In an odd case out of Minnesota, in which the plaintiff in a libel action following a #MeToo accusation of rape from a former girlfriend of a couple years was held by the trial judge, as a matter of law, to not have raised a triable issue of fact when he denied that sexual contact was non-consensual. Unsurprisingly, the male was black and the female was white.

Johnson is a dance instructor and event promoter. Freborg was the director of a bachelor’s program in nursing and assistant professor at Augsburg college, until she relocated to California. She worked as a staff nurse for 17 years before receiving a doctorate in nursing from Augsburg in 2011, after which she spent ten years as a professor.

After a three-year relationship, Freborg went to a party at Johnson’s home where, while intoxicated, Johnson put her hand on his penis. Johnson denied that it was non-consensual, which should have given rise to a “she said/he said” scenario, a classic question of fact. The judge not only disagreed, but did so as a matter of law.

As #MeToo became a “thing,” Freborg took to Facebook to name Johnson, among others, as having sexually assaulted her.*

Feeling fierce with all these women dancers coming out. So here goes … I’ve been gaslighted/coerced into having sex, sexual[ly] assaulted, and/or raped by the following dance instructors: Byron Johnson, Saley Internacional, and Israel Llerena. If you have a problem with me naming you in a public format, th[e]n perhaps you shouldn’t do it [three shrugging-person emojis]

#metoo #dancepredators

But issue of fact aside, there is an overarching question of whether an accusation of sexual misconduct becomes a matter of public concern when it’s linked to #MeToo.

Now even if the statement is false, if it were on a matter of public concern, Johnson wouldn’t be able to recover damages unless (1) he could show some demonstrated harm caused by the statement, or (2) he could show that Freborg knew the statements were false or likely false (satisfying the so-called “actual malice” standard). But if it were on a private concern, then Johnson would be able to recover “presumed damages”—and even punitive damages, though the court didn’t focus on them here—even in the absence of demonstrated harm or “actual malice.”

Was Freborg using her Facebook post to spread a message of public concern, or was she using the opportunity to exact revenge against Johnson by accusing him of sexual assault? The trial court held that it was a matter of public concern, while the appellate court reversed.

Sexual assault—like domestic violence—is generally a matter of public concern. That does not end our inquiry. Turning first to the content of the speech here, we note that it is more singularly directed at an individual than the speech in Snyder v. Phelps.

Indeed, accusing specific individuals with criminal conduct is about as “singularly directed at an individual” as it gets. But there’s more.

As to the form and context of the speech, the use of the hashtags, which are designed to expose a post beyond the user’s immediate network, certainly demonstrates that Freborg sought to share her views in a manner designed to reach a broad public audience. On the other hand, the parties’ prior relationship also factors into our examination of context.

But was Freborg using the named parties as examples of a broader problem of public concern within the dance community, making that the focus of her #MeToo accusation rather than the individuals named?

Whether Freborg’s speech involved a matter of public concern, given the totality of the circumstances, is a difficult balance. In essence, the question is whether it is a public concern when one person accuses her former consensual partner of sexual assault and adds hashtags to facilitate discussion. Certainly, broad dissemination, in and of itself, should not qualify speech as involving a public concern. But does broad dissemination of an accusation during a national discussion of sexual harassment qualify?

The court held that under the facts of this case, it was not a matter of public concern. The dissent concluded otherwise.

The #MeToo movement is characterized by survivors of sexual abuse creating social-media posts disclosing their experiences with sexual harassment and sexual violence and identifying their abusers. Survivors end their posts with the now-ubiquitous hashtag, #MeToo. That hashtag categorizes the posts and allows them to be associated with a community discussion on the subject of sexual abuse…. The district court determined that in July 2020, respondent Kaija Freborg added her voice to the growing chorus of the #MeToo movement….

Judge Wheelock, with whom Volokh agrees, would have held Freborg’s accusations to be a matter of public concern as she was joining in a “movement” exposing “survivors” to liability for libel. To find otherwise would have a chilling effect on free speech.

Freborg made the post as part of a now-global conversation about the prevalence of sexual harassment and assault and the need to shine light on once-secreted personal experiences.

Was this a matter of public concern? As a general notion, certainly. But when it specifically accuses individuals in a very public fashion of heinous criminal conduct, where there will potentially be ruinous consequences with neither proof nor opportunity to challenge, is it better to protect the accuser under cover of the very generic “matter of public concern” or should she be liable for false accusations of rape so she can either play victim on social media or destroy a man’s life with unproven lies of horrific conduct?

*Update: This was my mistake. This was not EV’s note, but noted in the original FB post:

Curiously, Eugene Volokh’s post about this decision, from whence this post comes, included this note:

I was given feedback from a good friend of mine about how words like rape from a white woman can be triggering for black men. {Johnson is Black and Freborg is White.} I want to respect the black men out there reading this and so I have changed the wording on this post. These are important discussions to have and I appreciate the incredible friends I have who are willing to support me and also call me out. Thank you!! [folded-hands emoji]