The Unbiased Eye

A scientist's commentary on events and culture

A Blogger, his Demons, the Law: Part 3

with 2 comments

This is the third chapter of a three-part story about the Minneapolis blogger who lost a $60,000 damage suit for making a true statement. My shorter version of the story appeared on the Technorati web site: Bloggers feel a cold wind.

The $60,000 judgment against a local Minneapolis blogger, John Hoff, for making a true statement scared me, and motivated me to find out what was happening.

From the initial reports in the Minneapolis papers, the judgment flies in the face of the First Amendment, and raises serious questions about a free press in the digital age. We have to wonder if the judgment against Hoff will have free-speech implications. How could the judge and jury in this county court do this?

The ruling stunned lawyers. They quickly took issue with the instructions given to the jurors in the case (precisely the “special verdict form”). The jurors threw out any claim of libel or defamation because they believed that the blogger’s statement was true, but then made the $60,000 award on the basis of “improper and intentional interference” with the plaintiff’s employment.

The analysis of the jury’s instructions was done by a Minneapolis lawyer, Benjamin R. Skjold, and a law student, Carl F. Engstrom, published on Skjold’s blog and then by another Minneapolis lawyer, Brett P. Clark, in his blog. In short, Clark told me, “It is simply not improper to provide truthful information.”

The lawyers’ discussion, which was picked up by the American Bar Association Journal, suggests to me that the appeal Hoff promises could easily succeed.

In addition, last week, the Minnesota Pro Chapter, Society of Professional Journalists, asked to join the case as a friend of the court to support Hoff, making the same argument that true information cannot provide the basis for an action for an interference tort.

It also said in court papers, “A legal rule that exposes journalists and anyone else who communicates on the internet to the risks of liability for tortious interference based on truthful statements … could impair the free flow of information and vigorous debate on public issues.”

Further it said, “Courts do not allow plaintiffs to evade the requirements of libel law by presenting their claims under a different legal label.”

Jane Kirtley, a professor at the University of Minnesota who studies legal issues in journalism, says that the Supreme Court has in the past rejected such “end runs” around First Amendment case law. She points out that Court has supported free expression.

She points out that there are a number of legal theories that could be brought against writers who report factual material, including invasion of privacy. These laws vary from state to state, but it’s clear that if allowed, they present opportunities for people who are discussed in the news media as well as in blogs.

Hoff was sued by a former neighborhood official, Jerry Moore, who claimed that Hoff’s blog caused his dismissal from a job at the University of Minnesota. Moore’s lawyer, Jill Clark (no relation to Brett), said the jury instructions were a default version and were not an issue, that the evidence for interference was strong.

Beyond these technical issues, the courtroom dynamics could have played a big role in a jury trial. Hoff’s personality and manner might have well worked against him. Jill Clark thinks it did.

Whether or not the post-trial motions by Hoff’s lawyer, Paul Godfread, succeed, it’s quite possible that the combination of circumstances here won’t recur anywhere else, and the case won’t reverberate beyond Minneapolis.

In thinking about the courtroom, the match-up of lawyers was uneven, too. On Moore’s side, Clark is an experienced trial lawyer in Minneapolis who filed the suit. Godfread, a young lawyer, came in very late after Hoff’s first lawyer had to drop the case. That’s another circumstance that won’t necessarily repeat anywhere else.

Another interesting question is Moore’s choice of Hoff to sue.

The claim was based on testimony from another blogger and a local businessman, Don Allen, who was originally sued along with Hoff. Allen settled with Moore and then testified for him against Hoff. Allen told the court that Hoff had asked him to communicate with the university to tell them about Moore’s background. That, Jill Clark said, was the “connective tissue” that supported the interference claim. The evidence, by her own description, was largely circumstantial, since the jury never heard directly why the university fired Moore, although Hoff claimed credit for the move.

It doesn’t take much imagination to see that the university, a public institution, might want to know about the background of people it hires, and you have to wonder why university officials didn’t look it up themselves. Moore was much discussed in other blogs, and in a city newspaper, City Pages which wrote a comprehensive piece about the identity theft and bank fraud, about the thief, Larry Maxwell, who was convicted, and about Moore’s ties to Maxwell. Moore was not charged in the fraud, but he was named by the victims in a civil action from which he was dropped without prejudice.

Then why Hoff? In the end, for-profit companies have legal department, libel experts and resources to fight both civil and criminal complaints. Individuals rarely do. City Pages is part of a string of weeklies owned by the Village Voice, which would have the resources to fend off a civil suit like this one, without interfering with publication.

Assume that Hoff is able to overturn the jury verdict, or wins an appeal. He’s still spent more than a year fighting it, and has been in some amount of anxiety over it. He’s had to obtain legal representation. It’s a tough situation for a man who spends hours covering his community, and works part time. It’s easy to see where a little lawsuit could permanently squelch a person’s ability to criticize the government or others in the public eye.

There’s a lot of discussion about false information being disseminated on line by anonymous parties and about bullying. But in this case, Hoff is anything but anonymous, and anyone interested could have easily found the information about Moore.

This story requires a small restatement of a famous quip by the press critic from the 1950s, A.J. Liebling: Freedom of the press is guaranteed only to those who can afford a lawyer.

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Written by theunbiasedeye

April 1, 2011 at 11:15 am

Posted in Media, Trends

2 Responses

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  1. Correction. John Hoff does not work part-time according to court records.
    Rather, he begs for money on his blog, sells his blood plasma, and buys and sells property (that he buys from anonymous people on street corners – he has stated in his blog that if it's stolen, he'd like to keep it in his neighborhood rather then have it sold to rich people in the suburbs). But beware, there is no guarantee that donations will go to funding his appeal. Records show he has considerable financial liabilities, and he claims he will file all legal paperwork as in forma pauperis.
    You'd be better off donating to disaster relief to help Japan.

    Jerome

    April 5, 2011 at 4:53 am

  2. “Jerome” is yet another made up identity with a blogspot profile that can't be accessed as of this moment. My blog makes enemies because it makes a difference. Just ask slumlord Paul Koenig, if you can find him. Just ask Peter “Spanky Pete” Rickmyer, sitting in prison for throwing frivolous legal paper at my blog. Who is HIS lawyer? Oh, it's the same Jill Clark!

    Also, Jill Clark is an ironic character to talk about court room personality. She is one of the most disliked members of the bar in the entire state. The very mention of the name “Jill Clark” is enough to set the teeth on edge of many a lawyer, and not because of who she represents, but because of her personality. She makes sandpaper look like a baby ass wipe.

    Recently, Judge Blaeser made pointed and public mention of the fact he'd made a complaint against Jill Clark with the Board of Professional Responsibility. The letter was published on my blog, read all about it.

    http://adventuresofjohnnynorthside.blogspot.com/2011/03/jns-blog-exclusive-letter-from-judge.html

    Tomorrow one of her clients–Peter “Spanky Pete” Rickmyer, a Level Three sex offender–will be fighting for his freedom, with Clark apparently still representing him.

    We will see how that goes, whether “court room personality” plays any role.

    As for what my legal case shows about blogs and the legal system: bloggers who are known to be working on a shoestring make great targets for a lawsuit to shut them up, especially when they dig into troublesome issues that powerful players don't want publicized. The SLAPP law, and various other legal protections, are not enough to stop this kind of thing.

    Johnny Northside!

    April 11, 2011 at 3:35 am


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