NO. A09-2060

ofMinnesota

Court of Nexus, a Minnesota non-profit corporation,

Respondent, v.

Janette J. Swift, Appellant.

APPELLANT'S BRIEF, ADDENDUM AND APPENDIX

MANSFIELD, TANICK,& COHEN, P .A. Marshall H. Tanick (#108303) Brian N. Niemczyk (#386928) 1700 U.S. Bank Plaza South 220 South Sixth Street Minneapolis, MN 55402-4511 (612) 339-4295

Attorneysfor Appellant Janette f. Swift

MAHONEY, DOUGHERTY & MAHONEY, P.A. Victor E. Lund (#160076) 801 Park Avenue Minneapolis, MN 55404-1189 (612) 339-5863

Attorneysfor Respondent Nexus, a Minnesota nonprofit corporatzon

BACHMAN LEGAL FAX (612}337-8053- (612) 339-9518 or

The appendix to this brief is not available for online viewing as specified in the Minnesota Rules of Public Access to the Records of the Judicial Branch, Rule 8, Subd. 2(e)(2).

TABLE OF CONTENTS

Page

STATEMENT OF ISSUES ...................................................................................... l

STATEMENT OF THE CAS·E .............................................................................. 2

STATEMENT OF THE FACTS ............................................................ ............... 4

A. PUBLIC CONTROVERSY OVER THE SEX OFFENDER FACILITY ......................................................... 4

B. SWIFT LEADS THE PUBLIC OPPOSITION ..................... 4 1. Swift's Actions and Statements ....................................... 5 2. The Key Meeting & Its Aftermath ................................... 7

II. THE PRESENT LAWSUIT ............................................................... 8

SUMMARY OF ARGUMENT ............................................................................ 10

AR GUMENT......................................................................................................... 11

I. THE ANTI-SLAPP LAW BARS THIS LAWSUIT ...................... 11

A. THE FEATURES OF THE STATUTE ............................... 11

B. THE ANTI-SLAPP LAW APPLIES HERE ........................ 13

C. THE BROAD STATUTORY PROTECTION .................... 17

D. THE CASE LAW SUPPORTS SWIFT ............................... 22

II. THE ANTI-SLAPP LAW IS CONSTITUTIONAL ...................... 25

SWIFT'S STATEMENTS ARE PROTECTED BECAUSE THEY ARE NOT TORTIOUS ........................................................ 32

A. EVIDENCE OF A TORT MUST BE "CLEAR AND CONVINCING"............... ..................................................... 32

B. THE LEGAL STANDARD FOR OPINION ....................... 33 1. "There is no such thing as a false idea." ........................ 3 3 2. Context is Critical ... ...................................................... 34

1

3. Substantial Truth Is Sufficient ....................................... 34 4. Substantial Truth Is A Question of Law ........................ 34

C. SWIFT'S STATEMENTS ARE EITHER OPINIONS OR ARE SUBSTANTIALLY TRUE .................................... 36 1. The "Killed" and "Asphyxiated" Remarks Are

Either True or Substantially True .................................. 36 2. The "Getting Away With Murder" Remark Was a

Constitutionally-Protected Opinion ............................... 3 7

CONCLUSION ..................................................... ................................................ 42

11

TABLE OF AUTHORITIES

Page(s) CASES

American Iron & Supply Co., Inc. v. Dubow Textiles, Inc., No. C1-98-2150, 1999 WL 326210 (Minn. Ct. App. May, 1999) 15, 16, 21, 30, 32

Anderson Development Co. v. Tobias, 116 P.3d 323 (Utah 2005) .................................................................................. 29

Bernardo v. Planned Parenthood Fed'n of Am., 9 Cal. Rptr. 3d 197 (Cal. App. 4 Dist. 2004), cert. denied, 543 U.S. 942 (2004) ........................................................................................................... 27, 28

Bose Corp. v. Consumers Union of U.S., Inc., 466 u.s. 485 (1984) ...................................................................... ................ 1' 41

Deli v. University of Minnesota, 511 N.W.2d 46 (Minn. Ct. App. 1994) .............................................................. 12

Equilon Enterprises, LLC v. Consumer Cause, Inc., 52 P.3d 685 (Cal. 2002) ..................................................................................... 27

Freeman, et a! v. Swift, No. A09-598 (Minn. Ct. App. 2009) .................................................................... 8

Hometown Properties, Inc. v. Fleming, 680 A.2d 56 (R.I. 1996) ..................................................................................... 29

Hunter v. Hartman, 545 N.W.2d 699 (Minn. Ct. App. 1996) ................................ 1, 35, 37, 38, 41,42

In re Haggerty, 448 N.W.2d 363 (Minn. 1989) ........................................................... 1, 12, 13,25

Jadwin v. Minneapolis Star and Tribune Co. ("Jadwin II"), 390 N.W.2d 437 (Minn. Ct. App. 1986) .............................. 33, 34

Jadwin v. Minneapolis Star and Tribune Company E?g f?FI367 N.W.2d 476 (Minn. 1985) ..................................................... 32

Ill

Lee v. Pennington, 830 So. 2d 1037 Ei KCt. App. 2002) ................................................. 1, 28, 29, 30

Liberty Lobby, Inc. v. Dow Jones & Co., Inc., 838 F2d 1287 (D.C. 1988) ............................................. -.................................... 35

Lund v. Chicago and Northwestern Transp. Co., 467 N.W.2d 366 (Minn. Ct. App. 1991), rev. denied (Minn. June 19, 1991 ) ........................ : .......................................................................................... 35

Marchant Inc. & Management Co. v. St. Anthony West Neighborhood Organization, Inc., 694 N.W.2d 92 (Minn. Ct. App. 2005) .......... 1, 11, 15, 26, 30, 32, 33, 34, 38, 39

McGovern v. City of Rosemount, 503 N. W. 493 (Minn. Ct. App. 1993) ................................................................ 31

Middle-Snake-Tamarac River Watershed District v. Stengrim, No. A08-0825, 2009 WL 367286 (Minn. Ct. App. 2009), rev. granted (Apr. 29, 2009) ·····················································'············································· 15

Milkovich v. Lorain Journal Co., 497 u.s. 1 (1990) ............................................................................................... 37

Moreno v. Crookston Titnes Printing Co., 610 N.W.2d 321 (Minn. 2000) ........................................................................... 38

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986) ........................................................................................... 34

Pigs R Us, LLC v. Compton Township, 770 N.W.2d 212 (Minn. Ct. App. 2007) ............................................................ 31

Plante v. Wyle, 824 N.E.2d 461 (Mass. App. Ct. 2005) ........................................................ 22, 24

Rehn v. Fischley, 557 N.W.2d 328 (Minn. 1997) ........................................................................... 30

Rico v. State, 472 N.W.2d 100 (Minn. 1991) ........................................................................... 31

lV

Schelling v. Lindell, 942 A.2d 1226 (Me. 2008) ........................................................................... 23, 24

Special Force Ministries v. WCCO Television, 584 N.W.2d 789 (Minn. Ct. App. 1998) ................................ 1, 15, 16, 17, 21, 30

Special Force Ministries v. WCCO Television, Hennepin County District Court No. MC97-5062 ............................................. 16

State v. Bourke, 718 N.W.2d 922 (Minn. 2006) ........................................................................... 13

State v. Grinder, No. A06-1902, 2007 WL 2600782 (Minn. Ct. App. Sep. 11, 2007) ................. 12

Stokes v. CBS, Inc., 25 F. Supp.2d 992 (D. Minn. 1998) ................................................................... 38

Stokes v. CBS, Inc., 75 F. Supp. 992 (D. Minn. 1998) ......................................................................... 1

Stuempges v. Park, Davis & Co., 297 N. W.2d 252 (Minn. 1980) ........................................................................... 36

Time, Inc. v. Pape, 401 u.s. 279 (1971) ........................................................................................... 41

Washington v. Smith, 893 F.Supp. 60 (D.D.C. 1995) ......................•.................................................... 41

