Article
Amicus Curiae Blog (June 9, 2020)

Public Official, Figures, and Controversies in Minnesota Defamation Law

By Mike Steenson*

Introduction

In Minnesota, the plaintiff in a common law defamation claim is entitled to recover presumed damages in libel and slander per se cases.1 Those rules change when the First Amendment is injected into defamation cases when the plaintiff is a public official2 or figure3 or is a private person involved in a public controversy.4 A plaintiff who is a public official or figure must prove not only the elements of the common law defamation claim, but also that the defamatory communication was a false statement of fact and prove by clear and convincing evidence that it was made with actual malice (publication with knowledge of the falsity or in reckless disregard of the truth) in order to recover presumed damages. A private person involved in a matter of public concern must prove fault and actual damages in order to recover but must prove actual malice by clear and convincing evidence to recover presumed damages.

The Minnesota Supreme Court clarified the application of those standards in two defamation cases decided in 2019. In Maethner v. Someplace Safe, Inc.,5 the court held that the fault and actual damages requirements in Gertz v. Robert Welch, Inc.6 apply to defamatory statements relating to public controversies involving private persons, even if published by nonmedia defendants.7 In McGuire v. Bowlin,8 decided a little more than two months after Maethner, the court held that a public school basketball coach was not a public official for purposes of the application of the New York Times Co. v. Sullivan9 actual malice standard.10 In so holding, the court clarified the standards it adopted in 1991 in Britton v. Koep,11 for resolving the public official issue.12 The court also held that the coach was not a public figure because he was not involved in a public controversy.13  

Maethner v. Someplace Safe, Inc.

Kurt Maethner’s defamation claim arose out of allegedly defamatory statements made by his ex-wife, Jacquelyn Jorud, and Someplace Safe via Facebook postings and a newsletter. Someplace Safe is a nonprofit providing services for victims of domestic violence. Jorud, a Someplace Safe volunteer, made statements on her Facebook page about her experiences as a survivor of domestic violence and spoke about those experiences at community events. She received an award as a survivor of domestic violence at an annual fundraiser held by Someplace Safe, an event that was publicized through a press release. Someplace Safe posted pictures of the banquet on its Facebook page, which had over one thousand followers. Jorud’s picture appeared in the organization’s newsletter, which had a circulation of over 2,500.

A key issue in the case was whether Maethner had to meet the First Amendment baseline established by the Supreme Court in Gertz v. Robert Welch, Inc.14 and extended in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.15 for suits by private persons involved in public controversies.16 At a minimum, those decisions require a private person suing for defamation based on defamatory statements relating to a matter of public concern to prove fault and actual damages. Presumed damages may be recovered if the private person proves New York Times actual malice.17

Maethner’s lack of proof of actual damages meant that he needed the presumed damages rule provided by Minnesota common law defamation rules or, if the First Amendment limitations in Gertz applied, proof of actual malice. Because the supreme court ruled that he could not establish actual malice as a matter of law,18 his right to recover hinged on whether the alleged defamatory statements involved a matter of public concern.19 If they did, Maethner would lose the case. If not, the common law rule would apply and give him a path to the recovery of presumed damages.

The supreme court prefaced its analysis by noting that its prior decisions on the issue of what constitutes a matter of public concern did not provide much guidance.20 In establishing the standards for resolving that issue, the court followed the Supreme Court’s template in Dun & Bradstreet, which requires consideration of the “content, form, and context” of the communication “as revealed by the whole record” in determining whether there is a public controversy.21 The supreme court shadowed the Supreme Court’s application of those standards in Snyder v. Phelps,22 in which the Court concluded that particularly scurrilous signs displayed by members of the Westboro Baptist Church while picketing a military funeral related “to broad issues of interest to society at large, rather than matters of “purely private concern.”23 Snyder stated that speech involves “matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community” or “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.”24

Someplace Safe and Jorud argued that their speech related to domestic violence, which involves a matter of public concern. The supreme court did not “disagree as a general proposition,” but noted that the form and context of the speech had to be considered, “as well as any other relevant factors.”25

Maethner stressed that the defamatory statements related to a private dispute, that the publication was limited in scope to “a fairly small area in and around Otter Tail County,” and that the individual and organizations who made the statements were not engaged in “mass media communications,”26 an argument that differentiated media versus nonmedia communicators, a distinction that the court rejected in an earlier part of the opinion.27

Notwithstanding, the court recognized that the media/non-media defendant distinction is not by itself decisive in determining whether a private defamation plaintiff will have to establish actual injury to reputation to recover, but the court did say that the distinction could be relevant in determining whether the defamatory statements involve a matter of public concern.

