ST. PAUL, Minn. (CN) — A divided Minnesota Supreme Court revived a dance instructor’s defamation claims against his former student, finding the student’s #MeToo-tagged Facebook post was protected speech involving a matter of public concern — but could have been made maliciously.
Justice Margaret Chutich penned the decision by the court’s 4-3 majority, which found a county court had erred when it granted Twin Cities dancer Kaija Freborg summary judgment in dance instructor Byron Johnson’s defamation suit against her.
Johnson’s claims stemmed from a 2020 Facebook post by Freborg, who claimed she had been raped — the post was later edited to say instead that she experienced “varying degrees of sexual assault” — by Johnson and two other dance instructors.
Freborg closed the post with the hashtags “#metoo” and “#dancepredators.” Her attorney Daniel Hintz, of local firm Goetz & Eckland, said those hashtags helped demonstrate the posts’ value as part public discourse.
“It’s not just that Kaija Freborg wrote about her experience, it’s that she shared her experience with so many other women,” Hintz said during arguments before the Supreme Court in February. “She makes it clear that she’s doing this because other people have come forward.”
Justice Chutich agreed. “Freborg ends her posts with the well-known #MeToo hashtag and a #DancePredators hashtag, connecting her experience directly to the dance community and the broader #MeToo movement,” she wrote.
“Her subsequent explanation of her motives in the post thread — that she made the posts ‘for the safety of other women’ and to show ‘how women can disrupt the status quo’ — suggests that her posts were an attempt to raise awareness for other women, including women in the dance community, and inspire social change.”
Freborg and Johnson had an intimate relationship lasting about a year between 2013 and 2015. At one point during the relationship, Johnson grabbed Freborg’s hand and put it down his pants while she was intoxicated. Johnson and his attorneys acknowledged the event but characterized it as consensual; Freborg’s counsel termed it assault. In comments on the post and Facebook messages, Freborg acknowledged that Johnson never raped her.
Along with Chutich, Justices Anne McKeig, Paul Thissen and Gordon Moore formed the majority that reversed the Minnesota Court of Appeals' finding that the post involved a matter of private concern — and therefore Johnson needed to prove only that accusation was false to recover damages from Freborg.
Johnson’s arguments, that the matter was private because Freborg was talking about their personal relationship and because she had no prior history of speaking out publicly against sexual assault, were unavailing, the court found, as was his argument that a lack of media coverage meant Freborg's speech didn't qualify as being in the public interest.
With that determination out of the way, the court turned to actual malice, the heightened pleading standard for defamation when discussing issues of public concern.
The Court of Appeals had not reached the issue, but Hennepin County Judge David Piper had, finding Freborg’s statement was not made with actual malice. Both Freborg and Johnson agreed that, should the court reverse the Court of Appeals’ private-concern finding, it should remand the issues of whether Freborg’s statements were false or made with actual malice to a district court.
The Supreme Court majority agreed, too, saying fact issues remained as to whether Freborg was telling the truth that Johnson had raped or sexually assaulted her, and whether those statements were made with actual malice.
Chief Justice Lorie Gildea penned a lengthy dissent, joined by Justices Barry Anderson and Natalie Hudson.
“In my view, Freborg’s personal Facebook post, on her personal Facebook page, concerning private conduct between two people with a private relationship, is not speech that the constitutional actual malice standard protects,” Gildea wrote.
“The majority concludes that Minnesotans’ reputational interests must yield here because Freborg’s speech is a matter of public concern…. I disagree. Providing redress for Minnesotans who have been accused by name of sexual assault does not conflict with the ‘central meaning of the First Amendment.’”
Goetz & Eckland attorney Natalie Cole, representing Freborg, said she was "very pleased with the majority's opinion."
"I think they got it right, especially given the totality of the circumstances," she continued. "I think they did a great job on analyzing the case." She offered no thoughts on Gildea's dissent.
Scott Flaherty, of the nationwide firm Taft Stettinius & Hollister, said while he was disappointed with the majority's decision, "everybody seems to agree that it has to go forward to trial.... Mr. Johnson is going to get his day in court one way or another."
He praised Gildea's dissent, and noted that "these First Amendment cases, I think, are often close calls."
As to next steps, Cole said "the ball's in [Johnson's] court at this point," but Freborg's legal team was "looking forward to vigorously representing our client's interests at the district court."
Flaherty said he hadn't yet had a chance to discuss the decision with Johnson, but "we are considering all our options at this point."
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