STATE OF MINNESOTA                                                                              DISTRICT COURT

 

COUNTY OF HENNEPIN                                                          FOURTH JUDICIAL DISTRICT

                                                                                                       

______________________________________________________________________________

                                                                                               

                                                                                                Court File No.  27-CV-08-9585

Peter Freeman,                                                                        Case Type:  Civil / Other

                                                                                                (Judge Marilyn Rosenbaum)

and

 

James D’Angelo,

                                                                                        

                   Plaintiffs,                                                                   

                                                                                    DEFENDANT’S POST-TRIAL BRIEF

v.        

                                                                                                                                                           

Janette J. Swift,

 

       

                   Defendant.  

______________________________________________________________________________

 

INTRODUCTION

This matter came on for trial before the Honorable Marilyn Brown Rosenbaum, Hennepin County District Court, on Wednesday December 29, 2010.  The trial lasted one day.  Plaintiffs James D’Angelo (“D’Angelo) and Peter Freeman (“Freeman”) (collectively, “Plaintiffs”) appeared along with their attorney of record, Victor Lund.  The defendant, Janette J. Swift (“Swift” or “Defendant”) was not present for trial, but she was represented by counsel, Andrew Jackola.[1]

            In their Complaint, Plaintiffs asserted three counts against Swift:  (1) and (2) D’Angelo and Freeman each stated separate counts seeking damages for defamation; and (3) Plaintiffs asserted a collective count seeking equitable relief to enjoin Swift from engaging in future acts of defamation.  Prior to trial, Plaintiffs voluntarily withdrew their claims for damages (counts one and two), electing to proceed only on their joint claim for injunctive relief.  At the close of trial, the Court requested that the parties submit detailed post-trial briefing on the surviving claim.  Defendant submits this memorandum pursuant to the Court’s request.

BACKGROUND

            The following factual representations have been taken from the parties’ pleadings, court submissions and testimony adduced at trial.[2]

Nexus is a non-profit corporation organized and registered under the laws of the State of Minnesota.  (Complaint, ¶ I).  D’Angelo was the Chief Executive Officer (“CEO”) for Nexus from 1997 through 2007 and portions of 2008.  (Complaint, ¶ I) (D’Angelo trial testimony).  At all times relevant to this proceeding, Freeman has been a faculty member at the University of St. Thomas and has served on the Nexus Board of Directors.  (Complaint, ¶ I). 

Nexus has operated a residential treatment center for juvenile sex offenders in the City of Onamia since the mid-1990’s.  (Complaint, ¶ IV).  Throughout 2007 and into 2008, Nexus planned, developed and constructed a new treatment center for juvenile sex offenders approximately two miles from its prior location, in Onamia.  (Id.) (D’Angelo trial testimony) (Freeman trial testimony).  The site for the new treatment center was originally within the confines of Bradbury Township, a township adjacent to the City of Onamia.  (D’Angelo trial testimony).  Before construction began on the new facility, the City of Onamia annexed from Bradbury Township the plot of land upon which the new facility was built.  (Id.) 

The development of the new Nexus facility became a matter of public debate in 2007.  (Id.)  Nexus was required to follow legal procedures with the City of Onamia and the County of Mille Lacs regarding permits, zoning and other related matters.  (Complaint, ¶ IV).  Throughout 2007 and 2008, the Onamia City Council and the Mille Lacs Board of County Commissioners hosted a number of public hearings to address the legal issues and other topics relating to the proposal for the new Nexus facility.  (Id.)  As Nexus CEO, D’Angelo was present for many of the public hearings and otherwise took a position at the forefront of the public debate.  (D’Angelo trial testimony).  He spoke at public hearings, answered questions for concerned citizens, and otherwise lobbied for the new facility.  (Id.)  By D’Angelo’s estimate, roughly ten percent (10%) of citizens in and around Onamia opposed the new Nexus facility.  (Id.)  The controversy drew media attention around Mille Lacs County (including from the Mille Lacs Messenger, the County’s newspaper of record) and, according to D’Angelo, attracted interest from those “not directly impacted by the debate.”  (Id.)

Swift appeared at many, if not all, of the public hearings surrounding the controversy.  (Complaint, ¶ V).  She frequently expressed public opinions in opposition to the plans of Nexus and the City of Onamia, both at the city and county public hearings and through other media, including her web site, the Mille Lacs News (www.millelacsnews.com) and her web-log (“blog”) the Bradbury Buzzz (sic) (http://bradburybuzzz.blogspot.com).  (Id.)  Swift maintains both Internet sites, publishing news articles and commentary under the pseudonym “Hannabelle”.  (Id. at ¶¶ 5 – 6).

Swift also lobbied against the proposed Nexus facility directly to D’Angelo and Freeman, as members of the Nexus Board of Directors.  (D’Angelo trial testimony) (Freeman trial testimony).  Swift expressed her opinions to D’Angelo over the telephone and in person.  (D’Angelo trial testimony).  Swift also contacted Freeman on at least one occasion via the telephone.  (Freeman trial testimony).  On that occasion, Freeman informed Swift that he would not speak with her about the matter, and he ended the phone call abruptly by hanging up before Swift could finish stating her position.  (Id.)  The phone call, according to Freeman, lasted less than one minute.  (Id.)

A.     The “Freeman Statements”

Following her abbreviated conversation with Freeman, Swift sent electronic mail (“e-mail”) correspondence to Barbara Shank, Dean of the University of St. Thomas School of Social Work, on or around October 1, 2007.  (Complaint, ¶ VII) (Trial Exhibit 106).   Dean Shank was Freeman’s supervisor at the school.  (Id.)  In her correspondence, Swift wrote, “I am writing to you concerning one of your faculty members who is engaging in unethical, immoral, and possibly even illegal behavior – which reflects directly upon your social work department at St. Thomas University.”  (Trial Exhibit 106).

In the same e-mail correspondence, Swift continued, “Your faculty member – Peter Freeman – is making decisions down in St. Paul which are greatly impacting on [sic] the lives of many people in Bradbury Township.”  (Id.)  To illustrate her point, Swift analogized that Freeman is “like the fellow who – in between sips of coffee – pushes the button that launches the missile which destroys the village, then holds up his hands, saying, ‘See?  No blood on MY hands.’”  (Id.) (Emphasis in original).  On October 16, 2007, Swift again wrote to Dean Shank as well as other of Freeman’s colleagues.  The October 16, 2007, correspondence recited the contents of the October 1, 2007, e-mail to Dean Shank.  (Id.)

On January 22, 2010, Swift (writing as “Hannabelle”) posted a news article on her Mille Lacs News web site, titled “No Blood on My Hands – Peter D. Freeman”.  (Trial Exhibit 107).[3]  In the article, Swift recounts the allegations contained within the current lawsuit and cites directly to the “no blood on my hands” statement for which she is being sued.  (Id.)  She explains, in the article, that her statement was a metaphorical conveyance of the message:  “Peter D. Freeman does not live in our community.  He is not our neighbor.  He does not know us or care about us.  Yet he had the power to destroy the integrity of our peaceful neighborhood with his decision to put sex offenders next to day-care.”  (Id.) (Quotation taken directly from the January 22, 2010 article).  Swift concludes, “Peter [Freeman] should have been embarrassed – for his own unprofessional bad judgment.”  (Id.)

