$60,000 Verdict for Blogging the Truth About A Person Intending to Get Him Fired — Reversed

I’ve blogged before about Moore v. Hoff, a Minnesota case in which a jury ordered a blogger (John Hoff, who blogs as Johnny Northside) to pay $60,000 to a university official because the blogger blogged the truth about the official, intending to get him fired. Today, the Minnesota Court of Appeals reversed the verdict, in Moore v. Hoff (Minn. Ct. App. Aug. 20, 2012):

Because truth is an absolute defense to a claim for defamation, truth should also be a defense to a claim for tortious interference with a contract arising out of an allegedly defamatory statement. See also Restatement (Second) of Torts § 772 cmt. b (“There is of course no liability for interference with a contract … on the part of one who merely gives truthful information to another.”).

Moore argues that Hoff is not shielded from tort liability simply because Moore could not prove the falsity of Hoff’s statement. Rather, Moore urges us to rely instead on Hoff’s motivation for making the allegedly defamatory statements. Moore asserts that because Hoff had an ulterior motive of getting Moore fired, he can be liable for the tortious-interference claims. We disagree.

When a person conveys unflattering and possibly damaging information to another person’s employer, it is unlikely that the motivation for conveying that information is borne out of affection. It is much more likely that the intent is for the employer to take responsive action — up to and including termination — based on the content of that information. Regardless of the motivation of the messenger, if the information conveyed is true, it is not appropriate for liability to attach. See Restatement (Second) of Torts § 772 cmt. b. (noting that conveying truthful information is not “improper” interference “even though the facts are marshaled in such a way that … the person to whom the information is given immediately recognizes them as a reason for breaking his contract”).

In the specific context of Moore’s claim of tortious interference with a contract, the jury was asked if Hoff’s statement on his blog was false. The jury answered “No.” We therefore conclude that Moore cannot recover for tortious interference with his contract based on Hoff’s statement. To the extent that the jury’s verdict was based on Hoff’s June 21, 2009 statement on his blog or the conveyance of this information to the University of Minnesota, the verdict is contrary to established law, and the district court erred by denying Hoff’s motion for JMOL.

But that does not end our inquiry. The district court found that there was sufficient evidence in the record to support the jury’s verdict for Moore’s tortious-interference claims that was separate and distinct from the blog post….

The district court denied Hoff’s motion for JMOL or a new trial based on its determination that there was sufficient evidence of Hoff’s conduct that was separate and distinct from the allegedly defamatory statement to support the jury’s verdict. Specifically, the district court stated that it “heard direct testimony regarding [Hoff]’s active involvement in getting [Moore] fired by contacting leaders at the University of Minnesota and threatening to launch a negative public relations campaign if [Moore] remained in their employment.” As an example of this “direct testimony,” the district court highlighted Allen’s testimony that he “sent an email to the University of Minnesota, at [Hoff]’s behest, threatening negative publicity and lobbying to get [Moore] fired.” The district court also stated that “during this same time period, [Hoff] acknowledged that it was his goal to get [Moore] fired and that he was working ‘behind the scenes’ to do so. After the fact, [Hoff] took personal responsibility for [Moore]’s termination and announced his ongoing, active involvement in the University’s actions.”

We first note that the district court’s conclusion that Hoff contacted leaders at the university and threatened to launch a negative public-relations campaign is not supported by any evidence in the record. Rather, when Hoff called the university to verify Moore’s employment before writing his blog post, Hoff’s anonymous source at the university asked Hoff to wait a week before publishing the information, which Hoff did. There was no testimony that Hoff ever asked anyone at the university to terminate Moore. We further note that while the district court stated that Allen’s testimony is “just one example” of testimony that would support Hoff’s interference claims, Allen’s testimony is the only evidence in the record on appeal that would support the interference claims. Allen testified at trial that Hoff’s goal in asking him to send the e-mail was “to disturb the employment of [Moore].” Allen also testified that he believed it was “the goal of [Hoff] to take down [Moore] in — by any means necessary.” The question we must address, therefore, is whether this constitutes sufficient evidence of interference that is separate and distinct from the statement published on Hoff’s blog.

Moore claims that there is a “vast difference between publishing a new[s] story … and letting people make of it what they will, and taking actions to get people to do something based on your ‘stories.’” Hoff, on the other hand, asserts that his request to Allen — and all conduct related to this particular blog post — is intertwined with and based on his statement regarding Moore’s involvement in mortgage fraud, which Hoff claims is constitutionally protected speech….

Hoff’s blog post is the kind of speech that the First Amendment is designed to protect. He was publishing information about a public figure that he believed was true (and that the jury determined was not false) and that involved an issue of public concern. Attaching liability to this speech would infringe on Hoff’s First Amendment rights.

The difficulty in this case is whether we can disentangle this constitutionally protected speech from unrelated tortious conduct. When constitutionally protected speech is arguably intertwined with tortious conduct, it is the district court’s burden to “adequately disclose the evidentiary basis for concluding” that there was independent tortious activity in order to “avoid[ ] the imposition of punishment for constitutionally protected activity.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 933–34 (1982)….

By concluding that the “trial record as a whole” supported the jury’s verdict, the district court did not adequately identify Hoff’s behavior that was separate and distinct from his protected speech. The district court pointed to Allen’s testimony to show that there was evidence of interference by Hoff separate and distinct from his blog post, but we conclude that this evidence is insufficient to independently support the jury’s verdict. Hoff’s communication with Allen is too intertwined with Hoff’s constitutionally protected blog post to accurately characterize it as independent tortious conduct. Hoff’s information about Moore’s involvement in mortgage fraud was the primary reason for his communication (through Allen) to the University of Minnesota.

The fact that Hoff’s underlying goal in conveying this information was to get Moore fired does nothing to disentangle the protected statement from any tortious conduct. We therefore conclude that there is too great a risk of infringing on Hoff’s constitutional right to publish this information if he is held liable for Moore’s subsequent employment termination….

Because a tortious-interference claim cannot be based upon true information and because the record does not contain sufficient evidence of conduct separate and distinct from Hoff’s constitutionally protected speech to sustain the verdict, we conclude that the district court erred by denying Hoff’s motion for JMOL. We therefore reverse and remand for the district court to enter judgment for Hoff.

Sounds right to me, as I’ve argued from the outset, and it’s a big victory for free speech. If someone tells lies about people — or in some situations even makes negligent misstatements about people — that get them fired, he can be sued for defamation. But if someone tells the truth about people, and expresses an opinion that they should no longer have a certain kind of authority and get a taxpayer-funded salary (or even a privately funded salary), that should be constitutionally protected speech.

Sometimes even encouraging illegal conduct is constitutionally protected, compare Brandenburg v. Ohio (speech urging illegal activity protected unless it’s intended to and likely to cause imminent illegal activity) with United States v. Williams (speech urging a specific transaction with the speaker is punishable as solicitation, even if the Brandenburg criteria aren’t met), but here the conduct Hoff was promoting — the University’s firing of Moore — was quite legal. And encouraging someone to do something legal, such as legally terminating an employment relationship, should not be a tort.

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