When Gossip Becomes Defamation: Private Concern under Minnesota Law

In this age of clickbait journalism, distinguishing between public interest and private concern is more critical than ever. Under Minnesota Law, whether a statement is of private concern is the difference between a plaintiff having to prove actual malice to recover presumed damages. Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 877-79 (Minn. 2019) (citing Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 760–61 (1985) (plurality opinion)). "Actual malice," in defamation law, means the defendant either knew the defamatory charge was false or was reckless as to its falsity. And, with enactment of the anti-SLAPP law, it can mean the difference between surviving at the pleadings stage; or paying the defense's attorney's fees.

My recent Second Circuit opening brief in TST v. Newsweek is a useful case study in a charge that does not deserve this heightened First Amendment protection. That case centers on a false accusation of sexual abuse and coverup directed at a nonprofit religious organization. The charge was not presented as an investigation piece, but was part of a broader hit piece predicated on uncritically repeating anonymous internet hearsay as it if were true. The Newsweek Court is tasked with deciding whether the charge was a matter of public concern, or was mere gossip. Under New York's anti-SLAPP law (applicable there), if the charge is of private concern, the plaintiff need only prove negligence; if it of "public concern," the plaintiff must prove actual malice.

New York courts recognize that defamatory statements about private sexual conduct—especially when directed at a limited audience—fall within the realm of “mere gossip and prurient interest” which defines private concern. These are not issues that advance public discourse or democratic self-governance, they are salacious distractions which are weaponized to harm reputations without accountability.

The brief argues that Newsweek’s article was not part of any broader societal conversation, such as the #MeToo movement. It was a baseless rumor aimed at a private group, published for profit and sensationalism. The District Court held otherwise, and found that any accusation of sexual misconduct falls within the sphere of public concern per se.

Whether or not the Second Circuit agrees with the Newsweek district court, Minnesota courts are directed to take a far more nuanced approach. See Maethner, 929 N.W.2d at 881 ("the determination of whether speech involves a matter of public or private concern is based on a totality of the circumstances," considering "all circumstance of the speech, including what was said, where it was said, and how it was said") (quoting Snyder v. Phelps, 562 U.S. 443, 454 (2011)).

For Minnesota litigants, these cases underscore the importance of properly framing a defamation case. Plaintiffs need to frame the defamatory content as lacking in any public discourse and instead targeting a private individual or organization; Defendants, of course, need to play up any societal value of the defamatory charge. That battleground could be decisive, as courts will apply a more favorable standard of fault depending on who wins.