The Minneapolis Star Tribune reports:
Controversial north Minneapolis blogger John Hoff must pay $60,000 in damages to a former Jordan Area Community Council executive director Jerry Moore, a jury in the civil case concluded Friday.The Hennepin County District Court jury found that an “Adventures of Johnny Northside” blog post in June 2009 resulted in Moore’s firing from the University of Minnesota….
The jury ruled that although Hoff’s post … was true, he intentionally interfered with Moore’ employment contract with the University of Minnesota Urban Outreach and Outreach/Engagement Center….
Moore’s lawsuit [stated] that after he was fired from the Jordan Area Community Council in January 2009, he was hired at the university center. When Hoff found out, he wrote a post lambasting Moore and accusing him of involvement in a “high-profile fraudulent mortgage,” one of several that resulted in a 16-year prison sentence for former real estate agent Larry Maxwell. Moore was not charged in the Maxwell case. Moore was fired the day after the blog post.
If the news story is accurate, and isn’t omitting some key facts, the result seems unconstitutional and quite wrong. Even if Hoff was trying to get Moore fired, people are constitutionally entitled to speak the truth about others, even with such a goal. (The tort actually requires either knowledge that such a result is practically certain or a purpose of producing such a result, but I take it that here the allegation is that Hoff wanted Moore to get fired.) The First Amendment constrains the interference with business relations tort, just as it constrains the infliction of emotional distress and other torts. See NAACP v. Claiborne Hardware Co. (1982); Blatty v. New York Times Co. (Cal. 1986) (speech constitutionally protected against a libel claim is also protected against an interference with business relations claim); Paradise Hills Assocs. (Cal. Ct. App. 1991) (same); Delloma v. Consolidated Coal Co. (7th Cir. 1993) (“permitting recovery for tortious interference based on truthful statements would seem to raise significant First Amendment problems”); Jefferson Cty. Sch. Dist. No. R-1 v. Moody’s Investor’s Services (10th Cir. 1999) (holding that interference with business relations and interference with contract claims can’t be based on expressions of opinion). The same should apply to the closely related interference with contract tort. See, e.g., Jefferson Cty. Sch. Dist.
Perhaps because of this, the Restatement (Second) of Torts § 772(a) provides that, “One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other’s contractual relation, by giving the third person … truthful information.” See also, among many other cases, Walnut Street Assocs., Inc. v. Brokerage Concepts, Inc. (Pa. Super. 2009) (so holding); Recio v. Evers (Neb. 2009) (likewise). [UPDATE: Reader CW notes that Minnesota seems to have accepted § 772(a) as well, see Glass Service Co. v. State Farm Ins. Co. (Minn. Ct. App. 1995); Fox Sports Net North, LLC v. Minnesota Twins Partnership (8th Cir. 2003).] But even if Minnesota courts take the opposite view as a matter of state law, such a view would be preempted by the First Amendment.
I hope the state law and First Amendment objections were properly preserved at trial, and that the defendant appeals. Thanks to Ben White for the pointer.
Steve says:
Interesting. I deal with tortious interference claims on occasion and hadn’t seen some of these cases before. Thanks for this post.
March 11, 2011, 5:01 pmAnderson says:
Yah, that makes no sense. You’ve got to have a wrongful act to support a TI claim.
March 11, 2011, 5:33 pmCW says:
Minnesota follows Section 772(a) of the Restatement. See Glass Service Co., Inc. v. State Farm, 530 N.W.2d 867, 871 (Minn. Ct. App); Fox Sports Net North, LLC v. Minnesota Twins Partnership, 319 F.3d 329, 337 (8th Cir.)
Some of the reporting indicated Hoff’s pro bono lawyer was obviously inexperienced. I believe he did bring a motion for summary judgment before trial that was only partially successful, but I can’t tell what objections / motions were made during trial.
March 11, 2011, 5:40 pmEugene Volokh says:
Anderson: In some jurisdictions, but in others a desire to harm the other person — even through otherwise noncriminal, nontortious behavior — may suffice, unless the court concludes the actions were adequately justified (e.g., because they constituted normal competition). Tuttle v. Buck, 119 N.W. 946 (Minn. 1909), is a classic old example, but Alyeska Pipeline Serv. Co. v. Aurora Air Serv., Inc. (Alaska 1979) and In re President Casinos, Inc. (E.D. Mo. Bankr. 2009) (decided under the rubric of “prima facie tort”) are two modern cases. I think this doctrine is unsound, and the emerging modern view that an independently wrongful act is required, is the better view. But, alas, not all courts agree with me on this.
