Benson v. Northwest Airlines, Inc.

HARTEN, Judge

(concurring in part, dissenting in part).

Occasionally in the continuing evolution of the law, misconstrued appellate language metamorphoses into purported authority. The common law rule that presumes falsity in Minnesota private party/private matter defamation cases is the immediate casualty:

At common law, a defamatory statement was presumed to be false. Truth was an absolute, affirmative defense.

Jadwin v. Minneapolis Star & Tribune Co., 390 N.W.2d 437, 440 (Minn.App.1986). I therefore respectfully dissent from the court’s defamation holding.

Beginning in 1964, the common law of defamation became subjected to constitutional limitations. New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964). Rules were established in defamation cases depending upon the status of the parties involved, such as “public” or media parties:

[A] balance was negotiated between protecting personal reputation and the competing social interest in unrestricted communication by a complex overlay of legal rules governing the elements of the prima facie case, defenses, and shifting burdens of persuasion.

Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 480 (Minn.1985). The common law presumption of falsity also was scrutinized and criticized. See Marc A. Franklin & Daniel J. Bussel, The Plaintiffs Burden in Defamation: Awareness a/nd Falsity, 25 Wm. & Mary L.Rev. 825, 854-63 (1984). The United States Supreme Court abrogated the common law presumption of falsity in cases involving media defendants or matters of public concern based on First Amendment considerations. See Philadelphia Newspa *542 pers, Inc. v. Hepps, 475 U.S. 767, 776-77 , 106 S.Ct. 1558,1564 , 89 L.Ed.2d 783 (1986) (holding the common law presumption inapplicable in cases involving media defendants or matters of public concern). The Supreme Court has not considered the applicability of the presumption to private plaintiff/private concern cases.

The court cites various cases, such as Stuempges v. Parke, Davis & Co., 297 N.W.2d 252 (Minn.1980), Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406 (Minn.1994), and Jeffries v. Metro-Mark, Inc., 45 F.3d 258 (8th Cir.1995), cert. denied, — U.S. —, 116 S.Ct. 102 , 133 L.Ed.2d 56 (1995), for the proposition that Minnesota no longer recognizes the presumption of falsity in private defamation eases. Typical of the caselaw language cited in support of this proposition is the following:

The elements of defamation require the plaintiff to prove that a statement was false * * *

Rouse, 520 N.W.2d at 410 (emphasis added). The same authorities cited by the court for the abrogation of the common law falsity rule (cases such as Lewis v. Equitable Life Assurance Soc’y of the United States, 389 N.W.2d 876 (Minn.1986), and Stuempges), simultaneously discuss with approval the truth defense to defamation. The common law recognized that truth is an absolute defense to a defamation claim. Thompson v. Pioneer Press Co., 37 Minn. 285, 294 , 33 N.W. 856, 861-62 (1887), Palmer v. Smith, 21 Minn. 419, 420-21 (1875); see also Jadwin, 390 N.W.2d at 440 (citing Jadwin, 367 N.W.2d at 480 ; Restatement (Second) of Torts § 581A cmt. b (1977)). Overlooked is the fact that the common law truth defense is historically coordinate with the common law presumption of falsity. Mere recitation of the defamation elements does not determine the issue. of whether the common law presumption remains viable. Elements are those facts that must be proved in order for a claimant to prevail. Elements say nothing about the manner of proving falsity, that is, whether the defamatory statement is presumed false and the defendant must prove truth, as in the common law rule, or whether a plaintiff must prove the defamatory statement false in the first instance. The court cites and characterizes the recent supreme court opinion in Ferrell v. Cross, 557 N.W.2d 560, 565 (Minn.1997), as “placing [the] burden of proving falsity on plaintiff.” But that case does not even discuss the common law presumption of falsity, a sublety capable of existence within the court’s characterization.

The reality of the current confusion is apparent from the commentary to 4 Minnesota Practice, CIVJIG 704 (Supp.1996). Among other things, the committee stated:

In light of these questions concerning the burden of proof on the truth issue in cases that do not involve public officials, figures, or issues, and pending further elucidation on the issue by the Minnesota Supreme Court, the Committee has not followed the eighth circuit’s decision in Jeffries [which holds that the plaintiff must prove falsity contrary to the common law presumption].

Experienced trial judges and practitioners appreciate that defamation law is complex and associated trials are time-consuming and expensive; regrettably, this continues to be exacerbated by confusion in the law.

Because my research has produced no clear indication from the Minnesota Supreme Court that the common law presumption of falsity has been rejected and replaced in private plaintiff/private concern defamation cases, the common law rule remains the most current solid authority. I have difficulty assuming that the supreme court would abrogate an ancient common law precedent without saying so. I therefore read caselaw language describing what a plaintiff must prove as simply a generalized articulation of the elements of defamation that must be proved to enable recovery.

Accordingly, I would reverse the district court on the defamation issue because the district court jury instructions did not accommodate the common law presumption of falsity; I would then continue on to decide the issues raised in respondent’s alternative notice of review, to-wit, qualified privilege and punitive damages. I otherwise concur in the opinion of the court.