Judge Denise Reilly in Minneapolis has upheld a jury verdict requiring blogger John Hoff (a/k/a “Johnny Northside”) to pay $60,000 for his blogging about Jerry Moore. This is a setback for free speech and bloggers’ rights, but I believe Hoff will eventually win this suit on appeal.
Moore worked at UMinn’s Urban Research and Outreach/Engagement Center where his job was studying home foreclosures. The dispute started when Hoff took to his Adventures of Johnny Northside blog to accuse Moore of involvement in a “high-profile fraudulent mortgage.” Moore was then immediately terminated by UMinn. Moore then sued Hoff.
The crazy thing about the story is that what Hoff wrote was true.
Truth, as you probably know, is a defense to defamation. But Moore’s cause of action wasn’t defamation; it was “tortious interference” with contract and prospective economic advantage.
Economic interference claims reside in the backwater of tort law. Most law-school classes in torts don’t bother to cover them. But the reality is that they are well-used in the courts. (I teach torts, and yes, I do teach economic interference.)
Based on claims of tortious economic interference, the Minneapolis jury awarded Moore $35,000 for lost salary and $25,000 for emotional distress. Real money, obviously.
Of course, not all jury verdicts become executable judgments. Trial judges can throw them out or reduce them. And appeals courts can overturn them. But we now know that this verdict has taken a big step forward, since the trial judge has approved of it. That means that if Hoff is going to be let off the hook, it will have to be by an appellate court.
An amicus brief [pdf] from the Minnesota Pro Chapter of the Society of Professional Journalists argued, correctly in my view, that when a claim is in essence a defamation claim, then the courts should apply the safeguards of defamation law’s defenses – even when the claim is dressed up as one for tortious interference.
The amicus argued:
Outside the context of online publications, Minnesota courts have long held that merely providing truthful information cannot provide the basis for an action for tortious interference with contract or with prospective economic advantage, and both federal and state courts have rejected attempts by plaintiffs to evade the requirements of defamation law with the claim is essentially a defamation claim. … The court should … reject the plaintiff’s attempt to recover under a theory of tortious interference when that claim is based upon the same statement as his failed claim for defamation.
Unfortunately, this argument didn’t carry the day. At least not yet.
Hoff’s lawyer has vowed to appeal, and I think Hoff’s chances on appeal are excellent.
The correct view of the law is that the First Amendment protects what Hoff did here. And I think we can count on the courts to uphold that view. Consider that the U.S. Supreme Court held just this year that the First Amendment was effective in shielding the way-out-there members of the Westboro Baptist Church, who were found liable for intentional infliction of emotional distress when they picketed funerals of fallen soldiers with hate-filled signs such as “Thank God for Dead Soldiers.” (Snyder v. Phelps, No. 09–751 [pdf])
The way I see it, if there’s a First Amendment for Fred Phelps, then there’s just got to be one for Johnny Northside.