March 11, 2011, 7:38 pmChristopher Taylor says:
I’m no lawyer but this seems to fall under the same basic category as libel; truth is a sure defense. I mean, we’re slouching back into colonial American territory here before Peter Zenger’s case vs the crown.
March 11, 2011, 8:17 pmTBone says:
I’m no lawyer (which gives me the ability to think sensibly about this), but it seems to me that if this judgment is allowed to stand, we can pretty much expect whistle-blowing to come to a screeching halt.
Example: If I discover that a teacher was convicted of molesting his own child and I write a letter to the school board telling them about it with the obvious intent of getting the guy removed from his job, is that wrong?
March 11, 2011, 8:53 pmStephen Lathrop says:
I will leave comments on the state of the law to others who know more. But I think the idea, common on this blog, that truth ought to be allowed to run wherever it goes, without any restraint whatever, is poorly suited to the internet.
I’m sure if your neighbor’s barking dog irritates you, that feels important. But I don’t think it ought to give you the right to publish the information, however factual, that your neighbor’s wife is cheating on him with the UPS driver. The publisher of that kind of information can have no idea which innocent parties might be harmed. They may include people completely unknown to the publisher.
Any rule that encourages that kind of behavior seems wrong. Do you really want to give every private spite a public character? Of course assured protection should continue for the right to speak truth in all cases that are genuinely important, or even of passing public interest. But what kind of reckoning values for its own sake the public multiplication of private irritations?
Better to limit the truth defense to information about public figures (broadly construed to include local contingencies), and to issues and events affecting the public health, safety, and interest. If I recall correctly, that’s a distinction courts have used routinely at least since NYT vs. Sullivan, so it isn’t novel or unworkable.
Call publications that are clearly spiteful—and also completely unrelated to the public business or public interest—an unlawful invasion of privacy. Before the internet there wasn’t much need to consider stuff like that. The possibility of cost-free anonymous publication didn’t exist. That’s different now.
If you disagree, ask yourself what of value would be sacrificed by restricting the scope of private spats to private life.
For what it’s worth, I enforced the policy outlined above at a newspaper I ran for a number of years. The newspaper grew and thrived. There was never any instance where that policy felt like it pinched our ability to report anything newsworthy, and we enjoyed a reputation for aggressive investigative journalism. The policy cost us nothing, and assured we wouldn’t blunder into embarrassments to our credibility.
March 11, 2011, 11:25 pmRepeal 16-17 says:
Who determines what issues are “genuinely important or even of passing public interest” ?
March 11, 2011, 11:37 pmBen says:
Easy answer: freedom from oppression by people who wish to use government force to restrict the scope of private spats to private life. Also freedom from attack by people who have other motives but are willing to use this privacy angle as their weapon of choice. Not being subject to oppression and attacks, and not having to fear them, has value.
Any time you endorse a restriction, you endorse the power to enforce it against people. The person in this case seems to only be guilty of telling the truth. Why should that be used against him?
The specific thing of value that will be sacrificed in this case is $60,000.
Also, these sorts of restrictions tend to be used selectively to protect a favored few people, and then conveniently forgotten for other, less favored people.
March 12, 2011, 12:34 amMarian Kechlibar says:
Re s.Lathrop and “Genuinely Important Cases”.
I wonder why some Americans are so naive to expect that, once a ban on “Genuinely Unimportant Cases” passes, the crooks at power won’t decide that exposure of dirt from their political career is “Unimportant” and start harassing you using all the force at their disposal.
SWAT team kicking down your door to deliver summons for writing a bad blog entry – hell, why not. If it is done for MJ possession and playing cards with neighbors for money (illegal gambling!), why not for “writing about Unimportant dirt”.
If you think that I am exaggerating, I would like to turn your attention to the case of Gregorius Nekschot, a Dutch cartoonist who was subject to this type of violent police action for drawing politically incorrect cartoons. That was in the Netherlands, not in Russia – and Dutch law enforcement is notoriously less violent than American one.
At the end of the day, you may win in the court, but anyone sane will refrain from emulating you for a long time.
March 12, 2011, 6:52 amFalafalafocus says:
I agree with Stephen. Truth should only be an absolute defense if Stephen thinks it is important enough.
March 12, 2011, 8:24 amAnderson says:
but in others a desire to harm the other person — even through otherwise noncriminal, nontortious behavior — may suffice, unless the court concludes the actions were adequately justified
Interesting, thanks. But as your post suggests, “protected by the First Amendment” sounds pretty adequate. And I’m happy to live in a relatively enlightened jurisdiction like, um, Mississippi.