STATUTES

Haw. Rev. Stat. § 634F-1 (2002) ............................................................................. 24

Minn. Stat.§ 554.01 .......................................................... 1, 8, 10, 11, 14, 17, 20,21

Minn. Stat.§ 554.02 ........................................................................ 11, 25, 30, 32, 37

Minn. Stat. § 554.03 ................................................................................ 3, 17, 20, 21

Minn. Stat.§ 645.17 ................................................................................................ 12

Mo. Ann. Stat., 537.528 (2004) ............................................................................... 24

v

OTHER AUTHORITIES

Chad Baruch, Ifl Had a Hammer: Defending SLAPP Suits in Texas, 3 Tex. Wesleyan L. Rev. 55, 66 (Fall 1996) ...... \ ............................................. ; ............ 14

-U.S. Constitution, First Amendent ...................................................................... 9, 37 Gore Vidal and Robert J. Stanton, Views from a Window: Conversations

with Gore Vidal .................................................................................................. 40

James M. Hill, Sr., I Have Been Blessed: Hard Work and Happiness ................... 40

M.G. Tebo, Offended by a SLAPP: As Lawsuits Against Citizens Expand, Countermeasures Are Rolled Out, A.B.A Journal, Feb. 2005 ........................... 26

Minnesota Constitution, art. I, § 3 ............................................................................. 9

Note, Slapping Around the First Amendment: An analysis of Oklahoma's SLAPP Statute and Its Implications on the Right to Petition, 60 Okla. L. Rev. 419,429 (Summer, 2007) .................................................................... 19, 26

Shannon Hartzler, Protecting Informed Public Participation: SLAPP Law and The Media Defendant, 41 Val. U. L. Rev. 1235 (Spring, 2007) ................. 22

www.millelacsnews.com. . ....................................................................................... 7

Wiktionary, http://en.wiktionary.org/wiki/get away with murder (last visited December 14, 2009) ..................................................... .40-41

STATEMENT OF ISSUES

J. Did the trial court err in refusing to dismiss this case under the Minnesota Jpi mm law, Minn. Stat.§ 554.01, et seq. based upon Appellant's statements

aimed at dissuading the City Council of Onamia from allowing a developer to expand and relocate a juvenile sex offender treatment facility?

The trial court denied a motion to dismiss the case under the anti-SLAPP law on grounds that granting such a Motion would be unconstitutional.

APPOSITE AUTHORITIES:

Marchant Inc. & Management Co. v. St. Anthony West Neighborhood Organization, Inc., 694 N.W.2d 92 (Minn. Ct. App. 2005);

Special Force Ministries v. WCCO Television, 584 N.W.2d 789 (Minn. Ct. App. 1998)

In re Haggerty, N.W.2d 363 (Minn. 1989)

Lee v. Pennington, 830 So. 2d 1037 (La. Ct. App. 2002)

2. Did the trial err in upholding that the statements of Appellant may be defamatory and, therefore, not immune under the anti-SLAPP law?

The trial court rejected immunity under the anti-SLAPP law because the claim alleges Respondent contained "appropriate elements of defamation. "

APPOSITE AUTHORITIES:

Hunter v. Hartman, 545 N.W.2d 699 (Minn. Ct. App. 1996)

Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984)

Stokes v. CBS, Inc., 75 F. Supp. 992 (D. Minn. 1998)

1

STATEMENT OF THE CASE

This is a defamation action against Appellant, Janette J. Swift ("Swift"), a

vociferous critic of the relocation of a sex offender facility in her hometown of

Onamia. Swift claims immunity under the Minnesota anti-SLAPP law, Minn. Stat. §

554.01 et seq. Respondent Nexus is a corporation that owns and operates a juvenile

sex offender treatment facility in Mille Lacs County, Minnesota. It sought to

relocate the facility through annexation of surrounding property outside of Onamia,

rezoning of the property, and various other governmental actions. Appellant Swift, a

retired educator, led a group of citizens in the Onamia area opposed to the

development project.

At one of the meetings of the Onamia City Council and later on her website

Swift stated that a youth confined at a Nexus-affiliated facility in Iowa was

asphyxiated by a staff member, and that Nexus was "getting away with murder."

Nexus sued Swift for defamation in Hennepin County District Court. Swift

asserted that her actions raised the immunity under the Minnesota anti-SLAPP,

Minn. Stat. § 544.01 et seq, which immunizes individuals whose actions, in whole or

in part, are aimed at procuring favorable governmental action, unless there is "clear

and convincing" evidence of a tort.

Swift moved to dismiss the lawsuit under the statute. Nexus brought a motion

to take discovery against Swift.

2

The Trial Court, the Honorable John Sommerville, denied Swift's motion for

dismissal and granted a motion by Nexus for discovery. Swift timely appealed under

the interlocutory appeal provision of the anti-SLAPP law, Minn. Stat.§ 554.03, subd.

2(1).

3

STATEMENT OF THE FACTS

A. Public Controversy Over the Sex Offender Facility

This case a massive development project which involved the

relocation and expansion of a sex offender treatment facility for juveniles in the City

of Onamia, about 80 miles north of the Twin Cities in Mille Lacs County. (App.

15.)1 The facility is owned by a non-profit corporation known as Nexus, which

sought to relocate its small site in Onamia to a larger 38-acre area outside the City, in

adjoining Bradbury Township, where Swift lives. (App. 4, 15-16.) The project was

vigorously challenged by Swift, a citizen activist who led her neighbors in opposing

govermnental actions that were prerequisites for the project. (App. 15-16.)

The project required annexation of the site in Bradbury by the City of Onamia,

various building permits, rezoning of the land, and hearings before several

govermnental bodies. (App. 15-23.) Swift appeared and spoke vociferously against

the project at many of those govermnental hearings. (App. 15-55.)

B. Swift Leads The Public Opposition

A retired music teacher, Swift is a long-time resident of the Onamia area.

Since her retirement from the College of St. Benedict, she has run a small music

publishing business. For nearly three years, she has been at the forefront of

opposition to the relocation of the Sex Offender Facility and has organized and led

1 "App refers to Appellant's attached Appendix.

4

the opposition group known as Onamia Area Citizen for Responsible Growth

("OACRG"). (App. 15-16.)

Seeking action by governing bodies to reject the proposed facility, Swift has

made numerous appearances and presentations at local governmental meetings,

including the City of Onamia City Council, the Bradbury Township Board, and the

Mille Lacs County Board, and has engaged in correspondence with numerous other

government bodies and officials. (App. 15-23.) At those meetings and elsewhere,

she has expressed her strong opposition, and that of the OACRG group, to the

development and any government actions that would facilitate the development.

(App. 15-55.)

1. Swift's Actions and Statements

Swift prepared a petition to be presented to the Onamia City Council opposing

the city's annexation of the land in Bradbury Township on which the Sex Offender

Facility was to be located. She obtained numerous signatures on the petition, which

was presented to the Onamia City Council on May 9, 2007. (App. 16, 26-27.) She

also appeared at a Special Meeting of the Onamia City Council on May 23, 2007,

stating that "while she does see a need for the treatment, she just doesn't want the

facility right there." (App. 16, 28-38.) She also prepared a list of questions

challenging the facility and the Council's actions that was distributed at the meeting.

!d.

5

Swift explained her advocacy in an article in the Mille Lacs Messenger

newspaper, stating "[w]e feel we were blindsided. Our voices were not even

considered let alone heard. We thought citizens had an opportunity to be involved

with decisions that affect their lives directly. That opportunity was denied." (App.

18-20, 42-43.)

She appeared at a subsequent Special Meeting of the City Council, telling the

elected officials that the city was sacrificing a small neighborhood "for the good of

the whole community" without care or concern for their feelings, adding that they

now feel like "sacrificial lambs." (App. 18-20, 44-47.)

