There are two comments to the Rasmussen post, one saying the jury has spoken, end of story; and one I posted, saying that is not necessarily so. The comments supplement but largely neither add nor detract from the excellent explanation Rasmussen published.
Rasmussen also linked to the entire amicus brief filed at this point; including attachments and an unpublished case. The attachements are not precedent, but are helpful nonetheless as guidance in the trial judge's final reasoning before entry of judgment [where the professional journalists and other First Amendment advocates all favor entry of a judgment of dismissal as a matter of law, notwithstanding the verdict].
While making the argument that trying to evade the high standards imposed upon a plaintiff who is a limited public figure in a defamation claim by reverting to additional counts claiming other tort basis for recovery is not foreclosed, the argument is that the First Amendment cannot be cheapened and discarded in that process. That it is of preemptive importance, most certainly when as in our case the "harm" to plaintiff is claimed to have resulted from an online publication of a truthful statement, in a context where there was no untruthful dimension found by the jury.
It is as if you can enter a building by the front door or the back door, and entry should be guarded; then the safeguarding at the back door cannot be less vigilant than at the front; otherwise all entry will ultimately drift to the less guarded entry way. If the First Amendment stands to protect the direct front door, a defamation claim, it cannot be removed aside from protecting the back door claim of "tortious interference."
The brief John Borger submitted complete with all attachments is online here.
It is very tightly written, and the parade of citations at its footnote 2 appear to show a general and consistent thread of decision based as argued within the main part of the brief.
Against it is a Court of Appeals case where pretrial, before there could have been any definitive finding that only a truthful publishing act was at issue, other factors existed so that a defamation claim was held properly dismissed on motion but that a tortious interference claim should go to trial; Metge v. Central Neighborhood Improvement Assn., 649 NW 2d 488 (Minn. App. 2002)(pretrial dismissal of defamation claim upheld, remand for trial of tortious interference; no indication Minn. Sup. Ct. review was sought or denied). The argument that the First Amendment is and must be entirely preemptive when publications are true, and that state tort law cannot undo that, either requires that Metge be disregarded as bad law, or be read to apply only to pretrial motions practice where a jury has not already decided a publication was true and not false.
I favor Metge being stricken entirely as bad law; that argued harm arising from reputation assertions which are true and not false, or are otherwise on some different basis not actionable as defamatory, should not be actionable - a belief which includes the case where statements are not defamatory because truth is an absolute defense. I believe there should be no "back door" way to unwind things and turn the First Amendment upside down and irrelevant, in whole or in part. If that is allowed much mischief will follow.
But the Borger amicus brief does not argue that far, simply looking at the present Moore v. Hoff case as one where a jury has determined that challenged publishing was true. Reading Metge as irrelevant in that context, and limiting it to a pretrial reach when questions of truth or falseness are fact questions yet to be resolved, is the more conservative approach Borger argues. My guess is if he had argued Metge on behalf of defendant Sabri, he would have advanced the complete bar belief to avoid a partial remand. That is a digression to hypotheticals.
I argue that motive is irrelevant, Hoff may have had any motive whatsoever toward Moore, even the most vile, but that because he published only truthful things what he did was lawful and privileged, so as to not entitle Moore to damages (no matter what Moore argued or how many counts he put into his complaint).
I base the rationale on language the Supreme Court used (which arguably went beyond more restrained language which could have been used as sufficient to underpin a decision) in the Falwall-Hustler magazine case, which the Borger brief cites as pivotal.
Respondent argues, however, that a different standard should apply in this case because here the State seeks to prevent not reputational damage, but the severe emotional distress suffered by the person who is the subject of an offensive publication. Cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562 (1977) (ruling that the "actual malice" standard does not apply to the tort of appropriation of a right of publicity). In respondent's view, and in the view of the Court of Appeals, so long as the utterance was intended to inflict emotional distress, was outrageous, and did in fact inflict serious emotional distress, it is of no constitutional import whether the statement was a fact or an opinion, or whether it was true or false. It is the intent to cause injury that is the gravamen of the tort, and the State's interest in preventing emotional harm simply outweighs whatever interest a speaker may have in speech of this type.
Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude, and it is quite understandable that most if not all jurisdictions have chosen to make it civilly culpable where the conduct in question is sufficiently "outrageous." But in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment. In Garrison v. Louisiana, 379 U. S. 64 (1964), we held that even when a speaker or writer is motivated by hatred or ill will his expression was protected by the First Amendment:
"Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth." Id., at 73.Thus while such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures.
Hustler Magazine, Inc. v. Falwell, 485 US 46, 52-53 (1988). At p.4 of the Borger brief, it aptly cites a case that recognizes substance over form, relative to "creative pleading." It appears Jill Clark, Moore's attorney, was creative in inflaming passions of the jurors; and the trial judge paid out enough rope; but now that the jury's returned a special verdict indicating challenged publishing was truthful; it is time for the trial judge to take back the case and properly apply the discretionary power she holds to set aside the jury's award of damages where the truth, regardless of motive, is an absolute defense. Allowing a verdict to slide through making truth less than an absolute defense is offensive to the ends of justice and protecting the right to have meaningful public political debate and expression of fact and opinion in ways the writers of the Constuition's Bill of Rights well understood, in deciding to write the larger document of federalism to contain a strong, meaningful, Bill of Rights as its very first amendments; (which in turn have long been held as binding upon state court actions via the Fourteenth Amendment).
______________UPDATE_____________
Let's try an analogy. Here is a picture of a Boeing 747:
Okay, you've got that. Big. Powerful. Intact. Complete. Worthwhile.
Now, consider tools called sheet metal nibblers, e.g., here and here.
You can nibble away at a 747 until you've only a pile of nibbles, useless, powerless, of little value, except SCRAP.
Now, consider the First Amendment as the 747. That is why in the quote above "outrageousness" is mentioned, but when the Snyder v. Phelps "God hates fags" military funeral protest case was decided by the Supreme Court weeks ago, they declined to see the nibbler tools at play.