March 12, 2011, 9:15 amravenshrike says:
Yeah, all that should have been said at trial was “Your Honor, this isn’t Europe where the truth is no defense against a malicious speech claim. This is America, where our right to free speech unless obviously obscene, knowingly false, or liable to cause immediate harm is enshrined in our constitution.”
March 12, 2011, 9:47 amJeff Skrenes says:
@Stephen, the difference between this case and your hypothetical neighbor and UPS tryst story is that Jerry Moore was ruled a limited purpose public figure. And many of his actions (participating in a deal that involved mortgage fraud, getting fired from his executive director position at a neighborhood organization after getting into a fistfight, getting hired by the U of M to research mortgages) fell under the scope of that status.
@Ben, you say “the specific thing of value that will be sacrificed in this case is $60,000.” I disagree. Even if the appeal is upheld, the money may never be repaid. The more chilling cost is that of free and open dialogue in north Minneapolis – or anywhere for that matter. There are several bloggers in our community who have been pushing social change for some time now, with varying degrees of success. And there are those who disagree with the speech, goals, and actions of these bloggers. Most people blogging do not have funds to pay for legal defense, so even the possibility of facing such a lawsuit could dampen free speech in an area where it’s needed the most.
For the record, I am one of those bloggers and within hours of the verdict I had received a threat that I would be sued next.
March 12, 2011, 10:17 amStephen Lathrop says:
Presumably by “some Americans” you meant me. The line is easily drawn, and the courts have been drawing it in libel cases for decades. Press freedom has been protected against government encroachment, to the extent that practically every administration comes to believe the press is over-protected. That’s just the way I want to keep it, for the press and for private individuals on the internet.
The fears you express seem simply unfounded in (U.S.) history, or in any analysis of the way government and the courts actually work. Of course they could begin working differently, and more intrusively. One way to build a constituency for such a change would be to let malicious internet attacks spin out of control, as you and others here seem to be advocating.
One additional point. Invasion of privacy is a tort, is it not? How do the storm troopers get into it?
March 12, 2011, 10:50 amAJK says:
In New York, (one of?) the first jurisdictions to pass an invasion of privacy law, the courts have defined the public interest to include pretty much everything.
March 12, 2011, 11:31 amJohnny Northside Trial Follow-Up | The Deets says:
[...] UCLA Law School professor, Eugene Volokh, at The Volokh Conspiracy: “$60,000 Damages for Blogging the Truth About Someone, Intending to Get The Person Fired” [...]
March 12, 2011, 12:24 pmohgoodgrief says:
The case brings up a collateral subject: How do people get seated on juries? Are too many dullards, who can’t get out of jury duty seated? How can a judge allow a jury to reach a conclusion that is contrary to the rule of law? (aside from the issue of jury nullification) Do judges permit too many misstatements of fact by lawyers get before unsophisticated juries?
March 12, 2011, 2:19 pmStephen Lathrop says:
Not sure I understand you right, but if that means the scope of acceptable speech is broad, and the scope of suspect speech quite narrow, then that’s as it should be. It’s also exactly what I would expect, given the American legal tradition. But if it means blogging about your neighbor’s sex life out of spite is okay, then I don’t agree with it.
I would be interested to hear more about New York’s law as you see it.
March 12, 2011, 2:23 pmStephen Lathrop says:
If you keep at it, you will be threatened with worse. Any decent journalist is threatened with lawsuits, and especially good ones get death threats. If you want to practice journalism, that comes with the territory. Be proud of it. Sounds like you are discovering firsthand something that people around here who hold journalists in contempt ought to know. Free speech doesn’t come free, and the internet isn’t going to turn into a magic justice button.
While you are at it, make sure that the stories you choose to publish aren’t the ones that plug your own point of view in some controversy where you own a personal stake. Not saying you did that, but that’s a good formula for keeping out of trouble. And if you’re sued, it will strengthen your case.
I do agree that on the strength of the quote at the top this case seems to have come out wrong, and ought to be overturned—subject to EV’s qualifier in the first sentence. What I disapprove of is EV’s more general framing which follows:
Not saying he isn’t right about that, but if he is, I would like to see it restricted just slightly, to keep the public purpose of free speech in sight.
March 12, 2011, 3:02 pmBen says:
Free speech isn’t protected to advance a “public purpose”. Free speech protections exist to protect individuals from their government. The public and the public’s purpose are not relevant.
You are arguing for speech regulations based on the content of speech versus the judgement of the men devising the regulations. That isn’t free speech.