Swift subsequently attended a public hearing held by the Onamia City Council

on June NPI OMMTconcerning the proposed annexation. (App. 16-17.) She reiterated

her opposition to any armexation and acquisition of the land for the Sex Offender

Facility, stating that the armexation was not proper according to the League of

Minnesota Cities, that the City had no comprehensive plan for the land, that there

was an incompatibility of land use, that the City was using irresponsible zoning

projections, that the City violated "spot-zoning" laws, and that the armexation

petition was faulty and inaccurate. (App. 15-23, 39-41, 48-49.) She was again

quoted in an August 29, 2007 article in the Messenger stating that "a sex offender

treatment facility should not be in a residential area." She further complained about

the lack of the process. (App. 50-51.)

6

On November 14, 2007, Swift appeared at another Onamia City Council

meeting opposing a proposed tax abatement for the owner of the sex offender

facility. E K 18-20, 52-53.) She pointed to discrepancies in the representations by

the sex offender facility and asked for time to review the county's taxing system.

(App. 18-20, 54-55.)

2. The Key Meeting & Its Aftermath

Swift also appeared at a vital zoning meeting of the Onamia City Community

in its capacity as the Onamia Planning Commission, on March 3, 2008, at which she

attempted to apprise the members of the Commission and the public in attendance

about Nexus' questionable practices. (App. 20-23.) She conveyed information about

the asphyxiation of an 11-year old youth who "died at the hands of one of their

employees" at an Iowa facility affiliated with Nexus, an incident the local coroner

labeled a "homicide." (App. 20-23, 60, 70.)

Swift subsequently posted on You Tube a video of her presentation to the

Commission, interspersed with written graphic commentary to which a link was

provided on the website, www.millelacsnews.com. (App. 20-21.) Swift expressed

her views on the website and separate blog she created to inform the public about the

sex offender project and to enlist their support and action in opposing it. (App. 20-

23.) Her statements include a debunking Nexus' position that the juveniles housed at

the existing sex offender facility present no public safety problems, referring again to

7

the Iowa "homicide," and opining that the boy was "killed" by an employee and that

Nexus was "getting away with MURDER." (App. 20-23, 139-62l

II. THE PRESENT LA WSIDT

Nexus, in its corporate capacity, sued Swift in Hennepin County District Court

for defamation (App. 4.) The lawsuit is based solely on Swift's statements to the

Onamia City Council, acting as a Planning Commission, at the March 3, 2008

meeting and her follow-up posting of her presentation on You Tube and her blog. Id.

Nexus asserts that it was defamed by two statements (1) that the youth at the Nexus-

affiliated site in Iowa was "killed" by a staff member in the incident the coroner

classified as a "homicide," and (2) that Nexus is "getting away with murder." I d.

Swift raises several defenses to these allegations. (App. 11.) She maintains

that her statements are immunized under the anti-SLAPP law, Minn. Stat. § 554.01 et

seq, which prohibits lawsuits against those engaged in "public participation," which

is defined as action aimed, in whole or in part, at procuring favorable governmental

action, unless there is "clear and convincing" evidence of a tort. I d. She also asserts

that her statements are Constitutionally-protected expressions that cannot be made

the subject of a defamation action under the Right to Petition and Freedom of Speech

2 Her criticisms of two principals of Nexus prompted them to sue her, which is pending before this Court. Freeman, et al v. Swift, No. A09-598 (Minn. Ct. App. 2009). In the predecessor suit, a Hennepin County District Court judge refused to apply the anti-SLAPP law, which triggered a permissible interlocutory appeal that

8

provisions of the First Amendment to the U.S. Constitution and the parallel provision

in Article I, ¶ 3 of the Minnesota State Constitution. ld.

Soon after the initiated, Nexus served written discovery requests

upon Swift, consisting of Interrogatories and Request for Production of Documents.

Swift responded by bringing a Motion to Dismiss under the anti-SLAPP law. (App.

226.)

The Trial Court, the Honorable John Sommerville, denied Swift's Motion and

ordered her to respond to the discovery. The decision is difficult to decipher.

(Addendum.) It begins with a concise summary of the facts, recites the legal

standard, describes the anti-SLAPP law, summarizes Minnesota defamation law, and

mentions Due Process, and Federal and state Constitutional rights to a jury trial.

(Addendum, pp. 3-6.) It then states its holdings in a "Discussion," in which it

makes a number of"constitutional rulings." (Addendum, pp. 6-10.) Those "rulings"

include: a) the statute "violates due process" if the Court cannot deny the motion and

order discovery to continue," and b) the law "violates the state constitution right of

Nexus for a jury trial if the Court must determine if a tort has occurred."3 I d. The

was heard by a panel of this Court on October 28, 2009. No decision has yet been rendered in that case. ' The Court raised another constitutional infirmity, the "appropriateness of adding an element to a common law claim and raising the burden of proof," apparently referring to the "clear and convincing" standard to overcome statutory immunity, but did not rule on this issue because it was not "adequately briefed." (Addendum, p. 9.)

9

Court then upholds the defamation claims as "actionable" because Nexus has

"alleged the appropriate elements of defamation." (Addendum, p. 1 0.)

It summarizes that the statute violates "due process . . . [and] potentially -

violates [Nexus'] right to a jury trial and is therefore unconstitutional" if the law

"precludes this Court from denying the [dismissal] motion because it cannot make

the determination required and/or preclude the Court from ordering complete

discovery." (Addendum, p. 10.) It ends by denying Swift's motion to dismiss. !d.

The upshot seems to be that the Court found the anti-SLAPP law unconstitutional to

the extent it requires the Court, without a jury, to adjudicate the statutory defense

raised by Swift under the anti-SLAPP Law.

SUMMARY OF ARGUMENT

Swift's statements to the City Council, posting a YouTube and blog are

immune under the anti-SLAPP law. They were made with the intent to procure

"favorable government action," which invokes protection under the anti-SLAPP law,

Minn. Stat. § 554.01, et seq. Swift's statements were made to prevent governmental

action that would facilitate the relocation of the juvenile sex offender facility in

Onamia, including the public and enlisting its support for the position proposed by

her and her adherents.

The anti-SLAPP statute is not constitutional. It is presumed constitutional and

there is no showing that its provisions violate the process or the right to a jury trial

10

beyond a reasonable doubt. Case law in other jurisdictions uniformly holds these

statutes to be constitutional and, so is the Minnesota measure.

The statements made by Swift do not constitute "clear and convincing"

defamation to reverse the statutory immunity. The statements are either true or

substantially true or are constitutionally-protected opinions.

ARGUMENT

I. THE ANTI-SLAPP .LAW BARS THIS LA tprf

A. The Features of the Statute

The anti-SLAPP statute bars lawsuits for actions that materially involve

"public participation," which is defined in the law as "speech or lawful conduct that

is genuinely aimed in whole or in part at procuring favorable govermnent action."

Minn. Stat. § 554.01, subd. 6. Once a defendant in such a lawsuit moves that the

case be dismissed under the anti-SLAPP statute, the non-moving party (here, Nexus)

has the burden of proof of both going forward with the evidence and of persuasion on

the motion. Minn. Stat. § 554.02, subds. 1 and 2(2). The bringing of the Motion

under the statute also automatically suspends discovery in the lawsuit, although the

Court may order limited discovery under§ 554.02, subd. 2(1 ).

To avoid dismissal, Nexus, as the responding plaintiff, must produce "clear

and convincing evidence" that the acts of the moving party are not immunized from

liability because they constitute a tort or a violation of a person's Constitutional

rights. Minn. Stat. § 554.02 & 03; Marchant Inv. & Management Co. v. St. Anthony

11

West Neighborhood Org., Inc., 694 N.W.2d 92, 97 (Minn. Ct. App. 2005). "Clear

and convincing evidence" requires proof that is "unequivocal and uncontradicted,

and intrinsically probably and credible," Deli v. University of Minnesota, 511

N.W.2d 46, 52 (Minn. Ct. App. 1994), and that the facts asserted are "highly

probable." State v. Grinder, No. A06-1902, 2007 WL 2600782 at *3 (Minn. Ct.

App. Sep. 11, 2007), citing Weber v. Anderson, 269 N.W.2d 892, 895 (Minn. 1978)

(App. 172.)

