Kurt A. Maethner, Respondent,
Someplace Safe, Inc., Appellant, Jacquelyn Jorud, f/k/a Jacquelyn Hanson Maethner, Appellant.
of Appeals Office of the Appellate Courts
Marshall H. Tanick, Teresa J. Ayling, Meyer Njus Tanick, PA,
Minneapolis, Minnesota, for respondent.
Margaret A. Skelton, Christian R. Shafer, Timothy A.
Sullivan, Ratwik, Roszak & Maloney, P.A., Minneapolis,
Minnesota, for appellant Someplace Safe, Inc.
Michael J. Morley, Morley Law Firm, Ltd., Grand Forks, North
Dakota; and John J. Bursch, Bursch Law PLLC, Caledonia,
Michigan, for appellant Jacquelyn Jorud.
J. Cragg, Eckland & Blando LLP, Minneapolis, Minnesota,
for amicus curiae Minnesota Association for Justice.
Lindsay Brice, Minnesota Coalition Against Sexual Assault,
Saint Paul, Minnesota; and Elizabeth Richards, Coalition for
Battered Women, Saint Paul, Minnesota, for amici curiae
Minnesota Coalition Against Sexual Assault and Minnesota
Coalition for Battered Women.
Volokh, UCLA School of Law, Los Angeles, California; and John
Arechigo, Arechigo & Stokka, P.A., Saint Paul, Minnesota,
for amici curiae Profs. Eugene Volokh, et al.
Lauricella, Standpoint, Minneapolis, Minnesota; Lisa C.
Stratton, Christy L. Hall, Gender Justice, Saint Paul,
Minnesota; Evon M. Spangler, Domestic Abuse Legal Advocacy
Center, PSC, Saint Paul, Minnesota; Sarah J. Runchey, Mary
Catherine Lauhead, and Michael D. Dittberner, Minnesota State
Bar Association Family Law Section, Minneapolis, Minnesota;
and Ben M. Henschel, David L. Olson, Minnesota Chapter of the
American Academy of Matrimonial Lawyers, Minneapolis,
Minnesota, for amici curiae Standpoint, et al.
the challenged statements in a defamation action involve a
matter of public concern, a private plaintiff may not recover
presumed damages absent a showing of actual malice. To
determine whether speech addresses a matter of public
concern, the court considers the totality of circumstances,
including the content, form, and context of the speech.
the absence of evidence creating an issue of fact that an
advocacy organization had reason to doubt the veracity of a
former client's statements, the organization did not
breach its duty of care by failing to investigate that
client's statements relating to domestic violence before
publishing those statements.
in part, reversed in part, and remanded.
GILDEA, Chief Justice.
defamation appeal requires us to strike a delicate balance
between the State's interest in providing redress for
citizens claiming reputational injury and the free speech
protections the First Amendment provides. Respondent Kurt
Maethner brought this defamation and negligence action
against appellant Someplace Safe, Inc., an advocacy
organization for victims of domestic violence, and appellant
Jacquelyn Jorud, his former wife, contending that their
statements accused him of committing domestic violence. The
district court granted summary judgment to Someplace Safe and
Jorud, but the court of appeals reversed and remanded for
trial. The court of appeals concluded that Maethner provided
sufficient evidence of damages and breach of duty to warrant
a trial on his claims. Because we conclude that the damages
question requires a remand, and that summary judgment was
properly awarded to Someplace Safe on negligence, we affirm
in part, reverse in part, and remand to the district court
for further proceedings consistent with our opinion.
Maethner and Jacquelyn Jorud married in 1995, separated in
2008, and divorced in 2010. During the separation and divorce
proceedings, Jorud was a client of Someplace Safe, a
nonprofit organization that provides services for victims of
domestic violence. A dissolution decree was issued in October
2010. That dissolution decree did not reference domestic
violence. Jorud never sought an order for protection against
Maethner and no criminal charges were filed against Maethner
for domestic violence. After the divorce, Jorud kept
"Maethner" as her legal surname, but also used
"Jorud" after she remarried.
years after the divorce, Jorud began volunteering with
Someplace Safe and speaking at community events about her
experience as a survivor of domestic violence. On October 4,
2013, Jorud posted the following to her Facebook page, under
the name Jacki Hansen Maethner: "By God's grace I am
a survivor. Because of His love I am living with many
blessings today! Domestic violence is real."