If your hypothetical adulteress wants to maintain her privacy, she should be more discrete. Or better yet, she could just be true to her wedding vows — vows which were presumably publicly sworn before an audience of guests and witnesses.
March 12, 2011, 3:31 pmBeldar says:
Your point about preserving error may be the most valuable part of this very useful and informative post, Professor Volokh: Civil trial lawyers aren’t generally as focused on the Bill of Rights or federal constitutional preemption of state common-law claims as we ought be. The power of the First Amendment may turn out to be as nothing (on appeal) when pitted against against the awesome power of ubiquitous procedural rules requiring that the trial court have been presented with a timely objection and opportunity to consider the constitutional argument.
March 12, 2011, 4:08 pmBeldar says:
Prof. Volokh, I have a follow-up question, re the “independently wrongful act” argument as a predicate for tortious interference with contract liability: Hasn’t this already happened in the parallel tort doctrine of civil conspiracy? I believe the strong trend there is for courts to treat “civil conspiracy” as a purely derivative tort, requiring first a showing of an act that would be wrongful if done by the alleged co-conspirator himself. Aren’t you saying that tortious interference with contract ought likewise to be considered a “derivative tort”? Or do I misunderstand completely?
March 12, 2011, 4:19 pmBeldar says:
To a very broad degree, what’s a proper “public purpose of free speech” is very much in the eye of the beholder. Obviously “Vote for Ed” is a proper public purpose, but so, too, could be “We need to get the moral reprobates out of public governance!” Even though some people would consider the latter a “witch hunt” rather than a “proper public purpose,” the intention is still to sway public opinion on a matter (government composition and administration and integrity) that’s undoubtedly of common concern. One could even make an argument that a mostly-commercial motivation — “Don’t buy Calvin Klein jeans because they’re made with slave labor,” in an ad campaign run by Levi Strauss & Co. (a hypothetical I just made up) — still has enough of a public-interest aspect at its margins to qualify for First Amendment protection.
March 12, 2011, 4:27 pmAJK says:
Judges are allowed to deliver a “judgment notwithstanding the verdict” in such a situation.
March 12, 2011, 4:54 pmAJK says:
New York Civil Rights Law Section 50 says:
“A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, guilty of a misdemeanor.”
Note that the statutory language does not make any exception for the public interest: however, the courts read such an exception into the statute.
To the best of my knowledge (and I’m hardly an expert, so anyone who knows better should feel free to jump in), that public interest exception has been extended to pretty much any subject that isn’t direct commercial advertising. Some of these decisions have been questionable, such as the picture of a family to illustrate an article on in-vitro fertiliziation (even though the children in the picture had not been conceived that way), Finger v. Omni Publications, 566 N.E.2d 141 (N.Y. 1990). I don’t know of any cases where a publication that is not an advertisement containing truthful information has been held to violate the law.
March 12, 2011, 5:14 pmStephen Lathrop says:
Protecting individuals from their government is arguably the ultimate public purpose, and couldn’t be more relevant. And you apparently still haven’t noticed that I’m not talking at all about “regulations,” or empowering men who devise them in any way.
I oppose censorship, but that’s neither here nor there. I’m talking about invasion of privacy, which involves the government only in the sense that it would require a judge, jury, and courtroom to hear and decide the claim of a private plaintiff—no prosecutor. Is every civil case an example of government regulation run wild?
Although all three fall easily within the realm of public purpose, your examples mix apples and oranges by throwing in a commercial speech example, which is differently privileged. Nothing about any of them has anything to do with invasion of privacy, which is what I am talking about.
The notion that it’s all subjective is akin to saying that because the line might be soft, nothing can be said to fall beyond it. The example I proposed affords no public purpose whatever. See if you can craft an argument that says otherwise without feeling foolish.
March 12, 2011, 5:34 pmBen says:
Every case? No. But a great many cases are, in fact, an example of this.
A system of regulation and punishment without a prosecutor still regulates and punishes. And, in a case like this one, it effectively censors.
March 12, 2011, 6:07 pmSteve2 says:
Stephen, the “public purpose” of free speech is that people have a right to be spiteful, because they have a human right to say whatever they want, however they want. Nothing – not criminal law, not civil law – should stand in the way of that. Your UPS tryst hypothetical, the public purpose of free speech is to ensure that your right to publish that the neighbor’s wife is cheating on him is protected. And you do have the right to publish that, because you know it, and once you’re in possession of information it’s yours to do whatever you want with.