At trial, Freeman testified that individuals have a “right to their opinions”.  (Freeman Trial Testimony).  However, Freeman (a professional social worker and amateur linguist) declared that Swift’s commentary about him is not “opinion” – it is a “judgment”.  “Anyone can have an opinion,” explained Freeman.  “Only professionals can make judgments.”  (Id.)  Accordingly, it is Freeman’s opinion (not judgment) that Swift made a judgment about Freeman’s professional judgment by judging that he exercised “bad judgment.”  In other words, Swift exercised poor judgment by making a judgment about Freeman’s judgment, when she was only qualified to offer an opinion.  Since Swift is not a professional, and because she made a judgment rather than offering an opinion, Swift offended Freeman and the First Amendment, which subjects her to a judgment for perpetrating defamation. 

At trial, Freeman could not identify any person who took as serious the statements made by Swift nor could he identify any person whose impression of Freeman was lowered as a result of Swift’s statements.  (Id.)  Freeman could not identify any material or pecuniary harm suffered as a result of the statements.  (Id.)  Freeman testified that he was embarrassed by the statements and offered only hypothetical situations in which someone’s impression of him might be lowered.  (Id.)  Freeman further testified that he knew of no instances since October 16, 2007 (a period of three years, two months and 13 days as of the date of trial) when Swift sent e-mail correspondence to him or his colleagues concerning Freeman, his involvement with Nexus or the Nexus treatment facility in Onamia.  (Id.)

Although Swift was not present at trial and did not testify, Plaintiffs introduced as evidence Defendant’s Answers to Plaintiffs’ Interrogatories.  (Trial Exhibit 108).  The relevant interrogatories and answers (in italics) read:

Interrogatory No. 1

Regarding the statement, “I am writing to you [Dean Shank] concerning one of your faculty members [Peter Freeman] who is engaging in unethical, immoral, and possibly even illegal behavior….,” state the following:

 

a.       Do you maintain that it is true that Peter Freeman is engaging in unethical, immoral and illegal behavior?

 

Yes.

 

b.      What factual basis did you have for making the statement?

 

That it is ‘unethical’ to build a sex offender treatment facility in a residential neighborhood was verified by Julie Stevermer, the Executive Director of the Leo A. Hoffman Center in St. Peter, MN.  That it is ‘unethical’ was substantiated by Royce Wempen, the Business Manager of the Leo A. Hoffman Center, a sex offender facility comparable to the Mille Lacs Academy.

 

That it is ‘immoral’ to build a sex offender treatment facility next to daycare, neighborhood children, elderly widows, and other vulnerable adults, especially when vigorously objected, is a matter of opinion.  Statements which cannot be proven as true or false are not defamation.

 

Although I said ‘possibly illegal”, at the time I wrote the e-mail it was in fact illegal to build a sex offender facility on the Grosslein property [where the facility was built].  I worked closely with Attorney Thomas E. Casey, a specialist in Environmental Law and Land Use.  In order to circumvent the law, the Onamia City Council later changed city ordinances and misclassified both the property as well as the institution.

 

It is a fact that prior to sending the e-mail, FBI Agent Ryan Williams, who had been assigned to investigate to us that he had uncovered “possible illegal activity”.  His investigation reached beyond the spot zoning, land use, procedural, open meeting violations, etc.

 

c.       What other research or other efforts, if any, did you make to verify the truth of the statement before e-mailing it?

 

I began researching in April, 2007 and have studied most if not all aspects of anything pertinent to the conspiracy between Nexus and the Onamia City Council, with special emphasis on how to stop them.  All of my research prior to sending the e-mail indicated that it was unethical and illegal to build the sex offender institution on the Grosslein property, and assisted me in the formation of my opinion that engaging to do so is immoral.

 

d.      What witnesses can provide testimony in support of the truth of the statement, and what will any such witness say?

 

…Peter Freeman, Jim D’Angelo, J.J. Swift…

 

e.       What law or other standard do you claim Freeman violated, how did he violate it, and when did he violate it?

 

At the time of the e-mail, it was my understanding that building a sex offender facility in that location was illegal according to Minnesota Statutes 462.357 and 561.01, as well as Onamia city ordinance Section 20 SUBD. 14 and Section 21 SUBD. 10.  As a member of the Nexus Board of Directors, it is my opinion that Peter Freeman was responsible in whole or in part.  All Freeman had to do was tell the city council that sex offender institutions should not be in residential neighborhoods, and the city council would have found an appropriate location.

 

Interrogatory No. 2

Regarding the statement, “He [Freeman] is like the fellow who – in between sips of coffee – pushes the button that launches the missile which destroys the village, then holds up his hands, saying, ‘See?  No blood on MY hands.’,” state the following:

 

a.       Do you maintain that it is true that the conduct of Freeman is comparable to destroying a village by launching a missile?

 

Yes.  That is my opinion.  It is a good analogy.

 

b.      What factual basis did you have for making the statement?

 

The statement is a metaphorical analogy and therefore not defamation.  It is also an opinion, protected by the 1st Amendment of the U.S. Constitution and therefore is not libelous.  The statement cannot be proven either true or false.

 

c.       What other research or other efforts, if any, did you make to verify the truth of the statement before e-mailing it?

 

Since April 2007, I have lived the truth of this metaphor.  As you are well aware, my efforts at finding and exposing the truth were monumental in all of my research and activities.

 

d.      What witnesses can provide testimony in support of the truth of the statement, and what will any such witness say?

 

…Any witnesses could only offer their own opinions about my opinion.  One witness might see it as true while another may disagree.  Neither could be proven right.  Neither could be proven wrong….

 

B.     The “D’Angelo Statements”

At trial, D’Angelo described himself as being at the “forefront” of the treatment center controversy, by virtue of his position as Nexus CEO.  (D’Angelo Trial Testimony).  D’Angelo attended city and county public hearings, answered questions for concerned citizens, lobbied on behalf of the proposed facility within the Onamia area, and was quoted in news accounts about the controversy.  (Id.)  D’Angelo, as Nexus CEO, did not hire a public relations firm to address public concern about the construction of the facility, nor did he delegate that responsibility to a “marketing” department within the Nexus enterprise.  (Id.)  Accordingly, D’Angelo, himself, became something of a “lightning rod”, attracting attention from supporters, detractors and media, concerning the sex offender facility.  (Id.)

In his Complaint, D’Angelo alleged that Swfit made 19 defamatory comments about him.  (Complaint, ¶ X).  At trial, D’Angelo abandoned his claims that some of these comments are defamatory, and further elaborated as to whether the statements attacked him on a “personal” or “professional” level.  The following table sets forth D’Angelo’s testimony about the subject statements:

Statement Uttered:

Defamatory?

Personally Defamatory?

Professionally Defamatory?

“Egocentric”

No

 

 

“Arrogant”

No

 

 

“Snake”

Yes

X

 

“Narcissistic”

No

 

 

“Cold blooded”

Yes

X

 

“An insensitive numbskull”

No

 

 

“Without a clue”

No

 

 

“Missing a heart”

Yes

X

 

“Liar”

Yes

X

X

“Lacking character”

No

 

 

“D’Angelo may have mismanaged his finances, is deeply in debt”

Yes

X

 

“Nexus may have fired him”

Yes

 

X

“he may be under investigation by the FBI”

Yes

“I can’t say”

“I can’t say”

“He is running a crooked company”

Yes

 

X

“His wife may have left him”

Yes

X

 

“We like to think he’s kinky”

Yes

X

 

“He may be on his way to jail for racketeering”

Yes

“I can’t say”

“I can’t say”

“He is a silver-tongued devil who lies about tax abatement”

Yes

X

X

“He is a predator  who preys on the elderly and infirmed”

Yes

“I can’t say”

“I can’t say”

 

(D’Angelo Trial Testimony).

