ST. PAUL, Minn. (CN) — As the U.S. Supreme Court ponders global-scale questions about social media’s role as a 21st century public forum, Minnesota’s high court posed a different question on the limits of posting Tuesday: When does the personal become political?
The Minnesota Supreme Court spent Tuesday morning hearing a defamation case regarding a sexual assault allegation levied on Facebook in 2020 with the #MeToo hashtag, which gained traction in 2017 after assault and abuse allegations surfaced about high-profile figures like Bill Cosby and Harvey Weinstein. The case centers on whether allegations made by onetime Twin Cities dancer Kaija Freborg against her former boyfriend and dance instructor, Byron Johnson, could make Freborg liable for defamation.
Freborg and Johnson had an intimate relationship for approximately a year between 2013 and 2015. At one point during this relationship, Johnson grabbed Freborg’s hand and put it down his pants while she was intoxicated. Johnson and his attorneys acknowledged the event but have characterized it as consensual; Freborg’s counsel termed it assault. A text conversation between the two also suggested that Johnson videotaped Freborg without consent while they had sex.
In July of 2020, Freborg posted about Johnson on her Facebook page, tagging him and two other dance instructors.
“Feeling fierce with all the women dancers coming out. So here it goes…” Freborg’s post read. “I’ve been gaslighted/coerced into having sex, sexually assaulted and/or raped by the following dance instructors: Byron Johnson, @Saley Internacional, and @israel Llerena. If you have a problem with me naming you in a public format, than (sic) perhaps you shouldn’t do it.” She capped the post with three shrugging emoticons and the hashtags #metoo and #dancepredators.
Freborg later edited her post to replace the phrase “I’ve been gaslighted/coerced into having sex, sexually assaulted, and/or raped” with “I’ve experienced varying degrees of sexual assault” and add a paragraph explaining her decision as an effort to avoid triggering Black men.
Johnson sued Freborg early in 2021, asserting a common-law defamation claim and later adding a count for punitive damages. Hennepin County Judge David Piper dismissed his suit that October, finding that Freborg’s sexual assault allegation was true. He also found that the #MeToo movement and sexual abuse were a matter of public concern, making presumed damages unavailable to Johnson unless he could show that Freborg acted with actual malice – with the knowledge that her allegations were false, or reckless disregard as to whether they were false.
The Minnesota Court of Appeals reversed Piper’s ruling, finding that the truth of Freborg’s allegation was an issue of material fact that needed to be decided by a jury and that her Facebook post was largely personal, not about an issue of public concern.
“The use of the hashtags, which are designed to expose a post beyond the user’s immediate network, certainly demonstrates that Freborg sought to share her views in a manner designed to reach a broad public audience,” Judge Lucinda Jesson wrote for the appeals court. “On the other hand, the parties’ prior relationship also factors into our examination of context.” The court found that that issue, too, was better suited to a jury.
At the Minnesota Supreme Court on Tuesday, Freborg’s attorney Daniel Hintz argued that his client’s statements were only made because they were an issue of public concern.
“The power of #MeToo is that it’s sort of self-defining, that people join it by saying ‘me, too,’” he said. “It’s not just that Kaija Freborg wrote about her experience, it’s that she shared her experience with so many other women…. She makes it clear that she’s doing this because other people have come forward.”
Weinstein, Hintz noted, evaded consequences for decades because of normative silence. #MeToo, he said, was about making sexual assault a matter of public concern.
Johnson’s attorney Scott Flaherty, meanwhile, said that the post was a false “smear job” from the start, and that while it was available to a mass audience it was not of mass interest.
“She called him a predator and a rapist. Later, she admitted that he did not rape her,” he said. “If Freborg wanted to start a public discussion about the #MeToo movement, she could have done that without committing libel. She could have done that without naming Johnson.”
Flaherty also noted the timing of the post, some three years after the peak of the #MeToo hashtag, and the smaller dance community Johnson appeared to be addressing.
“If there was some threat of ‘dance predators,’ to the point of public concern, that public concern would be at its lowest in December of 2020, when we were all in our homes,” he said.
The high court’s justices broadly expressed skepticism that a hashtag alone could make the post of public interest. Chief Justice Lorie Gildea noted that Freborg largely discussed personal issues, not political ones, on her Facebook page. She wondered aloud whether and where the court could draw a bright line, or “guardrail,” for defamation claims’ applicability to Facebook posts.
Justice Natalie Hudson agreed: "If all you have to do is put a hashtag in front of something to make it of public concern, I’m not so sure that makes a good guardrail.”
Hintz argued that speaking on public issues didn’t come with prerequisites. “For anybody who’s ever spoken up about anything, there’s always the first time they speak up,” he said.
Hudson, the court’s only sitting justice of color and one of only three Black jurists in the court’s history, also interrogated the racial issues Freborg mentioned in her post edit.
“Black men were lynched in this country for generations…. For having the audacity to even look at white women. So that’s nothing to trifle with, and I wonder if that isn’t part of the totality of things we need to look at,” she said while questioning Hintz. Johnson is also Black.
Hintz acknowledged Hudson's concern, and said his client was conscientious of it. The edit of the post, he said, was meant to reflect that very issue, but didn’t diminish the truth of her allegations.
“This isn’t her just going out and saying ‘I’m going to stick it to this guy, I’m going to punish this guy,’” he said. “This is her being thoughtful about the racial component.”
To conclude the court’s questioning of Flaherty, Justice Margaret Chutich posed the possibility of a finding that Freborg’s statement was a matter of public concern. Should that happen, she asked if the appeals court should be asked to probe the question of actual malice. Flaherty said there was no reason to send the issue to the appeals court, and that it should instead be sent back to Hennepin County District Court for a jury trial.
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