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CHUTICH, Justice.

This case involves a defamation claim brought by respondent Byron Johnson—a private figure—against appellant Kaija Freborg. Johnson sued Freborg after a post on

Freborg’s Facebook page accused Johnson and two other dance instructors from the Twin Cities dance community of varying degrees of sexual assault. Johnson was one of Freborg’s dance teachers, and the two previously had a casual sexual relationship that lasted for about a year.

The district court granted Freborg’s motion for summary judgment, finding that

Freborg’s speech was true and, alternatively, that her speech involved a matter of public concern and was not made with actual malice. The court of appeals reversed. It held that

the truth or falsity of Freborg’s statement presented a genuine issue of material fact. The court of appeals further held, in a divided opinion, that because the dominant theme of Freborg’s post involved a matter of private concern, Johnson was not required to prove actual malice to recover presumed damages. The court of appeals remanded the case to the district court for further proceedings.

We granted Freborg’s petition for review on whether her statement involved a matter of public concern. Because the overall thrust and dominant theme of Freborg’s

post—based on its content, form, and context—involved a matter of public concern, namely, sexual assault in the context of the #MeToo movement, her statement is entitled to heightened protection under the First Amendment to the United States Constitution.

Before Johnson may recover presumed damages, he must therefore show that Freborg’s speech was not only false, but also that the post was made with actual malice.

Accordingly, we reverse the court of appeals on the issue of public concern and remand the case to the district court for further proceedings to determine the veracity of Freborg’s post and, if the post is found to be false, whether the making of the post meets the constitutional actual-malice standard.

FACTS

Freborg and Johnson met in 2011, and Freborg, then a faculty member at a local university, began to take dance lessons from Johnson at a Twin Cities dance studio.

Sometime in 2012, the parties began a casual sexual relationship. Freborg agrees that many of their sexual encounters were consensual. She claims, however, that not all of their interactions were consensual, including an allegation that Johnson approached her in 2015

at his home during a party “while [she] was intoxicated and alone, grabbed [her] hand and put it down his pants onto his genitals” without her consent. This allegation, and its veracity, is at the heart of her Facebook post and the litigation.

After the 2015 party, Freborg and Johnson ended their sexual relationship and continued to contact one another only in the context of dance lessons; these dance-related communications lasted until sometime in 2017. By 2020, they had not spoken to one another for several years.

On July 14, 2020, Freborg posted the following public message 1 on her Facebook page:

After receiving feedback about her message, Freborg clarified in the post’s comment thread that she was not accusing Johnson of rape (“[t]his type of coercion [rape] has nothing to do with [Johnson]”). She also edited her post 2 days later to exclude allegations of rape: Johnson posted a response on Freborg’s public Facebook thread: Freborg posted the following response on the thread:

Over 300 people “reacted” to Freborg’s posts, 182 readers commented on them, and they were publicly “shared” 16 times. Some of the response to Freborg’s posts was positive. Commenters told her that she was “brave” and a “survivor.” Others seemingly reinforced her posts by explaining their own negative experiences in the Twin Cities dance community. For example, one commenter noted that Freborg was “not the only one of us who has been sexually assaulted in the dance world.” Another commented that she does not “dance in certain spaces within the [Twin Cities] because of feeling diminished, preyed upon, unvalued, etc.” Other commenters, however, came to Johnson’s defense. One person, for example, explained that people should “wash [their] laundry at the COURTS” and only come forward on social media “after the person [accused of sexual assault] is PROVEN guilty.” Another accused Freborg of slander and criticized her unwillingness to engage with Johnson’s response to her posts. In response to the varied comments to her posts, Freborg later explained that she “did this for the safety of other women, and really to show that we as women can disrupt the status quo by calling sh*t out.” On July 27, 2020, just shy of 2 weeks after the original post was published, Freborg deactivated her Facebook account, removing the post and its thread from public view.

Johnson sued Freborg for defamation. He claimed that both Freborg’s original and edited posts accused Johnson of raping Freborg, thereby painting him as a rapist. Johnson argued that his reputation suffered as a result and that he lost business because of the posts.

After discovery, Freborg moved for summary judgment claiming that: (1) her speech was true; (2) her speech was a matter of public concern; and (3) Johnson failed to show that her speech was made with actual malice.

To support her summary judgment motion on the issue of public concern, Freborg

presented the following evidence about the global impact of the #MeToo movement. The #MeToo movement was conceived to allow women to share their experiences of sexual assault and harassment and to seek accountability from their abusers. ^[2] The hashtag collects the posts and enables a community discussion to occur on the subject of sexual abuse. One

study submitted by Freborg stated that the movement “was exceptionally effective in rapidly increasing awareness around sexual misconduct,” and that researchers have opined that “social movements [like #MeToo] can rapidly affect the norms for behavior by changing perceptions of a societal problem.”

Freborg also submitted information about sexual assault specifically in the dance community. She submitted a blog titled “Dance Predators” that provided suggestions on how to combat predatory behavior by dance instructors; a news story by Minnesota Public

Radio about sexual assault in a local Twin Cities dance studio; and seven other social media

posts from dancers, two posted the same day as Freborg’s post in July, that called out the predatory behavior of three prominent international dance instructors in the global dance community.

Johnson also moved for partial summary judgment on the issues of liability and actual malice. Additionally, he moved to amend his complaint to add a claim for punitive

damages. Johnson claimed that Freborg’s posts involved a matter of private, not public, concern because even if the #MeToo movement qualifies as a matter of public concern, Freborg’s specific posts were personal in nature. He asserted that the sources Freborg relied upon about the dance community were insufficient to show that her speech involved a matter of public concern. Johnson also argued that Freborg’s posts suggested that

Johnson raped her even though she openly admitted he had not, so Freborg acted with actual malice because she knowingly posted false information. He asked the district court for a jury trial only on the issue of damages.

The district court granted Freborg’s motion for summary judgment. First, the court found that Freborg’s statements were true. Second, the court rejected Johnson’s claim that the posts were too personal in nature to be a matter of public concern, specifically relying on Freborg’s use of the #MeToo hashtag and the context of the posts. The court also noted that “[t]he record is replete with other content regarding this specific problem [sexual

assault] in this specific community [the Twin Cities dance community].” Finally, the district court found that—even if Freborg’s speech was false—Johnson failed to show actual malice, which is required to recover presumed damages for defamatory statements that involve a matter of public concern.

The court of appeals reversed. Johnson v. Freborg, 978 N.W.2d 911 (Minn. App.

2022). The court held that a genuine issue of material fact existed about the veracity of Freborg’s posts, making summary judgment inappropriate. Id. at 917–18. In a divided opinion, the court further held that Freborg’s speech was a matter of private, not public concern. Id. at 923. The court therefore did not reach the issue of actual malice. Id. at 923 n.25.

One judge dissented, stating that the totality of circumstances showed that Freborg’s

statements relate to a matter of public concern. Id. at 924–29 (Wheelock, J., concurring in part, dissenting in part). Considering the content, form, and context of the speech, the dissent reasoned that Freborg “made the post as part of a now-global conversation about the prevalence of sexual harassment and assault and the need to shine light on once-secreted personal experiences.” Id. at 926.

Freborg petitioned this court for review on one issue: whether her speech involved a matter of public concern, which we granted. She does not challenge the court of appeals’

conclusion that a genuine issue of material fact exists about the veracity of her speech and agrees that a remand to the district court is appropriate on this issue. Consequently, we do not address the veracity issue further here and limit our analysis to the claim that her speech involved a matter of public concern.

