Whether a blog post that got a man fired is constitutionally protected speech or a malicious smear campaign is now up for interpretation by the Minnesota Court of Appeals in a case that has attracted attention from First-Amendment scholars, citizen journalists and free-speech advocates.
Arguments Wednesday came more than a year after a Hennepin County jury said Minneapolis blogger John "Johnny Northside" Hoff owed Jerry Moore $60,000 in damages for a scathing blog post that resulted in Moore's firing from the University of Minnesota.
The jury decided that Hoff told the truth in his post when he accused Moore of being involved in a "high-profile fraudulent mortgage," but found that his actions amounted to actively interfering with Moore's employment contract.
Hoff's attorney, Paul Godfread, appealed the jury award and argued before the three-judge Appeals Court panel Wednesday that regardless of what happened as a result of Hoff's post, he cannot be held liable because it was truthful.
But Moore's attorney, Jill Clark countered that Hoff should be responsible not only for the post but also for comments afterward because he intended for Moore to be fired.
"The motivation was to take Jerry Moore down and the threat was, 'We will do a negative public campaign to do that,'" Clark said. "Nowhere did the jury have to believe they had to use righteous and true statements to do that."
Protected speech, or attack?
The lawsuit stemmed from a feud between Moore, former director of the Jordan Area Community Council in north Minneapolis, and Hoff, a neighborhood activist whose blog, "The Adventures of Johnny Northside," garners hundreds of readers daily.
After Moore's firing from the Jordan Area Community Council, he was hired in 2009 at the U's Urban Research and Outreach/Engagement Center to study mortgage foreclosures.
When Hoff found out, he wrote a post accusing Moore of being involved in a "high-profile fraudulent mortgage," one of several that resulted in a 16-year prison sentence for former real estate agent Larry Maxwell. Moore was not criminally charged in the Maxwell case, although he is currently named as one of several defendants in a lawsuit related to the fraud.
"The collective judgment of decent people in the Jordan neighborhood -- 'decent' being defined as 'not actively involved in mortgage fraud' -- is that Jerry Moore is the last person who should be working on this kind of task, and WHAT THE HELL was the U of M thinking by hiring him," Hoff wrote in the June 21, 2009, post.
Among the comments was a copy of an e-mail sent by another North Side resident and blogger, Don Allen, to the university urging Moore's termination and suggesting that he would publicize Moore's background if his suggestion wasn't met. Moore was fired the next day.
Moore sued Hoff and Allen in 2009. Allen settled before trial and testified against Hoff.
Hennepin County District Judge Denise Reilly upheld the jury's verdict.
During oral arguments, the judges questioned whether encouraging that someone be fired from a job goes beyond free speech.
"Couldn't a jury have looked at Allen's efforts and said, 'At some point that's not free speech anymore?" Judge Louise Dovre Bjorkman asked.
Godfread countered that Allen's communication to the university, like Hoff's blog post, falls under the same protections of the First Amendment.
"Speech followed by more speech cannot lose its protection, simply because there's the possibility of more speech that might follow on the same issue," he said.
Clark argued that the post was more than free speech because it was clear Hoff wanted Moore fired. Bjorkman asked Clark whether that was relevant since Hoff's claim was true.
"When we talk about Jerry Moore, who's just trying to do his job, there should be a different standard," Clark said.
The Appeals Court has 90 days to issue an opinion.
Abby Simons 612-673-4921