Defamation attorneys prosecute and defend defamation claims, which are often pursued in the context of litigation involving other claims or counterclaims. Our Minnesota defamation lawyers represent victims of defamation or people accused of making defamatory statements. Where defamation claims exist, our attorneys can help clients understand the strengths and weakness of a case before the case goes to court. When someone says something harmful about another person, some of these statements are actionable. Some are not. Our attorneys help clients to determine whether their claims or defenses have merit.
To establish a defamation claim in Minnesota, a plaintiff must establish the following three elements: (1) the defamatory statement is “communicated to someone other than the plaintiff,” (2) the statement is false, and (3) the statement “tend[s] to harm the plaintiff’s reputation and to lower [the plaintiff] in the estimation of the community.” Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 919-920 (Minn. 2009) (quoting Stuempges, 297 N.W.2d at 255). If the defamation involves a claimant’s business, trade or profession, no actual damages need to be shown because damages are presumed. This concept also applies in some other cases. Our attorneys analyze each claim so clients can make informed decisions about whether to pursue a defamation claim in a specific case.
Defamation can be written (for example, in a newspaper or an e-mail) or oral/spoken. Written defamation is called libel. Oral/spoken defamation is called slander.
Defamation claims are designed to prevent people from spreading false information that harms others. Minnesota courts have repeatedly held that defamation does not occur when someone speaks truthfully. Courts indicate that a true statement, however hurtful, is not actionable as defamation. Courts have also recognized the importance of protecting free speech and the expression of ideas and opinions. To avoid stifling open discussion, courts have also recognized that the First Amendment protects opinions and those who hold them. Therefore, it is a defense to defamation that the attorney accused statement was an opinion, not a statement of fact.
Defamation cases include many exceptions and nuances like this. For example, public figures are treated differently in the context of defamation claims because these citizens are believed to enjoy a unique benefit of public life: having a public forum in which to respond to false statements. Average citizens do not have the same resources at their disposal. This is why celebrities sometimes have difficulty winning defamation cases.
Our attorneys help clients understand the defenses in defamation cases. Each case is unique, and our attorneys provide thorough analysis of defamation claims with the goal of resolving claims through litigation, mediation or, if necessary, a trial.
Costs of Representation
If we accept a defamation case, we bill our time by the hour. If a letter is requested, our retainer deposit is $1,000. If litigation is requested, our clients deposit $5,000 or $10,000 depending on the complexity of the case.
Issues to Consider
Statute of Limitations. The statute of limitations for defamation claims is two years from first publication. If the claim is not brought within that time, it is lost.
Retraction Statute. In an action for damages for the publication of libel by a newspaper, a plaintiff generally cannot recover more than special damages unless a retraction is demanded from the newspaper and refused. If the newspaper publishes the retraction (in the form specified by statute), a litigant may still recover general damages, unless the newspaper shows that the libelous publication was made in good faith and under a mistake as to the facts. Minn. Stat. § 548.06.
Damages for Defamation. Minnesota courts have defined general damages as the “natural, necessary and usual result of the wrongful act or occurrence in question.” Phelps v. Commonwealth land Title Ins. Co., 537 N.W.2d 271, 275 n.2 (Minn. 1995). These damages include the more difficult to quantify damages for injury to reputation and might also include mental anguish, emotional distress, loss of enjoyment of life, and anxiety. Additionally, special damages are those “which are the natural, but not the necessary and inevitable result of the wrongful act.” Id. These damages are better known as “out of pocket” or quantifiable damages, e.g., wages from a job that was lost due to a defamatory statement about the worker.
Good Faith Police Report. Minn. Stat. § 604A.34 was repealed in 2015. It read as follows:
An individual who in good faith seeks assistance from, or reports apparent unlawful conduct to, law enforcement is not liable for civil damages as a result of that action. If an individual prevails in a civil action from which the individual has been granted immunity by this section, the court shall award the individual reasonable attorney fees and costs. This section does not exempt individuals from their professional obligations of confidentiality.
Although repealed, the same principles evident in Section 604A.34 were added to Minnesota’s anti-SLAPP statutes, although these laws required additional proof to recover attorneys’ fees against a litigant. SLAPP stands for Strategic Litigation Against Public Participation. Specifically, Minn. Stat. § 554.01, subdivision 6 now read as follows:
Subd. 6. Public participation. “Public participation” means speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action, including but not limited to:
(1) seeking assistance from, or reporting suspected unlawful conduct to, law enforcement;
(2) speaking before a zoning board regarding a real estate development project;
(3) communicating with an elected official concerning a change in law;
(4) demonstrating peacefully for or against a government action; and
(5) filing a complaint with a government entity regarding safety, sexual harassment, civil rights, or equal employment rights.
Suits premised upon “public participation” were subject to defense through unique motions to dismiss, premised upon statutory immunity. As it related to immunity, the law reads as follows: “[l]awful conduct or speech that is genuinely aimed in whole or in part at procuring favorable government action is immune from liability, unless the conduct or speech constitutes a tort or a violation of a person’s constitutional rights.” Minn. Stat. § 554.03.