There’s nothing wrong, from a moral perspective, with blogging about your neighbor’s sex life – especially if you aren’t making things up. That means the law shouldn’t enable you to be harmed for doing it.
March 12, 2011, 7:05 pmKaren S says:
My guess is that when someone uses a website/blog/whatever as a means to attempt to destroy another citizen’s life and-or livelihood that person should not be shocked to find his behind getting sued. Moreso when they make provision for others to anonymously join in the attack via commenting. Dumb people are lawsuit magnets.
March 13, 2011, 12:28 amStephen Lathrop says:
For my money that just about defines civic insanity. I would like to hear from those who have been objecting to the notion of some bar against invasions of privacy. What do you think the implications are? Are you prepared to live in a world where that becomes commonplace? What do you propose? Time to revive the Code Duello?
March 13, 2011, 8:31 amwhit says:
exactly. i’m against the fairness doctrine for the same reasons. the govt. is not and should not be “the decider” when it comes to what matters are “important” enough for public discussion/disclosure, etc.
i think the rule should be simple. if it’s true, and there was not some illegal method used to obtain the information (like placing video cameras inside somebody’s house w/o their knowledge) , then disseminating it should be entirely protected speech.
can this be harmful? sure. free speech often is.
March 13, 2011, 3:32 pmwhit says:
imo, the first step should ALWAYS be – if you think a website/person is disseminating info that they shouldn’t – then take it to a court to get an order to make them stop. in THAT forum, the issue can get fleshed out.
but to PUNISH somebody for disseminating true information (unless there was some sort of crime committed to obtain it – like burglarizing a house) is wrong. it is inconsistent with free speech.
March 13, 2011, 3:35 pmwhit says:
exactly. in brief, free speech exists among other reasons because anybody has the right to call anybody else a poopy-head w.o govt. interference. this is especially true in a website etc. where “fighting words” etc. iow some kind of imminent risk of assault etc. don’t apply
March 13, 2011, 3:37 pmBeldar says:
Mr. Latham: Oftentimes civil law, especially civil tort law, is phrased in terms of who owes what duties, and who’s then breached them.
If I’ve decided not to fence my front yard, but instead to allow visitors and passers-by free access to it, I acquire thereby a common law duty to use ordinary care — that is, a duty to avoid being negligent — in guarding those who may cross my lawn from latent defects that, as the property owner, I either know about or should (through the exercise of reasonable care) know about. If there is a hidden, grass-covered trap-door that collapses to drop passers-by into a pit filled with pungi sticks, as left by the previous property owner, and the UPS driver takes a short-cut across my lawn, falls in, and acquires a fatal infection from the punctures, I’m looking at a big premises liability lawsuit. Exactly how my duty is defined, and how far it runs, and to whom, are issues under constant scrutiny in such tort cases, and the law varies from state to state and time to time on such nuances.
However, merely by virtue of being a citizen, or even by virtue of being her neighbor, I owe the lady next door no duty to refrain from reporting on what I’ve observed from my own windows.
If that’s been the UPS driver making daily empty-handed visits inside her house that last about 45 minutes and end with him returning to his truck, still empty-handed, while zipping his pants, I have therefore not breached any legal duty to her in putting that on my blog (or in my water-cooler or PTA meeting gossip).
To establish that there’s no legal duty, I don’t have to rely on the First Amendment. I rely simply on my state’s common law, which has never recognized any such legal duty.
So the reason why there’s no tort claim against me for posting truthful statements of fact about my neighbor and the UPS driver doesn’t depend, either in whole or part, on whether there’s any public purpose served by my speech.
Now suppose a new state supreme court decision purports to impose a new legal duty on me, or the state legislature passes a new criminal statute purporting to do the same. And the new legal duty is to “turn a blind eye” to things that are “none of your business.” Let’s ignore, for purposes of our hypothetical, the many impracticalities and definitional problems such a new court decision or statute would create.
And let us assume that I’ve either been prosecuted for violating the new criminal statute, or sued in a private lawsuit (by the neighbor or driver). At that point, among the defenses I can bring, I can argue that my speech is protected by the First Amendment, and that as a federal constitutional right, that defense prevails even over a contrary state statute or state court decision based upon the state’s common law.
Only at that point might we get into a discussion of the extent to which the First Amendment especially protects truthful speech, but still may afford lesser protection even to non-truthful speech — as, for example, it’s been held to override state common law on defamation that might permit liability to a public figure when the speech turns out to have been false, but published without the requisite degree of “actual malice.”