The Trial Court mysteriously ignored these provisions bypassing ruling on the

merits of Swift's Motion for dismissal. Instead, it made unwarranted and

unnecessary "constitutional rulings," holding that it could not rule on the Motion,

without violating Nexus' rights of Due Process and for a jury trial.

In so doing, the Court below transgressed several well-established doctrines,

including the statutory presumption of Constitutionality and the concept that statutes

are valid unless shown to be unconstitutional "beyond a reasonable doubt." Minn.

Stat. § 645.17 (stating that, "[i]n ascertaining the intention of the legislature the

courts may be guided by the following presumptions ... the legislature does not

intend to violate the Constitution of the United States or of this state."). See also In

re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989) ("The party challenging a statute

has the burden of demonstrating beyond a reasonable doubt a violation of the

12

Minnesota Constitution").4 In addition, it is well established that a Court's "power to

declare a statute unconstitutional should be exercised with extreme caution and only

when absolutely necessary." Haggerty, 448 N.W.2d at 364.

B. The Anti-SLAPP Law Applies Here

As a threshold matter, the anti-SLAPP statute is applicable. Swift has been a

strenuous and outspoken activist in opposing the proposed Sex Offender Facility.

She has become a lightning rod by appearing at numerous governmental meetings,

including those of the Onamia City Council, in opposition to the granting of

governmental annexation and various permits that would allow the facility to be

relocated and expanded. (App. 15-17, 24-41, 48-49.) She also helped organize the

resistance group of citizens, OACRG, has been active in encouraging its members to

oppose the offender. I d. She should not now be struck down by litigation launched

by Nexus.

The courts in Minnesota and elsewhere construe anti-SLAPP laws broadly to

encompass activities like those engaged by Swift. These laws, intended to enhance

freedom of expression, date back to the 1970's when observers noted a growing use

of litigation by parties seeking government approval of their business activities or

4 This elevation of the Constitutional issues to avoid passing on the merits also deviates from the conventional rule that Constitutional issues should not be addressed if the case can be decided on other grounds. State v. Bourke, 718 N.W.2d 922, 926 (Minn. 2006). The Trial Court flipped this principle; it made "constitutional rulings" without passing on the merits.

13

construction projects as a device to intimidate and silence their critics, including

citizen activists who oppose their plans. SLAPPING BACK FOR DEMOCRACY, An

Interview With George Pring, 19 Multinational Monitor, No. 3, May 1998. (App.

181.)

Over the years, legislation protecting citizens in speaking out in opposition to

these projects has been adopted in varying forms in about 26 states, including

Minnesota, where it was enacted in 1994. The centerpiece of these statutes is "a

requirement of early court review of the merits of lawsuits characterized as

SLAPPs." Chad Baruch, If I Had a Hammer: Defending SLAPP Suits in Texas, 3

Tex. Wesleyan L. Rev. 55, 66 (Falll996).

Swift's activities meet the statutory definition: "public participation, which

consists of seeking, in whole or in part, to obtain favorable govermnental action."

Minn. Stat. § 554.01, subd. 6. Swift has been an avatar in leading the charge against

the proposed Sex Offender Facility. (App. 15-23.) The allegations against her in this

case relate to her "public participation" in attempting to procure favorable

govermnental action on her behalf and that of her supporters. !d.

The claims in this lawsuit relate to communications that she made to a City

Council meeting and repeated on You Tube and on her website/blog to inform

citizens about the nature of the proposed facility, Nexus' history, and the foibles of

14

its employees. (App. 4.) Her actions were undertaken to engage in public

participation in the debate regarding the proposed facility. (App. 15-23.) This is the

quintessential type of "public participation" within the meaning of the anti-SLAPP

statute. As such, her statements to the Court fall within the broad definition of

"public participation" under the anti-SLAPP law.

Four decisions of this Court have involved anti-SLAPP motions to dismiss

defamation actions: Marchant, supra; Middle-Snake-Tamarac River Watershed

District v. Stengrim, No. A08-0825, 2009 WL 367286 (Minn. Ct. App. 2009), rev.

granted (Apr. 29, 2009) (unpublished) (App. 186); American Iron & Supply Co., Inc.

v. Dubow Textiles, Inc., No. C1-98-2150, 1999 WL 326210 (Minn. Ct. App. May,

1999) (unpublished) (App. 176.); and Special Force Ministries v. WCCO Television,

' 584 N.W.2d 789, 791 (Minn. Ct. App. 1998). Special Force and American Iron, in

particular, demonstrate that statutorily protected action to procure favorable

government action may occur in forums other than official governmental hearings or

meetings.

In Special Force Ministries, a group home for the mentally retarded sued a

television station for airing an undercover report on the home's alleged squalid

conditions. 584 N.W.2d at 791-92. The defendant television station moved to

dismiss pursuant to the SLAPP law, and the plaintiff argued that the station's conduct

was "not genuinely aimed in whole or in part a procuring government action"

15

because it was "part of a commercial enterprise." Special Force Ministries v. WCCO

Television, Hennepin County District Court No. MC97-5062, slip opinion at p. 13,

Nov. 4, 1997. (App. 190-210.) The trial court rejected that argument, stating:

Even ifWCCO's primary motivation for airing the story was to boost its ratings, there was evidence in the record indicative of an intent on WCCO's part to generate a response from state regulators.

Id. at p. 14 (emphasis added).

The trial court's ruling on the applicability of the anti-SLAPP statute was not

challenged or disturbed at any stage during the appellate process. See Special Force

Ministries, 584 N.W.2d at 789. The same should be true here. Swift's intent, in all

of her activities and communications, was to secure favorable governmental action to

stop or prevent expansion of the sex offender facility. (App. 16-21.) Her post-

Council meeting You Tube posting and blogging were aimed at supplementing her

statutorily-protected remarks to the City Commission in order to inform members of

the public and enlist more support from them. (App. 20-23.)

In American Iron, a letter that was distributed to residents living in the area

surrounding a proposed metal shredder site was deemed protected by the anti-SLAPP

law. American Iron, 1999 WL 326210 at *1-2. The letter-writer had expressed

disapproval of the proposed installation to the municipal planning director, but

followed with the letter to residents after being unsatisfied with the planning

department's response. Id. The correspondence stated that American Iron "has

16

history dating back 40 years of corruption and legal violations. Two of the owners of

American Iron have spent time in prison for theft ... and tax evasion." Jd. The Trial

Court determined that the SLAPP law applied to the letter, a determination that, as in

Special Forces Ministry, was not challenged or disturbed on appeal. Id.

C. The Broad Statutory Protection

The SLAPP law is intended to give broad protection to individuals who

engage in "public participation," which is defined as First Amendment activity that is

"aimed in whole or in part at procuring favorable government action." Minn. Stat. §

554.03. It is not necessary that the statements be sent "to" a government entity,

provided that the underlying activity is "aimed ... in part at procuring favorable

government action." Minn. Stat. § 554.01, subd. 6. The "aimed" provision directs

attention to the communicator's intent or, in this case, what Swift sought to do.

It is undisputed that Swift was in the vanguard as a citizen activist opposing

the relocation of the 38-acre juvenile sex offender facility in Onamia, and that she

espoused that opposition before numerous government bodies, including the Onamia

City Council, the Bradbury Township Board, and the Mille Lacs County Board, as

leader of the OACRG. (App. 15-23.)

Her You Tube posting and blogs were part of her strategic efforts to influence

governmental action. (App. 20-23.) They were specifically aimed at "seeking to

procure favorable governmental action . . . [and] to educate as many people as

17

possible, to our point of view facts so that others might join us in procuring favorable

government action with respect to our position." (App. 22.) She elaborates that her

blogging was intended to "educate other residents in the area about the issues and to

try to secure additional support from them ... to convince government officials." ld.

The blog was part of the overall effort to stop the relocation project through

educating the public, and enlisting support for her position. ld

Another opponent of the Onamia site, Jacqueline Schmidt, a teacher,

recognized the value of Swift's website and blog in the overall campaign. (App.