ANALYSIS

We review the district court’s grant of summary judgment de novo. Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 874 (Minn. 2019). To decide whether summary judgment is appropriate, we must determine “whether the district court erred in its application of the law to the facts.” Id. (citation omitted) (internal quotation marks omitted). In addressing whether a statement involves a matter of public concern, federal courts have viewed the issue as a question of law, see Connick v. Myers, 461 U.S. 138, 148

n.7 (1983), and we likewise review the question of whether speech involves a matter of public concern de novo. We also review de novo the determination of “[w]hether evidence in the record is sufficient to support a finding of actual malice.” Maethner, 929 N.W.2d at

879 n.7.

I.

To determine whether Freborg’s speech involved a matter of public concern, we start with some general principles involving defamation. “Under the common law, a

plaintiff pursuing a defamation claim ‘must prove that the defendant made: (a) a false and defamatory statement about the plaintiff; (b) in [an] unprivileged publication to a third

party; (c) that harmed the plaintiff’s reputation in the community.’ ” Maethner, 929 N.W.2d at 873 (alteration in original) (quoting Weinberger v. Maplewood Rev., 668 N.W.2d 667, 673 (Minn. 2003)). Certain types of speech, like accusations of “criminal behavior or moral turpitude”—including accusations of sexual assault—are considered

“defamation per se.” Id. at 875 (citing Richie v. Paramount Pictures Corp., 544 N.W.2d

21, 25 (Minn. 1996) (internal quotation marks omitted). If a statement is found to be

defamatory per se, we then presume harm to a plaintiff’s reputation without requiring the plaintiff to prove actual damages. Id. Johnson asserts that he is entitled to presumed damages under this standard.

Like all laws regulating speech, however, “the doctrine of defamation per se cannot offend the constitutional guarantees of the First Amendment.” Id. We have long

recognized that “personal reputation has been cherished as important and highly worthy of protection.” Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 491 (Minn. 1985).

But we cannot “offer recourse for injury to reputation at the cost of chilling speech on matters of public concern, which ‘occupies the highest rung of the hierarchy of First

Amendment values, and is entitled to special protection.’ ” Maethner, 929 N.W.2d at 875

(quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011)).

Given this commitment to “uninhibited, robust, and wide-open” debate on issues of public concern, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), “a private plaintiff may not recover presumed damages for defamatory statements involving a matter of public concern unless the plaintiff can establish actual malice.” Maethner, 929 N.W.2d at 878–79. To meet this constitutional actual-malice standard, “a statement must be ‘made

with the knowledge that it was false or with reckless disregard of whether it was false or not.’ ” Id. at 873 (quoting Weinberger, 668 N.W.2d at 673) (internal quotation marks omitted). Freborg contends that this heightened standard applies to her speech because her posts involved a matter of public concern.

In Maethner, a defamation case, we held that the determination of whether speech

is of public or private concern in a particular case is “based on a totality of the circumstances.” Id. at 881. In particular, “courts should consider the content, form, and context of the speech.” Id. “No single factor is ‘dispositive;’ rather, courts should ‘evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.’ ” Id. (quoting Snyder, 562 U.S. at 454). In addition, in weighing the circumstances of the speech, we must make “an independent examination of the whole record.” Snyder, 562 U.S. at 454 (citation omitted) (internal quotation marks omitted).

Maethner involved statements by Maethner’s ex-wife—posted on her private

Facebook page under the name Jacki Hansen Maethner—identifying herself as a survivor of domestic violence, as well as an article published in a newsletter of a domestic

violence organization describing the “Survivor Award” that she had received. Maethner, 929 N.W.2d at 871. Maethner’s ex-wife and the organization also posted pictures on

Facebook of her holding the award. Id.

Even though he was not named in the posts, Maethner claimed that, given the use of his distinct last name by his ex-wife, the speech essentially accused him of domestic violence. Id. at 872. We recognized that “as a general proposition,” speech relating to domestic violence is a matter of public concern. Id. at 881. But, in addition to the subject of the speech, we explained that “the form and the context of the speech must also be considered, as well as any other relevant factors.” Id. Because neither the district court nor the court of appeals had specifically addressed the issue of public concern, we

remanded the case back to the district court “to decide in the first instance whether the challenged statements involve a matter of public or private concern.” Id. at 881–82.

Similar to Maethner, we recognize that “as a general proposition,” speech relating to sexual assault is a matter of public concern. See also Richie, 544 N.W.2d at 26

(concluding that “discussion of sexual abuse of children by their parents and legal recourse available to the abused child” were “certainly of public concern”). But Maethner clearly instructs us that no per se rule applies to suggest that statements about sexual abuse (or any other crime) are always matters of public concern. Instead, we must, on a case-by-case basis, apply the totality of the circumstances test and balance the content, form, and context of the speech, as well as any other pertinent factors, to determine whether speech involves a purely private matter or is a statement about a matter of public concern intended to influence public discussion about desired political or social change. Balancing the totality of the circumstances of the Facebook posts here, we conclude that, although the speech involved personal aspects, the predominant theme of Freborg’s speech involved a matter of public concern, namely sexual assault in the context of the #MeToo movement.

A.

We begin with the content—the “what”—of Freborg’s speech, and we review the entire thread of the Facebook postings when determining whether “a forbidden intrusion on the field of free expression” has occurred. See Sullivan, 376 U.S. 284–86; see also

Snyder, 562 U.S. at 453–54. The subject of the Facebook posts involved accusations of sexual assault by three dance instructors in the local Twin Cities dance community. In her first post, Freborg stated that she had been “gaslighted/coerced into having sex, sexual[ly] assaulted, and/or raped” by three specific dance instructors, including Johnson. She amended her post 2 days later to delete the word “raped,” stating instead that she had

“experienced varying degrees of sexual assault” by the three dance instructors, again including Johnson. ^[3] The last line of the original and amended posts stated, “If you have a problem with me naming you in a public format, then perhaps you shouldn’t do it.”

In evaluating whether these personal portions of Freborg’s posts—the identification, tagging, and admonishing of the three instructors—make the speech a private affair, we must weigh these statements against the remaining text. First, the original and amended post prominently begin with this statement: “Feeling fierce with all these women dancers coming out.” Then, before listing the varying degrees of sexual assault that she says she experienced, Freborg states, “So here goes . . . .” This introduction suggests that she was encouraged by other women speaking out about sexual assault in the dance community to reveal her own experience and to add her voice to the community conversation.

Second, Freborg ends her posts with the well-known #MeToo hashtag and a

#DancePredators hashtag, connecting her experience directly to the dance community and the broader #MeToo movement. This social movement is characterized by survivors of sexual abuse creating social media posts disclosing their experiences with sexual violence

and identifying their abusers. Benedetta Faedi Duramy, #MeToo and the Pursuit of Women’s International Human Rights, 54 U.S.F. L. Rev. 215, 217 (2020). The movement

seeks to connect survivors, encourage victims to tell their story, and increase awareness of the scope of the problem of sexual assault. JoAnne Sweeney, Social Media Vigilantism, 88 Brook. L. Rev. 1175, 1219–21 (2023). “ ‘For many #MeToo claimants, what they want is to tell their story.’ Indeed, the phrase ‘me too’ is inherently about connection; it tells others that they are not alone and that they are understood. Such affirmations can be healing in their own right as a form of social support.” Id. at 1219 (citation omitted).

