The First Amendment generally protects all sorts of speech, whether about politics, science, morality, or the details of daily life. But in certain situations, First Amendment law draws a line between speech on matters of "public concern" and speech on matters of "private concern"; for instance,
- In libel cases brought by private figures based on public-concern speech, the plaintiff must show "actual malice" (knowing or reckless falsehood) to recover presumed or punitive damages. In libel cases brought based on private-concern speech, the plaintiff need only show negligence (to oversimplify slightly). See Dun & Bradstreet v. Greenmoss Builders.
- Speech on matters of public concern is generally fully protected against intentional infliction of emotional distress claims (as in Snyder v. Phelps). Speech on matters of private concern, including true statements and statements of opinion, might be subject to such claims.
- Disclosure of "non-newsworthy" private facts might lead to tort liability under the disclosure of private facts tort. The newsworthy/non-newsworthy line likely tracks the public/private concern line.
- Some courts have allowed (wrongly, I think) injunctions against "harassing" speech, again potentially including true statements and statements of opinion, when the speech is supposedly on a matter of "private concern."
- The Court has held that the First Amendment generally doesn't restrict government employers' retaliating against their employees for speech on matters of private concern. See Connick v. Myers.
- Many states have so-called "anti-SLAPP" statutes that let defendants move to promptly dismiss speech-based lawsuits against them, and generally get attorney fees if they prevail. But those statutes are generally limited to speech on matters of public concern (though some of those statutes define that term in specific ways).
The public/private concern line can get quite mushy, and I'm generally quite skeptical of it, see pp. 785-88 of this article. Still, some cases recognize it, and the Court has definitely blessed it when it comes to libel law; precedents drawing the line are thus quite important. Here's one, Wednesday's Minnesota Supreme Court majority decision in Johnson v. Freborg, written by Justice Margaret Chuchich, joined by Justices Anne McKeig, Paul Thissen, and Gordon Moore (note that it seems to turn considerably on the speaker's inferred motive, an analysis that I generally criticize in this article):
Johnson sued Freborg after a post on Freborg's Facebook page accused Johnson and two other dance instructors from the Twin Cities dance community of varying degrees of sexual assault. Johnson was one of Freborg's dance teachers, and the two previously had a casual sexual relationship that lasted for about a year….
The court of appeals … held, in a divided opinion, that because the dominant theme of Freborg's post involved a matter of private concern, Johnson was not required to prove actual malice to recover presumed damages…. [But we conclude that, b]ecause the overall thrust and dominant theme of Freborg's post—based on its content, form, and context—involved a matter of public concern, namely, sexual assault in the context of the #MeToo movement, her statement is entitled to heightened protection under the First Amendment ….
Accordingly, we reverse the court of appeals on the issue of public concern and remand the case to the district court for further proceedings to determine the veracity of Freborg's post and, if the post is found to be false, whether the making of the post meets the constitutional actual-malice standard.
An excerpt from the facts:
Freborg and Johnson met in 2011, and Freborg, then a faculty member at a local university, began to take dance lessons from Johnson at a Twin Cities dance studio. Sometime in 2012, the parties began a casual sexual relationship. Freborg agrees that many of their sexual encounters were consensual. She claims, however, that not all of their interactions were consensual, including an allegation that Johnson approached her in 2015 at his home during a party "while [she] was intoxicated and alone, grabbed [her] hand and put it down his pants onto his genitals" without her consent. This allegation, and its veracity, is at the heart of her Facebook post and the litigation.
After the 2015 party, Freborg and Johnson ended their sexual relationship and continued to contact one another only in the context of dance lessons; these dance-related communications lasted until sometime in 2017. By 2020, they had not spoken to one another for several years.
