Johnson v. Freborg

995 N.W.2d 374

Byron JOHNSON, Respondent,

v.Kaija FREBORG, Appellant.

A21-1531

Supreme Court of Minnesota.

Filed: September 20, 2023

Scott. M. Flaherty, Taft Stettinius & Hollister LLP, Minneapolis, Minnesota; and John G. Westrick, Samuel A. Savage, Savage Westrick, PLLP, Bloomington, Minnesota, for respondent.

Alan P. King, Daniel E. Hintz, Natalie R. Cote, Goetz & Eckland P.A., Minneapolis, Minnesota, for appellant.

OPINION

CHUTICH, Justice.

This case involves a defamation claim brought by respondent Byron Johnson—a private figure—against appellant Kaija Freborg. Johnson sued Freborg after a post on Freborg's Facebook page accused Johnson and two other dance instructors from the Twin Cities dance community of varying degrees of sexual assault. Johnson was one of Freborg's dance teachers, and the two previously had a casual sexual relationship that lasted for about a year.

The district court granted Freborg's motion for summary judgment, finding that Freborg's speech was true and, alternatively, that her speech involved a matter of public concern and was not made with actual malice. The court of appeals reversed. It held that the truth or falsity of Freborg's statement presented a genuine issue of material fact. The court of appeals further held, in a divided opinion, that because the dominant theme of Freborg's post involved a matter of private concern, Johnson was not required to prove actual malice to recover presumed damages. The court of appeals remanded the case to the district court for further proceedings.

We granted Freborg's petition for review on whether her statement involved a matter of public concern. Because the overall thrust and dominant theme of Freborg's post—based on its content, form, and context—involved a matter of public concern, namely, sexual assault in the context of the #MeToo movement, her statement is entitled to heightened protection under the First Amendment to the United States Constitution. Before Johnson may recover presumed damages, he must therefore show that Freborg's speech was not only false, but also that the post was made with actual malice.

Accordingly, we reverse the court of appeals on the issue of public concern and remand the case to the district court for further proceedings to determine the veracity of Freborg's post and, if the post is found to be false, whether the making of the post meets the constitutional actual-malice standard.

FACTS

Freborg and Johnson met in 2011, and Freborg, then a faculty member at a local university, began to take dance lessons from Johnson at a Twin Cities dance studio. Sometime in 2012, the parties began a casual sexual relationship. Freborg agrees that many of their sexual encounters were consensual. She claims, however, that not all of their interactions were consensual, including an allegation that Johnson approached her in 2015 at his home during a party "while [she] was intoxicated and alone, grabbed [her] hand and put it down his pants onto his genitals" without her consent. This allegation, and its veracity, is at the heart of her Facebook post and the litigation.

After the 2015 party, Freborg and Johnson ended their sexual relationship and continued to contact one another only in the context of dance lessons; these dance-related communications lasted until sometime in 2017. By 2020, they had not spoken to one another for several years.

On July 14, 2020, Freborg posted the following public message ¹ on her Facebook page:

After receiving feedback about her message, Freborg clarified in the post's comment thread that she was not accusing Johnson of rape ("[t]his type of coercion [rape] has nothing to do with [Johnson]"). She also edited her post 2 days later to exclude allegations of rape:

Johnson posted a response on Freborg's public Facebook thread:

Freborg posted the following response on the thread:

Over 300 people "reacted" to Freborg's posts, 182 readers commented on them, and they were publicly "shared" 16 times.

Some of the response to Freborg's posts was positive. Commenters told her that she was "brave" and a "survivor." Others seemingly reinforced her posts by explaining their own negative experiences in the Twin Cities dance community. For example, one commenter noted that Freborg was "not the only one of us who has been sexually assaulted in the dance world." Another commented that she does not "dance in certain spaces within the [Twin Cities] because of feeling diminished, preyed upon, unvalued, etc."

Other commenters, however, came to Johnson's defense. One person, for example, explained that people should "wash [their] laundry at the COURTS" and only come forward on social media "after the person [accused of sexual assault] is PROVEN guilty." Another accused Freborg of slander and criticized her unwillingness to engage with Johnson's response to her posts.