The court relied on the Supreme Court’s statement in Snyder that speech is a matter of public concern if it “is a subject of legitimate news interest,”28 and a statement in the Eighth Circuit’s opinion in Schuster v. U.S. News & World Report, Inc.,29 that “dissemination of the statements in the news media” is a factor, but only “one of many relevant factors in determining whether the statements involve a matter of public concern.”30 Because there were no findings on the issue by the district court, the supreme court remanded for further consideration of the issue.

Snyder does say that speech involves a matter of public concern if “is a subject of legitimate news interest,” but the qualifying clause explains that it means that it is “a subject of general interest and of value and concern to the public.”31 The key focus is not on the dissemination of the speech by media, but, rather whether it is a subject that is “of general interest and of value and concern to the public.”

The fact-driven standards for resolving the matter of public concern issue are difficult to quantify. The supreme court stated in Maethner that it did not disagree “as a general proposition” with the defendants’ argument that speech relating to domestic violence involved a matter of public concern, but the court stopped short of holding that it was controlling without considering the form and content of the defamatory statements.

The context of the defamatory statements was domestic abuse. Jorud’s statement certainly involved her personal experiences, but the context was broader in Someplace Safe’s publicity of domestic violence issues, which in part concerned Jorud. The form concerned public appearances by Jorud, Someplace Safe’s newsletter, and advertising for a fundraiser. The limited circulation in no way detracts from the court’s initial concern that commentary on domestic abuse involves a matter of public concern.32

McGuire v. Bowlin

The McGuire case arose out of complaints made by concerned parents of players to school administrators at Woodbury High School about inappropriate conduct by McGuire, who was head girls’ basketball coach. McGuire was placed on administrative leave after school administrators met with the parents. The school declined to renew his contract two months later. Around the same time, two of the parents filed “maltreatment-of-minor” reports against McGuire with the Minnesota Department of Education.33 The Department concluded that there was no maltreatment of Bowlin’s daughter. The record was silent as to the other student.

Bowlin continued to make statements about McGuire even after he was fired, including an email to another parent stating that McGuire had recently been put in jail, and mailed to the same parent a photo of a newspaper article noting that a man from Woodbury was sentenced to jail in a case involving stolen funds. McGuire was not the subject of the article, but Bowlin suggested that this was part of “the Woodbury stuff [with McGuire] that was going on.”34

McGuire sued Bowlin and others for defamation and a civil conspiracy, and alleged that Bowlin and Danielson, another parent, had filed false maltreatment-of-minor reports. The claims against the other parents dissolved on motions for summary judgment. The district court’s holding that they were protected by a qualified privilege was not appealed, leaving only the defamation against Bowlin in play. The district court granted Bowlin’s motion for summary judgment, holding that McGuire was a public official and that the record included no evidence “that Bowlin or Danielson ‘knowingly or recklessly’ made a false report.” The district court did not decide whether McGuire was a public figure. The court of appeals affirmed,35 relying on its opinion in Elstrom v. Independent School District No. 270,36 in which it held that public school teachers are public officials for purposes of New York Times Co. v. Sullivan because of the importance of the position they occupy.37

Applying Elstrom, the court of appeals held that McGuire fit the pattern. The court emphasized the formative role of high school sports in the lives of student athletes, an important role for families and community members who watch the sports and pay school levies, and the position of trust and authority coaches have in affecting the lives of athletes. The court concluded that “the public has an interest in coaches’ qualifications and conduct.”38 The court did not decide whether all public high school coaches are public officials, but did hold that McGuire is. His administrative responsibilities coupled with the extensive contact with and influence over the students means that he had a substantial impact on their lives, as the complaints about him indicated. That made him a public official.39

The Minnesota Supreme Court reversed, holding that McGuire was neither a public official nor a public figure,40 and that the court of appeals applied an overly broad analysis in its conclusion that McGuire was a public official.