On July 14, 2020, Freborg posted the following public message on her Facebook page [UPDATE: image corrected; I had originally erroneously posted the wrong comment from the thread]:
After receiving feedback about her message, Freborg clarified in the post's comment thread that she was not accusing Johnson of rape ("[t]his type of coercion [rape] has nothing to do with [Johnson]"). She also edited her post 2 days later to exclude allegations of rape:
Johnson posted a response on Freborg's public Facebook thread:
Freborg posted the following response on the thread:
{Freborg … acknowledged in the Facebook thread and in private Facebook messages that Johnson never raped her.}
Over 300 people "reacted" to Freborg's posts, 182 readers commented on them, and they were publicly "shared" 16 times. Some of the response to Freborg's posts was positive…. Other commenters, however, came to Johnson's defense….
The majority concluded that this particular speech was indeed on a matter of public concern:
"[A]s a general proposition," speech relating to sexual assault is a matter of public concern. But … no per se rule applies to suggest that statements about sexual abuse (or any other crime) are always matters of public concern. Instead, we must, on a case-by-case basis, apply the totality of the circumstances test and balance the content, form, and context of the speech, as well as any other pertinent factors, to determine whether speech involves a purely private matter or is a statement about a matter of public concern intended to influence public discussion about desired political or social change. Balancing the totality of the circumstances of the Facebook posts here, we conclude that, although the speech involved personal aspects, the predominant theme of Freborg's speech involved a matter of public concern, namely sexual assault in the context of the #MeToo movement….
[As to content, i]n evaluating whether [the] personal portions of Freborg's posts—the identification, tagging, and admonishing of the three instructors—make the speech a private affair, we must weigh these statements against the remaining text. First, the original and amended post prominently begin with this statement: "Feeling fierce with all these women dancers coming out." Then, before listing the varying degrees of sexual assault that she says she experienced, Freborg states, "So here goes …." This introduction suggests that she was encouraged by other women speaking out about sexual assault in the dance community to reveal her own experience and to add her voice to the community conversation.
Second, Freborg ends her posts with the well-known #MeToo hashtag and a #DancePredators hashtag, connecting her experience directly to the dance community and the broader #MeToo movement….
Third, her subsequent explanation of her motives in the post thread—that she made the posts "for the safety of other women" and to show how "women can disrupt the status quo"—suggests that her posts were an attempt to raise awareness for other women, including women in the dance community, and inspire social change….
[Johnson] contends that his preexisting relationship with Freborg shows that she used the movement to mask a purely private attack on his character…. A preexisting relationship—or the lack thereof—is certainly a consideration in weighing whether the speech involves a matter of public concern. Here, however, … the passage of [five] years between the end of the parties' … "casual sexual relationship"[] and the post suggests that the speech was not a personal attack in response to the relationship ending. Second, the inclusion of two other dance instructors implies that the post had less to do with Freborg's previous relationship with Johnson, and more about speaking up about alleged sexual abuse in the Twin Cities dance community generally….
The dissent takes a narrow view of a "matter of public concern," essentially limiting those matters "to self-government," "government officials," or "government performance." But … "Speech deals with matters of public concern when it can 'be fairly considered as relating to any matter of political, social, or other concern to the community,' or when it 'is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.'" {[And e]ven if we were to view matters of public concern as relating primarily to "self-government" or "government performance," there are strong indications that the #MeToo movement has catalyzed government action.} …
[T]he form—the "where"—of Freborg's speech … further supports a conclusion that Freborg's posts were on a matter of public concern. Freborg disseminated her speech on her Facebook account, making her post publicly available to anyone. The use of the internationally recognized hashtag for the #MeToo movement allowed her message to be disseminated publicly and broadly on Facebook….
Finally, the full context—the "how"—of Freborg's posts also weighs in favor of holding that her speech involved a matter of public concern…. The posts generated much discussion and mixed reactions: some gave Freborg their full support and validated the claims in her posts by citing their own negative experiences, while others were critical of the posts and how Freborg chose to speak about what happened to her. These reactions facilitated conversations about the appropriate measures that victims should take when speaking out and how to properly support sexual assault victims generally….
As discussed above, the context of the #MeToo movement is a key factor in our analysis. The #MeToo movement has had a direct impact on society and how communities address sexual assault across industries….