At trial, D’Angelo could not identify any person who took as serious the statements made by Swift, nor could he identify any person whose impression of D’Angelo was lowered as a result of Swift’s statements.  (Id.)  D’Angelo could not identify any material or pecuniary harm suffered as a result of the statements.  (Id.)  D’Angelo testified that he was embarrassed by the statements and offered only hypothetical situations in which someone’s impression of him might be lowered.  (Id.)  Freeman testified that his opinion of D’Angelo did not change as a result of Swift’s comments about D’Angelo.  (Freeman Trial Testimony).

Finally, D’Angelo and Plaintiffs’ counsel acknowledged at trial that the statements about D’Angelo alleged as defamatory had been removed from Swift’s web sites prior to trial and had not been re-posted.

 

LEGAL ARGUMENT

Plaintiffs contend that Swift’s comments about them constitute defamation and that they are entitled to injunctive relief to restrain Swift against making defamatory comments in the future.  Accordingly, Plaintiffs bear the burden of proving that: (1) Swift’s individual comments about the respective plaintiffs are defamatory; and (2) that injunctive relief is the appropriate remedy.  Plaintiffs only seek injunctive relief because, prior to trial, they withdrew their claims for monetary damages.         

       I.            Legal Standards For Defamation

To establish a claim for defamation, the plaintiff must prove “that a statement was false, that it was communicated to someone besides the plaintiff, and that it tended to harm the plaintiff's reputation and to lower him in the estimation of the community.”  Longbehn v. Schoenrock, 727 N.W.2d 153, 159-60 (Minn. Ct. App. 2007), citing Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 25 n. 3 (Minn. 1996).

a.      Public Figures

In the seminal case New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964), the United States Supreme Court held that a state court could not award damages to a public official for defamatory falsehoods relating to official conduct, unless the official proves “actual malice” with “convincing clarity”.  Actual malice is shown only by proof of defendant's actual knowledge of falsity or reckless disregard of the truth or falsity of her publication.  New York Times, 376 U.S. at 279-80, 285-86, 84 S.Ct. at 725-26, 728-29.  Malice is not proved merely by the fact that the statement has been made or by the fact that the statement is later proven to be false.  Bol v. Cole, 561 N.W.2d 143, 150 (Minn. 1997). 

In a series of subsequent decisions, the Supreme Court extended the “actual malice” standard by applying it to “public figures”.  See Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, (1967); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997 (1974).  The Gertz Court delineated three categories of public figures.  The first group includes the rare “involuntary” public figure. The next category essentially contained celebrities and prominent social figures who are deemed public figures for “all purposes.”  418 U.S. at 345, 94 S.Ct. at 3009.

The final group consists of limited purpose public figures who attain their position by virtue of their deliberate or inevitable involvement in a public controversy and their ability to influence its outcome.  Id.  To determine if a plaintiff is a limited-purpose public figure, courts consider whether: (1) a public controversy existed; (2) the plaintiff assumed a purposeful or prominent role in that controversy; and (3) the allegedly defamatory statement was related to the public controversy.  Hunter v. Hartman, 545 N.W.2d 699, 704 (Minn. Ct. App. 1996).

b.      Defamation Per Se

In some circumstances, statements can be deemed defamatory without proof of actual damages, such as where a speaker falsely accuses a person of a crime, of having a loathsome disease, or of unchastity, or if they refer to improper or incompetent conduct involving a person's business, trade, or profession.  Longbehn, 727 N.W.2d at 158.  Such statements may be considered “defamatory per se”.  Id.  “[D]efamatory per se defines a rule of damages, not of defamatory meaning.”  Schlieman v. Gannett Minn. Broad., Inc., 637 N.W.2d 297, 307 (Minn. Ct. App. 2001).  Accordingly, while damages may be presumed, a public figure must still satisfy the actual malice standard of proof in order to prove defamation.   See generally, Steele v. Tell, C2-94-981, 1994 WL 593924 (Minn. Ct. App. Nov. 1, 1994)

 Statements considered defamatory per se are “actionable without proof of special damage.” Anderson v. Kammeier, 262 N.W.2d 366, 372 (Minn. 1977).  “[G]eneral damages are presumed, and thus a plaintiff may recover without any proof that the defamatory publication caused him or her actual harm.”  Longbehn, 727 N.W.2d at 160, citing Becker v. Alloy Hardfacing & Eng'g Co., 401 N.W.2d 655, 661 (Minn. 1987).  “Special harm ... is the loss of something having economic or pecuniary value.” Restatement (Second) of Torts § 575 cmt. b (1977).  It may be “a loss of [a] presently existing advantage, as a discharge from employment,” or “a failure to realize a reasonable expectation of gain, as a denial of employment.”  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 258-59 (Minn. 1980) (quotation omitted).  General damages are recoverable for injury to the plaintiff's “reputation, his wounded feelings and humiliation, ... as well as estimated future damages of the same kind.” Richie, 544 N.W.2d at 27 (quotation omitted).

c.       Fact v. Opinion

In order to meet his burden of proof in a defamation case, a plaintiff must show “that the statement involved is both false and defamatory.”  Jadwin v. Minneapolis Star & Tribune Co., 390 N.W.2d 437, 440 (Minn. Ct. App. 1986) (“Jadwin II”); citing Gertz, 418 U.S. at 346-47, 94 S.Ct. at 3010.  Quoting Gertz, the Jadwin II Court stated, “[w]e initially acknowledge that only false and defamatory statements of fact are actionable; there is no such thing as a false idea.  Expressions of opinion, rhetoric, and figurative language are generally not actionable if, in context, the audience would understand the statement is not a representation of fact.”  390 N.W.2d at 441 (internal quotations and citations omitted).

“Only statements that present or imply the existence of fact that can be proven true or false are actionable under state defamation law.”  Schlieman v. Gannett Minn. Broad., Inc., 637 N.W.2d 297, 308 (Minn. Ct. App. 2001) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-20, 110 S.Ct. 2695, 2705-06 (1990)).  “Thus, if it is plain that the speaker is expressing a ‘subjective view, an interpretation, a theory, conjecture, or surmise,’ rather than claiming to be in possession of ‘objectively verifiable facts,’ the statement is not actionable.”  Id. (quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir.1993)).  “Speech that is properly categorized as parody, loosely figurative, or rhetorical is also constitutionally protected to ensure that public debate will not suffer for lack of imaginative expression and because this type of speech cannot be reasonably interpreted as stating actual facts.”  Marchant Inv. & Mgmt. Co., Inc. v. St. Anthony W. Neighborhood Org., Inc., 694 N.W.2d 92, 96 (Minn. Ct. App. 2005) (emphasis added).

