As announced here on Johnny Northside hours ago, the Minnesota State Court of Appeals has issued a ruling which is a complete and total vindication of this blog in the "Blogosphere Trial of the Century." There will be no new trial and, furthermore, this is a published case so it will be precedent.
For those who want to read the actual court opinion, here is a link, click here.
A great deal of mainstream media coverage is expected. Watch for...
...a story in the Star Tribune. In the meantime, the first media entity to break this story was apparently a blog called The Volokh Conspiracy which is deeply involved in legal First Amendment issues. (ADDENDUM, August 21, Abby Simons of the STrib asserts she had her story online an hour before the Volokh Conspiracy)
As will be my constant custom when blogging about this free speech victory, I ask readers to offer what help and support they can to the three young members of the punk rock band Pussy Riot who are imprisoned in Russia for a 40 second public criticism of President Putin.
My favorite bit:
ReplyDeleteMoore asserts that because Hoff had an ulterior motive of getting Moore fired, he can be liable for the tortious-interference claims. We disagree. When a person conveys unflattering and possibly damaging information to another person’s employer, it is unlikely that the motivation for conveying that information is borne out of affection. It is much more likely that the intent is for the employer to take responsive action—up to and including termination—based on the content of that information. Regardless of the motivation of the messenger, if the information conveyed is true, it is not appropriate for liability to attach.
Heck yeah! Congrats to you and Paul!
ReplyDeleteP.S. Did you ever get to go to the sandbox?! Last I heard, that's where you were headed!
- M. Frank
P.P.S. This might be cause for a celebratory sip.
Congratulations, John. A good moment for free speech protections.
ReplyDeleteThis is HUGE, well done. Class A attorney work!
ReplyDeleteCongratulations, John. You risked a lot by advocating the proper use of protected speech.
ReplyDeleteA jury of your "peers" found you guilty of telling the truth, huh? Just be thankful it wasn't a criminal trial. My "peers" found me guilty twice in lawless Pope County, MN for crimes that I didn't commit, didn't they? And I had everything on video. But the state made sure the whole truth wasn't seen or presented, didn't they? Try spending eight months in jail without a computer.
ReplyDeleteThe injustice system of MN is a joke. These SLAPP suits shouldn't even be allowed into court. The MN courts are nothing but Show Trials. If you expose local corruption in West Central Mn like I do, then you get falsely arrested, they withhold evidence, tamper with evidence and lie on the witness stand. And the politician in the black robe sits back and laughs as the "peers" try to find the truth in the propaganda spewed by the state. Or in your case, the propaganda spewed by your plaintiff. Either way it is a malicious prosecution. The MN courts are nothing but political weapons of injustice. It's not rule of law but instead it's rule of politics.
To Res Ipsa,
ReplyDeleteYes, I just got back from Afghanistan a couple months ago. The brief filed in the Minnesota Court of Appeals was mailed to me and I read it on my cot in a 16 man tent at Combat Outpost Arian.
Fuck u ur time will come BITCHASSNESS..OAN i bet urr goofy ass dnt let people see this cment literally...LMAO!!!
ReplyDeleteWhoops! I can't help but wonder how many times over Jerry Moore has already spent his potential windfall? WTG Johnny!
ReplyDeleteNow who can argue with that? I think we're all indebted to Anonymous@3:24PM for clearly stating what needed to be said. I'm particulary glad that these lovely children were here today to hear that speech. Not only was it authentic frontier gibberish, it expressed a courage little seen in this day and age
ReplyDeleteThe part of the appellate opinion I found most interesting, in terms of factual analysis, this quote:
ReplyDelete"Donald Allen, an acquaintance of Hoff’s, testified that, after this post was published, Hoff called him and asked him to send an e-mail to the University of Minnesota to try to get Moore terminated. Hoff denies making this phone call to Allen or any phone call seeking Moore’s termination. Whether or not he was asked to do so, Allen sent an e-mail to the university that stated: [...]"
The trial judge, in support of the jury's verdict credited that Donald Allen testimony with the appeals court being more dismissive.