211-12.) She notes that Swift's blog alerted her and other activists to scheduled

government meetings and what occurred at them as well as keeping them so

"informed" that she "felt personally compelled to speak" and contacted government

officials with her own views. !d.

The centrality of blogging and a website to the campaign led by Swift to stop

the sex offender relocation is corroborated by other veteran activists. One of them,

Jan Karpel, points out that blogs and e-mails, such as the ones used here by Swift,

"are a foremost tool for those seeking to participate in government decision-making"

by education supporters (and even opponents) and enlisting their support "in a more

efficient, effective, and broader manner" than traditional efforts like letters to the

editor, phone calls, pictures, and door-to-door solicitation. (App. 213-15.)

18

Another activist, Pamela Elliott, points out that she has "used blogs ... as part

of an overall effort to influence government action." She goes on to explain that

"blogs and internet action sites have been an essential part of activities ... [in]

efforts to affect government decision-makers. (App. 227-28.) As a social activist,

Elliott has used e-mails "for the same purpose ... [as a] very valuable and essential

tool for those seeking to influence policy and government decision-makers." !d. She

also views Swift's blogging as an "effort" by Ms. Swift to influence government

decision-makers to the position espoused by her and her supporters [which] ... could

be consistent with the general and ofblogs and emails for activities of this type in an

effort to influence government decision-makers." !d.

Paula Maccabbee, another social activist, former St. Paul City Council

member, and attorney for activist groups, concurs that electronic devices, blogs, and

e-mails play vital roles in efforts to influence or persuade public officials as Swift did

here. (App. 216-25.) She views them as "important tools for education, organizing,

and citizen engagement to achieve favorable governmental action." (App. 218.)

The anti-SLAPP law is broadly aimed at protecting individuals like Swift, who

are trying to affect government action, regardless of how they do so. See Note,

Slapping Around the First Amendment: An analysis of Oklahoma's SLAPP Statute

and Its Implications on the Right to Petition, 60 Okla. L. Rev. 419, 429' (Summer,

2007) (App. 229.) Obviously, one way to affect government action is to direct

19

comments directly to the government decision-makers, as Swift did in attending the

March 3, 2008 meeting and many others as well. (App. 15-23.) But this is not the

only way to influence government action. Gathering names on petitions, soliciting

support from the community, sending letters-to-the-editor, distributing pamphlets,

and, in today's electronic age, blogging and e-mails are other ways of doing so.

(App. 213, 227.)

Thus, Swift's posting on You Tube and blogging were, at least "in part," done

as part of her "public participation" efforts. As such, these activities are covered by

the statute. See Minn. Stat.§§ 554.01, subd. 6; § 554.03.

In the You Tube posting and blog, Swift is acting as a modem-day

pamphleteer, agitating for government action in much the same way that others

before her have done so long before the internet. Thomas Paine and other

revolutionaries, if they were living today, would probably be using blogs, rather than

distributing handbills or books to agitate for governmental action. So, too, would

Frederick Douglas and others who opposed slavery; Susan B. Anthony and women's

suffragette supporters; Dr. Martin Luther King, Jr. and other civil rights supporters of

the 1950's and 1960's; and the Tea Party tax protestors today. Indeed, in this age of

the Buffington Post, the Drudge Report, Politico.com, and other influential viewpoint

internet postings, postings such as Swift's have become commonplace.

20

Because Swift's You Tube posting and blogs were intended to enlist the public

to support her agitation for favorable governmental action, her actions are statutorily

protected.

To remove that type of activity from the scope of the anti-SLAPP law would

eviscerate the statute, which is intended to provide broad protection to individuals

engaged in procuring government action. The statutory language recognizes this

breadth, protecting conduct that is aimed "in whole or in parf' at procuring favorable

government action. Minn. Stat. § 554.01, subd. 6 & § 554.03. If any part of Swift's

action was aimed at procuring government action, she is immunized under the

statute. In this case, her blog activity was clearly part and parcel of her efforts to

influence government action by educating and enlisting others to support her cause

and, therefore, is covered by the statute.

The broad language of the statute and the reality of activities by experienced

social activists are supported by well-established case law. In Special Force

Ministries, supra, the applicability of the anti-SLAPP law to television broadcasts,

even though they were not primarily (or exclusively) directed "to" government

officials was not even questioned on appeal. 584 N.W.2d at 789. The same result

occurred in American Iron. 1999 WL 326210 at *1-2.

21

D. The Case Law Supports Swift

Case law in other jurisdictions supports the applicability of the anti-SLAPP

law to communications made to others, besides government officials, as part of an

effort to influence or persuade government decision-makers. The thrust of the case

law is aptly summarized in an article in the Valpraiso University Law Review. See

Shannon Hartzler, Protecting Informed Public Participation: SLAPP Law and The

Media Defendant, 41 Val. U. L. Rev. 1235 (Spnng, 2007). The article states that

anti-SLAPP statutes generally:

... expand the defmition of protected activity to include not only oral or written statements made to government bodies or as part of government proceedings, but also communications made in connection with any issue under consideration or review by a government body.

Id., at 1253-54.

The case law in two other states bears this out. Massachusetts and Maine

define "public participation" similar to the Minnesota statute. Courts in those

jurisdictions interpret their anti-SLAPP laws broadly. In Plante v. Wyle, 824 N.E.2d

461 (Mass. App. Ct. 2005), the SLAPP statute in Massachusetts was held to extend

to communication between private citizens involved in government proceedings, but

were not made in front of, or to, the govermnent body. The Court found the

statements were covered by the anti-SLAPP statute, which is similar to the

22

Minnesota law, because the statements were made "in furtherance of the objective

served by government consideration of the issue under review." !d. at 468.

The same is true in this case, where Swift's You Tube posting and blog were

undeniably made in order to educate the public, even her adversaries, and to enlist

public support in connection with stopping the sex-offender relocation project. (App.

20-23, 211.)

Similarly, in Schelling v. Lindell, 942 A.2d 1226 (Me. 2008), a letter to the

editor of a newspaper was found to be within the purview of Maine's anti-SLAPP

law, even though it was not directed to government decision-makers. The SLAPP

statute applied because the letter was "designed to expand the public consideration of

a controversial issue recently considered by the legislature." Schelling, 942 A.2d at

1231. The same is true in this case, where Swift sought to educate and inform the

public and enlist their support. (App. 20-23, 211.)

The Maine Supreme Court resoundingly rejected the argument that because the

legislation in question already passed and was no longer in consideration, a letter to

the editor about it was not statutorily-protected. Schelling, 942 A.2d at 1230-31. The

Court reasoned that the SLAPP statute also protects statements that "may have the

effect of bringing an issue not currently under consideration into consideration of

review by any governmental body." !d. at 1231.

23

A few states, but not Minnesota, explicitly limit the type of speech protected

by anti-SLAPP statutes. In Missouri, the statute only extends to "conduct or speech

undertaken or made in connection with the public hearing or public meeting." Mo.

Ann. Stat., 537.528 (2004). Similarly, Hawaii defines "public participation" under

its SLAPP law as "oral or written testimony submitted or provided to a government

body during the course of a governmental proceeding." Haw. Rev. Stat. § 634F-l

(2002). In these states, statements made in blogs or e-mails outside of government

meetings would not be statutorily-protected

But the Minnesota law does not contain such an explicit restriction. The lack

of any such restriction in Minnesota makes its statute comparable to those in

Massachusetts and Maine, which have been construed to extend to communications

made "in connection" with a public issue, even if made to the general public and not

directly to the government decision-makers. See Schelling, 942 A.2d at 1230-31;

Plante, 824 N.E.2d at 467-68.

Because the language in. the Massachusetts and Maine statutes are similar to

the Minnesota statute, a comparable result should follow here. Because the

Minnesota statute is not restrictive, like Missouri and Hawaii statutes, a narrow view

of the scope of the law should be rejected.

In sum, the statements made by Swift to the City Council, on You Tube and on

her blog were done at least "in part" to procure favorable government action.

24

Accordingly, they constitute "public participation," are statutorily-protected, and

cannot form the basis for this lawsuit, which should be dismissed.