Third, her subsequent explanation of her motives in the post thread—that she made the posts “for the safety of other women” and to show how “women can disrupt the status quo”—suggests that her posts were an attempt to raise awareness for other women, including women in the dance community, and inspire social change. These three factors, considered together, in addition to the broader context and response to the posts, show that

Freborg frames her Facebook posts “as her contribution to the larger discussions occurring at the time of the #MeToo movement.” Coleman v. Grand, 523 F. Supp. 3d 244, 259

(E.D.N.Y. 2021).

Johnson claims that the explicit use of “you” three times in the last line of the initial and amended post to condemn the instructors’ alleged abusive behavior, and Freborg’s reply to his comment on her posts, show that the content of Freborg’s speech was not to add her voice to the #MeToo movement but to get “vengeance” on him. He asserts that

Freborg’s posts—identifying him and two other instructors in the local dance community—were too limited in scope to implicate the broader #MeToo movement. He

further contends that his preexisting relationship with Freborg shows that she used the movement to mask a purely private attack on his character. He cites the Supreme Court’s decision in Snyder to show that the content of Freborg’s posts was personal in nature.

A preexisting relationship—or the lack thereof—is certainly a consideration in weighing whether the speech involves a matter of public concern. See Snyder, 562 U.S. at

455 (stating that there was no prior relationship between the Westboro Baptist Church and the soldier “that might suggest Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter”). Here, however, two considerations cause us not to heavily weigh Johnson’s assertion that Freborg’s speech was a matter of private concern because she was a “jilted former lover, who waited five years before publicly attacking Johnson.” First, the passage of that many years between the end of the parties’ relationship, which Johnson described as a “casual sexual relationship,” and the post suggests that the speech was not a personal attack in response to the relationship ending.

Second, the inclusion of two other dance instructors implies that the post had less to do with Freborg’s previous relationship with Johnson, and more about speaking up about alleged sexual abuse in the Twin Cities dance community generally.

Johnson cites the Supreme Court’s decision in Snyder to show that the content of Freborg’s post was personal in nature. In Snyder, the issue was whether the speech of the leader of the Westboro Baptist Church could receive First Amendment protection when he organized a protest with offensive placards near the funeral of a soldier killed in the Iraq

war. The signs included general messages such as “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “God Hates Fags,” and “Priests Rape Boys.” Snyder, 562 U.S. at 448, 454. The Court held that the signs addressed “matters of public import” including “homosexuality in the military, and scandals involving the Catholic clergy.” Id.

The Supreme Court acknowledged, however, that the content of a few signs like “You’re

Going to Hell” and “God Hates You” could be viewed as containing personal messages to the dead soldier and his family. Id. The Court concluded, however, that the few personal messages did “not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.” Id.

After weighing the personal aspects of the posts here with those elements addressing broader public issues, we reach a similar conclusion about content: even though Freborg named, tagged, and admonished three specific instructors in her post, these personal

messages do not outweigh the dominant theme of her speech—to discuss sexual assault in the dance community, a matter of public import.

The dissent takes a narrow view of a “matter of public concern,” essentially limiting those matters “to self-government,” “government officials,” or “government performance.” But that narrow perspective is rooted primarily in decades-old Supreme

Court case law. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 (1974); Time, Inc. v. Firestone, 424 U.S. 448 (1975).

The dissent’s narrow perspective disregards the development of the law over the past five decades and the Supreme Court’s broader view of matters of public concern. According to a more recent case, “Speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’

or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’ ” Snyder, 562 U.S. at 453 (citations omitted), quoted in Maethner, 929 N.W.2d at 880. 4 As we noted in Maethner, speech involving a matter of public concern is within “the core of First Amendment protection . . . to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Maethner, 929 N.W.2d at 879 (citation omitted) (internal quotation marks omitted) (emphasis added). 5

Consistent with Snyder, we conclude that Freborg’s Facebook post fits this broader conception of public concern.

Finally, although not binding upon us when weighing the content of Freborg’s

speech, we find persuasive a recent defamation case with similar facts. Fredin v. Middlecamp, 500 F. Supp. 3d 752 (D. Minn. 2020), aff'd, 855 F. App’x 314 (8th Cir. 2021)

(per curiam) (unpublished). In Fredin the federal district court, applying Minnesota law, 283 A.3d 1140, 1149–52 (Del. 2022) (applying the Snyder public concern test to hold that a claimed defamatory email was “speech that addressed a matter of public concern: the ongoing national debate about the use of American Indian iconography in sports logos,” noting that “the First Amendment’s Free Speech Clause can serve as a defense in state tort suits” generally (emphasis added)); Monge v. Univ. of Pa., ___ F. Supp. 3d ___, No. CV22-2942, 2023 WL 3692935, at *2 (E.D. Pa. May 26, 2023) (applying the Snyder public concern test to a defamation claim). Overall, it is the nature of the speech itself that guides our public concern inquiry, not the nature of the claim. 5 Even if we were to view matters of public concern as relating primarily to “self-government” or “government performance,” there are strong indications that the #MeToo movement has catalyzed government action. For example, since 2017, several federal laws have been amended or passed in direct response to the movement. See, e.g., Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 13307, 26 U.S.C. § 162(q)(1) (removing tax deductions for “any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement”); Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Pub. L. No. 117-90, § 2(a), 136 Stat. 27 (2022) (amended the Federal Arbitration Act, 9 U.S.C. § 402, to make any “predispute arbitration agreement or predispute joint-action waiver” for sexual harassment claims unenforceable); Speak Out Act, 42 U.S.C. §§ 19401–04 (recognizing that because “[s]exual harassment and assault remain pervasive in the workplace and throughout civic society,” 42 U.S.C § 19401(1), “no nondisclosure clause or nondisparagement clause agreed to before the dispute arises shall be judicially enforceable” 42 U.S.C § 19403(a)).

found that a post on a public Twitter account that included pictures of a person and explicitly accused him of repeated sexual harassment and rape qualified as a matter of public concern. Id. at 777. In weighing the totality of the circumstances, the district court found that “[t]he content of the speech here addressed harassment and rape, and more specifically, the subject of women coming forward to share their experiences in this regard.” Id. The court therefore concluded that the speech was entitled to the actual malice standard of protection. Id. We believe the same conclusion about content is justified here.

In sum, although Freborg’s speech identifies and addresses Johnson directly and has

some aspects of airing a personal dispute, the dominant theme of her posts speaks to the broader issue of sexual abuse in the context of the #MeToo movement, a matter of public

concern. After seeing other women share their experiences, she offered her own story, hoping to raise awareness about the prevalence of sexual assault, to keep other women safe, and to show that women “can disrupt the status quo” to bring about social change.

B.

Turning next to the form—the “where”—of Freborg’s speech, this factor further supports a conclusion that Freborg’s posts were on a matter of public concern. ^[6] Freborg disseminated her speech on her Facebook account, making her post publicly available to anyone. The use of the internationally recognized hashtag for the #MeToo movement allowed her message to be disseminated publicly and broadly on Facebook. Here, the #MeToo hashtag does what a public account, blog, or journal dedicated to these issues would by spreading the message to an unlimited audience.