In response to the varied comments to her posts, Freborg later explained that she "did this for the safety of other women, and really to show that we as women can disrupt the status quo by calling sh*t out." On July 27, 2020, just shy of 2 weeks after the original post was published, Freborg deactivated her Facebook account, removing the post and its thread from public view.

Johnson sued Freborg for defamation. He claimed that both Freborg's original and edited posts accused Johnson of raping Freborg, thereby painting him as a rapist. Johnson argued that his reputation suffered as a result and that he lost business because of the posts. After discovery, Freborg moved for summary judgment claiming that: (1) her speech was true; (2) her speech was a matter of public concern; and (3) Johnson failed to show that her speech was made with actual malice.

To support her summary judgment motion on the issue of public concern, Freborg presented the following evidence about the global impact of the #MeToo movement. The #MeToo movement was conceived to allow women to share their experiences of sexual assault and harassment and to seek accountability from their abusers. ² The hashtag collects the posts and enables a community discussion to occur on the subject of sexual abuse. One study submitted by Freborg stated that the movement "was exceptionally effective in rapidly increasing awareness around sexual misconduct," and that researchers have opined that "social movements [like #MeToo] can rapidly affect the norms for behavior by changing perceptions of a societal problem."

Freborg also submitted information about sexual assault specifically in the dance community. She submitted a blog titled "Dance Predators" that provided suggestions on how to combat predatory behavior by dance instructors; a news story by Minnesota Public Radio about sexual assault in a local Twin Cities dance studio; and seven other social media posts from dancers, two posted the same day as Freborg's post in July, that called out the predatory behavior of three prominent international dance instructors in the global dance community.

Johnson also moved for partial summary judgment on the issues of liability and actual malice. Additionally, he moved to amend his complaint to add a claim for punitive damages. Johnson claimed that Freborg's posts involved a matter of private, not public, concern because even if the #MeToo movement qualifies as a matter of public concern, Freborg's specific posts were personal in nature. He asserted that the sources Freborg relied upon about the dance community were insufficient to show that her speech involved a matter of public concern. Johnson also argued that Freborg's posts suggested that Johnson raped her even though she openly admitted he had not, so Freborg acted with actual malice because she knowingly posted false information. He asked the district court for a jury trial only on the issue of damages.

The district court granted Freborg's motion for summary judgment. First, the court found that Freborg's statements were true. Second, the court rejected Johnson's claim that the posts were too personal in nature to be a matter of public concern, specifically relying on Freborg's use of the #MeToo hashtag and the context of the posts. The court also noted that "[t]he record is replete with other content regarding this specific problem [sexual assault] in this specific community [the Twin Cities dance community]." Finally, the district court found that—even if Freborg's speech was false—Johnson failed to show actual malice, which is required to recover presumed damages for defamatory statements that involve a matter of public concern.

The court of appeals reversed. Johnson v. Freborg , 978 N.W.2d 911 (Minn. App. 2022). The court held that a genuine issue of material fact existed about the veracity of Freborg's posts, making summary judgment inappropriate. Id. at 917–18. In a divided opinion, the court further held that Freborg's speech was a matter of private, not public concern. Id. at 923. The court therefore did not reach the issue of actual malice. Id. at 923 n.25.

One judge dissented, stating that the totality of circumstances showed that Freborg's statements relate to a matter of public concern. Id. at 924–29 (Wheelock, J., concurring in part, dissenting in part). Considering the content, form, and context of the speech, the dissent reasoned that Freborg "made the post as part of a now-global conversation about the prevalence of sexual harassment and assault and the need to shine light on once-secreted personal experiences." Id. at 926.

Freborg petitioned this court for review on one issue: whether her speech involved a matter of public concern, which we granted. She does not challenge the court of appeals’ conclusion that a genuine issue of material fact exists about the veracity of her speech and agrees that a remand to the district court is appropriate on this issue. Consequently, we do not address the veracity issue further here and limit our analysis to the claim that her speech involved a matter of public concern.

ANALYSIS

2 3 4 We review the district court's grant of...