A victory for free speech

Juries sometimes reach unfair verdicts and when they do, a judge is supposed to remedy the situation.

That didn’t happen in the case of John Hoff, who blogs as Johnny Northside, and who got in trouble because he wrote something that was true about a semi-public figure, that got the semi-public figure fired, and that’s when the case went to court.

As I wrote after the original verdict, this case was a lot simpler than the jury made it, because it’s about this:


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Even a few area “experts” on journalism pooh-poohed the significance of the case, wedded as they may be to a mainstream media look at the world. But Minnesota is where free speech was most vigorously defended (Near v. Minnesota) and they should’ve been on edge pending today’s decision.

There were many troubling things about the original verdict as I also wrote:


Moore’s attorney says Hoff doesn’t enjoy First Amendment speech protections because he doesn’t get all sides of an issue. And, it’s maintained, if others post inflammatory comments on his blog — they do — then he should be liable for those, too. That allegation should certainly get the attention of mainstream media, since the comments on their Web sites are (a) more numerous and (b) often at least as horrible as anything found on those newfangled blogs.

But the Minnesota Court of Appeals looked at the case and today tossed out the $60,000 verdict, making fairly short work of the question of whether Hoff’s blogging was defamatory. It wasn’t.

More troubling, however, was what the court found on the question of why Hoff lost the original case: The jury believed that he had lobbied University of Minnesota officials, by contacting them to get the subject of his attacks — Jerry Moore — fired.

The Court of Appeals leveled a bit of a broadside to the District Court for letting the verdict stand when there wasn’t much evidence to support it:


Similarly, here, we conclude that the district court’s basis for imposing liability on Hoff is too broadly asserted to assure that Hoff’s constitutional rights are protected. By concluding that the “trial record as a whole” supported the jury’s verdict, the district court did not adequately identify Hoff’s behavior that was separate and distinct from his protected speech. The district court pointed to Allen’s testimony to show that there was evidence of interference by Hoff separate and distinct from his blog post, but we conclude that this evidence is insufficient to independently support the jury’s verdict.

Hoff’s communication with Allen (a friend of Hoff’s who sent e-mails to the U of M after the blog post and who claims Hoff told him to) is too intertwined with Hoff’s constitutionally protected blog post to accurately characterize it as independent tortious conduct. Hoff’s information about Moore’s involvement in mortgage fraud was the primary reason for his communication (through Allen) to the University of Minnesota. The fact that Hoff’s underlying goal in conveying this information was to get Moore fired does nothing to disentangle the protected statement from any tortious conduct. We therefore conclude that there is too great a risk of infringing on Hoff’s constitutional right to publish this information if he is held liable for Moore’s subsequent employment termination.

Hoff isn’t everyone’s cup of tea. Neither are Nazis in Skokie, the Westboro Baptist Church members at funerals of soldiers, or candidates who lie about their military service. Tough.

Blogs aren’t everybody’s cup of tea, either. But the importance of today’s decision is that had it gone another way, and the original verdict survived, future courts would have a good reason to expand the infringement of speech that is unpopular. It still may, should it end up at the Minnesota Supreme Court with a different result.

On his blog today, Hoff called the decision “total victory,” and urged people to devote their attention to the case of three punk rockers imprisoned in Russia.

Here’s today’s decision.

  • BJ

    I love the coverage of court decision’s. The fact that you actually link to the whole text is great.

    I have now made a practice of reading US Supreme Court decisions. So much thought goes into them.

    One of my current favorite lines from a Opinion reading comes toward the end of an explanation of how the courts don’t like to get involved ( as Chief Justice Roberts says “a general reticence to invalidate the acts of the Nation’s elected leaders”) “It is not our job to protect the people from the consequences of their political choices.”

    I usually have to look up at least 1 word per paragraph, reticence.

  • Bob Collins

    Yes, that was from the health care law decision. Instant classic!

  • BJ

    I’m pretty sure my first opinion read was the “Kelo v. City of New London”.

    I think “District of Columbia v. Heller” was the one that talked a lot about research using old dictionary’s and newspapers to figure out how the word ‘Militia’ should be used. That was an interesting read.