The Supreme Court has acknowledged the power of Facebook, declaring that today

“the ‘vast democratic forums of the Internet’ . . . and social media in particular” provide

the “most important places . . . for the exchange of views.” Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (quoting Reno v. Am. C.L. Union, 521 U.S. 844, 868 (1997)). The Court further noted that social media acts as the “modern public square” and that sites like

Facebook “allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’ ” Id. at 107. It follows that Freborg specifically chose this modern public square as a way for her message “to reach as broad a public audience as possible.” Snyder, 562 U.S. at 454; see also Fredin, 500 F. Supp. 3d at

777. Accordingly, this factor weighs in favor of concluding that Freborg’s speech involved a matter of public concern.

To be clear, attaching a hashtag—even the well-recognized #MeToo hashtag—to the end of a social media post is not in and of itself determinative of whether the speech involves a matter of public concern. The use of a hashtag is only one relevant consideration

in balancing the totality of the circumstances. ^[7] Importantly, when courts are reviewing the use of a specific hashtag, they should consider all other relevant factors, including content and context. ^[8] A hashtag, even the globally recognized hashtag at issue here, can never provide blanket First Amendment protections. The critical question will remain: based upon the totality of the circumstances in light of the record as a whole, does the speech involve a matter of public or private concern?

C.

Finally, the full context—the “how”—of Freborg’s posts also weighs in favor of holding that her speech involved a matter of public concern. Johnson agrees that we can

and should look at the entire thread associated with Freborg’s posts. He asserts, however, that it engendered “no discussion about how to engage in democratic self-governance,” which he maintains would help support Freborg’s theory that the context of her post was intended to raise awareness and bring accountability.

The responses to the posts refute that claim on its face. The posts generated much

discussion and mixed reactions: some gave Freborg their full support and validated the claims in her posts by citing their own negative experiences, while others were critical of the posts and how Freborg chose to speak about what happened to her. These reactions facilitated conversations about the appropriate measures that victims should take when

speaking out and how to properly support sexual assault victims generally. The robust and unfettered discussion in the thread following the initial post supports the conclusion that the form and context of this speech makes this speech a matter of public concern, rather than a purely private matter.

As discussed above, the context of the #MeToo movement is a key factor in our analysis. The #MeToo movement has had a direct impact on society and how communities address sexual assault across industries. Data shows, for example, the number of sexual harassment complaints the U.S. Equal Employment Opportunity Commission received

jumped by 13.6 percent after #MeToo went viral. Sweeney, Social Media Vigilantism, 88 Brook. L. Rev. at 1222. Further, reports now show that more people believe that “those who commit harassment or assault are now more likely to be held responsible and victims are more likely to be believed.” Anna Brown, More Than Twice as Many Americans

Support Than Oppose the #MeToo Movement, Pew Rsch. Ctr. ^[12] (Sept. 29, 2022). And Congress has taken steps to lessen the shroud of secrecy that surrounds settlements relating to sexual harassment or sexual abuse. See Speak Out Act, 42 U.S.C. §§ 19401–04; Tax

Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 13307, 26 U.S.C. § 162(q)(1).

Many other jurisdictions also have acknowledged the importance of #MeToo speech

in the context of the First Amendment. Fredin, 500 F. Supp. 3d 752; Coleman v. Grand, 523 F. Supp. 3d 244, 259 (E.D.N.Y. 2021) (finding that the open letter that the defendant circulated accusing the plaintiff of abuse and sexual harassment involved a matter of public concern); Dossett v. Ho-Chunk, Inc., 472 F. Supp. 3d 900, 908 (D. Or. 2020) (finding that the publication of workplace-related #MeToo allegations involved a matter of public concern); Fells v. Serv. Emps. Int’l Union, 281 A.3d 572, 584 (D.C. App. 2022) (holding that there was a prima facie showing that the publication of workplace-related #MeToo allegations involved a matter of public concern); Goldman v. Reddington, No. 18-CV-

3662, 2021 WL 4099462, at *4 (E.D.N.Y. Sept. ^[9], 2021) (finding that a defendant’s LinkedIn and Facebook posts accusing plaintiff of sexual assault concerned “more than a purely private matter” (internal quotation marks omitted)).

In addition, Freborg provided adequate evidence of the #MeToo conversations happening about predatory behavior in the dance community, including a series of similar posts made on and around the time of her own July 14, 2020 post. Her statements fit well within the context of a legitimate social movement. ^[9]

Johnson cites other contextual factors to show that Freborg’s posts are not a matter of public import. As noted above, he contends that his previous relationship with Freborg demonstrates that the nature of her speech was private. But the mere existence of a previous relationship is not a dispositive factor in assessing the nature of the speech, and it does not negate the importance of speaking out against sexual assault in society. Many victims who come forward to speak about their experiences of sexual assault often have a preexisting relationship with their abusers. See, e.g., Fredin, 500 F. Supp. 3d at 763–64

(granting summary judgment to one of the women named in the plaintiff’s defamation lawsuit who previously had been romantically involved with the plaintiff); see also Lauren

R. Taylor & Nicole Gaskin-Laniyan, Sexual Assault in Abusive Relationships, 256 Nat’l

Inst. of Just. ^[12], 12–14 (Jan. 2007). In Minnesota, for example, a grim statistic shows that one in every three women will experience violence, rape, or stalking by an intimate partner in their lifetime. Domestic Violence in Minnesota, Nat’l Coal. Against Domestic Violence

(2020). If we were to hold that the mere existence of a previous relationship between

Johnson and Freborg makes Freborg’s speech private in nature, the impact would be an

unnecessary chilling effect on the exercise of free speech by victims of sexual assault and their ability to effect social change.

Johnson next contends that, unlike Westboro Baptist Church and the owner of the account used to tweet about Fredin, Freborg had no prior history speaking out about the #MeToo movement or sexual abuse and harassment generally. We do not give this contention much, if any, weight. To hold that victims of sexual assault can only speak out about their experiences if they themselves are already advocates would certainly chill other

alleged victims from coming forward. See Fredin, 500 F. Supp. 3d at 777 (noting the importance of and protecting speech that addressed “harassment and rape, and more specifically, the subject of women coming forward to share their experiences in this regard” (emphasis added)). Johnson’s argument also fails to consider that every alleged victim, be they an advocate or not, must make a first statement. If we were to conclude

that Freborg’s speech was private in nature simply because she had no history of advocacy, that would discourage any person not already engaged in advocacy work from telling their story about what happened to them and adding their voice to the desire for social change because they could be liable for per se defamation.

Moreover, even with the heightened protection of the actual-malice constitutional standard, the speech of victims of sexual assault may well 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. See Shaina Weisbrot, The Impact of the #MeToo Movement on Defamation Claims Against Survivors, 23 CUNY L. Rev. 332, 352–53 (2020)

(explaining that while #MeToo has empowered more people to speak out, this speech has led to more defamation lawsuits, especially if the accused has significant power or resources).

Finally, Johnson cites Maethner and a lack of media coverage of Freborg’s posts to show that the posts concerned a private matter. Maethner does not require, however, that

Freborg’s speech be later disseminated by the media for it to be considered a statement of public import. There, we held that the dispositive inquiry regarding the availability of presumed damages “is not on the status of the defendant as a media or nonmedia defendant” but “whether the matter at issue is one of public concern.” Maethner, 929 N.W.2d at 877.

We later cited Eighth Circuit cases that noted that “media coverage is a good indication of the public’s interest” and stressed “the importance of journalistic freedom in investigating and reporting on matters of public interest.” Id. at 881 (citations omitted) (internal quotation marks omitted). We then noted that dissemination of statements in the news media is “one of many relevant factors in determining whether the statements involve a matter of public concern.” Id. Our discussion in Maethner therefore suggests that this non-dispositive factor serves to protect journalists in traditional media by adding another

consideration to identify speech on a matter of public concern. Given this background and that Freborg’s posts were made on Facebook, a website that Packingham describes as a

“powerful mechanism” for the robust exchange of views, 582 U.S. at 107, the fact that no news media reported Freborg’s posts is not a decisive factor in assessing the public import of the speech.