March 13, 2011, 5:24 pmBeldar says:
Coming at this another way: I think what you’re looking for is an expansion of the current common law, and maybe statutory law, regarding personal privacy. You’d like to impose, perhaps, a generalized legal duty on all of us to ignore what’s plainly visible in public view if it’s “none of our business.” (NB: I’m not putting quote marks around that phrase to indicate that I’m quoting you, but rather to set off my paraphrase of what I think I understand your purpose to be. If there’s a better way to delineate what you think the new boundaries should be, I’ll adopt that description instead.)
But like most attempts to use the force of law to compel decency and good manners, that would be a very bad idea, and I don’t think any court or legislature will agree with you, if that’s really what you want.
I think the court decision that Prof. Volokh wrote about in this post is also unwise. But I think it’s also a content-based regulation of speech that runs afoul of the First Amendment if that’s what the state’s common law really does permit. And so, too, would be the “mind your own business” statute or court decision I’ve hypothesized about.
March 13, 2011, 5:34 pmPQuincy says:
“It is a vanishingly small risk in this administration, but the risk of losing a license won’t be much bigger in Arizona if the law is upheld.”
A quick search didn’t give me a satisfying result, and I’m curious.
Can anyone provide some reliable information on the rate of immigration law enforcement over the past 3-4 administrations? Or information on the risk of any given business losing its business license owing to Federal enforcement, say, on an annual basis over the past 20 years? (I have a sneaking suspicion that the rate of the latter approximates zero for ALL administrations).
Seriously, though: Is it really the case that enforcement has declined since January 2009, which is the implication here on Prof. Volokh’s part, or is it a lazy assumption (which would be most unusual for EV!)?
March 13, 2011, 6:46 pmStephen Lathrop says:
More like “nobody’s business,” a term to describe a state of privacy. “None of your business” is a defensive response. Investigative reporters hear it all the time when they’re closing in on paydirt.
And by the way, what makes you think the “visible in public view” standard has any relevance. That barely restrains the cops. Do you think it’s going to prevent spiteful anonymous internet attacks?
Remember the standard your allies invoke is mere truth: “And you do have the right to publish that, because you know it, and once you’re in possession of information it’s yours to do whatever you want with.” The deathless creed of the extortionist.
March 13, 2011, 9:09 pmwhit says:
a silly analogy. an extortionist commits the crime when he extorts money in exchange for not publicizing. merely publicizing is an entirely different thing
March 13, 2011, 9:15 pmeric zaetsch says:
It was a government job. UROC, an agency of the state U.
How do you folks weigh that, per SLAPP concerns.
Speaking about how public money is spent and how public decisions may seem wrong.
Not a regular deep pocket SLAPP.
Little guy sues little guy. But it was genuinely aimed at procuring a favorable public result.
Minnesota has had far less SLAPP precedent than California.
Any takers, from there how does the fact it’s a true statement criticizing a government hiring, intending to have the hiring undone.
Not only free speech, but speaking out against the government.
March 13, 2011, 10:37 pmFloridan says:
“Especially”? I would think “only” (and even then I’m not sure that it would be the moral thing to do).
I guess it all depends on what kind of world you want to live in (and what your mother taught you about good manners).
March 14, 2011, 7:44 americ zaetsch says:
What are some of the boundaries?
Holmes, you cannot shout “Fire” in a crowded theater.
Lenny Bruce’s arrests over indecency.
Tort liability for Aryan Nation inciting others to violence.
Restrictions on using images of celebrities or copyrighted material of others in commercial speech.
Exceeding fair use of copyrighted materials.
Peer-to-peer web exchange of entertainment intellectual property, as the current hot-button copyright violation.
But if someone does not own the speech, it is yours; it is part of a verdict that what you said is not misstaement of a fact in a defamatory way; a limited public figure status already has been judicially declared as attached to the plaintiff; defamation per the verdict did not occur; the intention was to have the employment terminated; one of two blog posts declared that polite complaint about the situation failed to gain that relief, and presume that is true; one post claimed “credit” for precipitating the termination; there was petitioning of record by a named co-defendant who settled pretrial, detail of settlement not known or stated in the public reporting; it was a government job so that it was citizen quasi-press [aka blog] speech aimed at criticizing existing government actions and status quo with hope and intent to alter the situation; all that, with the defamation claim defeated but then an inconsistent jury verdict says tortious interference with an employment – those are the Minnesota facts. Given all that, who wants to cogently argue that judgment notwithstanding the verdict is NOT proper?
Certainly repose – it’s decided – and deferring to the jury as fact finder in a jury trial is the norm, but the judicial discretionary power to disregard a verdict has a reason to be part of the trial situation.
