Archive for October, 2008

Expect To See Exit Pollsters

October 31, 2008

The election is nearing, as will be the exit pollsters.

Federal Judge Michael Davis has issued his decision in the “Election Law, Meet First Amendment” case I blogged about a few weeks ago, and it was a complete win for Big Media.

The judge wielded the First Amendment to invalidate a Minnesota a law that made it a crime for exit pollsters, or anyone else for that matter, to stand within 100 feet of a building where polling is taking place.  A bunch of news outlets sued the State of Minnesota, which defended against the lawsuit by claiming that government has a compelling interest in preventing disruptions and overcrowding at the polls.  The judge disagreed 100 percent.  Noting the “paramount importance of free political speech,” Davis issued a preliminary injunction based on his conclusion that the law was not narrowly tailored to the goverment’s interest in preventing chaos.  There simply was no evidence, said the judge, that exit polling “in any way has a detrimental effect on the orderly and corruption-free polling place.”

Technically, the lawsuit is still alive because Judge Davis’ preliminary injunction was just that, preliminary.  But the judge’s decision is as thorough as it is legally solid, so my guess is that the law is caput.

Still, as I blogged about previously, the issue is a toughie.  While speech is sacrosanct, acts are not.  In other words, all Minnesotans, media or otherwise, should have the right to say pretty much whatever they want to say and should not be unreasonably hindered from asking questions and otherwise collecting information that will lead ot expression.  But actions that get in the way of balloting cannot stand.   It’s a classic balancing act, of the type that makes constitutional law fun.  As the judge wrote:

The public has a fundamental interest in unfettered debate of public issues and governmental affairs.  As Defendants note, the public also has an interest in a fair and orderly election, and there is no reason to believe that this injunction will interfere with that interest.  The public interest weighs in favor of granting the injunction.

Defamation Is Tough (For) Business

October 12, 2008

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.