After considering the context of Freborg’s posts, we conclude that this factor shows that her speech involved a matter of public concern.

D.

In sum, weighing the content, form, and context of Freborg’s statements in light of the whole record, we conclude that the overall thrust and dominant theme of the posts involved a matter of public concern. We therefore hold that Freborg’s speech is subject to heightened protection under the First Amendment. Accordingly, to prevail on his defamation claim for presumed damages, Johnson must show that Freborg’s posts not only were false, but that they were made with actual malice.

II.

Turning to the issue of actual malice, we note that the court of appeals did not rule on this issue because it held that Freborg’s speech involved a matter of private concern.

Freborg, 978 N.W.2d at 923 n.25. Nor did Freborg raise the issue of actual malice in her petition for review. Consequently, the parties agree that, if we conclude that the challenged speech here involved a matter of public concern, we should remand the case to the district court for a trial on the veracity of Freborg’s speech and actual malice. We agree for the following reasons.

The district court concluded as a matter of law that the record contained insufficient evidence of actual malice. But the court of appeals held that a genuine issue of material fact existed as to the veracity of Freborg’s speech, making summary judgment improper.

Id. at 918. Given the fact issue on falsity—and because Freborg was both the speaker and the publisher of the alleged defamatory statements—if a jury finds that Freborg’s speech was false, sufficient evidence may allow the jury to further find that Freborg made the statements with actual malice. ^[10] We therefore reverse the district court’s ruling on actual malice and remand this case for further proceedings.

CONCLUSION

For the foregoing reasons, we reverse the decision of the court of appeals and remand the case to the district court for further proceedings.

Reversed and remanded.

DISSENT

GILDEA, Chief Justice (dissenting).

In this defamation case, we are asked to decide whether heightened First

Amendment protections apply to Kaija Freborg’s accusation that Byron Johnson, her

former dance instructor and romantic partner, “gaslighted/coerced [her] into having sex, sexual[ly] assaulted, and/or raped” her. The question is not whether Freborg’s speech is

protected at all; it is. Existing precedent already dictates those protections. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974) (noting that states may “not impose liability without fault”); Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 492 (Minn.

1985) (adopting negligence standard in response to Gertz). The narrow question here is whether Freborg’s speech is so central to the purpose of the First Amendment that it is entitled to the heightened protections reflected in the constitutional actual malice standard.

The majority concludes that the actual malice standard applies to Freborg’s speech because

Freborg wrote about sexual assault and included #MeToo in her post. I disagree. In my view, Freborg’s personal Facebook post, on her personal Facebook page, concerning

private conduct between two people with a private relationship, is not speech that the constitutional actual malice standard protects. Accordingly, I dissent.

A.

Historically, defamatory speech, such as allegations of criminal behavior akin to those made here, fell outside the scope of the First Amendment. Moreno v. Crookston

Times Printing Co., 610 N.W.2d 321, 328 (Minn. 2000) (noting that “defamatory comments were, by definition, not protected speech under the First Amendment.”). But in D-1

New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court said, “that the reputational interests protected by state libel law must yield when in conflict with the central meaning of the First Amendment.” Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 481 (Minn. 1985) (citing New York Times, 376 U.S. at 273–75). The New York Times Court adopted the actual malice standard to strike a balance between reputational interests and First Amendment protections. ^[1]

The majority concludes that Minnesotans’ reputational interests must yield here

because Freborg’s speech is a matter of public concern and therefore worthy of the heightened First Amendment protection of the constitutional actual malice standard. I disagree. Providing redress for Minnesotans who have been accused by name of sexual

assault does not conflict with the “central meaning of the First Amendment.” Jadwin, 367 N.W.2d at 481. Accordingly, under Supreme Court precedent, the constitutional actual

malice standard does not apply. Examination of the Court’s precedent and application of the required totality of the circumstances test confirms this.

1.

Our analysis of Supreme Court precedent must begin with New York Times, the case in which the Court created the constitutional actual malice standard. There, the Supreme

Court recognized that speech by the press that criticized public officials for their official conduct was so valuable that, even if it was defamatory, the First Amendment required that

1 Under this constitutional standard, a plaintiff cannot recover damages for injury to reputation unless the plaintiff proves that the defendant made the statement at issue knowing it was false or with reckless disregard for the statement’s falsity. New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).

D-2 the speech be given some protections so that the speech was not unnecessarily chilled.

376 U.S. at 278–79. The Court created the “actual malice” standard to provide that protection—public officials may not recover damages for a defamatory falsehood relating to their official conduct unless they prove that the statement was made with “actual malice.” Id. at 279–80. The Court grounded the result in the fact that the speech at issue—

citizen commentary on the performance of their government—went to the very heart or “central meaning of the First Amendment.” Id. at 273; see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 (1974) (describing New York Times as “defin[ing] a constitutional

privilege intended to free criticism of public officials from the restraints imposed by the common law of defamation”).

The majority holds that this actual malice standard from New York Times applies to

Freborg’s allegation that Johnson sexually assaulted her. But the animating principle in New York Times was the connection of the speech to principles necessary to a successful democracy, such as the citizenry’s ability to comment freely on the performance of their government. See New York Times, 376 U.S. at 273, 279–80. Freborg’s speech has nothing whatsoever to do with the government or government officials, and nothing in New York

Times supports the majority’s extension of the actual malice standard to the speech at issue here.

The Supreme Court’s jurisprudence on the actual malice standard since New York

Times likewise does not support the majority’s extension of the standard to Freborg’s

speech. The Court discussed the applicability of the actual malice standard in Gertz v. Robert Welch, 418 U.S. 323 (1974). In Gertz, as in New York Times, the speech was

D-3

grounded in commentary about government performance. See Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749, 756 (1985) (noting that the speech at issue in Gertz “involved expression on a matter of undoubted public concern” because the article questioned whether a prosecution of a police officer was part of a Communist campaign to discredit local law enforcement agencies).

The Gertz Court recognized that states have a “legitimate interest” in providing compensation to people whose reputations have been harmed by defamation, and that that interest needed to be balanced against competing First Amendment considerations to ensure that speech the First Amendment values is not chilled. 418 U.S. at 348–50. When

the plaintiff is a private individual, the Court concluded, the government’s interest in compensating for reputational harm was greater than in the case of public official/public

figure plaintiffs, such as the plaintiff in New York Times. Gertz, 418 U.S. at 343–44. The Court held that states have “substantial latitude” in providing remedies to private plaintiffs

for reputational injuries and that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood.” Id. at 345, 347. But the Court clarified that “the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Id. at

349.

The Supreme Court limited Gertz in Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). Unlike the facts of New York Times and Gertz, Dun & Bradstreet involved only private, nonmedia parties: the plaintiff was a construction contractor and D-4 defendant was a credit reporting agency. Dun & Bradstreet, 472 U.S. at 751. The plaintiff

sued the defendant for erroneously reporting to third parties that the plaintiff had filed for bankruptcy. Id. at 751–52. The plurality opinion reasoned that Gertz applied only to speech on matters of public concern and that Dun & Bradstreet involved a matter of “purely

private concern.” See id. at 763 (“We conclude that permitting recovery of presumed and punitive damages in defamation cases absent a showing of ‘actual malice’ does not violate the First Amendment when the defamatory statements do not involve matters of public concern.”). Thus, the Court allowed the plaintiff to recover presumed damages without proving actual malice.