2014, Someplace Safe presented Jorud with a "Survivor
Award" at its 35th anniversary fundraising banquet. To
advertise the event, Someplace Safe issued a press release,
which noted that "Jacki Maethner Jorud" would be
receiving the award. Several local newspapers republished
this information. Someplace Safe presented Jorud with a
certificate at the banquet, which recognized her for
"empowering [herself] and inspiring others to stand
the banquet, Someplace Safe and Jorud posted pictures on
Facebook of Jorud holding the award certificate. The Facebook
page of Someplace Safe has over 1, 000 followers. In
addition, Jorud wrote an article for the fall 2014 newsletter
of Someplace Safe that was published to approximately 2, 500
people. The newsletter was seven pages long, with the last
page containing a request for donations.
article was approximately one page long, was signed
"Jacki Maethner Jorud," and was accompanied by a
photo of Jorud with her husband and stepchildren. The article
did not mention Maethner by name nor did it specifically
state that the domestic violence happened during Jorud's
prior marriage to Maethner. Nonetheless, Maethner identifies
the following statements from the article as defamatory:
• "I was asked to write a short article celebrating
the fact of not just surviving domestic violence, but
thriving through recovery."
• "Getting out of an unhealthy, threatening and
dangerous relationship is hard. It is scary."
• "I don't know if there will ever be a time
when I can be certain I am no longer being stalked and
• "I didn't want to live in a constant state of
• "I didn't want daily conflict and
later, on February 1, 2015, Jorud posted the following to her
Facebook page: "I, Jacki Maethner, will continue to
speak out and educate against domestic violence. Neither the
uncomfortableness of the subject, nor intimidation from
others will keep me from speaking out. I am not just a
survivor. I have learned to thrive in a life rich with
blessings of LOVE, RESPECT, KINDNESS and EQUALITY."
sued Someplace Safe and Jorud for defamation. Maethner
alleges that Someplace Safe defamed him by presenting Jorud
with the Survivor Award at its banquet, publicizing the award
in its press release and on its Facebook page, and publishing
Jorud's article in its fall 2014 newsletter. Maethner
alleges that Jorud defamed him by posting pictures and
statements on Facebook that identified her as a survivor of
domestic violence, as well as writing the article for
Someplace Safe's newsletter. Although the statements did
not identify him by name, Maethner asserts that a reasonable
person in the community would understand the statements to
refer to him because the Maethner surname is not common and
his marriage to Jorud was well known in the community.
Maethner further alleges that Someplace Safe was negligent in
publishing the newsletter article without investigating the
accuracy of Jorud's statements. Maethner requests damages
for emotional harm, including anxiety, headaches, stomach
aches, and difficulty sleeping. He also argues that his
damages may be presumed because the statements accuse him of
"criminal behavior or moral turpitude" and such
statements are "deemed to be defamatory per
Safe and Jorud each filed motions for summary judgment. The
district court determined that there was a genuine issue of
material fact as to whether the defamatory statements were
"about" Maethner, even though none of the
statements explicitly named him.
the district court granted summary judgment to Someplace Safe
and Jorud on the defamation claims, concluding that (1) the
statements were protected by a qualified privilege, and
Maethner failed to establish a genuine issue of material fact
on malice; and (2) Maethner had not shown proof of actual
damages. The district court also granted summary judgment to
Someplace Safe on the negligence claim, concluding that
Someplace Safe did not have a duty to investigate Jorud's
court of appeals reversed and remanded. See Maethner v.
Someplace Safe, Inc., 907 N.W.2d 665');">907 N.W.2d 665, 675-76 (Minn.App.
2018). The court of appeals rejected each of the bases on
which the district court relied in granting summary judgment.
First, the court of appeals concluded that "the
allegedly defamatory statements were not protected by a
qualified privilege because they were made to raise funds for
Someplace Safe and not to protect Jorud or to report a
crime." Id. at 667. Next, the court of appeals
concluded that Maethner must prove negligence as an element
of his defamation claim against Someplace Safe, and
therefore, he "does not have a separate negligence
claim" against Someplace Safe. Id. at 673. In
addition, the court of appeals determined that Someplace Safe
owed a duty to exercise reasonable care before publishing
Jorud's statements, and "[w]hether Someplace Safe
breached its duty of reasonable care raised a fact question
for the jury." Id. at 674. Finally, the court
of appeals said that "Maethner produced sufficient
evidence of damages to survive summary judgment."
