Three years after the meteoric rise of the #MeToo movement, with women around the world speaking out about their experiences of sexual assault and harassment, Kaija Freborg alleged in a public Facebook post that she had been “gaslighted/coerced into having sex, sexual assaulted, and/or raped” by her former partner Byron Johnson. Johnson responded by suing Freborg for defamation. Freborg spent the next four years defending against Johnson’s lawsuit. The case reached Minnesota’s highest court before a jury ultimately found that Freborg’s post was true, Johnson’s claim failed as a matter of law, and Freborg was not liable for defamation.
Before the verdict was rendered, Freborg incurred credit card debt and took loans from family and friends to cover her legal costs. During the final two years of the pending case, she suffered from gastrointestinal discomfort, lack of sleep, and had difficulty eating. As her deposition approached, she sought support from a therapist. Previously an active member of the Twin Cities dance community (where she originally met Johnson), she withdrew from dance events and avoided studios—the places where she had previously found her “chosen family.” Freborg feared being “accosted” by the plaintiff and his supporters. The lawsuit was a significant factor in her decision to leave the state of Minnesota entirely. Asked to describe the experience of the lawsuit, Freborg chose just one word: “isolating.”
When Freborg was sued in the summer of 2020, a gap in Minnesota law left her particularly vulnerable to the protracted litigation that ensued. Just three years earlier, the Minnesota Supreme Court had struck down a decades-old “anti-SLAPP” statute, originally designed and enacted to protect those exercising their First Amendment rights from meritless lawsuits. But while Minnesota’s anti-SLAPP law sat inactive, the “SLAPPs,” or “Strategic Lawsuits Against Public Participation,” that it was designed to impede only multiplied. It was not until May 2024, three months before final judgment was entered in Freborg’s favor, that Minnesota enacted a law, the Uniform Public Expression Protection Act (UPEPA), which reestablished protection for SLAPP victims. Had the law been in effect at the time Johnson brought his suit against Freborg, it could have significantly altered the course of the litigation—and the course of Freborg’s life.
This Note first presents the case of Johnson v. Freborg as it was litigated, detailing the facts and legal outcomes, while also highlighting the human impact of the litigation. It next provides an overview of SLAPPs and summarizes the history of Minnesota’s anti-SLAPP law, beginning with the 1994 passage of the Minnesota Citizens Participation Act, its interpretation and amendments, and the Minnesota Supreme Court’s ultimate ruling that the statute was unconstitutional. It next considers the objectives, development, and structure of UPEPA, and its adoption in Minnesota. The Note then takes Johnson v. Freborg as a case study, evaluating the trajectory and outcome of the case as it was litigated—during a period when Minnesota had no active anti-SLAPP law—and how the case may have turned out differently with UPEPA in force. It argues that UPEPA will provide important protection for others, like Freborg, who speak out against sexual violence by sparing them the significant cost, energy, and emotional toll associated with lengthy litigation. Finally, the Note presents an update on the fast-moving adoption of UPEPA across the country and early UPEPA rulings, offering guidance for Minnesota practitioners and judges evaluating cases under the state’s new anti-SLAPP law.