Appeal if there is no judgment nov is harder, because three judges of the intermediate court will say the trial judge heard it all, ruled on admissability and objections, and viewed witness demeanor – so deference to a trial judge’s not overturning a verdict is the usual pro forma result.
I think the doctrine of speech inciting others to violence is reaching about as far as things should go in restraint of speech, but civil order is a strong counter aim to unfettered speech. Likewise, property rights in speech having a commercial value counters any freedom to pirate and profit.
Beyond that, this result, if it took hold in other places in the nation, would have the Detroit football fans wearing bags over their heads and holding the “Fire Millen” signs at risk, so that they were wise to wear the bags to protect identity.
March 14, 2011, 9:04 amHR Anderson says:
Sure, some exposures of truthful information make people feel bad about themselves and even may lead to serious consequences, such as the job loss noted here. But that’s not the information’s fault; nor is it the fault of the citizen journalist who further exposed the information. If you don’t want to get fired for being involved in a mortgage fraud scheme then don’t get involved in a mortgage fraud scheme. (Or, at least don’t get caught.) Truthful reputational information has a lot of value; suppressing it in the interest of protecting the exposed, in my opinion, has much less value(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1759374). As David Brin has said, “When it comes to privacy and accountability, people always demand the former for themselves and the latter for everyone else.” And it’s that hypocrisy with which this court seems to agree.
March 14, 2011, 9:32 amJohnny Northside says:
I thank you all for your interest. Please keep tuning in to my blog, http://www.johnnynorthside.com. I am literally selling my blood plasma at this point, but it beats selling out the truth like my former co-defendant Donald Allen. There is a PayPal button on my site. Just sayin’.
I have promised a bloggy rain of fire; further detailed facts that I haven’t been able to articulate for TWO YEARS because of this lawsuit, PDF documents, the works. Stay tuned.
With the verdict back, it is time to publish more, more, more.
March 14, 2011, 1:16 pmStephen Lathrop says:
Seems like a lot of the unfettered-liberty posters here imagine they are defending a traditional point of view, and a status quo practice. They aren’t.
Try taking to a mainstream media outlet a personal attack by you against some other private person. See if you can interest them in publishing it. Good luck. You won’t even be able to get it published as a paid ad. You don’t see such attacks in mainstream media.
Few newspaper editors would even consider allowing a reporter with a personal stake in a story to work on it, let alone criticize in print someone with whom they were involved in a dispute. The question of truth wouldn’t even get into the decision. You know the guy personally. You’re attacking him personally. Forget it. You’re off the story.
Now people who never heard any such thing from anyone are all enthused to undertake something new and radical. They imagine that technology has admitted them into a charmed circle from which they previously had been excluded. They are keen to get going on attacking those who bother them. Doing that they see as a birthright, and with that established, questions of judgment go out the window. What they will succeed in doing is degrading speech itself, and cultivating impervious deafness in their audience.
March 14, 2011, 1:53 pmBen says:
That’s why we never heard about Newt Gingrich’s private life from the mainstream media and why the mainstream media coverage of Sarah Palin is so fact-based, never personal, and has such an obviously neutral point of view.
Do I need to also bring up the incidents that ended Dan Rather’s career?
MSM standards seem always just flexible enough to shield friends while allowing essentially unfettered attacks on enemies. That’s a long-term business problem for the MSM.
Applying similarly one-sided standards to law, in the long-term, can lead to breakdowns in civil society and, ultimately, wars.
March 14, 2011, 2:14 pmShot in the Dark » Blog Archive » Boundary Issues says:
[...] 2: Well, there’s a possible answer; Eugene Volokh writing at the Volokh Conspiracy: Even if Hoff was trying to get Moore fired, people are constitutionally entitled to speak the [...]
March 14, 2011, 6:03 pmWriting the truth about someone costs blogger $60,000 in damages « Siouxsie Law says:
[...] Those who tell or report the truth should be protected under the First Amendment. ”Even if Hoff intended to get Moore fired, people are constitutionally entitled to speak the truth ab…Indeed, that is the law — just read Eugene Volockh’s perfect post on this. Suffice [...]
March 14, 2011, 8:57 pmchekr says:
@Stephen Lathrop
Yes. The fact that people might insult me over the internet (or anywhere) is horrible!
One problem I have with a majority of the population as of now is that they are incredibly weak-minded. An insult makes them cry and a comment makes them angry and irrational. Neither does any good. Very few people have succeeded in realizing that negative emotions simply aren’t required.
