ST. PAUL, Minn. (Legal Newsline) - A woman who accused her former lover and dance instructor of rape in a widely read Facebook post was commenting on a matter of general public concern and is entitled to heightened protection against a defamation lawsuit, the Minnesota Supreme Court ruled.
By appending the #MeToo hashtag to her post and calling for women in the Twin Cities area to be wary of dance instructors, Kaija Freborg was doing more than simply getting vengeance on a man she had once had a consensual relationship with, the Minnesota Supreme Court ruled.
That in turn triggered the protections offered by the U.S. Supreme Court’s landmark New York Times vs. Sullivan decision, under which public figures must prove people made false statements with “actual malice,” or knowing they were untrue.
“Even though Freborg named, tagged, and admonished three specific instructors in her post, these personal messages do not outweigh the dominant theme of her speech—to discuss sexual assault in the dance community, a matter of public import,” the court concluded.
Freborg made a public Facebook post in 2020 accusing Byron Johnson and two other dance instructors of coercing her into having sex and raping her. Johnson sued for defamation, and an appeals court ruled the posts involved a matter of private concern and didn’t deserve the full protection of Times vs. Sullivan. The Minnesota Supreme Court reversed in a Sept. 20 decision.
Former Chief Justice Lori Skjerven Gildea dissented, saying the U.S. Supreme Court created the actual malice standard to ensure citizens could critique government officials, not to protect private citizens from defamation lawsuits.
“Freborg’s speech has nothing whatsoever to do with the government or government officials, and nothing in New York Times supports the majority’s extension of the actual malice standard to the speech at issue here,” she wrote, joined by Justices Paul Anderson and Natalie Hudson.
Freborg and Johnson met in 2011 when Freborg was on the faculty at a local university and began taking dance lessons from Johnson. The two began a casual sexual relationship sometime in 2012 but Freborg later accused Johnson of some nonconsensual acts, including a 2015 party where she was drunk and he allegedly grabbed her hand and “put it down his pants onto his genitals.”
The two broke up soon thereafter although they continued to communicate over dance lessons until 2017. Then on July 14, 2020, Freborg posted on her Facebook page that she’d “been gaslighted/coerced into having sex, sexual assaulted and/or raped” by Johnson and two other dance instructors.
“If you have a problem with me naming you in a public format, then perhaps you shouldn’t do it,” she wrote. She responded to a comment by saying she wasn’t accusing Johnson of rape and later deleted the reference to rape, saying “words like rape from a white woman can be triggering for black men.”
Johnson commented on her post asking if she thought his name belonged on the post, calling it “a very serious allegation which I categorically deny.”
“We haven't spoken in a very long time but we can do better than this,” he wrote. Freborg responded by accusing him of “gaslighting” and urging him to “talk to the many, many other women you’ve done this to.”
`We’ do not need to do better, you do,” she wrote.
Two weeks after posting, she deleted her Facebook account. Johnson sued her for defamation anyway, claiming she had painted him as a rapist and his business had suffered as a result. Freborg moved to dismiss the case, saying she wrote on a matter of public importance amid the global #MeToo movement.
Johnson also moved for summary judgment, arguing her posts addressed a private, not public matter and suggested he raped her when she admitted he hadn’t. The trial court granted Freborg’s motion to dismiss, ruling her statements were true and rejected the argument they were personal in nature. An appeals court reversed, however, ruling there was a genuine issue of fact about whether the posts were true and they involved a private matter requiring a lower level of proof.
The Minnesota Supreme Court limited its review to the question of whether Freborg commented on a matter of general public concern. It ruled she had, relying in part on her use of Facebook to reach a large audience. That drew criticism from dissenting Justice Gildea, who said nothing in the Times vs. Sullivan decision suggested private citizens can protect themselves against defamation suits by making the allegations more accessible to the public.
The decision is especially distressing given the history of racial violence against Black men accused of rape, the justice wrote.
“Freborg’s accusation that Johnson raped her comes nowhere close” to speech on a matter of public concern, she wrote. “And a consequence of the majority’s hashtag rule will likely be more posts like hers—post accusing others of violence and bad behavior.”