Furthermore, the plaintiff cannot succeed in “meeting the burden of proving falsity by showing only that the statement is not literally true in every detail.  If the statement is true in substance, inaccuracies of expression or detail are immaterial.”  Jadwin II, 390 N.W.2d at 441 (citing Stuempges v. Parke Davis, 297 N.W.2d 252, 255-56 (Minn. 1980)).  “A statement is substantially accurate if its gist or sting is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced.”  Jadwin II, 390 N.W.2d at 441, quoting Williams v. WCAU-TV, 555 F.Supp. 198, 202 (E.D. Pa. 1983).

    II.                        Legal Standard for Injunctive Relief

The purpose of a defamation action is to compensate a private citizen for wrongful injury to his or her reputation.   Richie, 544 N.W.2d at 28; see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 348-49, 94 S.Ct. 2997, 3011 (1974) (stating that states have a legitimate interest in compensating private individuals for harm to reputation).  In this case, however, Plaintiffs do not seek compensation.  Rather, they ask the Court to enjoin Swift from making future comments about them that could be defamatory. 

Plaintiffs’ prayer for injunctive relief fails, inter alia, because it defies a basic tenet of equitable relief.  “A party seeking an injunction must establish that there is no adequate legal remedy and that an injunction is necessary to prevent great and irreparable injury.”   Jackel v. Brower, 668 N.W.2d 685, 688 (Minn. Ct. App. 2003), review denied, citing Cherne Indus., Inc., v. Grounds & Assocs., Inc., 278 N.W.2d 81, 92 (Minn. 1979) (internal quotation omitted).  See also Northwest Publications, Inc. v. Anderson, 259 N.W.2d 254, 257 (Minn. 1977) (“[t]he district court should consider all alternatives to the exceptional remedy of a prior restraint”).  Here, Plaintiffs possessed yet waived an otherwise valid legal remedy.  Thus, even if the Court finds that Swift defamed Freeman and D’Angelo (which it should not), Plaintiffs have not proven that injunctive relief is their only and appropriate remedy. 

Injunctive relief, in this case, is too broad of a remedial measure and defies 80 years of precedent disfavoring and invalidating “prior restraints” of speech.  See e.g., Near v. Minnesota, Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625 (1931).  Furthermore, it appears wholly unnecessary.  With respect to Freeman’s claim, Swift has demonstrated no indication that she would again contact Freeman’s colleagues or associates.  Her last communication to them transpired more than three years ago.  With respect to D’Angelo’s claim, Swift has removed the offending comments from her web sites and has shown no predilection toward re-posting the same.  Indeed, the controversy that sparked Swift’s commentary has run its course.  The facility was built (despite Swift’s and others’ protests) and it has been in operation for over two years.  Moreover, Swift has taken up residence in Missouri and no longer resides near the controversial facility.  Thus, Swift has no ascertainable reason to continue her campaign.  Accordingly, enjoining Swift’s future speech would be an unnecessary prior restraint that would run afoul of the First Amendment. 

As indicated in Plaintiffs’ post-trial brief, injunctions against defamatory speech are not without some precedent.  However, courts must be mindful of the general policy disfavoring prior restraints and may only exercise this remedy in the most extreme of circumstances.  Even then, injunctions against speech must be so narrowly tailored as to leave no room for the restraint of otherwise free speech.  See Griffis v. Luban, CX-01-1350, 2002 WL 338139 (Minn. Ct. App. Mar. 5, 2002) (invalidating injunction which preempts use of the word “liar”, because “the injunction prohibits [defendant] from calling [plaintiff] “a liar” even if [plaintiff] were to say that ‘John F. Kennedy was never President of the United States.’”).  Id. at *6.

In Pittsburgh Press Co. v. Comm'n on Human Relations, 413 U.S. 376, 390, 93 S.Ct. 2553, 2561 (1973)., the United States Supreme Court upheld an order that prohibited a newspaper from listing help-wanted advertisements in gender-specific columns, e.g., “Male Help Wanted.” 413 U.S. at 390, 93 S.Ct. at 2561. In doing so, the Court indicated there was an adequate reason to bar clearly discriminatory advertising, when the order was (1) based on a continuing course of conduct so that the court did not have to speculate as to its effects, (2) not in effect until after the court determined the character of the speech, and (3) clear and narrowly drawn to enjoin no more speech than necessary.  Id. The Minnesota Supreme Court adopted a similar standard in Advanced Training Sys., Inc. v. Caswell Equip. Co., 352 N.W.2d 1, 11 (Minn. 1984). 

 III.            Defamation Standard As It Applies to Freeman

Freeman’s suit against Swift is premised upon two e-mails Swift sent to Freeman’s supervisor and colleagues at the University of St. Thomas and the College of St. Catherine.  In the e-mails, Swift referred to Freeman’s involvement in the Nexus controversy and his role as a decision-maker in the process that brought a juvenile sex offender treatment center to the Onamia area.  Swift called upon Freeman’s involvement in that controversy as being “unethical, immoral, and possibly even illegal…”.  She also likened his behavior to that of a “fellow who – in between sips of coffee – pushes the button that launches the missile which destroys the village, then holds up his hands, saying, ‘See?  No blood on MY hands.” 

At trial, Freeman also referred to an article written by Swift which recounts the allegedly defamatory statements and explains her metaphor.  However, Freeman did not address this article in his Complaint, nor did he amend his Complaint to assert this article as defamatory.  Accordingly, the Court need not rule on the article because Freeman has not asserted a cause of action for which this article could be considered defamatory.

a.      Public or Private Figure

Freeman’s status as a private or a public figure is a close question, with case law to support both conclusions.  In Metge v. Cent. Neighborhood Improvement Ass'n, 649 N.W.2d 488 (Minn. Ct. App. 2002), the former executive director of a neighborhood association brought action against an association board member, alleging defamation based on the board member's letter and a message concerning the former director's performance of her job duties.  In determining that the former director was a limited-purpose public figure, the court relied on “newspaper articles about [the association’s] activities, especially those related to [a neighborhood revitalization program], and its award of public and private funds to neighborhood projects.”  Metge, 649 N.W.2d at 496.  The court also considered the fact that the neighborhood association for which the plaintiff was a director, is “a private, non-profit corporation, [that] is imbued with a public purpose, [and] is substantially supported with public funds, and its activities are routinely reported in the media.”  Id.

Conversely, in Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675 (1979), the Supreme Court reversed trial and appellate court findings that a professor was a public figure. Hutchinson involved a defamation action which arose from a “Golden Fleece of the Month Award” given by Wisconsin Senator Proxmire for wasteful government spending.  The lower courts found Hutchinson, a professor and director of a research project, a public figure because he successfully applied for federal funds, reported to local newspapers of the grants and had access to “some newspapers” and the “wire services” in responding to the award.  Hutchinson, 443 U.S. at 134, 99 S.Ct. at 2687.  The Supreme Court found none of these reasons persuasive because his access to the media came after the alleged libel and Hutchinson neither “thrust himself or his views into public controversy to influence others” nor “assumed any role of public prominence in the broad question of concern about expenditures.” Id.

