Johnson v. Freborg
| Decision Date | 25 July 2022 |
| Docket Number | A21-1531 |
| Citation | 978 N.W.2d 911 |
| Parties | Byron JOHNSON, Appellant, v. Kaija FREBORG, Respondent. |
| Court | Minnesota Court of Appeals |
John G. Westrick, Samuel A. Savage, Savage Westrick, P.L.L.P., Bloomington, Minnesota (for appellant)
Alan P. King, Chelsea Gauger, Goetz & Eckland P.A., Minneapolis, Minnesota (for respondent)
Considered and decided by Reyes, Presiding Judge; Jesson, Judge; and Wheelock, Judge.
In this defamation case, we must balance two important interests: protection of personal reputation and freedom to speak on matters of public concern. As the Minnesota Supreme Court explained, "personal reputation has been cherished as important and highly worthy of protection throughout history." Maethner , 929 N.W.2d at 875 (quotation omitted). But protection of personal reputation must not come "at the cost of chilling speech on matters of public concern." Id. Here, we weigh these interests in the context of a Facebook post. Respondent Kaija Freborg identified appellant Byron Johnson in that post as one of three dance instructors who had sexually assaulted her. Johnson sued Freborg for defamation, and Freborg moved for summary judgment. The district court granted summary judgment to Freborg because it determined that her statement was true and involved a matter of public concern. Because the record, viewed in the light most favorable to Johnson, reveals a material issue of disputed fact regarding the veracity of Freborg's statement, and because the dominant theme of the statement did not involve a matter of public concern, we reverse and remand.
We begin with the parties to this defamation lawsuit. Johnson is a dance instructor and event promoter. Freborg was the director of a bachelor's program in nursing and assistant professor at Augsburg college, until she relocated to California. She worked as a staff nurse for 17 years before receiving a doctorate in nursing from Augsburg in 2011, after which she spent ten years as a professor.
Freborg took a dance class instructed by Johnson in 2011. The parties began to communicate outside of the dance class a few months after meeting. In 2012, the parties’ relationship became sexual. Freborg and Johnson agree that this stage of their relationship was consensual. The relationship lasted until around 2015. The only occurrence before 2015 that Freborg characterized as nonconsensual was an unsuccessful attempt by Johnson to videotape a sexual encounter between the couple.
In early 2015, Freborg attended a party at Johnson's house. She claims that Johnson "approached her while she was intoxicated and alone, grabbed her hand and put it down his pants onto his genitals without [her] consent." Johnson admitted to approaching Freborg while she was intoxicated and placing her hand on his genitals, but he also maintained that he "never engaged in any non-consensual activities with" Freborg.1
In May 2015, the parties communicated by text message about the incident. In the exchange, Freborg told Johnson of her recollection that he had approached her while she was intoxicated and put her hand under his shirt and pants. Johnson replied: "If you say so, I definitely don't remember it going that way." Freborg replied, "I do." The parties’ relationship ended in 2015 following this incident.
Five years later, in July 2020, Freborg posted a public message on her Facebook profile. In her post Freborg said:
Later that day, Freborg edited her post and replaced the statement "I've been gaslighted/coerced into having sex, sexual[ly] assaulted, and/or raped by the following dance instructors," with the statement "I've experienced varying degrees of sexual assault** by the following dance instructors." Freborg explained that she edited her post after receiving feedback. The second post read:
Johnson responded by posting a message as a comment on Freborg's post. Johnson stated that he was confused and that he "categorically den[ied]" Freborg's accusation. Freborg responded, saying that she was "not interested in any kind of manipulative cat and mouse game with" Johnson and characterized his professed confusion as an attempt to gaslight her.4 A few days later, Freborg deactivated her Facebook account. Before then, her post received 182 comments.
Johnson filed suit, alleging that Freborg defamed him with her Facebook post in both its original and edited form. Johnson contended that Freborg's statement was defamatory per se because she accused him of criminal conduct. Later, Johnson moved the district court to allow him to seek punitive damages.
