Legal Commentary

$60,000 Damages for Blogging the Truth About Someone, Intending to Get The Person Fired

By Eugene Volokh

The Minneapolis Star Tribune reports:

Controversial north Minneapolis blogger John Hoff must pay $60,000 in damages to a former Jordan Area Community Council executive director Jerry Moore, a jury in the civil case concluded Friday.

The Hennepin County District Court jury found that an ?Adventures of Johnny Northside? blog post in June 2009 resulted in Moore?s firing from the University of Minnesota....

The jury ruled that although Hoff?s post ... was true, he intentionally interfered with Moore? employment contract with the University of Minnesota Urban Outreach and Outreach/Engagement Center....

Moore?s lawsuit [stated] that after he was fired from the Jordan Area Community Council in January 2009, he was hired at the university center. When Hoff found out, he wrote a post lambasting Moore and accusing him of involvement 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 charged in the Maxwell case. Moore was fired the day after the blog post.

If the news story is accurate, and isn?t omitting some key facts, the result seems unconstitutional and quite wrong. 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.

Perhaps because of this, the Restatement (Second) of Torts § 772(a) provides that, ?One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other?s contractual relation, by giving the third person ... truthful information.? See also, among many other cases, Walnut Street Assocs., Inc. v. Brokerage Concepts, Inc. (Pa. Super. 2009) (so holding); Recio v. Evers (Neb. 2009) (likewise). [UPDATE: Reader CW notes that Minnesota seems to have accepted § 772(a) as well, see Glass Service Co. v. State Farm Ins. Co. (Minn. Ct. App. 1995); Fox Sports Net North, LLC v. Minnesota Twins Partnership (8th Cir. 2003).] But even if Minnesota courts take the opposite view as a matter of state law, such a view would be preempted by the First Amendment.

I hope the state law and First Amendment objections were properly preserved at trial, and that the defendant appeals. Thanks to Ben White for the pointer.

Full post as published by The Volokh Conspiracy on March 11, 2011 (boomark / email).