Star Tribune
Jury must decide truth of Facebook post accusing sexual assault
The Minnesota Supreme Court ruled Wednesday that a jury should determine the veracity of a woman’s Facebook post accusing a Minneapolis dance instructor of sexual assault, which led him to sue for defamation.
The state’s highest court didn’t determine whether the accusation is true. Insteadit focused on deciding if the post involved a matter of public concern. Four justices found that it did, which means the post is entitled to heightened protection under the First Amendment. Three justices, including Chief Justice Lorie Gildea, dissented, calling the post a private matter.
That heightened protection means attorneys for dance instructor Byron Johnson will have a higher burden of proof at trial in Hennepin County District Court. They will not only have to prove Kaija Freborg’s accusation was false, but also that it was made with actual malice.
“Mr. Johnson is still going to get his day in court, so that’s always a good thing for someone who’s been defamed,” said Scott Flaherty, an attorney for Johnson.
He said First Amendment issues “frequently divide reasonable judges.” He said the case would still be headed to trial if the court had found the post was private, but that the decision “makes things more difficult for victims of defamation.”
Natalie Cote, an attorney on Freborg’s legal team, said she is pleased with the outcome: “I think the majority did a good job analyzing the case law and we believe they came to the correct decision.”
Freborg made the post on July 14, 2020, inspired by the #MeToo movement. She tagged Johnson and two other Twin Cities dance instructors, accusing them of sexual assault.
Johnson and Freborg had a previous casual sexual relationship after they met in 2011, when she took dance lessons from him. She agrees that many, not all, interactions were consensual.
Writing for the majority, Justice Margaret H. Chutich noted that the litigation stemmed from a house party Johnson hosted in 2015. Freborg claims she was intoxicated at the party and that Johnson “grabbed [her] hand and put it down his pants onto his genitals” without consent.
Their sexual relationship ended after that but they still communicated about dance lessons until 2017. By the time of the Facebook post in 2020, they had not spoken for a few years.
“Feeling fierce with all these women dancers coming out. So here goes…” the post said. “I’ve been gaslighted/coerced into having sex, sexual assaulted, and/or raped by the following dance instructors: Byron Johnson… If you have a problem with me naming you in a public format, than perhaps you shouldn’t do it #metoo #dancepredators.”
Two days later, Freborg edited the post to say “I’ve experienced varying degrees of sexual assault,” explaining in the post that “words like rape from a white woman can be triggering for a black man.”
It’s unclear how many people saw the post, but it generated more than 300 “reactions” and nearly 200 comments, including from Johnson, who wrote in part, “This is a very serious accusation which I categorically deny.”
Johnson sued Freborg in Hennepin County District Court, saying his reputation suffered and that he lost business over the original post portraying him as a rapist. Chutich wrote that Freborg acknowledged in the post and private Facebook messages that Johnson never raped her.
The district court, in a summary judgment at Freborg’s request, found her speech was true, not made with malice and involved a matter of public concern. The Minnesota Court of Appeals reversed the district court, finding it was a private concern — meaning Johnson was not required to prove malice to recover damages.
Freborg petitioned the Supreme Court for review. It reversed the appellate court and remanded the defamation case back to district court for trial.
The #MeToo movement, Chutich wrote in support of her ruling that the post was a public matter, “seeks to connect survivors, encourage victims to tell their story, and increase awareness of the scope of the problem of sexual assault.”
Freborg noted in the post that she made the post for the safety of other women, including those in the Twin Cities dance community, Chutich wrote. She also aimed to inspire change while using Facebook, a “modern public square,” and the hashtag to spread the message to an “unlimited audience,” the justice added.
Johnson argued that the post was to get “vengeance” and that Freborg used the movement to mask a private attack on his character, Chutich wrote. He also argued that Freborg had never spoken out about sexual assault or #MeToo before.
Gildea echoed this in her dissent, joined by fellow justices Natalie E. Hudson and G. Barry Anderson.
“This case is not about the MeToo movement; it is about a Facebook post where Freborg accused Johnson of sexual assault and then included ‘#MeToo.'” Gildea wrote. “We are tasked with evaluating whether Freborg’s single Facebook post was speech on a matter of public concern, not the entire MeToo movement.”
The constitutional actual malice standard was born out of concern for chilling speech about government, Gildea wrote, and Freborg’s accusation “comes nowhere close to such speech.”
But Chutich wrote that even with heightened protection of the malice standard, the speech of victims of sexual assault may be chilled:
“Given the potential threat and costs of defending a defamation lawsuit, many victims of sexual assault may choose not to speak out at all.”