Minnesota’s anti-SLAPP law held unconstitutional in 2017. Notwithstanding the foregoing discussion about Minnesota’s anti-SLAPP law’s past, the law was found unconstitutional in 2017 primarily because it allowed defending parties to deprive plaintiffs of the right to a jury trial on tort claims. After finding parts of the law unconstitutional, the Minnesota Supreme Court looked at whether other aspects of the law were salvageable, writing as follows:
Having decided that clauses 2 and 3 of section 554.02, subdivision 2, are unconstitutional as applied to claims at law alleging torts, we must now determine whether these provisions are severable from the remainder of section 554.02. Provisions of a law are severable unless they are “so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the legislature would have enacted the remaining valid provisions without the void one” or “the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.” Minn. Stat. § 645.20 (2016). If a statute has unconstitutional applications, they are severable from the constitutional applications. See Hoene v. Jamieson, 289 Minn. 1, 7, 182 N.W.2d 834, 838 (1970) (severing an unconstitutional application from the law’s constitutional applications). The two unconstitutional clauses of Minn. Stat. § 554.02 are inseparable from the remainder of the section. Without the unconstitutional provisions, section 554.02 provides no procedure for courts to determine whether a lawsuit violates the substantive prohibition of Minn. Stat. § 554.03. We therefore conclude that Minn. Stat. § 554.02 is unconstitutional when it requires a district court to make a pretrial finding that speech or conduct is not tortious under Minn. Stat. § 554.03, as was the case here. For the foregoing reasons, Minn. Stat. § 554.02 is unconstitutional as applied to claims at law alleging torts.
Leiendecker v. Asian Women United of Minnesota, 895 N.W.2d 623, 637-38 (Minn. 2017).
Given that early summary dismissal is the hallmark of protection provided by anti-SLAPP laws, it is difficult to envision how the legislature could revise the law to avoid constitutional scrutiny.
Criminal Defamation. On May 26, 2015, the Minnesota Court of Appeals held that Minnesota’s criminal defamation law, Minn. Stat. § 609.765, was unconstitutional. State v. Turner, 864 N.W.2d 204, 209 (Minn. Ct. App. 2015) (holding that “section 609.765 is overbroad because it does not exempt truthful statements from prosecution and, as applied to matters of public concern, does not require the state to prove ‘actual malice’ before imposing liability.”). In 2016, the Minnesota legislature attempted to modify the law to eliminate constitutionality concerns. Specifically, the revised law, reads as follows:
Subdivision 1. Definition. Defamatory matter is anything which exposes a person or a group, class or association to hatred, contempt, ridicule, degradation or disgrace in society, or injury to business or occupation.
Subd. 2. Acts constituting. Whoever with knowledge of its defamatory character orally, in writing or by any other means, communicates any defamatory matter to a third person without the consent of the person defamed is guilty of criminal defamation and may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.
Subd. 3. Justification. Violation of subdivision 2 is justified if:
the defamatory matter is true and is communicated with good motives and for justifiable ends; or (2) the communication is absolutely privileged; or (3) the communication consists of fair comment made in good faith with respect to persons participating in matters of public concern; or (4) the communication consists of a fair and true report or a fair summary of any judicial, legislative or other public or official proceedings; or (5) the communication is between persons each having an interest or duty with respect to the subject matter of the communication and is made with intent to further such interest or duty.
Subd. 4. Testimony required. No person shall be convicted on the basis of an oral communication of defamatory matter except upon the testimony of at least two other persons that they heard and understood the oral statement as defamatory or upon a plea of guilty.
CRIMES AND OFFENSES-CIVIL CAUSE OF ACTION-NONCONSENSUAL DISSEMINATION OF PRIVATE SEXUAL IMAGES, 2016 Minn. Sess. Law Serv. Ch. 126 (S.F. 2713) (WEST)
It remains to be seen whether the revised law will satisfy the Minnesota Supreme Court in a future challenge of its constitutionality.
Child Maltreatment Claims. Where certain claims are made regarding child maltreatment, a falsely accused person may have the right to recover attorneys’ fees under the following statutory language:
Subd. 5. Malicious and reckless reports. Any person who knowingly or recklessly makes a false report under the provisions of this section shall be liable in a civil suit for any actual damages suffered by the person or persons so reported and for any punitive damages set by the court or jury, plus costs and reasonable attorney fees.
Minn. Stat. § 626.556, subd. 5 (2018) (emphasis added).
Discovery in Defamation Cases. Discovery is important in defamation cases because issues of damages (for plaintiffs) and defenses (for defendants) are fact-driven inquiries that require careful factual review. For example, who will testify that a plaintiff’s reputation was harmed? A customer? A member of the community? Was a sale or job opportunity lost because of the defamatory statement? If so, who will testify to this fact? Are there documents, e-mails or text messages that support a claim or defense?
A thorough pre-trial investigation is important in a defamation case, and a strong investigation can impact settlement results before trial. Our defamation attorneys apply unique discovery strategies in each case and tailor their services to the individual needs of each client.