The Minnesota Supreme Court ruled Wednesday that a jury should determine the veracity of a woman's Facebook post accusing a Minneapolis dance instructor of sexual assault, which led him to sue for defamation.
The state's highest court didn't determine whether the accusation is true. Instead it focused on deciding if the post involved a matter of public concern. Four justices found that it did, which means the post is entitled to heightened protection under the First Amendment. Three justices, including Chief Justice Lorie Gildea, dissented, calling the post a private matter.
That heightened protection means attorneys for dance instructor Byron Johnson will have a higher burden of proof at trial in Hennepin County District Court. They will not only have to prove Kaija Freborg's accusation was false, but also that it was made with actual malice.
"Mr. Johnson is still going to get his day in court, so that's always a good thing for someone who's been defamed," said Scott Flaherty, an attorney for Johnson.
He said First Amendment issues "frequently divide reasonable judges." He said the case would still be headed to trial if the court had found the post was private, but that the decision "makes things more difficult for victims of defamation."
Natalie Cote, an attorney on Freborg's legal team, said she is pleased with the outcome: "I think the majority did a good job analyzing the case law and we believe they came to the correct decision."
Freborg made the post on July 14, 2020, inspired by the #MeToo movement. She tagged Johnson and two other Twin Cities dance instructors, accusing them of sexual assault.
Johnson and Freborg had a previous casual sexual relationship after they met in 2011, when she took dance lessons from him. She agrees that many, not all, interactions were consensual.
Writing for the majority, Justice Margaret H. Chutich noted that the litigation stemmed from a house party Johnson hosted in 2015. Freborg claims she was intoxicated at the party and that Johnson "grabbed [her] hand and put it down his pants onto his genitals" without consent.
Their sexual relationship ended after that but they still communicated about dance lessons until 2017. By the time of the Facebook post in 2020, they had not spoken for a few years.
"Feeling fierce with all these women dancers coming out. So here goes..." the post said. "I've been gaslighted/coerced into having sex, sexual assaulted, and/or raped by the following dance instructors: Byron Johnson... If you have a problem with me naming you in a public format, than perhaps you shouldn't do it #metoo #dancepredators."
Two days later, Freborg edited the post to say "I've experienced varying degrees of sexual assault," explaining in the post that "words like rape from a white woman can be triggering for a black man."
It's unclear how many people saw the post, but it generated more than 300 "reactions" and nearly 200 comments, including from Johnson, who wrote in part, "This is a very serious accusation which I categorically deny."
Johnson sued Freborg in Hennepin County District Court, saying his reputation suffered and that he lost business over the original post portraying him as a rapist. Chutich wrote that Freborg acknowledged in the post and private Facebook messages that Johnson never raped her.
The district court, in a summary judgment at Freborg's request, found her speech was true, not made with malice and involved a matter of public concern. The Minnesota Court of Appeals reversed the district court, finding it was a private concern — meaning Johnson was not required to prove malice to recover damages.
Freborg petitioned the Supreme Court for review. It reversed the appellate court and remanded the defamation case back to district court for trial.
The #MeToo movement, Chutich wrote in support of her ruling that the post was a public matter, "seeks to connect survivors, encourage victims to tell their story, and increase awareness of the scope of the problem of sexual assault."
Freborg noted in the post that she wrote it for the safety of other women, including those in the Twin Cities dance community, Chutich wrote. She also aimed to inspire change while using Facebook, a "modern public square," and the hashtag to spread the message to an "unlimited audience," the justice added.
Johnson argued that the post was to get "vengeance" and that Freborg used the movement to mask a private attack on his character, Chutich wrote. He also argued that Freborg had never spoken out about sexual assault or #MeToo before.
Gildea echoed this in her dissent, joined by fellow justices Natalie E. Hudson and G. Barry Anderson.
"This case is not about the MeToo movement; it is about a Facebook post where Freborg accused Johnson of sexual assault and then included '#MeToo.'" Gildea wrote. "We are tasked with evaluating whether Freborg's single Facebook post was speech on a matter of public concern, not the entire MeToo movement."
The constitutional actual malice standard was born out of concern for chilling speech about government, Gildea wrote, and Freborg's accusation "comes nowhere close to such speech."
But Chutich wrote that even with heightened protection of the malice standard, the speech of victims of sexual assault may be chilled:
"Given the potential threat and costs of defending a defamation lawsuit, many victims of sexual assault may choose not to speak out at all."