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ARTICLES
Free Speech Threat or Jury Error? Verdict Against Blogger “Johnny Northside” Likely the Result of Special Verdict Form
by Benjamin R. Skjold and Carl F. Engstrom*
The $60,000 jury award Friday against John Hoff (aka blogger “Johnny Northside”) for tortious contract interference and tortious interference with a prospective employment relationship is starting to gain national attention, and would appear to have broad implications for the First Amendment rights of bloggers. Closer inspection, however, reveals that this may be the result of a confused jury award based upon the technicalities in the law contained in the Special Verdict Form, and not a commentary on the free speech rights of bloggers.
Jerry Moore, the plaintiff in the case, was terminated in June 2009 by the University of Minnesota’s Urban Research and Outreach/Engagement Center, one day after Johnny Northside made a blog post blasting the U of M’s recent decision to hire Moore given “[r]epeated and specific evidence in Hennepin County District Court show[ing] that Jerry Moore was involved with a high-profile fraudulent mortgage at 1564 Hillside Ave. N.” Special Verdict Form at 1, Moore v. Hoff (Hennepin County 4th Dist. Mar. 11, 2011) (No. 27-CF-09-17778). The jury rejected the defamation charges, stating on the Special Verdict Form that the above statement was not false.
Hoff did, according to the Special Verdict Form, “intentionally interfere with Jerry Moore’s employment contract,” and “interfere with Jerry Moore’s prospective employment advantage.” Id. at 2. This outcome of the jury’s verdict could be the subject of review by an appellate court because it could be argued that the Special Verdict Form demonstrates a confusion as to the current state of the law, which is highly technical in nature.
Under Minnesota common law, tortious contract interference arises “when one ‘intentionally and improperly’ interferes.” Nordling v. NSP Co., 478 N.W.2d 498 (Minn. 1991) (quoting Restatement (Second) of Torts § 766 (1979)). This second requirement, that the interference be “improper,” and thus not “justified,” is a required element to prove both tortious interference with an existing contract (id.), and tortious interference with a prospective contract. United Wild Rice, Inc., v. Nelson, 313 N.W.2d 628, 633 (Minn. 1982). This element is also conspicuously absent from the Special Verdict Form, which asks, for each tort, only whether the interference was intentional.
This issue of “unjustified” or “improper interference” with the Plaintiff’s contract could be material in light of the jury’s determination that Johnny Northside’s statement was not false, given that “[o]ne 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.” Restatement (Second) of Torts § 772 (1979) (emphasis added) (cited with approval in Glass Serv. Co., Inc. v. State Farm Mut. Auto. Ins. Co., 530 N.W.2d 867, 871 (Minn. Ct. App. 1995)). If the Plaintiff’s statement was not false, as would be required for a defamation claim, then how was it improper for a tortuous interference claim?
Of course, not having seen the factual record, it is possible that there was other conduct or speech by Johnny Northside that may have supported the jury’s verdict on the tortuous interference claim, while allowing them to reject the claim of defamation. To support such a finding, however, the legal standard of unjustified or improper conduct should be identified to avoid any jury confusion regarding of liability arising from Johnny Northside’s proper interference with Moore’s employment contract.
* Carl F. Engstrom is a second year law student at the University of Minnesota Law School.