{It is true that false accusations of sexual assault can cause serious harm to the person accused. It is also true that research shows that these types of false accusations of sexual assault are rare…. "[W]hile false allegations of sexual violence do occur, they are rare; studies have shown that the rate of false allegations is between 2 and 10 percent." …}
The majority therefore concluded that, to get presumed damages, Johnson had to show Freborg spoke with "actual malice," though it also noted that this requirement is less important in a case where defendant's assertion is based on what she says is her personal experience:
To succeed in a defamation case, a plaintiff must always prove that a statement is false. We note that when the alleged sexual abuse involves a private interaction between two people, if the plaintiff shows that the allegations were false, the constitutional actual-malice standard may not pose much of an additional burden. This is so because the standard requires that the statement be made with the "knowledge that it was false or with reckless disregard of whether it was false or not."
{Given the fact issue on falsity—and because Freborg was both the speaker and the publisher of the alleged defamatory statements—if a jury finds that Freborg's speech was false, sufficient evidence may allow the jury to further find that Freborg made the statements with actual malice. We therefore … remand this case for further proceedings.}
Chief Justice Lori Skjerven Glidea, joined by Justices Barry Anderson and Natalie Hudson, dissented:
[T]he animating principle in New York Times v. Sullivan (1964) [which first articulated the "actual malice" standard] was the connection of the speech to principles necessary to a successful democracy, such as the citizenry's ability to comment freely on the performance of their government. Freborg's speech has nothing whatsoever to do with the government or government officials, and nothing in New York Times supports the majority's extension of the actual malice standard to the speech at issue here…. [Further precedential analysis omitted. -EV]
I acknowledge, as we have recognized in other cases, that as a general proposition speech discussing crime can be speech on a matter of public concern. But Freborg was not discussing crime in general, the prevalence of crime in our society, or the government's response to crime. Rather, she made a specific accusation of criminal conduct on Facebook—that a person she identified by name sexually assaulted her. Although the public may be interested in Freborg's allegations, I would hold that such speech is not a matter of public concern for First Amendment
I acknowledge the important contributions the MeToo movement has made to our society. But this case is not about the MeToo movement; it is about a Facebook post where Freborg accused Johnson of sexual assault and then included "#MeToo." We are tasked with evaluating whether Freborg's single Facebook post was speech on a matter of public concern, not the entire MeToo movement….
The majority also supports its focus on the importance of the MeToo movement generally with statistics that show the prevalence of sexual violence and domestic abuse against women. This reliance on statistics and the MeToo movement generally reveals a values-based approach to applying the First Amendment that is not consistent with the First Amendment's prohibition on "viewpoint discrimination." I see no reason to apply the First Amendment differently in the MeToo context….
[T]he "overall thrust and dominant theme" of Freborg's Facebook post was to accuse Johnson of sexual violence. Specifically, Freborg identifies Johnson and two others by name, accuses them of sexual violence, and speaks directly to them in her post. She also "tags" Johnson in the post, which made sure that her post would be linked to him through his own Facebook presence. By tagging Johnson in the post, Freborg further confirms that Johnson—and not some broader societal issue—is the target of her speech….
Freborg's speech included #MeToo, but the post made no mention of government policy changes or systemic problems. Moreover, the content of Freborg's speech was disconnected from the MeToo movement…. Freborg did not include generalized education about crime, a general call to action, or highlight her work with an advocacy organization relevant to the MeToo movement.
Instead Freborg focused on allegations of criminal conduct against her, stating "I've been gaslighted/coerced into having sex, sexual[ly] assaulted, and/or raped by the following dance instructors …" Johnson is specifically identified by name and Freborg accuses him of sexual violence against her. Freborg even speaks directly to Johnson and the other alleged perpetrators, saying, "If you have a problem with me naming you in a public format, then perhaps you shouldn't do it." Freborg's own words make clear that the overall thrust of her speech was to call out private people for private behavior….