In the instant matter, Freeman served as a member of the Nexus Board of Directors.  Nexus is a not-for-profit corporation that receives public funds and was at the center of a controversy that brought a juvenile sex offender treatment center to the Onamia area.  The controversy was the subject of numerous public meetings, was reported on in the press, and drew supporters and detractors from both sides of the issue.  As in Metge, Nexus is “imbued with a public purpose” – namely, the housing and treatment of juvenile offenders adjudicated to have been involved in sexual offenses.  As a member of the Nexus Board, Freeman was involved in the decision to bring the treatment center to the Onamia area, which sparked the controversy.  Although there is no evidence he accessed the media, his prominence with Nexus surely provided him with such access as a result of his role and the controversy.  For these reasons, Freeman should be considered a limited-purpose public figure.

b.      Freeman’s Actions Are “Unethical” and “Immoral”

As stated by the Jadwin II court, “only false and defamatory statements of fact are actionable; there is no such thing as a false idea.  Expressions of opinion, rhetoric, and figurative language are generally not actionable if, in context, the audience would understand the statement is not a representation of fact.”  Jadwin II, 390 N.W.2d at 441 (internal quotations and citations omitted).

A case similar to this matter arose in the State of New York.  In Hollander v. Cayton, a physician and department chair at a New York City hospital brought suit against the president of the hospital, alleging defamation based on the president’s comments about the physician during a hospital staff meeting.  Hollander v. Cayton, 145 A.D.2d 605, 605-06, 536 N.Y.S.2d 790, 791-92 (N.Y. App. Div. 1988).  The plaintiff-physician alleged that the defendant-president stated that the plaintiff was “immoral”, “unethical” and had “mismanaged cases”.  145 A.D.2d at 606, 536 N.Y.S.2d at 791 (emphasis added).  The trial court granted the defendant-president’s motion to dismiss the complaint, and appeal was taken. 

The New York Appellate Division affirmed, finding that “the statements complained of constituted non-actionable opinion.”  145 A.D.2d at 606, 536 N.Y.S.2d at 792.  Citing Gertz and a host of First Amendment precedent from the State of New York, the appellate court found “that the statements by the defendant were indefinite, ambiguous and incapable of being objectively characterized as true or false.”  Id. (Emphasis added).  The court also found that the comments could only be construed as opinion under the circumstances.  Id.

The same is true here.  Swift utilized identical language as was deemed non-defamatory in Hollander, referring to Freeman’s conduct as “unethical” and “immoral”.  These subjective terms are “indefinite, ambiguous and incapable of being objectively characterized as true or false.”  Although Hollander is non-binding authority from a foreign jurisdiction, the analysis is sound and it is premised upon an interpretation of United States Supreme Court authority. 

Moreover, the circumstances in which the Hollander statements arose are seemingly more egregious than in the current context.  In Hollander, the non-defamatory statements were uttered by the president of a hospital, to the plaintiff’s colleagues and hospital employees over whom the speaker had authority.  Here, Swift used the same words as the hospital president, but she did not have any authority or influence over Freeman’s colleagues who read the statement.  Accordingly, Swift’s comments could only be seen as opinion from someone who had no credibility with the audience.  Therefore, the words are not defamatory.

c.       Freeman Engaged in “Possibly Even Illegal Behavior”

Statements are defamatory per se if they falsely accuse a person of a crime, of having a loathsome disease, or of unchastity, or if they refer to improper or incompetent conduct involving a person's business, trade, or profession.  Anderson, 262 N.W.2d at 372.  However, words are not defamatory per se merely because they invoke such general descriptors as “criminal” or “illegal” or “crime”.    [T]he test is not whether the speaker intended to make an accusation, but whether a reasonable person under similar circumstances would understand the statement as making an accusation or imputing criminal or serious sexual misconduct to another.”  Longbehn, 727 N.W.2d at 159 (citing Anderson, 262 N.W.2d at 372)(“the test [is] whether a reasonable person would believe the statement to be defamatory”).

At trial, Freeman testified that his colleagues did not literally believe that he had committed a crime.  And for good reason:  Swift did not accuse Freeman of committing a particular crime, nor did she aver that he actually had committed a crime.  She referred to his conduct as “possibly even illegal”.  Moreover, the phrasing immediately followed words that clearly involved protected opinion.  Thus, her subjective interpretation of Freeman’s conduct was not (and could not) be taken seriously to mean that he had committed a crime.  Courts of this State reserve the defamation per se classification for serious imputations of criminal behavior.  See Longbehn, 727 N.W.2d 153 (“calling a person a pedophile imputes serious sexual misconduct or criminal activity to that person. It is, therefore, defamatory per se”); Anderson, 262 N.W.2d 366 (plaintiff called a “draft dodger”); Richie, 544 N.W.2d 21 (plaintiffs accused on national television of child molestation); Baufield v. Safelite Glass Corp., 831 F. Supp. 713, 717 (D. Minn. 1993) (“statement is defamatory per se if it imputes serious sexual misconduct to the subject of the statement”).

The statement attributed to Swift did not accuse Freeman of a particular crime, did not even accuse him of a crime (“possibly even”), were not taken by the audience as serious and, in context, could not have been interpreted as an honest accusation of a serious crime.  For these reasons, the statement “[Freeman engaged in] possibly even illegal behavior” is not defamatory under any standard.

                                                               i.      As a Public Figure, Freeman Cannot Prove Actual Malice

Despite her use of broad language in the e-mails, Swift had legitimate reasons to suspect that Nexus’ (and, hence, Freeman’s) behavior may be illegal.  Under the actual malice standard applied to public figures, these reasons absolve her of liability, regardless of whether any reader could actually take her statements seriously (which, plainly, they could not).

Although I said ‘possibly illegal”, at the time I wrote the e-mail it was in fact illegal to build a sex offender facility on the Grosslein property [where the facility was built].  I worked closely with Attorney Thomas E. Casey, a specialist in Environmental Law and Land Use.  In order to circumvent the law, the Onamia City Council later changed city ordinances and misclassified both the property as well as the institution.

 

It is a fact that prior to sending the e-mail, FBI Agent Ryan Williams, who had been assigned to investigate to us that he had uncovered “possible illegal activity”.  His investigation reached beyond the spot zoning, land use, procedural, open meeting violations, etc.

 

*                *                      *

 

At the time of the e-mail, it was my understanding that building a sex offender facility in that location was illegal according to Minnesota Statutes 462.357 and 561.01, as well as Onamia city ordinance Section 20 SUBD. 14 and Section 21 SUBD. 10.  As a member of the Nexus Board of Directors, it is my opinion that Peter Freeman was responsible in whole or in part.  All Freeman had to do was tell the city council that sex offender institutions should not be in residential neighborhoods, and the city council would have found an appropriate location.

 

(Plaintiffs’ Trial Exhibit 108)

Based on this legitimate explanation, it is apparent that Swift had a factual basis for her statement that Freeman was associated with “possibly even illegal behavior.”  Thus, the statement was not made with “knowledge of its falsity” or “reckless disregard for the truth”.  She had a rational basis to believe that Freeman, as a member of the Nexus Board, had engaged in possibly illegal behavior.  Indeed, Swift unearthed a number of potential legal violations committed by Nexus and Freeman and, under oath, she elaborated on the actual suspected offenses.  Finally, the context of the e-mails makes clear that Swift referred to Freeman’s involvement with Nexus and his role in the sex offender facility controversy.  (See Plaintiffs’ Trial Exhibit 106) (see also Hunter, 545 N.W.2d at 704 (to determine if a plaintiff is a limited-purpose public figure, courts consider whether: (1) a public controversy existed; (2) the plaintiff assumed a purposeful or prominent role in that controversy; and (3) the allegedly defamatory statement was related to the public controversy)).

d.      Freeman is “Like the Fellow…”

 “Speech that is properly categorized as parody, loosely figurative, or rhetorical is also constitutionally protected to ensure that public debate will not suffer for lack of imaginative expression and because this type of speech cannot be reasonably interpreted as stating actual facts.”  Marchant, 694 N.W.2d at 96.  Freeman contends that Swift defamed him by analogizing, “He is like the fellow who – in between sips of coffee – pushes the button that launches the missile which destroys the village, then holds up his hands, saying, ‘See?  No blood on MY hands.”  This caricature employs parody, loosely figurative or rhetorical language, and metaphor.  It is an imaginative expression of Freeman’s role in the controversy surrounding the Onamia juvenile sex offender treatment center.  Accordingly, under Minnesota law, it is not defamatory.

