'Johnny Northside' case in Minnesota taming the Wild West of blogging

By Dan Heilman

Dolan Media Newswires

Could the blogosphere be the next frontier of free speech law? Don't look now, but it already is -- and a recent Minnesota verdict is driving the point home.

A case in which a blogger made volatile claims about a University of Minnesota employee and then boasted about helping to get the employee fired could have ramifications for the relatively unregulated world of blogging, say local free-speech and media attorneys.

Last week a judge let stand a jury verdict in Hennepin County District Court that awarded $60,000 to Jerry Moore, a former executive director of the Jordan Area Community Council, resulting from a post by Minneapolis blogger John "Johnny Northside" Hoff.

Moore was hired in early 2009 at the U's Urban Research and Outreach/Engagement Center to study mortgage foreclosures. Shortly afterward, Hoff wrote a post accusing Moore of being involved in a high-profile fraudulent mortgage case that was one of several resulting in a 16-year prison sentence for former real estate agent Larry Maxwell.

Even though Moore was never charged in that case, he was fired from his job at the U, leading Hoff to boast that his blog had helped get Moore fired. That boast led to Moore's lawsuit.

In a nine-page ruling, District Judge Denise Reilly said that Moore provided direct and circumstantial evidence to support the jury's verdict that a blog post by Hoff led to his firing.

Interference claim was key

Longtime local observers of media-related legal issues said the case could prove to be a bellwether. Minneapolis attorney Mark Anfinson, who is general counsel at the Minnesota Newspaper Association, said he thought the verdict should have been overturned on First Amendment grounds, given that Hoff's claim of helping to get Moore fired had elements of accuracy to them.

"The claim of interference with the employment relationship that Hoff was nailed on seems to be based entirely on his blog posts," Anfinson said. "That is troubling, because what I've seen reported suggests that his claims were true. In free speech terms, I don't think his motives are that important if he was telling the truth and he was communicating his message in public, as he did."

Minneapolis attorney Marshall Tanick, who includes freedom of the press and constitutional law in his practice, said that the interference element of the case, however, trumped the truth defense.

"It certainly raises some serious constitutional issues for both claimants and defendants in cases derivative of defamation," Tanick said. "It's pretty clear that truth is an absolute defense in defamation, but this provides an interesting twist -- even though the judge said it's true, it can still be a cause of action under a different label called interference with contract."

The jury in the case awarded Moore $35,000 for lost wages and $25,000 for emotional distress. Hoff sought to overturn the verdict or get a new trial, but Reilly denied both. Hoff hasn't said whether he plans to appeal.

Except in very rare cases such as harassment -- which is technically a kind of speech, but goes beyond speech in terms of being an action -- in this case it is difficult to see why this wasn't protected speech, Anfinson said.

Headed to appellate court?

Reaction to the verdict was most animated on -- you guessed it -- blogs. In the blog for the University of Minnesota's Silha Professor of Media Ethics, Jane Kirtley, a law professor and the director of the Silha Center, wrote that the Hoff verdict is unlikely to withstand review by an appellate court.

Holding a speaker liable for damage to reputation that results because he told the truth simply cannot be squared with the unbroken line of First Amendment precedent that protects robust, and even caustic, attacks on public figures, wrote Kirtley.

In a blog run by the Minneapolis business law firm Skjold Parrington, attorney Benjamin R. Skjold and law student Carl F. Engstrom speculated that the verdict might have come about because of confusion caused by a special verdict form used in the case.

According to the form, Hoff did intentionally interfere with Moore's employment contract and employment prospects but, wrote Skjold and Engstrom, "this outcome of the jury's verdict could be the subject of review by an appellate court because it could be argued that the special verdict form demonstrates a confusion as to the current state of the law, which is highly technical in nature."

Whether or not the case reaches the Minnesota Court of Appeals, it is certain to gain the attention of bloggers everywhere -- even if free speech was only an underlying element in the verdict.

"I don't know if it will have any immediate effect on bloggers, but over time it might have an effect on exposing bloggers to more potential liability," Tanick said. "I think a lot of these cases, where bloggers rely on First Amendment defenses, and they might find those defenses have more loopholes than they thought. If it's upheld on appeal, this verdict could erode some of the barriers bloggers think are protecting them."

Anfinson said more cases like this one could constitute a step toward the domestication of blogging, which has historically been close to a free-for-all in terms of what sort of expression is tolerated.

Both he and Tanick said they get several calls a week from people either complaining about being defamed in a blog, or from bloggers weighing their options in the face of such complaints.

"There are so many things that are different about this environment," Anfinson said. "Bloggers often don't know their rights. They don't have a good sense of where their protections are. In terms of dealing with this new frontier, the appeals court decision on this case should be a fairly significant one in Minnesota First Amendment jurisprudence."

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Published: Mon, Sep 19, 2011