The standards for resolving public official status are murky. The Supreme Court of the United States did not resolve the scope of the public official designation in Sullivan, its initial decision in establishing a First Amendment baseline for defamation cases involving public officials, but in Rosenblatt v. Baer,41 the Court noted the necessity of a higher proof standard for public officials based on key factors, including the strong interests in debate on public issues and debate about those persons who are in a position to significantly influence those issues.42 With that background, the court applied its own decision in Britton v. Koep.43

Britton was a defamation suit by a county probation officer against a county commissioner and the county for allegedly defamatory statements made about the officer by the commissioner at a county meeting. A key issue in the case was whether he was a public official for purposes of the application of the New York Times actual malice standard. Drawing from prior cases, the court set out three criteria it has used in determining whether a government official is a public official. The first is whether the person performs “governmental duties directly related to the public interest.”44 The second is whether the person holds “a position to influence significantly the resolution of public issues.”45 The third is whether the official has, or appears to have, “substantial responsibility for or control over the conduct of governmental affairs.”46 As applied, the court concluded that “a probation officer has significant authority in the performance of government duties,” that “[h]e is a peace officer with law enforcement power, including that of arrest,” and held that “he is a public official.”47

As to the first factor, the supreme court in McGuire clarified Britton’s implicit conclusion that an official’s performance of “governmental duties directly related to the public interest” does not make that official a “public official” for purposes of New York Times Co. v. Sullivan.48 Rather, the court stated that the public official determination turns on a balancing of “society’s interest in open, public debate about the performance of the duties of a high school basketball coach against society’s interest in protecting reputation.”49 After examining McGuire’s duties, the court concluded that “his coaching duties are ancillary to core functions of government,” and that “put simply, basketball is not fundamental to democracy.”50

Britton‘s second factor focuses on whether the official is positioned to “exert significant influence on the resolution of public issues.” The court held that McGuire did not meet it. 51Before considering McGuire’s position, however, the court focused on the “public issue” in the case. Using Rosenblatt as a guide, the court saw operation of a high school basketball team, the putative public issue in the case, as “far afield” from the public issue in Rosenblatt, which involved the allocation of funds by the manager of a public ski area.52 The court recognized “that high school basketball is an important piece of the social fabric in many communities,” and that the record of the teams and decisions concerning who gets to play may have a significant impact on families, but the court concluded that those issues “are not the sort of issues that the public has ‘a strong interest in debating.’”53 The court rejected the argument that the focus should be on McGuire’s conduct as a coach, not the team’s success. Again, relying on Rosenblatt, the court emphasized that an official’s status as a public official does not turn on the official’s specific conduct, but rather on whether the official’s position is one that invites public scrutiny and discussion of the person who holds that office.54 The court concluded that McGuire “does not have the ability to influence significantly the resolution of public issues.”55

McGuire raises a question as to the importance of a public issue or controversy in determining whether a person will be classified as a public official for purposes of application of the New York Times standards. The court suggested that there was no public issue involved in McGuire’s case because high school basketball issues are “far afield” from the types of issues involved in Rosenblatt.56     

The issue of whether a person is in a position to significantly influence on the resolution of public issues is different from the issue of whether there is a public issue involved in the case. The critical question is whether the defamatory statements are relevant to the public official’s fitness for or performance in office.57 Whether there is involvement with respect to a broader public issue does not change the focus on the person’s capacity to influence public issues as a general matter.

The supreme court also concluded that Britton’s third factor was not met. The kind of responsibilities that fit the element of “substantial responsibility for or control over the conduct of government affairs” included those of a probation officer in Britton and grand jurors in Standke, but not those of coaches.58 The court concluded that his “specific governmental duties do not relate to the core functions of government, nor do they impact a substantial portion of the public at large.”59 The court rejected the application of the court of appeals opinion in Elstrom which, of course, was not binding on the supreme court, although the court did conclude that it was unnecessary to determine whether Elstrom was correctly decided, given the distinctly different roles public school teachers and coaches occupy.60

As a final matter, the supreme court noted that four of the five cases in other jurisdictions involving the issue of whether coaches are public officials held that they were not,61 reinforcing its holding that McGuire is not a public official.

