The First Amendment is at the center of an appeals case between blogger John Hoff (aka blogger Johnny Northside) and Jerry Moore, who faced each other in Hennepin County District Court in March of 2011 over Moore’s claims of defamation and tortious interference with contract.
While the defamation claim was dismissed in the district court, Moore got a verdict against Hoff for two counts of tortious interference, and Hoff was slapped with a judgment for $60,000 in damages for interfering with Moore’s contract with the University of Minnesota.
In the district court, the jury found that the following statement made by Hoff was not false:
“Repeated and specific evidence in Hennepin County District Court shows Jerry Moore was involved with a high-profile fraudulent mortgage at 1564 Hillside Ave N.”
|Defamation and tortious interference: what’s that?
Defamation is commonly known as libel (written) and slander (spoken.) A good definition is provided by the web page of Gregory A. Abbott:
“In modern times, the legal distinction between libel and slander has been narrowed. Most modern defamation cases involve libel, and modern writers have come to use the term “defamation” to describe both libel and slander.
All three of the elements need to be present for a defamation claim. Thus, if a statement is true, it does not constitute defamation for purposes of a lawsuit.
And tortious interference with contract? The Skjold Parrington law firm’s web page sets out the elements:
“A claim for tortious interference of contract includes five essential elements;
And yet, even though they found that statement to be not false, Hoff was still assessed damages for tortious interference.
On May 23, an appellate court heard arguments from Paul Godfread, John Hoff’s attorney, and Jill Clark, Jerry Moore’s attorney. (If you want the whole legal story, click on the PDF documents below to read the briefs filed with the appellate court.)
In the appellant’s brief for the appeal, two questions were raised by Hoff’s attorney. The first is whether the verdict of tortious interference violated the First Amendment protection of free speech, “if the jury relied, even if in part on protected speech such as a true statement as evidence to support the verdict.” The second question asks whether the verdict violates the First Amendment if the evidence wasn’t specifically identified or carefully scrutinized to determine whether it was protected speech.
Godfread’s argument is that the jury was not presented with any evidence supporting tortious interference claims that were “separate and distinct” from comments made on Hoff’s blog about Moore’s connection to mortgage fraud. “Given the jury’s finding that defendant’s allegations were true, the First Amendment bars plaintiff’s tortious interference claims, just as it does his action for defamation,” states the brief.
According to John Borger, one of the attorneys who submitted an amicus brief in the case, the appellate court seemed to ask questions pertaining to where the line is draws between protected speech and unprotected conduct.
The amicus brief doesn’t so much weigh the evidence but rather argues the principle of the case, Borger said. “It’s important to have a strong re-affirmation of the principal that truthful speech does not support a lawsuit for tortious interference. We think it is important to recognize and reaffirm when speech is involved and the First Amendment is involved, that the reviewing court needs to apply an independent standard of review looking at all the evidence.” In other words, whatever the jury did needs to be consistent with the protection of free speech and First Amendment principles.
That means that in a case like Moore vs. Hoff, “the court needs to convince itself the jury must have found something apart from the truthful blog post that supports tortious interference.”
That’s difficult to do, Borger said. The court has two routes to take. One would be to reverse the jury’s decision. The other would be to call for a new jury trial. The appellate court could look at the evidence presented at the trial, and see whether there is anything that counts as action other than the blog post or other speech that is protected, he said.
In Hoff’s attorney’s argument, even the subsequent letter to the University of Minnesota, allegedly written by Don Allen and subsequently posted to Hoff’s blog, as well as Hoff’s phone calls to the University of Minnesota about Moore, are protected speech, since they are true.
“Our argument is that they weren’t unlawful,” Godfread said of Hoff’s statements. “What he wrote was true.”
To support the claim that the statement was true, Godfread had submitted three items into evidence at trial in the district court. These were obtained by Melanie Micheals, the victim in a fraud case against Larry Maxwell that included the property located at 1564 Hillside Ave N. in Minneapolis. The documents included copies of a HUD settlement statement for the fraudulent purchase, which named Jerry Moore as one of the people receiving a payment, a check for $5000 made out to Moore for “consulting services” on the house, and an invoice from J.L. Moore Consulting for “Windows” at 1564 Hillside.
Part of the argument of the amicus brief is that even if there is a possibility that the jury found Hoff guilty of tortious interference for something other than free speech, that remains no more than a possibility. “You can’t tell what the jury was thinking,” Borger said. In that case, the appellate court might send the case back for a new trial.
Jill Clark, Moore’s attorney, disputes the premise that Hoff was telling the truth. “There appears to be a misnomer in the blogosphere,” she said in an email. “The jury never found all statements on Hoff’s blog to be not untrue (not false). That’s simply rumor, and not supported by the record in the case.” Further, Clark said that that whether all statements in Hoff’s blog were false never went to the jury. “Only one question went to the jury to determine falsity. Sure it matters for some purposes if statements were true,” she said. “According to post-trial law, we must assume that they believed all of plaintiff’s witnesses, and disbelieved Hoff. Second, whether or not speech is protected is a separate analysis once we segregate that speech.”
Another aspect of the case that came up in the district court, and has now been revisited by Clark in the appeals court, is whether Moore should be considered as a public figure.
“In this case, the district court erred in holding that Moore is a limited purpose public figure,” Clark said. “If the Court of Appeals agrees with us on that, the analysis ends… Moore’s point is that he never thrust himself into the particular controversy at issue in the case, and according to Minnesota Supreme Court precedent, that means he is not a limited purpose public figure.”
However, Borger said he disagrees. “To say the First Amendment does not protect public controversies is far too narrow view of the First Amendment,” he said.
Whether Moore is considered a public figure or not will dictate the necessity of showing malice on the part of Hoff.
“Hoff is now claiming that there was insufficient evidence of malice,” said Clark. “Malice need only be shown if the plaintiff is a public figure. Further, there is no special verdict question which would tell us what the jury thought about malice as to tortious interference with contract.”
According to Clark, “The appeal is in essence a challenge to the jury instructions, but Hoff failed to raise those issues in the district court,” said Clark.
For Borger, the problem is not one of erroneous jury instructions. Rather, he said, in trying to review the jury’s verdict, “it becomes impossible to tell what the jury must have been thinking.”