- ll. THE ANTI-SLAPP LAW IS CONSTITUTIONAL

The ruling below disregarding the breadth of the anti-SLAPP law turns on the

perceived unconstitutionality of the. law. The Trial Court held that two of its features

are constitutionally infirm.

The Court, without citing any authorities, deemed the law violative of Due

Process and the state's constitutional right to a jury trial to the extent it requires the

Court to rule on the statute's grant of immunity without discovery.5 To cure that

affliction, the Court chose not to rule on the merits at alL

But the Court below erred greviously in refusing, on constitutional grounds, to

rule on Swift's Motion to dismiss. The case law overwhelmingly supports the

validity of the Minnesota statute and similar ones in other jurisdictions.

The standard of review for a Constitutional challenge to a statute is extremely

high. In Minnesota, statutes are presumed constitutionaL In re Haggerty, 448 at

364. A statute is only constitutionally infirm if it is found to be unconstitutional

"beyond a reasonable doubt." Id. As the Minnesota Supreme Court has declared, the

5 The Trial Court's concern about the lack of discovery is also misplaced. The anti-SLAPP statute specifically allows the Court to defer ruling on a defendant's motion to dismiss until specific discovery is conducted. Minn. Stat. § 554.02, subd. 2(1). Instead of doing this, the Trial Court simply, and improperly, denied the Motion.

25

"power to declare a statute unconstitutional should be exercised with extreme caution

and only when absolutely necessary." ld.

The Trial Court's ruling deviates from this standard. Since their inception in

the 1970's, in the wake of Watergate, anti-SLAPP statutes have proliferated.

Minnesota is one of 26 states that have enacted statutes designed to protect

individuals engaging in action to try to affect governmental action by restricting

lawsuits designed to or having the effect of chilling such actions. See Note, Slapping

Around the First Amendment: An analysis of Oklahoma's SLAPP Statute and Its

Implications on the Right to Petition, 60 Okla. L. Rev. 419, 429 (Summer, 2007)

(App. 229.)

These measures serve the important public purpose of encouraging citizens to

participate in public affairs and deterring efforts to bully, intimidate, or suppress

them from engaging in First Amendment speech. Id. at 428-30. As this Court has

stated, their goal is to avoid the chilling effect on citizen advocates like Swift caused

by defamation suits. Marchant, 694 N.W.2d at 94-95. These statutory goals are

intended to extend, rather than frustrate, citizens' freedom of expression. The

authorities recognize the laudable nature of the statutes and note that courts

consistently uphold their constitutionality. M.G. Tebo, Offended by a SLAPP: As

Lawsuits Against Citizens Expand, Countermeasures Are Rolled Out, A.B.A.

Journal, Feb. 2005, at 16-17. (App. 231-33.)

26

Most of these statutes, including Minnesota's, place the burden of proof on the

suing party by requiring it (in the face of an anti-SLAPP motion to dismiss) to

produce "clear and convincing evidence" of impropriety by the moving party, and

mandating that it pay attorney's fees to successful anti-SLAPP suit defendants.

These statutes have been attacked on a potpourri of constitutional grounds, but not a

single one has succeeded in any contested decision in any appellate court in

Minnesota or elsewhere in the United States.6

The California Courts, not surprisingly, have led the way in validating these

laws. In Equilon Enterprises, LLC v. Consumer Cause, Inc., 52 P.3d 685 (Cal.

2002), the California Supreme Court rejected constitutional challenges to its SLAPP

law, with specific reference to a right to petition challenge and the fee-shifting

provision. See also Bernardo v. Planned Parenthood Fed'n of Am., 9 Cal. Rptr. 3d

197 (Cal. App. 4 Dist. 2004), cert. denied, 543 U.S. 942 (2004) (anti-SLAPP statute

does not interfere with freedom of speech or petitioning rights, and attorney's fee

award does not offend due process rights, equal protection rights, or right to petition).

6 The only appellate court which has frowned on an anti~SLAPP measure an adversary opinion in New Hampshire, in the context of an advisory opinion. Opinion of Justices (SLAPP Suit Procedure), 138 N.H. 445, 641 A.2d 1012 (N.H. 1994). The issue arose in response to questions certified to it by the New Hampshire State Senate regarding proposed legislation. There were no adverse parties or contested pleadings, and the opinion of the New Hampshire jurists clashes with that of every other appellate court decision in the country that has passed upon the issue ofthe Constitutionality of these laws.

27

In Bernardo, the California Court of Appeals emphatically declared: "We

reject [the] contention that application of the SLAPP statute violated [any] First

Amendment rights." Id. at 227. More relevant to this case, it also found no due

process problem with the procedure set forth California's anti-SLAPP law (which is

functionally identical to the Minnesota procedure at issue here) requiring a plaintiff

to meet a heightened quantum of proof early in the litigation in order to proceed with

the suit. I d., at 228. Specifically, the Court found that due process only requires that

a defamation plaintiff in an anti-SLAPP suit be put on notice of the heightened proof

requirement, which it plainly was by virtue of the statute's plain language. Id.

But California is not alone in upholding SLAPP statutes in the face of

constitutional challenges. In Lee v. Pennington; 830 So. 2d 1037 (La. Ct. App.

2002), the Louisiana Court of Appeals held that the state's statute was not ambiguous

and did not violate Equal Protection, Due Process, or the state right to a jury triaL

The Pennington case provides perhaps the closest analogue to the constitutional

issues raised by the Trial Court here.

There, the defamation plaintiff alleged that Louisiana's anti-SLAPP statute

violated state and federal constitutional due process and jury trial rights because it

"allow[ed] the trial court to determine one's 'probability of success' at a jury trial

before proceeding, instead of allowing a jury (i.e., the proper body) to make this

determination by issuing a verdict after a triaL" Pennington, 830 So. 2d at 1043.

28

These are the precise reasons that the Trial Court found Minnesota's anti-SLAPP

statute to be unconstitutional in this case.

Louisiana's Supreme Court curtly bruslred aside these supposed constitutional

infirmities, declaring that:

the only purpose of [the anti-SLAPP law] is to act as a procedural screen for meritless suits, which is a question of law for a court to determine at every stage of a legal proceeding. A plaintiff is only required to show a "probability of success" of his claim before a jury (i.e., the merits) based upon the elements of the tort claim he alleges. This article does not bar anyone with a valid claim from pursuing his case through the judicial process.

Pennington, 830 So. 2d at 1043 (emphasis added).

In other words, the Court recognized that the Trial Court already possessed the

undisputed power to dismiss a non-meritorious case as a matter of law prior to a jury

trial, under the local equivalent of a summary judgment motion or a motion to

dismiss for failure to state a valid legal claim. Since the exercise of such a power

under these well-recognized rules of civil procedure does not amount to an

unconstitutional abridgement of due process or a jury trial, neither does the early

dismissal power given to trial courts by state anti-SLAPP statutes.

The highest tribunals in Utah and Rhode Island have also upheld their states'

anti-SLAPP laws in the face of a variety of constitutional challenges. See Anderson

Development Co. v. Tobias, 116 P.3d 323 (Utah 2005); Hometown Properties, Inc. v.

Fleming, 680 A.2d 56 (R.I. 1996). These holdings demonstrate the broad consensus

29

among courts across the country that anti-SLAPP statutes meet all applicable

constitutional requirements.

These cases also comport with treatment of the statute by Minnesota's

appellate courts, where anti-SLAPP cases have been addressed on their merits on

numerous occasions, without any question as to the statute's ultimate

constitutionality. See, e.g., Marchant, 694 N.W.2d at 92; Special Force Ministries,

584 N.W.2d at 789; American Iron, 1999 WL 326210.

The Trial Court's concern about eviscerating due process and the right to a jury

trial is misplaced. As the Louisiana Supreme Court has emphasized in Lee, Courts

frequently and uncontroversially adjudicate cases as a matter of law prior to trial by

jury on a daily basis, pursuant to well-established rules of civil procedure. No one

has seriously suggested that a trial court's grant of summary judgment to a party

prior to trial deprives that party of its right to a jury trial or impedes its due process

rights. The anti-SLAPP statute merely sets up an equivalent alternative pre-trial

procedure for early adjudication of cases which fall into its ambit, designed to protect

citizen activists from the costs and burdens associated with lengthy litigation. Minn.