Freborg moved for summary judgment. She argued that she is entitled to judgment as a matter of law because Johnson produced no evidence of actual damages and is not entitled to presumed damages because her statements are protected by the First Amendment. In support of her motion, Freborg attached Johnson's responses to her requests for admission, including one in which he admitted approaching her at his home while she was intoxicated, grabbing her hand, and placing it on his genitals. She also produced text messages in which the parties discussed a separate occasion during which Johnson tried to record the two during a sexual encounter without her consent. Further, Freborg attached seven other Facebook posts from other people and a screenshot of a text message. Those posts (and the text) concerned accusations against three international dance instructors: four against a Canadian instructor, three against a Swiss instructor, and one against a Portuguese instructor.5 She also included two articles discussing sexual assault in the dance community, an MPR article from the same year as her post about a dance studio in Minnesota, unconnected to Johnson, and a two-year-old blog post about how to deal with predatory behavior by dance instructors that was not about Minnesota specifically. Finally, she attached a number of articles discussing the #metoo movement in general.
The district court denied Johnson's motion to add a claim for punitive damages and granted Freborg's motion for summary judgment. The court determined as a matter of law that Johnson approached Freborg while she was alone and grabbed her hand and placed it on his genitals without her consent. In reaching this decision, the court in part relied on the text messages between Johnson and Freborg discussing his unsuccessful attempt to videotape a sexual encounter without her consent, as well as Johnson's response to a request for admission. Accordingly, the court concluded that Freborg's statements about Johnson were true. And because the court determined that Freborg's posts reached a matter of public concern—and that Johnson had not shown that she acted with actual malice—the court concluded that Johnson could not succeed with his defamation claim as a matter of law.
Johnson appeals.
I. Is there a genuine issue of material fact regarding the truth or falsity of Freborg's statement that precludes summary judgment?
II. Does Freborg's statement involve a matter of public concern?
This appeal requires us to determine whether the district court properly granted summary judgment on the grounds that Freborg's Facebook statement is (1) true, and (2) involves a matter of public concern. If the record supports the district court's determination that Freborg's statement is undisputedly true, Johnson's defamation claim fails as a matter of law.6 If the record does not support that conclusion, the veracity of Freborg's statement is a disputed question of fact for a jury—unless the communication involves a matter of public concern.
This fork in the road of defamation law is driven by the First Amendment's protection of the right to free speech. When the defamatory communication involves either a public figure or a matter of public concern, the First Amendment makes recovery in a defamation case more difficult. Curtis Publ'g Co. v. Butts , 388 U.S. 130, 155, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) ; New York Times Co. v. Sullivan , 376 U.S. 254, 283, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ; Jadwin v. Minneapolis Star & Trib. Co. , 367 N.W.2d 476, 486 (Minn. 1985). Under common law, damages are presumed for certain defamatory statements, including communications alleging the commission of a crime. Richie v. Paramount Pictures Corp. , 544 N.W.2d 21, 25 (Minn. 1996). But given the First Amendment's concern for "uninhibited, robust, and wide-open debate" on public matters, it imposes a higher fault standard in such cases. Gertz v. Robert Welch, Inc. , 418 U.S. 323, 340, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (quotation omitted). In Minnesota, that higher fault standard requires a showing that a communication that involves a matter of public concern (even if false) was made with actual malice.7 Maethner , 929 N.W.2d at 878-79. In short, this demanding test...
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... ... Furlong, III, Smith Law, PLLC, Grand ... Marais, Minnesota (for respondent) ... Keith ... D. Johnson, Law Office of Keith D. Johnson, P.L.L.C., ... Roseville, Minnesota (for appellant) ... ... Considered and ... public concern." Id. at 877. We review de ... novo whether a statement involves a matter of public ... concern. Johnson v. Freborg, 978 N.W.2d 911, 919 ... (Minn.App. 2022), rev. granted (Minn. Oct. 18, ... 2022) ... "Speech ... deals ... ...