When John Hoff mans his post on Guard Tower 6 at a U.S. military base in Afghanistan, he often wonders what went wrong.
It’s not a terrorist, a vehicle-born improvised explosive device, or an operation gone bad that fills his mind.
It’s a Minnesota court battle over his blog.
“Every day I have to wonder how I find myself in this position for blogging what even the court agreed was the God’s honest truth,” Hoff said in an email.
On Aug. 22, Hennepin County District Court Judge Denise Reilly upheld a March jury verdict that required Hoff to pay plaintiff Jerry Moore $35,000 for lost wages and $25,000 for emotional distress, while also confirming that what Hoff wrote was factual. Hoff was found liable for tortious interference – a civil legal action defined as encouraging or participating in the breach of another’s contract – with Moore’s employment contract and competitive employment advantage.
Charles Davis, associate professor of media law at Missouri School of Journalism, said the verdict could set a dangerous precedent if allowed to stand. “That’s a back-alley use of tortious interference,” he said. Davis said the case represents a current trend that involves “throwing everything against the wall” to see what accusation sticks.
Hoff filed an appeal in the Minnesota Court of Appeals Oct. 27.
A new kind of adventure
Hoff’s blog “The Adventures of Johnny Northside” attracts about 300 to 500 visitors daily, and provides hyper-local coverage of community issues on the north side of Minneapolis. Hoff considers himself a grassroots journalist — writing about everything from area shootings to potholes — although he readily admits to taking sides in his stories.
“I don’t make a pretense of objectivity,” said Hoff, a north Minneapolis homeowner.
On June 21, 2009, Hoff wrote about Moore, a former community leader, who earlier that year was hired at the University of Minnesota’s Urban Research and Outreach-Engagement Center to study mortgage foreclosures.
Hoff claimed Moore was not fit for the position because of his alleged involvement with “a high-profile fraudulent mortgage” in Minneapolis. The center fired Moore the next day.
But what Hoff considered a “public service” was viewed as defamation by Moore, who sued for damages.
The complaint accused Hoff of facilitating a “defamation zone” on his blog, which does not maintain any accountability outside of the author’s own judgment. The complaint also goes into great detail to explain why, allegedly, Hoff is not a “legitimate reporter,” because he is involved in his stories.
In March, the jury found that although Hoff’s statement was not false, he was liable for tortiously interfering with Moore’s employment contract, and must pay $60,000 to Moore for getting him fired.
The decision drew the ire of many in the journalism and media law communities, including Eugene Volokh, a University of California-Los Angeles School of Law professor who also runs a blog called “The Volokh Conspiracy,” a popular site that receives more than 100,000 hits a week.
Volokh noted that to win a tortious interference claim, a plaintiff must prove the defendant either knew that a particular result was virtually assured, or had a clear purpose of producing such a result.
“Even if Hoff was trying to get Moore fired, people are constitutionally entitled to speak the truth about others, even with such a goal,” he said.
Point of contention
At the heart of the disputed verdict is whether the jury depended on the statement it ruled was truthful, or if other evidence was used to come to its conclusion.
Paul Godfread, Hoff’s pro bono attorney who took the case two weeks before it went to trial, said the verdict was unclear. “It doesn’t seem to be adequate First Amendment protection if the jury doesn’t have to point to exactly what they relied on,” Godfread said. “Our argument is that it’s clear error if the true statement was the basis for the verdict.”
Moore’s attorney, Jill Clark, is convinced “the statement that was at issue in the defamation claim was not the basis for the conviction,” and pointed to Judge Reilly’s reasons for upholding the verdict. In response to Hoff’s motion for judgment as a matter of law, or in the alternative for a new trial, Reilly wrote that the plaintiff alleged Hoff contacted members of the University of Minnesota, made disparaging remarks about Moore, and encouraged others to do the same in an effort to get him fired.
Reilly also spent two pages of the eight-page decision noting how district courts must weigh the evidence in light “most favorable” to the jury verdict, which she said was reasonable. “It is not the court’s function to determine on what theory the jury arrived at its verdict,” she wrote.
Clark is quick to point out that the jury did not find Hoff’s statement to be necessarily true — only that it wasn’t proven false. But Godfread said he believes clarification is in order. He said the heart of his appeal will focus on the ambiguity of the jury’s decision — did they use the allegedly defamatory statement or not?
In the wake of the surprising verdict, Hoff’s case was big news in the journalism community. Clark, who calls herself a fan of the First Amendment, said she found it “humorous” how the case was “bandied about in the blogosphere” as an inhibition to free speech.
The Minnesota Professional Chapter of the Society of Professional Journalists filed an amicus curiae brief in support of Hoff’s request that the trial judge overturn the verdict, asserting that “the court should apply the same rules to publicly accessible online statements as it would to a print version of the same material.”
Davis, the media law professor at Missouri School of Journalism, agreed. “There is no way that any sort of tortious interference would be supported in the [mainstream] media world,” he said. “What’s changed is that this was posted on a blog. It’s still true.”
The SPJ filing said courts do not allow plaintiffs to evade the requirements of libel law by changing the legal label to present their claims.
The amicus brief cited the 1988 Supreme Court decision in Hustler Magazine v. Falwell, which ruled that public figures may not recover for intentional infliction of emotional distress without demonstrating that the material contained a false statement of fact that was made with actual malice. The brief also cited a 2009 U.S. Court of Appeals (9th Cir.) decision, Mt. Hood Polaris v. Martino, in which that court said, “When a claim of tortious interference with business relationships is brought as a result of constitutionally-protected speech, the claim is subject to the same First Amendment requirements that govern actions for defamation.”
UCLA’s Volokh cited several previous cases that would seem to back Hoff. Two courts in the 1980s established precedents in favor of protecting speech against an interference with business relations claims in situations where a libel claim would also be protected. Volokh said the Minnesota “result seems unconstitutional and quite wrong,” unless other key information were to somehow surface.
Clark insists that the decision had nothing to do with the defamation claim. “People who say that know nothing about the trial,” she said.
Clark filed a memorandum to strike the amicus brief from the record, but SPJ defended its right to involvement due to the “confusion, consternation and commentary in Minneapolis and around the country” generated by the verdict.
From his post in Afghanistan, Hoff shares in the confusion as he wonders which subjects may be taboo for his blog.
“Has [the verdict] chilled me? You better believe it,” he said in an email. “People who read my blog may think the tone hasn’t changed . . . but what has changed is what topics I dare to write about while this stuff is in the courts.”
John Borger, the SPJ amicus brief’s author, said based on comments he’s seen and heard about the decision, it could lead to other self-censorship in the online blogging community.
“To the extent that the verdict rests upon the same statement that was the basis for the defamation claim, or is perceived to rest on that basis, the decision could discourage bloggers or any online commentator from making statements that would be protected under the First Amendment,” he said.
Davis, who has taught media law at Missouri for 12 years, said the case “tees up as a really nice constitutional issue.”
“These sorts of issues have to be addressed in order for there to be equivalency between (mainstream) media and online media,” he said. “Rather than theoretically argue these things, you need courts to say this is the way it is. This case should help close the gap between First Amendment philosophy — what we believe it protects — and what the courts say it actually does protect.”
In the meantime, Hoff says he remains committed to the truth.
“This is what we serve,” he said. “Never forget that.”