And there was early in the opinion, that footnote 1.
I expect many in the community who have read online or know individuals have opinions of whether Hoff's version or Allen's version of the contested factual allegation was true. Not having met either individual, I go with Hoff. That would mean Allen, after settling, must have misrecollected.
Thanks for fighting, John.
Congratulations on your win. I've been following your case as it preceeded mine through the appeals process. David McKee MD vs Dennis Laurion (defamation) was dismissed, appealed to the Minnersota Court of Appeals, and now pends a September 4, 2012, oral argument before the Minnesota Supreme Court.
ReplyDeletehttp://www.mncourts.gov/Documents/0/Public/Calendars/September_2012.pdf
Oral hearings for David McKee MD vs Dennis Laurion to be held 9/4/12at Minnesota Supreme Court, Second Floor, State Capitol, St. Paul MN.
http://www.mncourts.gov/Documents/0/Public/Calendars/September_2012_Summary.htm#a111154
Summary Of Issues prepared by the Supreme Court Commissioner’s Office.
http://herald-review.com/news/national/doctor-s-suit-tests-limits-of-online-criticism/article_972968c4-78f2-11e1-8852-0019bb2963f4.html
Priot history from Star Tribune.
Star Tribune, September 4, 2012, Maura Lerner
ReplyDeleteTwo years ago, a Duluth neurologist, Dr. David McKee, sued the son of an elderly patient for defamation over some negative comments that were posted on rate-your-doctor websites.
On Tuesday, the state's top court was asked to decide whether the lawsuit should finally go to trial, after the case was thrown out by a lower court and reinstated on appeal. The lawsuit is one of a growing number of legal battles testing the limits of free speech on the Internet.
A good portion of the oral arguments were devoted to the meaning of the words that Dennis Laurion, 65, used to describe his family's encounter with McKee in April, 2010, when Laurion's father, Kenneth, then 84, was hospitalized with a stroke.
John Kelly, Laurion's attorney, noted that Internet sites are a "free for all" for people to share opinions and that his client's comments were perfectly appropriate. "We have a word, the word 'tool,'" Kelly told the justices. "When you look at the word, you have to ask: Is it defamatory?" He argued that the phrase, while "it clearly is not a compliment," is no worse than "calling someone an idiot or a fool."
During questioning, some of the justices seemed to agree. "Saying someone's a 'real tool' sounds more like an opinion than a statement of fact," Justice Christopher Dietzen said. Chief Justice Lorie Skjerven Gildea had a similar reaction. "The point of the post is, 'This doctor did not treat my father well,'" she said. "I can't grasp why that wouldn't be protected opinion."
Full Article:
http://www.startribune.com/printarticle/?id=168552176
MINNEAPOLIS -- A man's online post calling a doctor "a real tool" is protected speech, the Minnesota Supreme Court ruled Wednesday. The state's highest court dismissed a case by Duluth neurologist David McKee, who took offense when a patient's son posted critical remarks about him on rate-your-doctor websites. Those remarks included a claim that a nurse called the doctor "a real tool," slang for stupid or foolish.
ReplyDeleteThe lawsuit followed the hospitalization of Laurion's father, Kenneth, for a hemorrhagic stroke at St. Luke's Hospital in Duluth. Laurion, his mother and his wife were also in the room when McKee examined the father and made the statements that Laurion interpreted as rude.
Laurion expressed his dismay in several online posts with what he considered the doctor's insensitive manner.
Laurion had posted his comments on a website where patients review their doctors. The case has been watched with interest because of the potential conflict between free speech versus protection of professional reputations on the Internet.
On at least two sites, Laurion wrote that McKee said that "44 percent of hemorrhagic strokes die within 30 days. I guess this is the better option," and that "It doesn't matter that the patient's gown did not cover his backside."
Laurion also wrote: "When I mentioned Dr. McKee's name to a friend who is a nurse, she said, 'Dr. McKee is a real tool!'"
He expected at most what he calls a "non-apology apology."