Id. Therefore, the court of appeals remanded for
trial on Maethner's defamation claims. Id. at
Safe and Jorud each petitioned for further review. We granted
a defamation case. To provide a framework for our analysis,
we begin with some general principles. Under the common law,
a plaintiff pursuing a defamation claim "must prove that
the defendant made: (a) a false and defamatory statement
about the plaintiff; (b) in [an] unprivileged publication to
a third party; (c) that harmed the plaintiff's reputation
in the community." Weinberger v. Maplewood
Review, 668 N.W.2d 667');">668 N.W.2d 667, 673 (Minn. 2003). As the second
element suggests, the common law recognizes privileges, both
absolute and qualified, that operate to defeat a defamation
claim. Harlow v. State Dep't of Human Servs.,
883 N.W.2d 561, 569 (Minn. 2016). A qualified privilege is
overcome if the plaintiff demonstrates that the defendant
made the statement with malice. Bahr v. Boise Cascade
Corp., 766 N.W.2d 910');">766 N.W.2d 910, 920 (Minn. 2009). Malice under
the common law means that the defendant made the statement
"from ill will and improper motives, or causelessly and
wantonly for the purpose of injuring the plaintiff."
Stuempges v. Parke, Davis & Co., 297 N.W.2d 252');">297 N.W.2d 252,
257 (Minn. 1980) (citation omitted) (internal quotation marks
avoid chilling constitutionally protected speech, the Supreme
Court has imposed prerequisites to recovery in certain types
of defamation actions. For example, the Court has held that
public figures and public officials must meet a higher
standard when challenging defamatory statements, requiring
proof of actual malice. See generally Curtis Publ'g Co.
v. Butts, 388 U.S. 130, 155 (1967); New York Times
Co. v. Sullivan, 376 U.S. 254, 278-80 (1964). To satisfy
the constitutional actual-malice standard, a statement must
be "made with the 'knowledge that it was false or
with reckless disregard of whether it was false or
not.'" Weinberger, 668 N.W.2d at 673
(quoting New York Times, 376 U.S. at 279-80);
see also Moreno v. Crookston Times Printing Co., 610
N.W2d 321, 329 (Minn. 2000) (defining "actual
malice" and noting that "it is important to
distinguish between 'actual malice' and 'common
law malice' ").
this framework in mind, we turn to the issues raised here.
First, we address whether Maethner produced sufficient
evidence of damages to survive summary judgment, including
whether he may rely on presumed damages. Second, we address
whether Someplace Safe had a duty to investigate the
truthfulness of Jorud's statements before publishing the
statements. Because this case comes to us on appeal from
summary judgment, we conduct a de novo review to determine
"whether there are any genuine issues of material fact
and whether the district court erred in its application of
the law to the facts." Capistrant v. Lifetouch
Nat'l Sch. Studios, Inc., 916 N.W.2d 23, 27 (Minn.
2018). In making that determination, "we view the
evidence in the light most favorable to the nonmoving party
and resolve all doubts and factual inferences against the
moving parties." 328 Barry Ave., LLC v. Nolan Props.
Grp., LLC, 871 N.W.2d 745, 751 (Minn.
first to the issue of damages. The damages issue presented
here focuses on the third element of a defamation
claim-reputational harm. Weinberger, 668 N.W.2d at
673. The district court dismissed Maethner's defamation
claims on summary judgment, concluding that Maethner did not
offer evidence to create an issue for trial on reputational
harm. The court of appeals reversed. On appeal, Maethner
argues that he offered sufficient proof of damages to survive
summary judgment. He contends that he suffered emotional-harm
damages as result of the defamatory statements. He also
argues that he is entitled to presumed damages because his
claims are for defamation per se. We consider each aspect of
Maethner's damages argument in turn.
first consider Maethner's argument that his defamation
claims survive because he offered proof of emotional-harm
damages. Maethner asserts that he is entitled to recover
damages for his emotional distress, which includes
"headaches, stomach aches, difficulty sleeping, and
similar ailments." Someplace Safe and Jorud argue that
Maethner's emotional-harm damages are not recoverable
under our decision in Richie v. Paramount Pictures
Corp., which held that "emotional damages are not
compensable" in a defamation action "absent harm to
reputation." 544 N.W.2d 21, 28 (Minn. 1996).
explained in Richie that a defamation plaintiff
generally must establish harm to reputation because
defamation actions compensate for injury to reputation, in
contrast to invasion of privacy torts, which "compensate
for 'mental distress from having been exposed to public
view.'" Id. (quoting Time Inc. v.
Hill, 385 U.S. 374, 384-85 n.9 (1967)). Accordingly, we
concluded that emotional-harm damages are allowed in
Minnesota only as "parasitic" damages. Id.
at 27. Put another way, emotional-harm damages" 'are
insufficient in themselves to make the slander actionable,
but once the cause of action is made out without them, they
may be tacked on as "parasitic" to it.'"