The respondents also argued that McGuire was a limited purpose public figure.62 The court followed the Supreme Court’s classification in Gertz v. Robert Welch, Inc., defining limited purpose pubic figures as “‘those classed as public figures [who] have thrust themselves to the forefront of particular controversies in order to influence the resolution of the issues involved.’”63

Relying on Gertz, the supreme court set out a three-factor standard for resolving the issue in its 2003 opinion in Chafoulias v. Peterson.64 Public figure status turns on whether the allegedly defamatory statement related to a public controversy in which the plaintiff played a meaningful role.65 The public controversy must be one that existed at the time of the defamatory statement, not a controversy manufactured by the defendant.66

The supreme court held that McGuire was not a public figure because it was unable to discern any public controversy in which McGuire was involved. The court rejected the argument that the public issue in the case was “high school sports” because it painted “with too broad a brush,” and because “[c]ontroversies must be capable of ‘resolution.’”67 The requirement that a controversy must be capable of resolution was based on Chafoulias, but that is not exactly what Chafoulias said. That case stated that public figures are those who attempt to influence the resolution of a public controversy, but Chafoulias did not set out a requirement that the controversy had to be capable of resolution.68 Many public controversies are of course ongoing and intractable. The court made no reference to its decision in Maethner v. Someplace Safe, Inc.69 in discussing the standards for determining the existence of a public controversy.

Conclusion

A defamation claim might be met with any or all of the First Amendment limitations the Supreme Court has applied to those claims, depending on whether the plaintiff is a public official or figure or is a private person involved in a matter of public concern.

The supreme court appeared to apply different standards in McGuire and Maethner in determining whether there is a public controversy. If there are different standards for making that determination in cases involving public officials, figures, and controversies, the issue is why.

Public controversies frequently involve government employees, but that involvement does not make the employees “public officials” for purposes of the application of the New York Times Co. v. Sullivan limitations on defamation suits by public officials. The essential questions have to be whether the public official is in a position to significantly influence the resolution of public issues, and whether the defamatory statement relates to the official’s fitness and capacity to hold office. It may be that questions concerning fitness and capacity will typically involve public issues. Put another way, questions concerning fitness and capacity may be public issues. For example, in cases such as Rosenblatt, potential mismanagement by a public official is relevant to the official’s fitness to hold that office. Calling attention to that misconduct should justify New York Times Co. protection, even without media attention or even without the official’s involvement in a public issue. Framed slightly differently, if the defamatory statement relates to the official’s fitness or capacity to hold office, it may necessarily involve a public issue.

Public figure status is a little different. A person will not warrant that status absent involvement in a public controversy. A key question is whether the standard for determining whether there is a public controversy for purposes of public figure status is also relevant to the issue of whether a defamatory statement about a private person is related to a public controversy for purposes of applying the Gertz standard. Maethner and McGuire proceed on separate tracks in discussing that issue. The court seemed to construe the public controversy issue narrowly in McGuire in determining that McGuire was not a public figure, and more broadly in Maethner, where the issue was whether Maethner was involved in a public controversy. There is no reason why the standards for determining whether a matter of public controversy is involved should be different. The difference in the public figure analysis is whether the plaintiff voluntarily became involved in that issue.

Even assuming that the standards should be the same, there are important qualifiers in the latter case that are not relevant in the former. As Chafoulias and McGuire note, the controversy cannot be one that the defendant created. It must be pre-existing. And, unlike cases involving the private person/public controversy cases where an issue may or not be publicized, the plaintiff in a public figure case has to become involved in a public controversy. This implies, however, more than a finding that the general issue is a matter of public concern. In McGuire, framing the public controversy issue more broadly would still not justify a finding that McGuire was a public figure. Teacher misconduct is in fact an important issue. Teacher abuse of children is frequently in the news and frequently the subject of litigation. Narrowing it in McGuire to just the question of high school sports, or high school basketball, ignores that broader issue. Nonetheless, that does not make McGuire a public figure because he has not been involved in a controversy in trying to influence the outcome of public opinion on the issue. It is the attempt to influence the issue, rather than whether there is a resolution of the issue, that should be important.

The defamation plaintiff has to climb a ladder that may have several rungs. The plaintiff has to prove the elements of a common law defamation claim. The plaintiff also has to overcome any qualified privileges that may apply. Absolute privileges completely bar recovery, of course. If a newspaper is involved the plaintiff has to meet the requirements of the retraction statute.70 If the plaintiff seeks to recover punitive damages, and establishes New York Times actual malice, there is no First Amendment bar to recovery of punitive damages, but the plaintiff will still have to meet the elements of Minnesota’s punitive damages statute.71

Footnotes

* Professor Mike Steenson, Bell Distinguished Professor of Law at Mitchell Hamline ↩︎