"I really thought I'd receive something within a few days along the lines of 'I'm sorry you thought I was rude, that was not my intent' and that would be the end of it," the 66-year-old Duluth retiree said. "I certainly did not expect to be sued."
He was. Dr. David McKee's defamation lawsuit was the beginning of a four-year legal battle that ended Wednesday when the Minnesota Supreme Court ruled the doctor had no legal claim against Laurion because there was no proof that his comments were false or were capable of harming the doctor's reputation.
In 2011, State District Judge Eric Hylden ruled that McKee was not defamed by the criticism and dismissed the doctor’s lawsuit.
McKee appealed to the Minnesota Court of Appeals; and in January 2012, that court sent the case back to the district court for a jury to decide whether six statements Laurion posted about McKee on rate-your-doctor websites and distributed elsewhere were defamatory.
Laurion appealed the Court of Appeals decision to the Supreme Court and the case was heard in St. Paul in September.
Writing the opinion, Justice Alan Page noted that McKee acknowledged that the gist of some of the statements were true, even if they were misinterpreted.
The ruling also said it doesn't matter whether the unnamed nurse actually exists. McKee's attorney argued that Laurion might have fabricated the nurse, something Laurion's attorney denied. And it said the doctor's objections to Laurion's other comments also failed the required legal tests.
For full articles:
http://bigstory.ap.org/article/minn-high-court-say-online-post-legally-protected
Minnesota high court says online post legally protected
http://www.duluthnewstribune.com/event/article/id/257287/
Court protects Duluth doctor's online critic
http://www.startribune.com/local/189028521.html
Duluth doctor's lawsuit against patient's son over online criticism dismissed
http://comments.startribune.com/comments.php?d=content_comments&asset_id=189028521&s ection=/local&comments=true
Star Tribune comments
http://learningboosters.blogspot.com/search/label/.%20McKee%20v%20Laurion
Laurion answers questions
http://blogs.duanemorris.com/duanemorrisnewmedialawblog/entry/bedside_manners_was_the_d octor
Was the doctor defamed?
http://www.mncourts.gov/opinions/sc/current/OPA111154-0130.pdf.
Unanimous ruling of the Supreme Court of Minnesota
Minnesota defamation case, David McKee MD v Dennis Laurion, cited as precedent by UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT upon Appeal from the United States District Court for the Eastern District of North Carolina.
ReplyDeleteIn deciding an Appeal from the United States District Court for the Eastern District of North Carolina at Wilmington, MYGALLONS LLC and ZENACON LLC STEVEN VERONA v. U. S. BANCORP, VOYAGEUR FLEET SYSTEMS INC, And K. E. AUSTIN CORP (12-1287); The United States Court of Appeals for the Fourth Circuit cited David McKee MD v. Dennis Laurion.
From pages 13-14 of http://www.ca4.uscourts.gov/Opinions/Unpublished/121287.U.pdf:
The parties agree that the defamation claim is governed by Minnesota law because the alleged defamation originated in Minnesota. They also agree that under Minnesota law, the elements of a defamation claim are: “(1) the defamatory statement was communicated to someone other than the plaintiff; (2) the statement is false; (3) the statement tends to harm the plaintiff’s reputation and to lower [the plaintiff] in the estimation of the community; and (4) the recipient of the false statement reasonably understands it to refer to a specific individual.” McKee v. Laurion, 825 N.W.2d 725, 729-30 (Minn. 2013) (alteration in original) (internal quotation marks and citations omitted). A defamation claim cannot be based on a true statement. Id. at 730. “True statements” include statements that are “true in substance” and contain only “minor inaccuracies of expression or detail.” Id. In articulating this standard, the Minnesota courts explain that “substantial truth” means that “the substance, the gist, the sting, of the libelous charge [is] justified” and the statement “would have the same effect on the mind of the reader or listener as that which the pleaded truth would have produced.” Id. (alteration in original) (emphasis added) (internal quotation marks omitted).
Wow. I hadn't seen this article when it was first published because I was hip deep in Afghanistan. It's a great article about the trial.
ReplyDeletehttp://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-fall-2011/truth-doesnt-protect-minnesot