A judge acquitted a 37-year-old man of threatening to harm St. Paul Mayor Melvin Carter and Maplewood Mall and concluded that the defendant’s intention was to buy the shopping center and run for mayor.
Andrew Thomas Grzywinski, of St. Paul, was found not guilty late Thursday afternoon by Ramsey County District Judge John Guthmann on two counts of threats of violence.
The suspicion took root when Grzywinski sent a former girlfriend a text on Dec. 27, 2022, showing an assault-style gun on a window ledge, with a message that read, “Maplewood Mall is my idea, and Mayor of St. Paul is an end goal,” according to the charges filed in December 2022.
The woman alerted Woodbury police because Grzywinski was staying at a hotel in that city. A Woodbury police investigator said Grzywinski had been hospitalized Dec. 15-22, 2022, in Pensacola, Fla., “on a mental health hold,” the charges read, and a doctor there said Grzywinski’s threats should be taken seriously.
Woodbury police then notified their counterparts in Maplewood and St. Paul, leading to his arrest and charges.
In returning his verdicts in writing, Guthmann said, “The text message does not state or imply a threat to commit an act of violence. There is nothing expressly or impliedly threatening about the words ‘Maplewood is my idea,’ and the existence of a gun in the background of a panorama photo of a hotel room containing many other objects does not reasonably change the character of those words.”
The judge continued, “To conclude that defendant’s text was intended as an express or implied threat to the Maplewood Mall or anyone inside is entirely speculative and without support in the evidence.”
Guthmann’s filing noted that Grzywinski, who owns his own heating and cooling business, was not mulling or making any threats against the mall or the mayor but had been telling various people close to him that he wanted to buy the mall and run for mayor.
Star Tribune
Critics say Duluth judicial candidate fought improvements to domestic violence work as city attorney
Johnson said this week he felt a victim advocate position was important, but needed to “ask the hard questions” first.
“You have to be careful of what you take on,” he said, when potentially adding employees, considering potential future budget cuts. “I explore all options before jumping into something and that’s what we did with that position.”
After Holtberg’s phone call with Johnson, she said she sought advice from others and brought the opportunity and Johnson’s initial response to former Mayor Emily Larson. Larson confirmed this week that she then directed Johnson to apply for the grant. Funding was awarded to the city, and the position remains grant-funded today. Johnson said he doesn’t think Larson told him to apply, but said her administration was part of the discussion.
“We got it done, and we got it done in a way that’s stuck with the city,” he said. “Just because you ask hard questions doesn’t mean that it’s bad … that’s what I do, and as judge I’ll ask hard questions.”
Retired city prosecutor Mary Asmus said recently that Johnson told her at the time that if that position was added, he would probably need to dismiss someone from the office’s criminal division. This was at a time when criminal caseloads were high, she said. Johnson said he doesn’t recall saying that, but noted that grant funding isn’t guaranteed to last, inevitably affecting budgets and staffing.
“I don’t think he understood the importance of a victim services coordinator to the prosecution of a domestic violence case,” Asmus said, and “he was the first Duluth City Attorney in four decades who had never prosecuted criminal cases for our office.”
The DFL candidate for a Roseville seat in the Minnesota House is pushing back on allegations from his Republican opponent that he doesn’t live in the district he hopes to represent.
Curtis Johnson is currently a member of the Roseville Area Schools board. He has owned a home in Little Canada since 2017, according to Ramsey County property records.
In May he filed to run for the open seat in House District 40B, saying he lived in an apartment complex less than 3 miles from his Little Canada home. The district includes parts of Roseville and Shoreview and has been represented by DFLer Jamie Becker-Finn, who isn’t seeking re-election, since 2017.
In a statement, Johnson said he and his wife decided to move to Roseville last year, but they’ve struggled to find the right house. In the meantime, he’s been renting “a Roseville apartment as my primary residence while we keep searching for a forever home.”
“My wife and our youngest child still live in the house because we didn’t want to disrupt our child’s life by moving the rest of the family into my apartment and then moving them again after we found a house in Roseville,” Johnson’s statement said.
Wikstrom released an ad Oct. 15 that accused Johnson of lying about his residency, but he has not committed to making a legal challenge. A residency challenge would be decided by the Minnesota Supreme Court.
“My confidence level is high that we have a solid case he is not a resident of the district,” Wikstrom said in an interview. He noted that Johnson’s vehicle is often at the Little Canada home and a portable storage container appeared out front days after his political ad went online.
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