  1. See Mike Steenson, Presumed Damages in Defamation Law, 40 WM. MITCHELL L. REV. 1492, 1505–06 (2014). ↩︎
  2. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964). ↩︎
  3. See Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967). ↩︎
  4. See Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). ↩︎
  5. 929 N.W.2d 868 (Minn. 2019). ↩︎
  6. 418 U.S. 323 (1974). ↩︎
  7. Maethner,929 N.W.2d at 877. ↩︎
  8. 932 N.W.2d 819 (Minn. 2019). ↩︎
  9. 376 U.S. 254 (1964). ↩︎
  10. McGuire, 932 N.W.2d at 828. ↩︎
  11. 470 N.W.2d 518, 520 (Minn. 1991). ↩︎
  12. McGuire, 932 N.W.2d at 824–826. ↩︎
  13. Id. at 829. ↩︎
  14. 418 U.S. 323, 339–40 (1974). ↩︎
  15. 472 U.S. 749, 760–61 (1985). ↩︎
  16. While Gertz involved a media defendant, a plurality of the Court extended it to public controversies in Dun & Bradstreet. Dun & Bradstreet, 472 U.S. at 761.The Minnesota Supreme Court applied that extension of Gertz in Maethner. Maethner v. Someplace Safe, Inc., 929 N.W.2d 868 (Minn. 2019). ↩︎
  17. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 768–9 (1985). ↩︎
  18. Maethner, 929 N.W.2d at 878–9. ↩︎
  19. Assuming no public controversy, the common law rule governing presumed damages would entitle Maethner to recover presumed damages. See Steenson, supra note 1, at 1505–06. ↩︎
  20. Maethner,929 N.W.2d at 880. The “matter of public concern” issue appears frequently in various contexts in Minnesota Supreme Court cases, but the term has not been defined. See, e.g., Moreno v. Crookston Times Printing Co., 610 N.W.2d 321(Minn. 2000) (fair and accurate reporting privilege applied to publication of city council proceedings involving a matter of public concern); State v. Machholz, 574 N.W.2d 415 (Minn. 1998) (felony harassment statute held unconstitutional on its face and as applied to Machholz’s disruptive anti-gay statements he made while riding a horse through a National Coming Out Day celebration in Rochester; his comments were on a matter of public concern); Diesen v. Hessburg, 455 N.W.2d 446 (Minn. 1990) (newspaper articles covering a county attorney’s treatment of battered women and job performance were matters of public concern); Thompson v. City of Minneapolis, 300 N.W.2d 763 (Minn. 1980) (noting that in determining whether a public employee’s commentary on matters of public concern may be regulated turns on balancing of employee’s interest as a citizen on commenting on those matters and the state’s interest in promoting the efficiency of its public services). Most recently, in Larson v. Gannett Co., 940 N.W.2d 120 (Minn. 2020), the supreme court extended the fair and accurate reporting privilege to news reports about statements made by law enforcement officers at an official conference in which they discussed the sudden slaying of a community police officer. The court considered it to be a matter of public concern. Id. at 136. ↩︎
  21. Dun & Bradstreet, 472 U.S. at 761 (quoting Connick v. Myers, 461 U.S. 138 at 147–148 (1983)). ↩︎
  22. 562 U.S. 443 (2011). ↩︎
  23. Id. at 454. ↩︎
  24. Id. at 453 (quoting San Diego v. Roe, 543 U.S. 77, 83–84 (2004). ↩︎
  25. Maethner, 929 N.W.2d at 881. ↩︎
  26. Id. ↩︎
  27. In Richie v. Paramount Pictures Corp., 544 N.W.2d 21 (Minn. 1996), the Minnesota Supreme Court held that a plaintiff who brought suit against a media defendant for defamation involving a matter of public concern that damages for emotional harm could not be recovered absent proof of actual injury to reputation. James Richie and Karen Gerten were indirectly involved when a picture of them with their goddaughter was displayed on the Maury Povich show that focused on the sexual abuse of their goddaughter by her father. They brought suit against various defendants, including Paramount, the producer of the show, and the daughter’s attorney who represented the daughter in a successful suit against her parents. The attorney provided the picture for the show. Richie and Gerten asserted defamation and false light invasion of privacy claims against the defendants. Id. at 23–24. The false light claim was rejected because Minnesota at that time had not recognized the tort of invasion of privacy. The supreme court adopted three branches of the privacy tort (intrusion, public disclosure, and appropriation), but not false light, in Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998). The supreme court concluded that the case involved a matter of public concern because the defamatory statement was linked to a discussion of sexual abuse of a child and the issue was publicized by Paramount. There was no proof of actual harm to reputation in the case, but Richie and Gerten sought to recover damages for the emotional harm they suffered. The court rejected the claim in holding that emotional damages may not be recovered absent harm to reputation. Richie,544 N.W.2d at 28. The court appeared to confine its opinion to media defendants, although it recognized that the attorney who provided the picture of Richie and Gerten was in the same category because she used the media in providing the picture. Id. at 26 n.5. The court justified its conclusion because of its historical skepticism regarding claims for emotional harms. It perceived recovery for emotional harm to more clearly linked to invasion of privacy rather than defamation claims, and because Minnesota did not recognize invasion of privacy claims, it led to an easy conclusion that recovery of those damages would be to allow recovery for invasion of privacy—a tort that was not recognized at the time. The court also concluded that allowing recovery for presumed damages to reputation “would violate the First Amendment.” Id. at 30.