Read together, New York Times, Gertz, and Dun & Bradstreet hold that the actual

malice standard applies to protect speech about a public figure, government official or the performance of government more generally, but the standard does not apply to speech

about a private plaintiff on a matter of private concern. See Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 877–78 (Minn. 2019). 2 For the former, a plaintiff must show actual malice to recover; for the latter, state law governs. And for speech to be a “matter of public concern” sufficient to warrant application of the constitutional actual malice standard, that speech must relate to self-government. See Dun & Bradstreet, 472 U.S. at 759 (noting that

“the role of the Constitution in regulating state libel law is far more limited when the concerns that activated New York Times and Gertz are absent”); New York Times, 376 U.S.

2 The parties agree that there is no media defendant here as in New York Times, and they also agree that the parties involved are not public or government figures. Thus, the only way that the actual malice standard would apply is if Freborg’s Facebook post is speech on a matter of public concern.

D-5 at 269 (“The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.”); see also Elena Kagan, A Libel Story: Sullivan

Then and Now, 18 L. & Soc. Inquiry 197, 212 (1993) (noting that one approach to understanding the New York Times v. Sullivan line of cases is to “view[] Sullivan as primarily a case about the speech necessary for democratic governance”).

2.

The majority argues that I have interpreted the Supreme Court’s precedent too narrowly. For support, the majority essentially equates matters of interest to the public to those of public concern. Supra at 17. But the Supreme Court has already concluded that when the issue is the application of the constitutional actual malice standard, there is a dispositive difference between matters of public interest and matters of public concern.

Time, Inc. v. Firestone, 424 U.S. 448, 454 (1975). In Time, Inc., the Court made clear that

not all matters of interest to the public are matters of public concern for purposes of applying the First Amendment. See Time, Inc., 424 U.S. at 454, 457 (rejecting petitioner’s

attempt to “equate ‘public controversy’ with all controversies of interest to the public” and concluding the speech at issue was private speech because it “add[s] almost nothing toward

advancing the uninhibited debate on public issues thought to provide principal support for the decision in New York Times.”). And the Court confirmed that Gertz had “repudiated” the view that the “New York Times privilege should be extended to falsehoods defamatory of private persons whenever the statements concern matters of general or public interest.”

D-6

Id. at 454; see also Gertz, 418 U.S. at 346 (rejecting “[t]he ‘public or general interest’ test for determining the applicability of the New York Times standard” because that test

“inadequately serves both of the competing values at stake”); cf. Waldbaum v. Fairchild

Pub., Inc., 627 F.2d 1287, 1296 (D.C. Cir. 1980) (“A public controversy is not simply a matter of interest to the public.”). Time, Inc. involved a news magazine article that included reports that the defendant had extramarital affairs. The Court declined to apply the New

York Times “actual malice” standard, opting instead for the standard requiring some proof of fault from Gertz. Time, Inc., 424 U.S. at 457; see also id. at 469–70 (Powell, J., concurring). In short, the Court in Time, Inc. continued the long line of cases including

New York Times, Gertz, and Dun & Bradstreet, that hold that speech about governance and self-government is speech on a matter of public concern for purposes of the constitutional actual malice standard.

I acknowledge, as we have recognized in other cases, that as a general proposition

speech discussing crime can be speech on a matter of public concern. See Maethner, 929 N.W.2d at 881 (noting that as a “general proposition” “speech relating to domestic

violence involves a matter of public concern”); Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 25–26 (Minn. 1996) (noting that child sexual abuse is matter of public concern). 3 But Freborg was not discussing crime in general, the prevalence of crime in our

3 Importantly, neither Maethner nor Richie adopts a per se rule. In Maethner, we did not disagree with the “general proposition” that “speech relating to domestic violence involves a matter of public concern,” but we declined to address whether the speech in that case (all of which discussed domestic violence) was speech on a matter of public concern. 929 N.W.2d at 881. Instead we noted that the district court did not reach a conclusion on the question and remanded the case to the district court for further consideration. Id. Richie

D-7

society, or the government’s response to crime. Rather, she made a specific accusation of criminal conduct on Facebook—that a person she identified by name sexually assaulted her. Although the public may be interested in Freborg’s allegations, I would hold that such

speech is not a matter of public concern for First Amendment purposes. Bierman v. Weier, 826 N.W.2d 436, 462 (Iowa 2013) (holding that book author’s allegation that identified person committed sexual assault was not a matter of public concern for First Amendment purposes); W.J.A. v. D.A., 43 A.3d 1148, 1157–58 (N.J. 2012) (holding that defendant’s speech on website he created where he alleged that his uncle sexually abused him was not a matter of public concern).

The majority disagrees but it makes no real attempt to connect Freborg’s Facebook post to commentary that goes to an issue important to self-government or to the “central

meaning of the First Amendment.” See New York Times, 376 U.S. at 273; see also Jadwin, 367 N.W.2d at 481. Instead, the majority focuses its analysis on how the broader MeToo movement related to social change. I acknowledge the important contributions the MeToo movement has made to our society. But 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.” We are tasked with evaluating whether Freborg’s single Facebook post was

speech on a matter of public concern, not the entire MeToo movement. Moreover, the majority cannot connect Freborg’s post to any particular change in statute, nor do the involved media defendants, which is a material difference to application of the constitutional actual malice standard. Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 23 (Minn. 1996). In short, we did not hold in either case that speech about sexual abuse and harassment is always entitled to First Amendment protection. See supra at 17.

D-8

changes to federal law cited by the majority—changes that concern settlement, arbitration, and nondisclosure—even apply to this case. The focus of those changes is apparently on workplace sexual assault and harassment, and has nothing to do with sexual violence committed at a private party between people with a personal relationship who met through a hobby. ^[4]

The majority also supports its focus on the importance of the MeToo movement generally with statistics that show the prevalence of sexual violence and domestic abuse against women. Supra at 22–24. This reliance on statistics and the MeToo movement generally reveals a values-based approach to applying the First Amendment that is not consistent with the First Amendment’s prohibition on “viewpoint discrimination.” See

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 383–84, 391 (1992) (noting that unprotected

categories of speech “can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)—not that they are

categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content”).

I see no reason to apply the First Amendment differently in the MeToo context.