Stat. § 554.02.

With regard to immunity cases in general, the Minnesota Supreme Court has

held that "the application of an immunity typically is a matter of law that is best

resolved before the parties engage in lengthy discovery." Rehn v. Fischley, 557

30

N.W.2d 328, 332 (Minn. 1997). As such, trial courts often are called upon to decide

immunity cases in other contexts prior to trial, in the context of sununary judgment

and other pre-trial motions. See, e.g., Rico v. State, 472 N.W.2d 100, 103-05 (Minn.

1991) (sovereign immunity and official immunity); Pigs R Us, LLC v. Compton

Township, 770 N.W.2d 212, 214, 215 (Minn, Ct. App. 2007) (official immunity).

Indeed, these rulings are subject to immediate interlocutory review, reflecting a

conscious desire to ensure that immunity issues are fully litigated prior to trial.

McGovern v. City of Rosemount, 503 N.W. 493,496 (Minn. Ct. App. 1993).

In sum, the case law in this country at the appellate level consistently holds

that the anti-SLAPP laws are constitutional, and there is no decision in an actual case

by any court in Minnesota or the rest of the country deviating from these well-

reasoned holdings. To the contrary, Minnesota case law militates strongly in favor of

the anti-SLAPP statute's constitutionality. Therefore, Nexus' challenge to the

constitutionality of the anti-SLAPP statute falls far short of reaching the high

standard of fmding the statute unconstitutional "beyond a reasonable doubt."

Accordingly, the Trial Court's "constitutional rulings" are wrong and should be

overturned.

31

Ill. SWIFT'S STATEMENTS ARE PROTECTED BECAUSE THEY ARE NOT TORTIOUS

A. Evidence of a Tort Must Be "Clear and Convincing"

Because the anti-SLAPP law applies and is constitutional, the lawsuit must be

dismissed unless Nexus shows by "clear and convincing evidence" that Swift's

comments are defamatory. See Minn. Stat. § 554.02, subd. 2(3). The "clear and

convincing" standard is a high one, requiring proof of "reasonable certainty."

American Iron, 1999 WL 326210 at *2.7

The statements made to the City Council and repeated on You Tube and

Swift's blog do not constitute defamation - they are constitutionally-protected

opinion. To be defamatory, statements must be the type that can be "proven true or

false." Marchant, 694 N.W.2d at 95. None of the statements ascribed to Swift fall

within that category. They are all subjective, metaphoric, or hypothetical statements,

not factual statements that are probably true or false; or if they are factual, they are

true.

7 Because it is a corporate Plaintiff, Nexus is subject to the New York Times standard as a "public figure." Jadwin v. Minneapolis Star and Tribune Company, ("Jadwin 1"), 367 N.W.2d 476, 487-88 (Minn. 1985). As such, it must prove Plaintiffs remarks were made with "actual malice," consisting of knowing falsities or reckless disregard for the truth, and it must do so by "clear and convincing evidence."

32

B. The Legal Standard For Opinion

1. "There is no such thing as a false idea."

In Jadwin v. Minneapolis Star and Tribune Co., ("Jadwin II"), 390 N.W.2d

437 (Minn. Ct. App. 1986) the Minnesota Court of Appeals addressed the issue of

"opinion" in the context of defamation lawsuits:

We initially acknowledge that only false and defamatory statements of fact are actionable; "there is no such thing as a false idea." ... Expressions of opinion, rhetoric, and figurative language are generally not actionable if, in context, the audience would understand the statement is not a representation of fact ... (internal citations omitted)

390 N.W.2d at 441 (emphasis supplied).

This Court explained in Marchant:

Only statements that present or imply the existence of fact that can be proven true or false are actionable under state defamation law." ... Thus, if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than verifiable facts, the statement is not actionable." ... Speech that is properly categorized as parody, loosely figurative, or rhetorical is also constitutionally protected to ensure that public debate will not suffer for lack of imaginative expression and because this type of speech cannot be reasonably interpreted as stating factual facts (internal citations omitted).

Marchant, 694 N.W.2d at 95-96 (emphasis supplied).

33

2. Context is Critical

Minnesota follows a three-prong test for determining what constitutes a

legally-protected opinion that cannot be the subject .of a defamation suit:

. . . the statement's broad context, which includes the general tenor of the entire work and its statements, setting, and format; the specific context of the statements, including the use of figurative or hyperbolic language and the reasonable expectations of the audience; and whether the statement is sufficiently objective to be susceptible of being proved true or false.

Marchant, 694 N.W.2d at 96

3. Substantial Truth Is Sufficient

A defamation claimant bears the burden of proving that the statements at issue

are false. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775-76 (1986).

The burden is substantial. As stated in Jadwin II:

[T]he plaintiff cannot succeed in meeting the burden of proving falsity by showing only that the statement is not literally true in every detail. If the statement is true in substance, inaccuracies of expression or detail are immaterial ... a statement is substantially accurate if its gist or sting is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced.

390 N.W.2d at 441 (internal citations omitted).

4. Substantial Truth Is A Question of Law

Where there is no dispute as to the underlying facts, the question of whether

any statement is substantially true is one of law for the court. Jadwin, 390 N. W.2d at

442.

34

Thus,

[T]he 'substantial truth' test is broad: if any 'reasonable person' could find the statements to be 'supportable interpretations' of their subjects, the statements are incapable of carrying a defamatory meaning, even if a 'reasonable jury' could find that

were mischaracterizations.

A commentator who advocates one of several feasible interpretations of some event is not liable in defamation simply because other interpretations exist. Consequently, remarks on a subject lending itself to multiple interpretations cannot be the basis of a successful defamation action because as a matter of law no threshold showing of "falsity" is possible in such circumstances.

Hunter v. Hartman, 545 N.W.2d 699, 707 (Minn. Ct. App. 1996) (emphasis

supplied).

The "reasonable reader" test is an objective standard for the court to apply as a

matter of law. E.g., Lund v. Chicago and Northwestern Transp. Co., 467 N.W.2d

366, 369 (Minn. Ct. App. 1991), rev. denied, (Minn. June 19, 1991). The "protection

for an author's rational interpretation of another's statement serves First Amendment

principles by allowing her the interpretive license that is necessary when relying

upon ambiguous sources." Campbell v. Citizens for an Honest Government, Inc.,

255 F.3d 560, 567 (8th Cir. 2001 ). "Where the question of truth or falsity is a close

one, a court should err on the side of the nonactionability." Liberty Lobby, Inc. v.

Dow Jones & Co., Inc., 838 F2d 1287, 1292 (D.C. 1988), cited with approval in

Hunter, 545 N.W.2d at 705.

35

C. Swift's Statements Are Either Opinions or Are Substantially True.

Swift's allegedly defamatory statements are clearly and undisputedly opinions

that cannot be verified as true or false. They are properly characterized as subjective

impressions; and even those that are not, are true.

1. The "Killed" and "Asphyxiated" Remarks Are Either True or Substantially True.

Swift's statements that the Nexus-affiliated facility in Iowa has "killed" and/or

"asphyxiated" one of its patients are supported by the relevant coroner's report of a

"homicide" concerning the incident in question, Swift was aware of this finding

when she made the statement. (App. 18-23, 69-143.) As such, her statements in this

regard are either true or substantially true, and as such cannot form a basis for a

defamation suit by Nexus against her.