This is why most juries are composed of imbeciles. They think and act based on emotion, not logic. For instance, a women claiming a man raped her might sway a jury (even before they have seen any actual evidence).
People who think that they have a right to not be offended or talked about (regardless of whether or not the talking is being done in front of numerous individuals) and get extremely emotional and irrational when the opposite happens are holding society back.
I certainly do not care if one or a million people are insulting me somewhere. Unless they are attacking me physically, I will not be hurt (and I won’t be hurt emotionally in either situation). I just wish that people would realize that their mentality of “I must get upset or sad in the face of this situation because I’m human” is foolish.
March 14, 2011, 11:15 pmJury Says Blogger Has To Pay For His Words Even Though He Did Not Lie : says:
[...] commentator Eugene Volokh believes that the ruling against Hoff will be ruled unconstitutional if the case is appealed. He [...]
March 14, 2011, 11:35 pmJohnny Northside says:
I would like to point out that while I am writing this stuff…these supposed “attacks” on a guy who (says the jury) was involved in a high profile fraudulent mortgage at 1565 Hillside Ave. N., and subsequently got a taxpayer funded job involving mortgage research or outreach…while I am writing this stuff, there are blogs who are the self-declared enemies of my blog, critiquing everything I say and do.
So what difference does it make if a person has a “stake” in the story and writes something that might be considered an attack, though truthful? The other side has the same opportunity to attack. In fact, the attacks on me HAVE crossed into defamation but maybe I believe in a very literal interpretation of “Congress shall make NO LAW…” etc. etc. the press, etc.
Didn’t the early American newspapers have a “stake” in what happened with the Stamp Act? Don’t those who are most compelled to speak and write often have a real or imagined “stake” in what happens? Who else is MOTIVATED?
My blog is digging all the way to the bottom of a disgusting and poisonous cesspool of mortgage fraud in North Minneapolis. I will not stop until the password to my blog is pried from my cold, dead brain. Those who want to support me on this mission…
There is a PayPal button on my blog. Did I mention I happen to LOVE Courtney Love? Please get the word to Courtney.
COURTNEY!!! I LOVE YOU!!!!!!!!!!!
March 15, 2011, 5:34 pmJerome says:
As someone who has followed this case closely for the past couple years, it is important to point out that John Hoff is clearly an internet predator with a documented history of harassment and intimidation going back at least 10 years in multiple states.
Just Google “John Hoff Minneapolis” and search through the numerous factual articles about him.
Two factual and documented examples: 1) About 10 year ago he was elected to the city council in Grand Forks, ND. Within 3 months the citizens had enough signatures for a recall election and booted him from office due to his erratic and abusive behavior. 2) He rented a room in his house to a female roommate. He was so abusive and intimidating that she had to get a restraining order against John Hoff to be safe until she could find another place to live (SEE: http://www.mplsmirror.com/mpls/images/stories/pdf/JohnHoff.pdf).
What John Hoff does is use his blog to attack and intimidate people he has disagreements with. He calls it “First Amendment retaliation”. In other words he is going to use the internet and his freedom of speech to stalk, defame, harass, threaten, and intimidate you. He will not stop until he has made your life so miserable, and you are so afraid that you seek the law to protect yourself. And even then he will not stop. John Hoff will use his blog to assassinate your character, and use his catch phrase, “Go Googlebots”, which is his way of making sure internet search engines will spread his defamatory and degrading comments.
That is who and what John Hoff is – a malicious predator who gets his kicks from the hurt, harm, and misery he causes others.
I’m pretty sure what happened at this trial is that the jury saw what a sick and dangerous personality John Hoff has and found for the plaintiff because there is absolutely no question that John Hoff caused Jerry Moore emotional distress, and deliberately interfered with his employment.
I would also point out that this type of speech in not necessarily protected by the 1st Amendment.
His attacks on people are real folks. There are plenty of other victims besides Jerry Moore. And now he’s threatening to retaliate against Jerry Moore, because he lost the civil suit.
John Hoff got what he deserved, and I think the rest of the blogosphere is fairly safe, unless you behave like John Hoff.
PS DO NOT donate to him.
March 15, 2011, 8:59 pmTodd says:
If you have time listen to this recording of John Hoff and hear what he is really like:
http://www.mplsmirror.com/mpls/index.php?option=com_content&view=article&id=812:blogosphere-trial-of-the-centuryhow-hoff-operates-behind-the-scene&catid=49:quick-notes-and-observations&Itemid=174
March 20, 2011, 10:06 pm