4 For similar reasons, the majority’s reliance on statistics about the increase in Equal Employment Opportunity Commission complaints and the fact that “people who commit sexual harassment or assault in the workplace are now more likely to be held responsible for their actions” are misplaced. See supra at 22; Anna Brown, More Than Twice as Many Americans Support Than Oppose the #MeToo Movement, Pew Rsch. Ctr. ^[4] (Sept. 29, 2022). Freborg’s speech was not about workplace sexual violence. D-9 3. Snyder, a case about intentional infliction of emotional distress—not defamation— does not compel a contrary conclusion. Anthony List v. Dierhaus, 779 F.3d 628, 632 (6th Cir. 2015) (observing that Snyder was not a defamation case and suggesting that Snyder was of limited application to defamation cases). 5 In Snyder, the U.S. Supreme Court held that a claim for intentional infliction of emotional distress will not lie in the face of a First Amendment challenge when the allegedly distress-causing conduct is speech about a matter of public concern. Speech intended to inflict emotional distress does not fall into the category of speech that was 5 In Maethner, we said that the test discussed in Snyder, which looks at the form, content, and context for the alleged tortious activity, should be considered but that no one factor was dispositive and that our test would require an examination of the totality of the circumstances to decide whether the actual malice standard applied. 929 N.W.2d 881. The majority’s focus on the result in Snyder to compel a result in this case is not consistent with that direction. The majority also cites three cases to support its reliance on Snyder to compel the result here. Supra at 17–18 (citing Dongguk Univ. v. Yale Univ. 734 F.3d 113 (2d Cir. 2013), Cousins v. Goodier, 283 A.3d 1140 (Del. 2022), and Monge v. Univ. of Pa., ___ F. Supp. 3d ___, No. CV22-2942, 2023 WL 3692935 (E.D. Pa. May 26, 2023)). These cases are inapposite. Dongguk is of no help because the defendant in that case “concede[d] that the defamatory statements addressed public figures and matters of public concern.” 734 F.3d at 122. And the court’s use of Snyder was confined to the negligence claim stated in the complaint. In other words, unlike the majority here, the Second Circuit in Dongguk did not use Snyder to resolve the plaintiff’s defamation claim. Id. at 127. Cousins is likewise unhelpful to the majority because Cousins, like Snyder, is not about the actual malice standard in a defamation case. The defamation claim in that case was dismissed because the plaintiff could not prove that the alleged defamatory statement was false. 283 A.3d at 1160. And Monge involves a media defendant and criticism of a university professor’s performance. 2023 WL 3692935, at *1. The court did not use Snyder to compel a conclusion on the application of the constitutional actual malice standard (which is what the majority does here). Id. at *3. Rather, the court relied on Snyder’s public- concern analysis for the proposition that the plaintiff had to prove falsity, something that is not at issue here. Id. D-10 historically unprotected by the First Amendment, whereas defamatory speech does. See Snyder, 562 U.S. at 451 n.3. This makes the State’s interest in preserving a cause of action weigh more heavily here than in Snyder, and the First Amendment interest in protecting speech weigh less. Maethner, 929 N.W.2d at 870–71 (noting that the purpose of the content, form, and context inquiry is “to strike a delicate balance between the State’s interest in providing redress for citizens claiming reputational injury and the free speech protections the First Amendment provides”). Another important distinction between defamation and intentional infliction of emotional distress also influenced the Court’s analysis in Snyder. An element of intentional infliction of emotional distress is the outrageousness of the conduct. But outrageousness can have important value to speech, and permitting liability based on the “outrageousness” of speech permits juries to discriminate on speech based on its content or the viewpoint conveyed. See Snyder, 562 U.S. at 458 (“ ‘Outrageousness,’ however, is a highly malleable standard with an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.”) (citation omitted) (internal quotation marks omitted)). The Court found the risk of chilling speech based on a malleable standard of outrageousness “unacceptable” because “ ‘in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate “breathing space” to the freedoms protected by the First Amendment.’ ” Id. (citing Boos v. Barry, 485 U.S. 312, 322 (1988)). In other words, it was important to the Court’s analysis that the D-11 outrageousness element of the tort of intentional infliction of emotional distress risked a jury verdict on the basis of jurors’ opinions and subjective judgments. That risk is much lower in a defamation case. In a defamation case, a jury will consider the content of the speech only to evaluate its truth or falsity. Unlike the intentional-infliction-of-emotional-distress context, the jury in a defamation case cannot impose liability based on their own subjective judgments about the outrageousness of the speech. ^[6] Finally, regarding the relevance of Snyder to the result here, the Court said in Snyder that it was writing a “narrow” holding, one “limited by the particular facts” of Snyder. 562 U.S. at 460. The case did not even discuss the constitutional actual malice standard, 6 The majority disagrees that the cause of action affects our application of Snyder, arguing that the “form, content, and context” test should apply in exactly the same way in an intentional infliction of emotional distress case as in a defamation case. See supra at 17 n.4. The reason for the “form, content, and context” inquiry is “to ensure that courts themselves do not become inadvertent censors.” See Snyder, 562 U.S. at 452. And the risk of becoming inadvertent censors turns on the cause of action. See id. at 458 (balancing the First Amendment against the state’s interest in preserving a cause of action for “outrageous” speech). The touchstone of the test in a defamation case is balancing the First Amendment protections against the state’s interest in preserving a cause of action for damage to reputation, whereas the touchstone in an intentional infliction of emotional distress case is balancing the First Amendment with the state’s interest in maintaining a cause of action for infliction of emotional distress. See id. at 462–63 (Breyer, J., concurring) (“To uphold the application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm.”). The cause of action necessarily affects the balance. D-12 and the majority is unable to explain how a case that does not even mention the standard compels the conclusion that the standard applies here. ^[7] 4. Even though Snyder cannot compel the result here, we have recognized that analyzing the form, content, and context of the speech, as the Court did in Snyder, can be a helpful piece of the totality of the circumstances analysis. Maethner, 929 N.W.2d at 881. i. The “form” asks where the speech occurred. The parties agree that the speech here occurred on a social media platform that was publicly viewed by many people, and that the use of a hashtag made the post more accessible to the public. ^[8] The fact that the speech was made in a “modern public square” is a relevant consideration in assessing whether the speech is deserving of First Amendment protection. See Packingham v. North Carolina, 582 U.S. 98, 107 (2017). But it is not dispositive. Indeed, even though the speech at issue in Time, Inc. appeared in a national news magazine, the Supreme Court held that the speech did not rise to the level of warranting First Amendment protection. Time, Inc., 424 U.S. at 457. 7 Snyder is, as the majority notes, more recent than New York Times Gertz, and Time, Inc. Supra at 17. But nothing in Snyder can be fairly read as modifying the analysis courts should follow for application of the constitutional actual malice standard, a standard that was not even mentioned in the case. ^[8] The majority considers Freborg’s use of #MeToo as relevant to the form, content, and context of her post. I consider it relevant only to form. D-13 ii. Turning next to the “content” of Freborg’s Facebook post, I conclude that the “overall thrust and dominant theme” of Freborg’s Facebook post was to accuse Johnson of sexual violence. Maethner, 929 N.W.2d at 880–81. Specifically, Freborg identifies Johnson and two others by name, accuses them of sexual violence, and speaks directly to them in her post. She also “tags” Johnson in the post, which made sure that her post would be linked to him through his own Facebook presence. By tagging Johnson in the post, Freborg further confirms that Johnson—and not some broader societal issue—is the target of her speech. But, according to the majority, the thing that separates Freborg’s Facebook post from any other speech accusing another of sexual assault is that Freborg included #MeToo (and to a lesser extent, #DancePredators), which shows that she intended to participate in a hashtag-based social movement. ^[9] I disagree. While use of a hashtag makes the post available more broadly to the public, it does not change the overall thrust of Freborg’s speech. Freborg’s speech included #MeToo, but the post made no mention of government policy changes or systemic problems. Moreover, the content of Freborg’s speech was disconnected from the MeToo movement. Unlike the

CHUTICH, Justice.

This case involves a defamation claim brought by respondent Byron Johnson—a private figure—against appellant Kaija Freborg. Johnson sued Freborg after a post on

Freborg’s Facebook page accused Johnson and two other dance instructors from the Twin Cities dance community of varying degrees of sexual assault. Johnson was one of Freborg’s dance teachers, and the two previously had a casual sexual relationship that lasted for about a year.

The district court granted Freborg’s motion for summary judgment, finding that

Freborg’s speech was true and, alternatively, that her speech involved a matter of public concern and was not made with actual malice. The court of appeals reversed. It held that

the truth or falsity of Freborg’s statement presented a genuine issue of material fact. The court of appeals further held, in a divided opinion, that because the dominant theme of Freborg’s post involved a matter of private concern, Johnson was not required to prove actual malice to recover presumed damages. The court of appeals remanded the case to the district court for further proceedings.