Id. (quoting W. Page Keeton et al., Prosser and
Keeton on the Law of Torts § 112, at 794-95 (5th
ed. 1984)). Maethner does not ask us to reconsider this
aspect of Richie.
on appeal, Maethner cites to his deposition where he
testified that others saw the statements at issue. But, as
the district court found, Maethner also testified at his
deposition that he did not know whether the statements at
issue "had any impact on his reputation." And he
"could not name anyone who thought ill or less of him
because of the statements." Because Maethner did not
offer evidence to satisfy the "reputational harm
prerequisite" that Minnesota law imposes in defamation
actions, Richie, 544 N.W.2d at 28, his defamation
claims fail as a matter of law unless he can recover presumed
damages. We turn to that question now.
argues that he can recover presumed damages because
"[a]ccusations of criminal behavior or moral turpitude,
like those made here, are deemed to be defamatory per
se." In cases of defamation per se, "the
common law allowed harm to reputation to be presumed."
Richie, 544 N.W.2d 21 at 25. And we have held that
defamation per se is "actionable without any proof of
actual damages." Stuempges, 297 N.W.2d at 255.
Courts allow presumed damages because statements that are
defamatory per se are "virtually certain to cause
serious injury to reputation, and that this kind of injury is
extremely difficult to prove." Carey v. Piphus,
435 U.S. 247, 262 (1978).
that we have recognized as defamatory per se include
"false accusations of committing a crime and false
statements about a person's business, trade, or
professional conduct." Becker v. Alloy Hardfacing
& Eng'g Co., 401 N.W.2d 655');">401 N.W.2d 655, 661 (Minn. 1987).
We agree with Maethner that some of the challenged statements
here, when viewed in the light most favorable to him, could
be capable of being understood as accusing him of a
crime-namely, domestic assault, see Minn. Stat.
§ 609.2242 (2018), and stalking, see Minn. Stat
§ 609.749 (2018).
the statements could be construed as involving criminal
behavior, however, does not end the analysis. This is
because, like all laws regulating speech, the doctrine of
defamation per se cannot offend the constitutional guarantees
of the First Amendment. See Jadwin v. Minneapolis Star
& Tribune Co., 367 N.W.2d 476, 481 (Minn. 1985). We
have recognized that "personal reputation has been
cherished as important and highly worthy of protection"
throughout history. Id. at 491. But at the same
time, courts cannot offer recourse for injury to reputation
at the cost of chilling speech on matters of public concern,
which "occupies the highest rung of the hierarchy of
First Amendment values, and is entitled to special
protection." Snyder v. Phelps, 562 U.S. 443,
452 (2011) (internal quotation marks omitted) (quoting
Connick v. Myers, 461 U.S. 138, 145 (1983)). We must
determine how that balance between cherished reputational
rights and free speech protections tips here on
Maethner's claim of presumed damages.
district court and court of appeals grounded their
presumed-damages rulings on Richie v. Paramount Pictures
Corp., so we begin our analysis there. Richie
arose from an episode of the Maury Povich Show, "a
nationally syndicated television program." 544 N.W.2d at
23. The plaintiffs' goddaughter appeared on the show to
discuss her successful civil suit against her parents arising
out of sexual abuse. Id. at 23-24. Prior to filming,
the goddaughter's attorney provided the show with a
photograph, which she believed depicted the goddaughter with
her parents. Id. at 24. The photograph, in fact,
depicted the goddaughter with the plaintiffs. Id.
The photograph was shown during the episode while the
goddaughter was discussing the abuse, which suggested that
the plaintiffs were the perpetrators. Id. After the
show aired, the plaintiffs sued the producer of the show, the
production company, and the goddaughter's attorney for
defamation. Id. at 23.
analyzing whether the plaintiffs could recover presumed
damages, we described Supreme Court precedent as holding that
"in a private plaintiff defamation action against a
media defendant speaking on a matter of public concern,
states may not constitutionally 'permit recovery of
presumed . . . damages, at least when liability is not based
on a showing of falsity or reckless disregard for the
truth.'" Id. at 25 (alteration in original)
(footnote omitted) (quoting Gertz v. Robert Welch,
Inc., 418 U.S. 323, 349 (1974)). Applying this rule, we
held that "damages cannot be presumed" and "a
showing of actual harm to reputation" is required
"where the defamatory statements were made by the media,
involved a matter of public concern, and there have been no
allegations of actual malice." Id. at 26, 28.
district court in this case relied on Richie to
conclude that Maethner could not recover presumed damages
"based on the facts and evidence presented" and
"in the absence of any showing of malice or knowledge of
falsity or reckless disregard for the truth." But the
court of appeals ruled that the district court's reliance
on Richie was "misplaced."
Maethner, 907 N.W.2d at 675. According to the court
of appeals, "Richie is inapposite because it
considered First Amendment restrictions on defamation claims
against the media," whereas this case involves
statements made by a private individual and "a nonprofit
organization that was soliciting donations."
Id. Therefore, the ...