The record reflects no history from Freborg of speaking out against sexual violence. She and Johnson knew each other through the dance community, which Freborg's counsel admitted during oral argument was a "hobby." Freborg's post does not implicate Johnson's public or workplace conduct, but his conduct at a private party. And Freborg and Johnson had a prior personal relationship. In this litigation, Freborg asserted that at various times during their relationship Johnson requested to have unprotected sex, then had sex with other women after they agreed to be monogamous, gave Freborg a sexually transmitted disease, blamed Freborg for giving him a sexually transmitted disease, laughed at Freborg, called her dumb, and suggested she "made it all up in her head." Regardless of whether the purpose of Freborg's post was to mount a "personal attack" or to participate in the MeToo movement, there is an undeniable personal element to the Facebook post at issue here, and the personal nature of the dispute permeates this litigation….
Minnesota has a long and deep history of recognizing and protecting reputational interests. The reasons for protecting reputational interests extend beyond financial compensation, because defamation can also cause "personal humiliation, and mental anguish and suffering." … [F]alse accusations of rape and sexual assault have been used as a weapon to damage reputation and sometimes—even in recent history—resulted in death or wrongful imprisonment [citing several examples, historical and recent, of allegations of rape against black men].
{The majority suggests that reputational interests are less important in the context of sexual assault allegations because "research shows that these types of false accusations of sexual assault are rare." Then the majority cites … the [claim] that "while false allegations of sexual violence do occur, they are rare; studies have shown that the rate of false allegations is between 2 and 10 percent." … [This in turn rests on] a review of the number of women who falsely reported sexual assaults to the police …. Freborg's Facebook post is not akin to a report to a police officer. A person reporting sexual assault to a police officer faces more barriers than someone posting to Facebook, and presumably expects an investigation. Thus the majority's assertion that "false accusations are rare" and therefore unimportant is unsupported by any relevant citation
More to the point, even accepting that false reports may be uncommon, the infrequent nature of false report crimes does not diminish the importance of preserving a civil action to protect reputational interests when falsely reported crimes do occur. This is particularly so if the truth or falsity of the allegation is an element of the cause of action. I have faith in the ability of Minnesota juries to carefully consider defamation cases involving accusations of sexual violence. We do not need to extend First Amendment protection to all speech accusing anyone of a crime that uses a hashtag.}
{None of this analysis is intended to suggest that Freborg herself is lying. I agree with the majority that the truth or falsity of Freborg's statements is a question for the jury [with Johnson bearing the burden of proving falsity]. I share this history only to emphasize that the State's interest in protecting reputation is serious—it can have life-or-death and life-or-liberty consequences. Accordingly, we ought to proceed with caution in extending First Amendment protection to statements that accuse others of crimes.} …
And a consequence of the majority's hashtag rule will likely be more posts like hers—posts accusing others of violence and bad behavior. In some circumstances, posts on social media that single out and accuse others of wrongdoing go by another name: cyberbullying…. "Cyberbullying includes sending, posting, or sharing negative, harmful, false, or mean content about someone else. It can include sharing personal or private information about someone else causing embarrassment or humiliation." … We should not lightly open the floodgates for more speech like this—especially because one in five teenage girls experience cyberbullying, and medical experts agree that cyberbullying is one of several factors contributing to a mental health crisis among teenagers…. By extending broad First Amendment protection to Freborg's Facebook post—and especially by basing this extension primarily on the use of hashtags—the majority unnecessarily restricts the government's ability to address the growing cyberbullying crisis….
{I agree with the majority that sexual assault and sexual violence are societal problems and that crimes of violence against women are underreported. What I fail to see is why this problem requires us to extend additional First Amendment protection to Freborg's Facebook post accusing a particular person of a particular instance of sexual violence. The majority's statistics show that crime happens; the statistics do not show that speech about rape, sexual assault, and sexual violence are uniquely entitled to First Amendment protection.} …
Alan P. King, Daniel E. Hintz and Natalie R. Cote (Goetz & Eckland P.A.) represent Freborg.
The post Are #MeToo Allegations Speech on "Matters of Public Concern"? appeared first on Reason.com.