As Swift, herself, explained in an article concerning this lawsuit and the allegedly defamatory statement (which Freeman further publicized by injecting it into the court’s public record): 

This is not defamation, it is a metaphor.  And since it has caused so much trouble, it probably isn’t an effective one.  What is means is that Peter D. Freeman does not live in our community.  He is not our neighbor.  He does not know us or care about us.  Yet he had the power to destroy the integrity of our peaceful neighborhood with his decision to put sex offenders next to day-care.  Peter D. Freeman also had the power to stop the town council from buying that particular property, simply by telling the council that it is the common knowledge in Social Word, his field of “expertise” to place sex offender institutions far away from residential [sic].  You don’t put sex offenders next to little old ladies.  You don’t even have to be an expert in social work to understand that.  It’s pretty basic.

 

(Plaintiffs’ Trial Exhibit 107).

First Amendment interpretations from Minnesota courts and the United States Supreme Court make clear that Swift’s broad metaphor is not actionable as defamation.  Swift conveys her message through rhetoric, loosely figurative language and hyperbole that is incapable of being proven true or false.  Accordingly, the statement cannot be considered defamatory and Freeman has no cause of action based on this commentary.

e.      “No Blood On My Hands” Article

At trial, Freeman offered into evidence Swift’s article, “No Blood On My Hands – Peter D. Freeman” and alleged the article to be defamatory.  Freeman did not allege this article to be defamatory in his Complaint, nor did he amend his Complaint to assert a claim based on this article, nor did he move the Court, at trial, to have the article incorporated into his pleadings.  Therefore, Freeman is not entitled relief in conjunction with an article not alleged to be defamatory prior to or at trial.

Although the Court needs not address this ethereal claim, Swift did no more, in her article, than comment on the status of litigation and explain the defense’s position.  Freeman put the allegedly defamatory e-mails in the public record by filing his Complaint and attaching copies of the e-mails as exhibits to his Complaint.  Swift, writing as “Hannabelle,” merely reported on matters contained within the public record of a court proceeding.  Such a publication falls within the “fair and accurate reporting privilege” to bar a defamation claim.  Nixon v. Dispatch Printing Co., 101 Minn. 309, 313, 112 N.W. 258, 259 (1907) (adopting privilege for media in the context of reporting on a judicial proceeding, and stating, “[a] fair report of such a proceeding would include the claims of all parties as made in court”).  

 

f.        Freeman’s Remedy

Although the above analysis makes clear that Swift’s statements about Freeman are not defamatory, it bears noting that Freeman left himself without a remedy.  As stated by the Richie court, the purpose of a defamation action is to compensate a private citizen for wrongful injury to his or her reputation.   Richie, 544 N.W.2d at 28.  Freeman voluntarily elected to waive his legal remedy and, instead, proceeded only on his claim for injunctive relief.  Aside from the general principle barring “prior restraints of speech”, Freeman has failed to prove that Swift would likely repeat the statements.  Thus, enjoining Swift’s right to speak freely is both unnecessary and unsupportable as a legal concept.  See Jackel, 668 N.W.2d at 688 (“A party seeking an injunction must establish that there is no adequate legal remedy and that an injunction is necessary to prevent great and irreparable injury”).

The Court should not indulge Freeman by providing him with an extraordinary remedy where he voluntarily waived a more appropriate remedy.  Northwest Publications, 259 N.W.2d at 257 (“[t]he district court should consider all alternatives to the exceptional remedy of a prior restraint”).  Consequently, Freeman’s claim for relief fails even if the Court finds that Swift did defame him.

  IV.            Defamation Standard As It Applies to D’Angelo

At trial, D’Angelo abandoned a number of allegations that Swift defamed him.  He expressly conceded that Swift has a right to her opinions, and that many of her statements about him fall within that category (e.g. D’Angelo is “egocentric,” “arrogant,” “narcissistic,” an “insensitive numbskull,” “without a clue,” and “lacking character”).  The surviving allegations, according to D’Angelo, can plainly be characterized as either “personal” or “professional” criticisms.  For those statements deemed “personal”, D’Angelo must show that the allegedly defamatory statements “lowered his esteem in the eyes of the community.”  For those remaining statements deemed “professionally related”, damages may be assumed under the defamation per se standard.  However, since he waived his claim for monetary damages, D’Angelo must prove that the statements are defamatory and that they will cause him inevitable and irreparable harm in the future, in order to obtain his sought-after relief.  (N.B.:  at trial, Plaintiffs and counsel conceded that the allegedly defamatory statements had been removed from Swift’s web sites).

a.      Personal Criticisms Directed at D’Angelo

At trial, D’Angelo categorized the following statements as “personally defamatory”:

·        D’Angelo is a “snake;”

·        D’Angelo is “cold blooded;”

·        D’Angelo is “missing a heart;”

·        D’Angelo “mismanaged his finances, [he] may be deeply in debt;”

·        D’Angelo’s “wife may have left him – we like to think he’s kinky;”

·        D’Angelo is a “silver-tongued devil who lies about tax abatement” (characterized by D’Angelo as both “personal” and “professional”).

(D’Angelo Trial Testimony).

            Furthermore, he was unable to distinguish whether the following statements are “personal” or “professional” criticisms:

·        D’Angelo “may be on his way to jail for racketeering;”

·        D’Angelo “may be under investigation by the FBI;”

·        D’Angelo is a “predator” who “preys on the elderly and infirmed.”

(D’Angelo Trial Testimony).  Since D’Angelo, the subject of the statements, is unable to characterize the three statements as clearly “personal” or “professional”, a reader could hardly make such a clear distinction.  Accordingly, the statements should be considered “personal” criticisms for purposes of defamation analysis, which requires actual proof of injury to reputation.

To establish a claim for defamation, the plaintiff must prove “that a statement was false, that it was communicated to someone besides the plaintiff, and that it tended to harm the plaintiff's reputation and to lower him in the estimation of the community.”  Longbehn, 727 N.W.2d at 159-60 (citing Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 25 n. 3 (Minn. 1996)).

At trial, D’Angelo confessed that he was aware of not one person who took as serious Swift’s comments about him.  (D’Angelo Trial Testimony).  Freeman corroborated this fact.  Freeman testified that his estimation of D’Angelo did not falter as a result of Swift’s commentary, nor had he been approached by a single person who inquired about the truth or falsity of the comments, nor was he aware of any person who thought less of D’Angelo because of Swift’s statements.  (Freeman Trial Testimony).  Furthermore, D’Angelo did not present a single witness to testify that her esteem for D’Angelo suffered because of Swift’s comments. 

