disseminating false campaign information.  Coleman’s spokeswoman says the Strib is “actively participating in the destruction of the reputation of Senator Coleman and his wife.”

Umm.  Stay tuned.

Defamation Is Tough (For) Business

A defamation decision from the Minnesota Court of Appeals of a few weeks ago should give online communicators pause.  The decision did not involve web sites, blogs, or other internet-based ways of communicating, but it did involve something that is so easy to do online: rant about a business.

Judging from the name of the case, Diversified Water Diversion, Inc. v. Standard Water Control Systems, Inc., you would be correct to guess that the matter involved Minnesota construction contractors — specifically, contractors that do drain-tile work at homes.  In the court’s words, there was “a great deal of ill will” between the companies, so bad that in 2002 Standard sued Diversified over its business practices.  The parties settled the suit and, as is customary, agreed that neither company would “disparage” the other.

In 2005 and 2006, when some homeowners received bids from both companies, Standard’s president warned the homeowners that Diversified did “terrible work,” would not honor warranties, and was “sleazy.”  Diversified sued Standard for defamation, even though the homeowners had hired Diversified anyway.  The claim was for “defamation per se,” which in Minnesota permits certain persons — chiefly businesspeople people and persons wrongfully accused of crimes — to win defamation suits even when they have failed to prove that they actually have been harmed.

Defamation per se is controversial, and rightly so.  The theory is that some defamation is so bad that the person who was defamed should not have to be burdened with proving that there was damage to reputation.  Falsely accusing someone of being a pedophile is one instance in which Minnesota courts have awarded defamation per se damages.  That makes sense.

But does it make sense to permit a business to recover these sorts of damages?  In Diversified v. Standard, both the Hennepin County trial court and the Minnesota Court of Appeals said yes, to the tune of $30,000.  The appeals court’s written ruling provides only a peek of what went on, but I am troubled that there is no explanation of how Diversified proved that the comments were false – something that is required even for “defamation per se.”  No one deserves to be accused of being “sleazy,” and I am not suggesting that anyone in this case was.  But still, Minnesota’s defamation law cannot be allowed to get so out of control that plaintiffs have to prove neither falsity nor damages.  Maybe falsity was proven in this case, but the appeals court’s unfortunate omission of that issue might mean trouble down the road.

Including for online communicators.  For now, be very, very careful about whining about businesses.  Because in Minnesota, you’re on notice that even true whining might mean trouble.

Anonymous E-mails Go On Trial

Got a beef about your kid’s soccer program?  An anonymous e-mail might be an option.  Or maybe not, judging by a lawsuit working its way through Minnesota courts.

On Tuesday, the Minnesota Court of Appeals ordered a new trial in a case in which a soccer mom was accused of sending e-mails — some anonymous, some not — critical of the Minnesota Youth Soccer Association’s investigation into whether photographs taken of 11-year-old girls were improper.  The mom signed her name to an e-mail suggesting that the photographer was involved in “deviant actions” and that the soccer assocation was, um, dropping the ball.  But she did not admit to sending anonymous e-mails, under the name “Blah Blah,” that accused the photographer of pedophelia and also criticized the soccer association’s actions.

The association, its president, and its “Risk Management Coordinator” then sued the soccer mom for defamation, alleging that their reputations had been harmed by false e-mails.   A Hennepin County judge lumped together all the e-mails anonymous and otherwise, ruled that the e-mails were defamatory, and gave the jury the sole job of determining how much damage had been done.  Verdict:  $425,000 worth.

Problem was, the jury never got a chance to decide whether the soccer mom was in fact Blah Blah.  In addition, the judge told the jurors that they could consider all the e-mails when computing damages, even those from Blah Blah.  For those reasons, on Tuesday the appeals court ordered a new trial.

It was a logical result, but hidden in the opinion is a conclusion that gave me pause.  According to the appeals court, all e-mails at issue, even old ones that were not originally part of the case and arguably were barred by the statute of limitations, were properly made part of the evidence because they constituted an “ongoing enterprise” and a “continuing violation” of defamation.  For support, the appeals court cited cases involving nuisance, trespass, discriminatory acts, and possession of stolen property.  The court cited no case involving a “continuing violation” of defamation based on old communications, e-mails or otherwise.

That appears to be because there was no such case.  Until now.

Dog Days of Defamation

August has been a busy month for Minnesota defamation rulings.  Must be the heat.

The first case was filed by Adam Steele, an outspoken newspaper editor in Bemidji, who sued Google for $50 billion — yes, billion, with a B — after Google made available a Minnesota Law & Politics article titled “All the News That’s Not Fit to Print” that Steele claims defamed him.  The Minnesota Court of Appeals threw out the suit by applying the federal Communication Decency Act, which affords enormous protections for websites where defamatory material might end up.  The CDA is a tremendously important tool for all online communicators, including bloggers who permit unmoderated comments to be posted.

The second case arose in International Falls after an employee at Boise Cascade claimed that he had been called a “lazy, fat f–cker” at work and that his employer was responsible for various false statements being spread.  A jury awarded him $28,200, but the Minnesota Court of Appeals reversed the verdict on grounds that employers are legally entitled (in legalese, “privileged”) to make statements about employees when investigating wrongdoing.   The case, in some ways, is nothing unusual.  Appeals courts are not bashful about finding ways to rein in jury awards in defamation cases.

The third case, while not a defamation case per se, involved allegedly false campaign material.  Suit was broght by Stev Stegner, the current mayor of Forest Lake.  It was a bumpy election win for Mr. Stenger, whom foes accused of being involved with Muslim terrorists and planning to subject the municipal water supply to attack.  Stenger filed a complaint alleging campaign wrongdoing.  Among the evidence were purported “government surveillance photos” of Stegner at the Holy Land Cafe on Central Avenue in Minneapolis.  (Fantastic hummus, by the way.)   The court ruled that although the statements “may provide grounds for a defamation claim,” they did not involve “campaign material” and were “unfortunately . . . part of political discourse.”

Part of the discourse.  Free speech wins again.