    In Maethner, the court rejected the media-nonmedia distinction, concluding that the dispositive inquiry is not the status of the defendant but rather whether “the matter at issue is a matter of public concern.” 929 N.W.2d at 877. ↩︎
  28. Maethner, 929 N.W.2d at 881 (quoting Snyder, 562 U.S. at 453 (2011)). ↩︎
  29. 602 F.2d 850, 853 (8th Cir. 1979). ↩︎
  30. Maethner, 929 N.W.2d at 881. ↩︎
  31. Snyder, 562 U.S. at 453 (quoting San Diego, 543 U.S. at 83–84). ↩︎
  32. Three examples illustrate the importance of a determination that the issue surrounding the defamatory statement is a matter of public concern. Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), involved the dissemination of a credit report. The purpose and limited dissemination of the report were key factors in the Court’s analysis of the public concern issue. The report was “solely in the individual interest of the speaker and its specific business audience,” and it was made available only to five subscribers who by the terms of the subscription agreement, were not permitted to disseminate it. The Court concluded that that the First Amendment interest in the free flow of information would not be compromised by concluding that the report did not involve a matter of public concern. Id. at 762.

    In Rankin v. McPherson, 483 U.S. 378 (1987), McPherson, a deputy constable with administrative duties made a statement to another employee after learning of an attempted assassination of the President of the United States, that “if they go for him again, I hope they get him.” The statement was made in the context of a discussion relating to the policies of the administration. Unbeknownst to McPherson, another person overheard the conversation and reported it to the constable, Rankin, who fired McPherson. The Court concluded that “it plainly dealt with a matter of public concern” because it “was made in the course of a conversation addressing the policies of the President’s administration . . . on the heels of a news bulletin regarding what is certainly a matter of heightened public attention: an attempt on the life of the President.” Id. at 386. The statement was made to one other person. The content and context of the statement controlled.

    Lane v. Franks, 573 U.S. 228 (2014), involved sworn testimony at the corruption trials of a former program director was speech on a matter of public concern, but there was no public dissemination. The Court concluded that his testimony about corruption in a public program and misuse of public funds obviously involved “a matter of significant public concern,” a conclusion fortified by the form and context of the speech—“sworn testimony in a judicial proceeding.” Id. at 241.