A plaintiff bears the burden of proof for each element of a defamation claim.  Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 410 (Minn. 1994).  D’Angelo was unable to offer any evidence to support one essential element of his defamation claim concerning these “personal” statements – i.e. that Swift’s comments “tended to harm [his] reputation and to lower him in the estimation of the community.”  Indeed, he admitted that his reputation did not suffer any harm within the community.  Therefore, his defamation claim based on these “personal” criticisms fails.

b.      Professional Criticisms Directed at D’Angelo

In some circumstances, statements can be deemed defamatory without proof of actual damages, such as where a speaker falsely accuses a person of a crime, of having a loathsome disease, or of unchastity (only applicable to females), or if they refer to improper or incompetent conduct involving a person's business, trade, or profession.  Longbehn, 727 N.W.2d at 158.  “[D]efamatory per se defines a rule of damages, not of defamatory meaning.”  Schlieman, 637 N.W.2d at 307.  However, while damages may be presumed, a public figure must still satisfy the actual malice standard of proof in order to prove defamation.   See supra, Steele, 1994 WL 593924 (Minn. Ct. App. Nov. 1, 1994).

D’Angelo alleges that the following comments concern him as a professional:  (1) he is a “liar;” (2) Nexus “may have fired him;” (3) he is “running a crooked company;” and (4) he is a “silver-tongued devil who lies about tax abatement”.

                                                               i.      D’Angelo is a Limited-Purpose Public Figure

At trial, D’Angelo all but admitted that he is a “limited-purpose public figure.”  To determine if a plaintiff is a limited-purpose public figure, courts consider whether: (1) a public controversy existed; (2) the plaintiff assumed a purposeful or prominent role in that controversy; and (3) the allegedly defamatory statement was related to the public controversy.  Hunter, 545 N.W.2d at 704.

“A public controversy requires two elements: (1) there must be some real dispute that is being publicly debated; and (2) it must be reasonably foreseeable that the dispute could have substantial ramifications for persons beyond the immediate participants.”  Chafoulias, 668 N.W.2d at 652 (citations omitted).  Upon cross examination, D’Angelo admitted the existence of a public controversy surrounding the development and construction of the Onamia juvenile sex offender facility.  (D’Angelo Trial Testimony).  He stated that concerned citizens took both sides on the issue, that the debate drew media attention, that the discussions were public at city and county hearings, and that persons not directly involved in the controversy were impacted by it.  (Id.)

D’Angelo also admitted that he assumed a prominent role in the controversy.  D’Angelo testified that he became something of a “lightning rod” with respect to comments from detractors, as the CEO for Nexus.  D’Angelo stated that he did not delegate public relations duties to any other Nexus employee surrounding the Onamia controversy, nor did he hire a public relations firm.  D’Angelo also testified that he attended most, if not all, public hearings about the proposed facility, and that he spoke on Nexus’ behalf at those meetings.  Clearly, he assumed a role of prominence.

That Swift’s comments about D’Angelo involved the latter’s role in the controversy can be the subject of no serious debate.  At trial, D’Angelo offered into evidence two exhibits which purport to memorialize the allegedly defamatory statements.  (See Plaintiffs’ Trial Exhibits 103 and 105).  The excerpts offered into evidence were from Swift’s blog, the Bradbury Buzzz [sic].  The sole purpose of this blog, as evident from its content, is to draw attention to the Onamia controversy and to shed light on the problems associated with housing juveniles adjudicated for sexual offenses in a residential neighborhood.  All of the allegedly defamatory statements about D’Angelo were aired in this context.  Therefore, D’Angelo qualifies as a limited-purpose public figure and the statements about him are subject to the “actual malice” standard.

                                                             ii.      D’Angelo Failed to Demonstrate Actual Malice

 “[A]ctual malice may never be presumed. The burden of proving actual malice is upon the one alleging defamatory statements and it must be proved with convincing clarity.”  Hirman v. Rogers, 257 N.W.2d 563, 566 (Minn. 1977).  Swift did not testify at trial.  In attempting to meet their burden and demonstrate actual malice, Plaintiffs testified that Swift’s statements were false, and they offered into evidence her Answers to Interrogatories.  (Plaintiffs’ Trial Exhibit 108).

1.      “Silver-Tongued Devil Who Lies About Tax Abatement”

In their Interrogatories, Plaintiffs failed to inquire about Swift’s factual basis for her statement that D’Angelo is a “silver-tongued devil who lies about tax abatement.”  (Id.)  While D’Angelo testified that he is not a “silver-tongued devil” and that he did not “lie about tax abatement”, D’Angelo failed to prove that Swift posted those statements with “knowledge of their falsity” or “reckless disregard for their truth.”  Swift may have had any number of factual bases for these statements.  However, D’Angelo failed to inquire about them.  Thus, D’Angelo has not met his burden because he failed to present evidence that Swift actually knew the statements were false, or that she posted the statements with reckless disregard for their truth. 

Plaintiffs did not inquire about these statements either through written discovery or at a deposition.  The Minnesota Rules of Civil Procedure allow parties to ascertain facts prior to trial through discovery.  Furthermore, Plaintiffs did not subpoena Swift to compel her testimony at trial.  That D’Angelo contends the statements are false is insufficient in proving actual malice with “convincing clarity.”  D’Angelo had opportunities to prove this claim was made with actual malice, yet he failed to do so.  Accordingly, if he is deemed a limited-purpose public figure, D’Angelo failed to offer the requisite proof to conclude that these statements were made with actual malice.

2.      “We Think He Is Running A Crooked Company”

D’Angelo alleges Swift defamed him by opining, “we think he’s running a crooked company [Nexus]”.  Swift has removed this comment from her web sites and D’Angelo is no longer CEO at Nexus.  (D’Angelo Trial Testimony).  Therefore, the statement’s defamatory nature is a moot issue.

Nevertheless, Swift prefaced her statement by clearly indicating that it was premised upon opinion – i.e. “we think….”  The term “crooked” lends itself to a number of interpretations, some bad, some innocuous.  By way of analogy, the following statement could be seen as either defamatory or factual, depending on the subjective interpretation of the receiver:  “Bonanno Pisano built the Tower of Pisa on suspicious grounds.  It resulted in a crooked institution.”  In her Answers to Interrogatories, Swift clarifies that her “remarks…are rhetorical, subjective, and conjectural figures of speech, not to [be] taken literally and not to be understood as factual statements.  Besides these kinds of qualifying statements – such as “maybe”, “we like to think”, “one can dream”, etc. the reader is alerted to the rather whimsical, flippant nature of the article when taken in context.”  (Plaintiffs’ Trial Exhibit 108, pg. 3).

Again, D’Angelo bears the burden of proving that Swift acted with actual malice.  The only evidence he presented to prove actual malice were his testimony that the statement is false and Swift’s Answers to Interrogatories, in which she declares that her position is one of opinion, not fact.  Because the dispute over this statement is moot, and because D’Angelo failed to demonstrate actual malice, this statement cannot be deemed defamatory.  Again, Plaintiffs failed to obtain the requisite evidence to prove actual malice.  She was not compelled to testify at trial, nor was she deposed.  Plaintiffs have presented nothing more to prove Swift’s motive than indefinite answers to written discovery requests.  This alone is insufficient to prove actual malice.

