Boundary Issues

I get the impression there’s  not much middle ground when it comes to John “Johnny Northside” Hoff.   I didn’t entirely know that when I first wrote about his defamation trial last week.  People either seem to support him for his crusading against mortgage fraudsters in North Minneapolis, or they detest him for being a showboating publicity whore who plays waaaay below the belt, publishing his targets’ phone numbers, home addresses and employers when he really wants to screw with ’em.

That, in fact, was my first encounter with Hoff; back in 2007, he vowed in the Minnesota Daily to stalk Republican National Convention delegates at their hotels.

One of his subjects, a Jerry Moore – a community organizer who went to work for the University of Minnesota – became the target of Hoff’s ire, after Moore’s involvement in a mortgage fraud scam (for which some people went to jail for long terms, but in which Moore was never convicted).  Not satisfied with the results of the legal system, Hoff turned the attention on the University, drawing enough attention to Moore that the U fired him.

Moore sued, for defamation and “Tortuous Interference” with his employment.  The proceedings dragged on for the better part of two years, before ending Friday with a jury awarding $60,000 to Moore; $35K for damages, $25K for emotional distress.

Not for defamation – libel, in this case – but for “Tortuous Interference” with Moore’s employment.   The ruling seems to have been that while Hoff’s postings didn’t meet the legal standard for libel, which in Minnesota means…:

  1. Party A (Hoff) says something about Party B (Moore) to Party C (Hoff’s readers, the public)…
  2. …which is untrue…
  3. …which has a reasonable chance of harming Party B’s livelihood or reputation…
  4. …and, if Party B is a public figure, he must prove Party A’s intent was malicious – and “public figure” can mean “even in a limited sense”, as in a community organizer or, for that matter, a blogger.

…they did interfere illegally with Moore’s employment.

Since the court classed Moore as a “limited public figure”, a defamation suit was all but impossible; to win, a blogger would basically have to write something utterly untrue, be told it was untrue, and respond via email “I don’t care, I’m going to get you not matter what!”.

That was a “hypothetical” example.  Scout’s honor.

Anyway – the defamation suit got tossed, but Hoff lost on “tortuous interference”, whose legal definition I’m not at all sure about; some commentators (David Brauer among them) immediately tweeted that the case was eminently appealable.

Abby Simons at the Strib covered the story – and it’s not quite so clear-cut:

Jane Kirtley, a U of M professor of media law and ethics, called the lawsuit an example of “trash torts,” in which someone unable to sue for libel, which by definition involves falsity, reaches for another legal claim. She predicted the verdict will be overturned.

“This is based on expression, and expression enjoys First Amendment protection,” Kirtley said. Just last week, she said, the U.S. Supreme Court ruled that the First Amendment protected the Westboro Baptist Church’s antigay protests at military funerals.

“I find it really hard to believe that there was a degree of emotional distress caused by this reporting that outstrips that suffered by [a Marine’s] family,” Kirtley said.

The verdict also surprised U of M law professor William McGeveran, but he wasn’t so certain that it will be easily overturned. Appeals courts tend to give a lot of credence to jury verdicts, he said.

Leaving appellate law issues aside, the lessons for bloggers seem fairly clear:

Learn what “Defamation” is, and don’t do it.  The short form?  Don’t present as facts things that can damage other people’s livelihood or reputation, if they are not true (things that are clearly presented as opinion are another matter). If you write something damaging, believing it to be true, and it turns out not to be the case, issue a correction; correcting an error is a pretty clear indicator you’re not acting out of malice.

Know when to stop. There are a few bloggers – mostly but not exclusively on the left – who can’t leave the story where the story ends.  They go to their subjects’ homes, or they publish where their subjects work.  They attack their subjects’ families.

It’s been my personal policy since the beginning to leave peoples’ jobs out of the story (unless it is a part of the story, legitimately.  And that means not creating a story out of someone’s job or family; there are a few regional bloggers who will write stories theorizing that other bloggers, for example, write on company time; I figure that’s between the blogger and their employer).   Families?  Always, always off-limits – including trying to find ways to make the families of people I disagree with into stories.

The point isn’t my own facility for horn-blowing; it’s that not only is going after peoples jobs, families and personal lives (that aren’t parts of the story) scuzzy; until the “Johnny Northside” case is resolved, it’s legally dicey as well.

As, I think, it should be.

Ed Kohler has a roundup of other coverage.

UPDATE:  Just so I’m clear on this: it’s a very, very good thing that Hoff was found not guilty of defamation.  It’s pretty clear that he stayed within the letter of the law.

David Brauer at MinnPost on the verdict:

The award left media lawyers flabbergasted because, as Faegre & Benson’s John Borger puts it, “If the statement was true, there should be no recovery. There is caselaw in Minnesota that the providing of truthful information is not a basis for tortious interference.”