As this Court recognizes, "statements that are substantially true, or incapable

of carrying a defamatory meaning, even if a reasonable jury could fmd the statements

were mischaracterizations." Id See also Stuempges v. Park, Davis & Co., 297

N.W.2d 252, 255 (Minn. 1980) (substantial truth statements are not actionable as

defamation). This doctrine has also been recognized by the United States Supreme

36

Court, interpreting the First Amendment to the Federal Constitution. See Milkovich

v. Lorain Journal Co., 497 U.S.1, 16-17 (1990).8

The statement at issue here is that the youth at the Nexus site in Iowa had died

by "asphyxiation" and had been "killed." (App. 4.) This is consistent with the

finding of the coroner, after an autopsy, who had determined that the youth had

"suffocated" and that a "homicide" occurred. (App. 18-23, 69-143.) Therefore, as a

matter of law, Swift's statements in this regard were either true or "substantially

true," and as such cannot form a basis for this defamation suit by Nexus. This is

especially true in light of Nexus' burden of showing "clear and convincing evidence"

of defamation under these circumstances. Minn. Stat. § 554.02, subd. 2(3).

2. The "Getting Away With Murder" Remark Was a Constitutionally-Protected Opinion.

Swift's remarks, in the posting on her blog after the City Council meeting, that

the Nexus-related facility in Iowa was "getting away with murder" is permissible.

This comment is a constitutionally-protected opinion and, thus, not defamatory as a

matter oflaw.

Constitutionally-protected opinions are those that are hyperbolic, rhetorical, or

cannot literally be proven true or false. Hunter v. Hartman, 545 N.W.2d 699, 706

8 The statements made by Swift to the Onamia City Council also are not actionable because of privilege. Statements made at a public city council meeting are privileged

37

(Minn. Ct. App. 1996). In determining whether a statement presents or implies a

provably false assertion of fact, this court must consider the general tenor, setting,

and format of the entire work in which the statement appears as well as the specific

content of the statements, the specific context in which they are made, the

verifiability of the statement, and how a reasonable reader (or listener) might

construe the statements. Marchant, supra, at 96. If a statement is reasonably

subject to two different interpretations, one defamatory and one not, the non-

defamatory one must be chosen and the claim dismissed. Hunter, 545 N.W.2d at

707; see also Stokes v. CBS, Inc., 25 F. Supp.2d 992, 997-998 (D. Minn. 1998).

Swift's "getting away with murder" remark was made as part of a general

critique of both Nexus and the City Council and, in that context, is reasonably

viewed as a rhetorical statement, not a factual report. Swift was seeking to convey

that the lax management and oversight at the Nexus-affiliated site in Iowa illustrated

the deficiencies of the organization. (App. 20-23.) It was not intended, nor could it

be construed by a reasonable reader, as a charge of criminality against Nexus, but

rather as a rhetorical flourish used by Swift.

The phrase is commonly used to refer to doing something very bad and not

being caught or held accountable. That is the general theme of Swift's statements on

from suit for defamation. See Moreno v. Crookston Times Printing Co., 610 N.W.2d 321, 325-333 (Minn. 2000).

38

her blog, on which she provides numerous examples of duplicitious statements and

actions by Nexus and its representatives. (App. 20-23, 139-43.)

Swift's use of phrases "killed" and that Nexus is "getting away with murder"

are hyperbolic figures of speech, not factual statements. Swift explains in her blog

that the latter term "is a phrase which means that someone is perpetrating bad

behavior without any consequences." (App. 7-8.) This is a non-actionable,

constitutionally-protected opinion, not an actual accusation of criminality. It is a

hyperbolic statement, not meant to be taken literally. A statement is not actionable

"if it is plain that the speaker is expressing a subjective view, an interpretation,

theory, conjecture, or surmise, rather than claiming to be in possession of objectively

verifiable facts." Marchant, supra, at 95-96. The context of the statement shows

that it was not calculated to be a factual report but a subjective opinion or theory.

Swift had researched the controversy surrounding the death of the youth.

There was an abundance of discussion of the incident, including news reports that his

death had been ruled a "homicide." (App. 20-23, 70, 99-118.) Another noted that a

wrongful death lawsuit against the facility alleged that it had "used unreasonable and

unnecessary force in restraining and eventually killing" the boy. (App. 69.)

The phrase "getting away with murder" was not uttered literally by Swift to

mean that Nexus killed anyone. The terminology was used by her in the context of

her general and ongoing criticism of the city's procedures and of Nexus'

39

misrepresentations, including her criticism of lax management and supervision of

youthful offenders, which was one of the reasons that she advocated against the

relocation and expansion of the site in Onamia. (App. 20-23, 28-38, 48-49, 139-62.)

The tragic incident in Iowa underscored Swift's concern. She used the

"getting away with murder" phrase in a hyperbolic fashion to mean that a Nexus

affiliate had done something that was bad and was suffering no significant

consequences. (App. 20-23.) That is how the term is customarily used.

Wiktionary.org, an on-line dictionary, categorizes the phrase "get away with murder"

as an English idiom and defines it as "[t]o do something bad or illegal and not be

punished." It goes on to provide examples ofliterary uses of the term:

Claudia Bishop, Marinade for Murder, Berkley Books (2000).

• Just yesterday it was fashionable to be black. Remember? Any black writer could get away with murder, just as any Jewish-American writer can get away with murder.

Gore Vidal and Robert J. Stanton, Views from a Window: Conversations with Gore

Vidal, p. 245, L. Stuart (1980).

• He said I found out about everything he did and said, 'I can't get away with nothing, and Jim can get away with murder.' I don't think that I let any of my kids get away with murder, and I don't think any one of them ever did much serious mischief.

James M. Hill, Sr., I Have Been Blessed: Hard Work and Happiness, p. 205,

Aforesight Press (2005).

40

Wiktionary, http://en.wiktionary.org/wiki!get away with murder (last visited

December 14, 2009) (App. 234.)

In sum, the idiom "get away with murder" does not have a literal meaning that

a murder was committed in any of these instances. The phrase is customarily used to

mean what Swift intended: bad or disapproved actions without consequence.

' A phrase that can reasonable be interpreted to have a non-defamatory meaning

cannot be actionable as a matter of law. Hunter, 545 N.W.2d at 707. See also Bose

Corp. v. Consumers Union of US., Inc., 466 U.S. 485, 512-13 (1984) (allegedly

defamatory criticism of speaker system in consumer magazine not actionable because

criticism was "'one of a number of possible rational interpretations' of an event 'that

bristled with ambiguities' and descriptive challenges for the writer"); Time, Inc. v.

Pape, 401 D 279, 290 (1971); Washington v. Smith, 893 F.Supp. 60, 64 (D.D.C.

1995) (allegedly defamatory assessment in a sports magazine of plaintiff's coaching

inactionable because "[r]easonable minds can interpret the [facts] differently").

No reasonable reader could construe that Swift was making the "getting away

with murder" remark as a factual statement that Nexus actually murdered anyone.

This is especially so when it is considered in the context of the extensive criticism of

Nexus in Swift's blog. It is more plausible, or at least equally plausible, that she

used the idiom like .. many others do, to mean that in her opinion Nexus acted

41

improperly, and without appropriate consequences.

documentation to support her view. (App. 22-23, 139-62.)

She had extensive

Because the phrase "getting away with murder" has a reasonable, non-

defamatory meaning, Swift's use of it cannot subject her to liability in defamation as

a matter of law, even if there is another interpretation, however strained, that might

be more heinous. Hunter, 545 N.W.2d at 707, citing Moldea v. New York Times Co.,

22 F.3d 310,316-19 (D.C.Cir. 1994) (only ? reasonable person could find" the

allegedly defamatory statements "supportable interpretations" of the situation being

described are the statements actionable in defamation) (emphasis omitted), cert.

denied, 513 U.S. 875 (1994).

Since there is no "clear and convincing" evidence of defamation, the tort

provision of the anti-SLAPP law is inapplicable. Since the statutory immunity

applies, and because the statute is constitutional, the lawsuit should be dismissed.

CONCLUSION

For the above reasons, the ruling below denying the motion to dismiss the

Complaint should be reversed.

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Dated: December J

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shall H. Tanic 108303) Brian N. Niemczyk (386928 220 South Sixth Street, #1700 Miimeapolis, MN 55402-4511 (612) 339-4295

ATTORNEYS FOR APPELLANT JANETTE J. SWIFT