PRELIMINARY: The briefing discussed below has been posted in a Dropbox public area of the cloud. READERS CAN DOWNLOAD THE BRIEFING FROM THIS LINK. ANYONE HAVING DIFFICULTY WITH DOWNLOADING THE BRIEFS SHOULD READ THE POSTED SHORT "README" FILE TO REQUEST EMAILED COPIES.
REPORTING: Abby Simons of Strib reported on the appeal, here, and her report is something readers might want to access before the following commentary.
COMMENTARY: I read the Appellant's brief [Defendant John Hoff, who blogs as "The Adventures of Johnny Northside"]; the Response brief [Plaintiff Jerry Moore whose job was terminated by a U.Minn. North Mineapolis community services branch]; and the Appellant's Reply Brief [addressing points the Plaintiff-Respondent raised after the first brief was served and reviewed by Moore and counsel]. In addition I read the amicus brief of a professional journalism organization, in support of the First Amendment rights of Hoff. Basically, a jury found that Hoff did not make a false statement, but that there somehow was tortious [basically wrongful] interference with Moore's employment, by Hoff.
Hoff argues that defamation law and First Amendment law on freedom of speech and of the press [the blogging press] where no untrue statement was published cannot, as a matter of law, be the basis for a tortious interference judgment.
Moore's argument, in part, is that the argument was never made until after the jury returned its verdict. However, the argument was not ripe to be made until the facts were set - the jury said there was nothing published that was shown to be untruthful, but that there was liability anyway under a second theory of tortious interference. Once the jury returned from delibrating, that way, the argument was ripe and was preserved by a timely motion for judgment in Hoff's favor as a matter of law, post verdict. [UPDATE: To be clear, Moore also argued that besides the one statement the jury found to be true, Hoff did other things, other activity, that could justify a jury finding of tortious interference with an employment relationship and expectancy. The Response briefing was not precise on what specific other activity was in mind, but rather was a throw it against the wall and see what sticks level of briefing; or seemed that to me. The trial court's memorandum decision, available online within briefing appendices, was grounded on the same contention in a more tightly written and reasoned presentation.]
It's all to hinge on a question of law, based upon the record of things at the trial court level.
My guess is a panel of the reviewing court could rubber stamp the trial court; something happening more often than not, but that in this instance a reversal can be expected. Certainly it should be hoped for, among the mainstream media and those who publish on the web. Freedom of speech is a fundamental Constitutional norm, not to be chilled wrongly by a bad appellate decision. But it is wait and see, any case not having exhausted all possible appeal remains uncertain until all appeal is exhausted and finality is established.
In the briefing I read, the Hoff and amicus briefing seemed well written and well reasoned. The Moore briefing wallowed around a lot and was less coherent than the Hoff and Amicus writing and argument. But my opinion means nothing. Three appellate judges heard the argument, had a chance to question attorneys, and will decide.
There is a ninety day rule, but the judges take as long as they take. That is the practical reality.
___________NOTE____________
The four briefs mentioned are all I am aware of. That is an indirect way of saying Hoff appealed, and I am unaware of any cross-appeal Moore may have filed.
Often when one side appeals an issue or set of issues, the other side may in response cross-appeal other things decided at the trial court level that the respondent believed was error. In this instance if Moore cross appealed anything, I am unaware of what it was. If there was a cross-appeal there might be briefing in addition to what's been posted to the cloud for reader access.
Coincidentally, Dropbox is a helpful service for posting public-access files, as well as for putting things private or shared among a small group, so that the files can be accessed remotely without having to carry a thumbdrive. It is not the only such service, but it was one of the first to offer non-commercial limited free storage in the cloud. Readers might consider using Dropbox or one of the several other such services. Microsoft and Google each now offers free non-commercial cloud storage.
__________UPDATE___________
I am interested in how Hoff decided, properly I believe, to make the case entirely one grounded on the First Amendment right of open and free speech, the right to publicly tell or publish the truth - especially in matters of public interest, which then is freedom of the press at issue too.
What Hoff could have added was the additional First Amendment right in his support, the right to petition government for redress of grievances. See, here and here.
This IS a dimension of the Moore v. Hoff particular facts, because the employment Hoff publicly questioned and solicited others to petition against - that of plaintiff Moore - was with the government, specifically, with the U.Minn in a north Minneapolis community services outlet. So effort to get Moore fired was soliciting community petitioning of the government.
One might call it freedom of speech and freedom of the [blogging] press, squared.
Hoff was stating nothing proven untrue, AND encouraging the exercise by others of their right to petition government, activity which has to demand his speech be accorded full legal protections.
However, Hoff did not emphasize the right to petition dimension in briefing, and that makes an expected Court of Appeals decision in his favor much more general in its reach as express precedent. Moreover, for any of the rest of us who blog, an adverse appellate decision can be distinguished if right to petition is a dimension, because although present in Hoff's case, it was left an unargued and hence undecided dimension of free speech law.
Now, constitutional issues are so fundamental that some states, Washington for example, allow a litigant to raise constitutional issues at any stage of litigation, not deeming them waived by not being raised of record in the trial court. Now a Minnesota lawyer might need to research Minnesota law to see if such is true here, and the law might distinguish constitutional rights as a civil suit defense, from challenging the constitutionality of a criminal or regulatory statute.
However, if the general rule of appellate judicial economy, not reviewing questions presented for the first time on appeal is not applicable in Minnesota when constitutional issues are raised, if that is the law here; then Hoff could add that as additional argument on seeking Minnesota Supreme Court review of an adverse intermediate decision, should one result.
