The Minnesota Supreme Court is set to hear a case of defamation with a #MeToo Facebook post at its center.
Johnson v. Freborg comes out of an incident from seven years ago that occurred between a couple that was dating at the time. Byron Johnson was a dance instructor to Kaija Freborg in 2011 and began a sexual relationship the following year, according to court documents. Over the course of their relationship, both Freborg and Johnson agree that there were two sexual incidents of a nonconsensual nature, including Johnson’s failed attempt at a sex tape and a drunken moment in 2015 where he took Freborg’s hand and placed it on his genitals under his pants.
“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,” Freborg posted in July 2020 along with the #MeToo hashtag. “If you have a problem with me naming you in a public format, [then] perhaps you shouldn’t do it.”
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Later, Freborg would edit her original post to say she had “experienced varying degrees of sexual assault” because she had received feedback “about how words like rape from a white woman can be triggering for black men.” Her post would receive 182 comments before she deactivated her account a few days later.
The Minnesota Court of Appeals found in July that Freborg’s post was not considered defamatory because even though it involved two private persons, the court of three judges qualified the post “was a matter of public concern.” In that case, Johnson would have to prove that Freborg showed “actual malice,” which they ruled he had not.
“The #metoo movement itself is certainly a matter of public concern,” the original Hennepin County District Court ruled, citing that the movement “gained international prominence in 2017 when it went viral.” This definition of the movement as a public concern was quoted in the latest ruling, as the three judges agreed with the definition. However, they disagreed about the nature of the alleged sexual assault.
“The criteria for when defamation claims enter into broader public involvement have been long-established, but they were developed in a different age when opportunities to widely disseminate a potentially defamatory statement were limited,” Nilan Johnson Lewis business litigation Chairman Gregory Bromen said in a statement obtained by the Washington Examiner. “The criteria are much more difficult to apply in today’s environment of blurred media types, influencers, and online movements. As this case shows, it can be confusing, and judges are making inconsistent decisions.”
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The state Supreme Court is likely to hear the case in the early part of next year.