3.      “Nexus May Have Fired Him”

According to D’Angelo, he retired from Nexus; he was not fired.  (D’Angelo Trial Testimony).  The context of this controversial statement alerts the reader that Swift’s statement is not one of fact:  “And when Nexus fired him recently, (we like to think he was fired,)….”  By clarifying her statement with the phrase, “we like to think…”, Swift alerts her readers that D’Angelo, in all likelihood, was not actually “fired”.  Accordingly, this is statement does not constitute defamation because it is not presented as a fact.  She declares her preference toward thinking that Nexus terminated D’Angelo, not that he actually was terminated.  A comparable statement does not indicate defamation, because it, too, is premised upon interpretation and hyperbole:  “Nixon lost his job as president; I like to think he was fired.”  Nixon was a public official.  D’Angelo is a limited-purpose public figure.  In both cases, Nixon and D’Angelo would need to prove actual malice.  Actual malice cannot be presumed from the statements themselves.  It must be proved.  Hirman, 257 N.W.2d at 566.

4.      “He Is A Liar”

D’Angelo testified at trial that he “probably [has] lied in the past”, but that he is not a “liar”.  D’Angelo did not inquire, during the discovery phase of this action, about Swift’s factual basis for publishing a statement that D’Angelo is a “liar”.  (See Plaintiffs’ Trial Exhibit 108).  D’Angelo did not depose Swift, nor did he compel her to testify at trial via subpoena.  As a limited-purpose public figure, D’Angelo was required to demonstrate that Swift acted with actual malice in stating that he is a “liar”.  D’Angelo has failed to do so.  The statement may be disparaging, but under established law it is not defamatory because D’Angelo has failed to prove his case.  He has not shown actual malice.  At the risk of belaboring the point, actual malice cannot be presumed from the statement itself.  Hirman, 257 N.W.2d at 566.  This is an essential element of the case, and one that D’Angelo neglected to prove.  Therefore, Swift cannot be held liable for defamation on this statement.

c.       D’Angelo’s Remedy

D’Angelo, like Freeman, seeks extraordinary relief in the form of an injunction.  D’Angelo seeks to have Swift’s statements about him removed from her web sites (which she has already done) and to bar her from publishing statements about him in the future.  However, a remedy cannot be obtained without first proving liability.  Admittedly, a number of Swift’s comments teeter on a fine line between protected speech and hurtful, disparaging remarks.  Yet, established state and federal precedent define specific elements that must be clearly proven before a statement can be considered “defamatory”.  Those elements include “diminished public reputation” and, in the case of public figures, a showing of “actual malice with convincing clarity.”  By failing to thoroughly inquire about Swift’s knowledge and motives before and at trial, Plaintiffs have failed to prove essential elements of their case.

Even if the subject statements were found to be “defamatory” under established precedent, D’Angelo, like Freeman, waived an otherwise valid remedy to pursue one that courts are loathe to administer.  As stated by the Richie court, the purpose of a defamation action is to compensate a private citizen for wrongful injury to his or her reputation.   Richie, 544 N.W.2d at 28.  D’Angelo voluntarily waived his legal remedy in pursuit of an equitable remedy.  “A party seeking an injunction must establish that there is no adequate legal remedy and that an injunction is necessary to prevent great and irreparable injury.”  Jackel, 668 N.W.2d at 688 (emphasis added).

The Court should not offer D’Angelo an extraordinary remedy where he: (1) failed to proved the essential elements of his case; and (2) voluntarily waived an adequate legal remedy.  Northwest Publications, 259 N.W.2d at 257 (“[t]he district court should consider all alternatives to the exceptional remedy of a prior restraint”).  Consequently, D’Angelo’s claim for relief fails even if the Court finds that Swift did defame him.

CONCLUSION

            Unflattering and even hurtful comments are not, in and of themselves, defamatory.  A plaintiff must prove, under settled law, that statements rise to the level of defamation by satisfying basic elements for that cause of action.  Only false statements of fact can be defamatory.  Opinion, in forms that include metaphor, hyperbole, rhetoric, and figurative language, are protected under our First Amendment, however caustic they may be.   A plaintiff must affirmatively show that statements are defamatory by establishing falsity, publication and related harm.  In certain instances, the harm is presumed where a statement falsely accuses one of a crime or unfoundedly impugns one’s business or vocation.  Even then, a plaintiff who is in “the public eye” must demonstrate with “convincing clarity” that the offender acted with “actual malice”.  A failure in any of these regards renders the claim unproved. 

In this case, Plaintiffs failed to prove the essential elements of defamation.  With respect to Freeman’s claims, the defense has proven that Swift’s comments fall within the category of “opinion.”  D’Angelo, whose claims can be separated into “personal” criticism and “professional” criticism, has failed to satisfy his burden, as well.  Concerning the personal criticisms lodged against D’Angelo, he has failed to demonstrate that the offensive remarks lowered his reputation in the community.  With respect to the professional criticisms, he has failed to demonstrate actual malice with convincing clarity, in large part because he did not utilize the discovery process to obtain evidence that might support his claims, and because he did not compel Swift to testify under oath at trial.  Plaintiffs may be justifiably offended by Swift’s remarks, but they have not proven that the statements rise to the level of defamation.

Even so, Plaintiffs have voluntarily abandoned their legal remedy and elected to pursue a purely equitable one.  This course of action defies a basic tenet of remedies.  Furthermore, Plaintiffs seek to have imposed upon Swift a loathsome prior restraint on speech.  Courts have repeatedly struck down such measures as a violation of First Amendment rights.  In this case, that remedy is especially odious because Plaintiffs have failed to demonstrate that Swift is capable of or inclined to continue criticizing them, when the controversy that sparked this debate concluded nearly three years ago.  A prior restraint is offensive to the First Amendment, and it is clearly unnecessary, especially since the disputed comments have been removed from their medium. 

            For these reasons, Swift is entitled a verdict in her favor.  If the Court is inclined to pass upon the shortcomings in Plaintiffs’ cases, Plaintiffs, at their own choosing, have left themselves without a remedy.  Defendant Janette Swift prays the Court for a finding that Plaintiffs have failed to meet their burdens of proof and are otherwise not entitled a remedy.

 

Dated: January __, 2011                                               BY:  ANDREW T. JACKOLA, PLC

                                                                                       

 

                                                                                     ______________________________

 Andrew T. Jackola (Atty. Reg. No. 344072)

  600 Inwood Avenue North, Suite 260

                                                                                     Oakdale, Minnesota 55128

                                                                                     (651) 714-7989 (telephone)

                                                                                     (651) 731-2307 (facsimile)

 

ATTORNEY FOR DEFENDANT

 

 

 



[1] At the outset of trial, Defendant’s counsel stated for the Court’s record that Swift knew of the trial at the appointed date and time and that she voluntarily waived her right to be present and testify.

[2] Defendant’s counsel has not received the trial transcript prior to offering this submission.  Accordingly, trial testimony is herein paraphrased according to the recollections of Defendant’s counsel.  By signing this memorandum, the undersigned counsel avers that references to trial testimony are in keeping with his best recollection.

[3]  The January 22, 2010, article, titled “No Blood on My Hands – Peter D. Freeman”, was not cited in the original Complaint, nor has Freeman amended his Complaint to assert this article as a new incident of defamation.  At trial, Freeman testified that readers might be prejudiced against him because the title contains the words, “Blood on My Hands”.