Hoff’s lawyer, Paul Godfread, says “we will file any post-verdict motions that are appropriate.” Two common ones: filing for judgment based on a matter of law, and a motion for a new trial. The former wouldn’t challenge the jury’s fact-finding, instead arguing there is only one proper legal conclusion — no monetary damages.

The question “which prevails, the jury verdict or the case law?”, is one of those things that lawyers get rich hashing out.

But I have  question, especially for the media über alles types that have adopted Hoff as a cause celébre: let’s make this a hypothetical case, not directly related to Hoff vs. Moore.

Hypothetically, let’s say that a blogger wrote something incendiary and damaging, but true, about a nemesis’ activities – activities which happened in the past, at (let’s say) the nemesis’ last employer.

Nemesis has moved on since the activities about which Blogger was writing. The Blogger, in addition to pointing out his Nemesis’ past activies, carries a vendetta against the Nemesis into the present.  The Blogger starts a campaign against his Nemesis, intending to damage the Nemesis, to cost him his job, damage his reputation (above and beyond damage caused by the factual story from the past).  The vendetta is above and beyond, really separate from, the actual story about which the blogger reported.

Should the First Amendment protect not only legitimate free speech, but the malicious use of the reporter’s platform to harass the subjects of his/her reporting?  (I ask this stipulating that I’m not saying Hoff did this – although an ethical person might be forgiven for being concerned about some of the lengths he goes to to attack his targets).

OK, it’s not totally hypothetical; back in 2005, a major leftyblog (TBogg or Kos or one of the other big loony bins) published John Hinderaker’s home and office phone numbers; hundreds, maybe thousands called; being readers of major leftyblogs, they were a pretty depraved bunch.  They were trying to get Hinderaker fired.  Not because his day job – a lawyer for a major law firm – had anything to do with the story, or was even three degrees of separation away from it.  It was a  malicious attempt to attack Hinderaker’s non-blogging, non-activist livelihood.

Was Hoff’s attack on Moore’s post-mortgage-fraud proceedings career warranted?  Was it protected by the First Amendment, or was it tortuous interference?

UPDATE 2:  Well, there’s a possible answer; Eugene Volokh writing at the Volokh Conspiracy:

Even if Hoff was trying to get Moore fired, people are constitutionally entitled to speak the truth about others, even with such a goal. (The tort actually requires either knowledge that such a result is practically certain or a purpose of producing such a result, but I take it that here the allegation is that Hoff wanted Moore to get fired.) The First Amendment constrains the interference with business relations tort, just as it constrains the infliction of emotional distress and other torts. See NAACP v. Claiborne Hardware Co. (1982); Blatty v. New York Times Co. (Cal. 1986) (speech constitutionally protected against a libel claim is also protected against an interference with business relations claim); Paradise Hills Assocs. (Cal. Ct. App. 1991) (same); Delloma v. Consolidated Coal Co. (7th Cir. 1993) (“permitting recovery for tortious interference based on truthful statements would seem to raise significant First Amendment problems”); Jefferson Cty. Sch. Dist. No. R-1 v. Moody’s Investor’s Services (10th Cir. 1999) (holding that interference with business relations and interference with contract claims can’t be based on expressions of opinion). The same should apply to the closely related interference with contract tort. See, e.g., Jefferson Cty. Sch. Dist.

Not positive that I think this is a good thing – but going back to my hypothetical, it also seems that the best answer to this is the proverbial “more good speech”

4 thoughts on “Boundary Issues

  1. Pingback: Johnny Northside Trial Follow-Up | The Deets

  2. The First Amendment was written to protect political speakers from federal government reprisal. It may have been applied to state governments by a series of court cases of questionable logic but 100 years standing, so okay, all government is bound to let political speech go.

    Alito’s dissent got the better of the arguments in the Westboro case – the First Amendment doesn’t cover that kind of speech. It shouldn’t cover this stuff, either.

    Hoff’s statements are purely private activity, no government action, so the First Amendment should play no role in Moore versus Hoff.

    Yes, there’s government action in Moore versus U of M for firing him; but Hoff isn’t the government so there’s no First Amendment defense for his speech and no reason it must be given a pass.

    If Westboro Baptist’s private speech hurt another’s health, or if Hoff’s private speech injured another’s employment, then they should make amends for the private harm they caused. That’s what a Tort claim means.

    There – the farthest reaches of the discussion have been delinieated. You may all stake out moderate positions in comfort.

  3. Nate,

    And my question is in the second-to-last graf; is the Tort case going to stand? And against what behavior will it provide a “chiling” effect?

  4. here are a few bloggers – mostly but not exclusively on the left – who can’t leave the story where the story ends. They go to their subjects’ homes, or they publish where their subjects work. They attack their subjects’ families.

    Bradlee Dean anyone? Not that I’m condoning what the guy does/stands for but I mean really how much can they go to that well? And do they realize that most of us on the right think the guy is as crazy as they do?

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