    There may be cases where the context and form will detract from a finding that the content involves a matter of legitimate public concern. As an example, in Frisby v. Schultz, 487 U.S. 474 (1988), the Supreme Court has held that a city ordinance prohibiting focused picketing was not unconstitutional in its application to abortion protestors who engaged in focused picketing in the street in front of the house of a physician who performed abortions. If not, the lack of widespread publication should not preclude a finding that the statement related to a matter of public concern, as in Rankin or Lane. The commercial context in Dun & Bradstreet made it a matter of private rather than public concern. In that case, the limited publication reinforced the conclusion that it was private. ↩︎
  33. McGuire v. Bowlin,932 N.W.2d 819, 822 (Minn. 2019). ↩︎
  34. Id. ↩︎
  35. McGuire v. Bowlin,No. A18-0167, 2018 WL 6273533 (Minn. Ct. App. Dec. 3, 2018). ↩︎
  36. 533 N.W.2d 51, 56 (Minn. App. 1995), rev. denied (Minn. July 27, 1995). ↩︎
  37. Id. The policies included the emphasis Minnesota places on education, the trust placed in teachers, the public’s interest in being able to freely criticize and evaluate the conduct of teachers, the impact they have on many lives, and the fact that they act with the authority of government, it is justifiable to treat teachers as public officials. Id. ↩︎
  38. McGuire, 2018 WL 6273533, at *4 ↩︎
  39. Id. ↩︎
  40. McGuire, 932 N.W.2d at 819. ↩︎
  41. 383 U.S. 75 (1966). ↩︎
  42. Id. at 85. ↩︎
  43. 470 N.W.2d 518 (Minn. 1991). ↩︎
  44. Id. at 522 (citing Hirman v. Rogers, 257 N.W.2d 563, 566 (Minn. 1977)). ↩︎
  45. Id. (citing Standke v. D.E. Darby & Sons, Inc., 291 Minn. 468, 193 N.W.2d 139 (1971)). ↩︎
  46. Id. ↩︎
  47. Id. at 523–24. ↩︎
  48. McGuire v. Bowlin, 932 N.W.2d 819, 824 (Minn. 2019). ↩︎
  49. Id. ↩︎
  50. Id. at 825. ↩︎
  51. Id. at 826. ↩︎
  52. Id. ↩︎
  53. Id. (citing Rosenblatt v. Baer, 383 U.S. 75, 85 (1966)). ↩︎
  54. Id. (citing Rosenblatt, 383 U.S. at 86 n.13). ↩︎
  55. Id. ↩︎
  56. Id. ↩︎
  57. Rodney A. Smolla, 1 Law of Defamation § 2:111 (2d ed.), suggests that most courts have applied a sliding scale for relevance that turns on the official’s level of responsibility. ↩︎
  58. McGuire, 932 N.W.2d at 826. ↩︎
  59. Id. at 825. ↩︎
  60. [1] Id. at 827. ↩︎
  61. Id. at 827–828. The court found the Utah Supreme Court’s opinion in O’Connor v. Burningham, 165 P.3d 1214 (Utah 2001). “particularly persuasive.” Id. at 827. The court quoted extensively from the opinion:

    A high school basketball coach—indeed any high school athletic coach—does not ply his trade in a realm occupied by the same public and private actors whose labors caught Chief Justice Warren’s attention. We view the constitutional standard for public official announced by the Supreme Court to be limited to those persons whose scope of responsibilities are likely to influence matters of public policy in the civil, as distinguished from the cultural, educational, or sports realms. The “apparent importance” of a position in government sufficient to propel a government employee into a public official status has nothing to do with the breadth or depth of the passion or degree of interest that the government official might ignite in a segment of the public. Nor is celebrity, for good or ill, of the government employee particularly relevant. Rather, it is the nature of the governmental responsibility that guides our public official inquiry. The public official roster is comprised exclusively of individuals in whom the authority to make policy affecting life, liberty, or property has been vested. Likewise, only those issues that have such bearing on civil life as to fairly touch on matters that in the eyes of the law concern life, liberty, or property may be traced to the actions of a public official. So viewed, high school athletics can claim no “apparent importance.” The policies and actions of the coach of any high school athletic team does not affect in any material way the civic affairs of a community—the affairs most citizens would understand to be the real work of government.

    McGuire, 932 N.W.2d at 827–282 (quoting O’Connor,165 P.3d at 1219). ↩︎
  62. Id. at 828. The issue was briefed at each stage of the proceedings, but the lower courts did not decide the issue. Id. ↩︎
  63. Id. (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974)). ↩︎
  64. 668 N.W.2d 642 (Minn. 2003). ↩︎
  65. Id. at 651 (relying on Gertz, 418 U.S. at 352). ↩︎
  66. Id. at 652–653. ↩︎
  67. McGuire, 932 N.W.2d at 829 (quoting Chafoulias, 668 N.W.2d at 653). ↩︎
  68. Chafoulias defined a public controversy as a “dispute that ‘has received public attention and will be felt by persons who are not direct participants.’” 668 N.W.2d at 651 (quoting Waldbaum v. Fairchild Publ’ns, Inc., 627 F.2d 1287, 1296 (D.C.Cir.1980)). There are other formulations. See Cory Batza, Note, Trending Now: The Role of Defamation Law in Remedying Harm From Social Media Backlash, 44 Pepp. L. Rev. 429, 450–51 (2017). ↩︎
  69. 929 N.W.2d 868 (2019). ↩︎
  70. Minn. Stat. § 548.06 (2018). ↩︎
  71. Id. at § 549.20. ↩︎