We granted Freborg’s petition for review on whether her statement involved a matter of public concern. Because the overall thrust and dominant theme of Freborg’s

post—based on its content, form, and context—involved a matter of public concern, namely, sexual assault in the context of the #MeToo movement, her statement is entitled to heightened protection under the First Amendment to the United States Constitution.

Before Johnson may recover presumed damages, he must therefore show that Freborg’s speech was not only false, but also that the post was made with actual malice.

Accordingly, we reverse the court of appeals on the issue of public concern and remand the case to the district court for further proceedings to determine the veracity of Freborg’s post and, if the post is found to be false, whether the making of the post meets the constitutional actual-malice standard.

FACTS

Freborg and Johnson met in 2011, and Freborg, then a faculty member at a local university, began to take dance lessons from Johnson at a Twin Cities dance studio.

Sometime in 2012, the parties began a casual sexual relationship. Freborg agrees that many of their sexual encounters were consensual. She claims, however, that not all of their interactions were consensual, including an allegation that Johnson approached her in 2015

at his home during a party “while [she] was intoxicated and alone, grabbed [her] hand and put it down his pants onto his genitals” without her consent. This allegation, and its veracity, is at the heart of her Facebook post and the litigation.

After the 2015 party, Freborg and Johnson ended their sexual relationship and continued to contact one another only in the context of dance lessons; these dance-related communications lasted until sometime in 2017. By 2020, they had not spoken to one another for several years.

On July 14, 2020, Freborg posted the following public message 1 on her Facebook page:

After receiving feedback about her message, Freborg clarified in the post’s comment thread that she was not accusing Johnson of rape (“[t]his type of coercion [rape] has nothing to do with [Johnson]”). She also edited her post 2 days later to exclude allegations of rape: Johnson posted a response on Freborg’s public Facebook thread: Freborg posted the following response on the thread:

Over 300 people “reacted” to Freborg’s posts, 182 readers commented on them, and they were publicly “shared” 16 times. Some of the response to Freborg’s posts was positive. Commenters told her that she was “brave” and a “survivor.” Others seemingly reinforced her posts by explaining their own negative experiences in the Twin Cities dance community. For example, one commenter noted that Freborg was “not the only one of us who has been sexually assaulted in the dance world.” Another commented that she does not “dance in certain spaces within the [Twin Cities] because of feeling diminished, preyed upon, unvalued, etc.” Other commenters, however, came to Johnson’s defense. One person, for example, explained that people should “wash [their] laundry at the COURTS” and only come forward on social media “after the person [accused of sexual assault] is PROVEN guilty.” Another accused Freborg of slander and criticized her unwillingness to engage with Johnson’s response to her posts. In response to the varied comments to her posts, Freborg later explained that she “did this for the safety of other women, and really to show that we as women can disrupt the status quo by calling sh*t out.” On July 27, 2020, just shy of 2 weeks after the original post was published, Freborg deactivated her Facebook account, removing the post and its thread from public view.

Johnson sued Freborg for defamation. He claimed that both Freborg’s original and edited posts accused Johnson of raping Freborg, thereby painting him as a rapist. Johnson argued that his reputation suffered as a result and that he lost business because of the posts.

After discovery, Freborg moved for summary judgment claiming that: (1) her speech was true; (2) her speech was a matter of public concern; and (3) Johnson failed to show that her speech was made with actual malice.

To support her summary judgment motion on the issue of public concern, Freborg

presented the following evidence about the global impact of the #MeToo movement. The #MeToo movement was conceived to allow women to share their experiences of sexual assault and harassment and to seek accountability from their abusers. ^[2] The hashtag collects the posts and enables a community discussion to occur on the subject of sexual abuse. One

study submitted by Freborg stated that the movement “was exceptionally effective in rapidly increasing awareness around sexual misconduct,” and that researchers have opined that “social movements [like #MeToo] can rapidly affect the norms for behavior by changing perceptions of a societal problem.”

Freborg also submitted information about sexual assault specifically in the dance community. She submitted a blog titled “Dance Predators” that provided suggestions on how to combat predatory behavior by dance instructors; a news story by Minnesota Public

Radio about sexual assault in a local Twin Cities dance studio; and seven other social media

posts from dancers, two posted the same day as Freborg’s post in July, that called out the predatory behavior of three prominent international dance instructors in the global dance community.

Johnson also moved for partial summary judgment on the issues of liability and actual malice. Additionally, he moved to amend his complaint to add a claim for punitive

damages. Johnson claimed that Freborg’s posts involved a matter of private, not public, concern because even if the #MeToo movement qualifies as a matter of public concern, Freborg’s specific posts were personal in nature. He asserted that the sources Freborg relied upon about the dance community were insufficient to show that her speech involved a matter of public concern. Johnson also argued that Freborg’s posts suggested that

Johnson raped her even though she openly admitted he had not, so Freborg acted with actual malice because she knowingly posted false information. He asked the district court for a jury trial only on the issue of damages.

The district court granted Freborg’s motion for summary judgment. First, the court found that Freborg’s statements were true. Second, the court rejected Johnson’s claim that the posts were too personal in nature to be a matter of public concern, specifically relying on Freborg’s use of the #MeToo hashtag and the context of the posts. The court also noted that “[t]he record is replete with other content regarding this specific problem [sexual

assault] in this specific community [the Twin Cities dance community].” Finally, the district court found that—even if Freborg’s speech was false—Johnson failed to show actual malice, which is required to recover presumed damages for defamatory statements that involve a matter of public concern.

The court of appeals reversed. Johnson v. Freborg, 978 N.W.2d 911 (Minn. App.

2022). The court held that a genuine issue of material fact existed about the veracity of Freborg’s posts, making summary judgment inappropriate. Id. at 917–18. In a divided opinion, the court further held that Freborg’s speech was a matter of private, not public concern. Id. at 923. The court therefore did not reach the issue of actual malice. Id. at 923 n.25.

One judge dissented, stating that the totality of circumstances showed that Freborg’s

statements relate to a matter of public concern. Id. at 924–29 (Wheelock, J., concurring in part, dissenting in part). Considering the content, form, and context of the speech, the dissent reasoned that Freborg “made the post as part of a now-global conversation about the prevalence of sexual harassment and assault and the need to shine light on once-secreted personal experiences.” Id. at 926.

Freborg petitioned this court for review on one issue: whether her speech involved a matter of public concern, which we granted. She does not challenge the court of appeals’

conclusion that a genuine issue of material fact exists about the veracity of her speech and agrees that a remand to the district court is appropriate on this issue. Consequently, we do not address the veracity issue further here and limit our analysis to the claim that her speech involved a matter of public concern.

ANALYSIS

We review the district court’s grant of summary judgment de novo. Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 874 (Minn. 2019). To decide whether summary judgment is appropriate, we must determine “whether the district court erred in its application of the law to the facts.” Id. (citation omitted) (internal quotation marks omitted). In addressing whether a statement involves a matter of public concern, federal courts have viewed the issue as a question of law, see Connick v. Myers, 461 U.S. 138, 148

n.7 (1983), and we likewise review the question of whether speech involves a matter of public concern de novo. We also review de novo the determination of “[w]hether evidence in the record is sufficient to support a finding of actual malice.” Maethner, 929 N.W.2d at

879 n.7.

I.

To determine whether Freborg’s speech involved a matter of public concern, we start with some general principles involving defamation. “Under the common law, a

plaintiff pursuing a defamation claim ‘must prove that the defendant made: (a) a false and defamatory statement about the plaintiff; (b) in [an] unprivileged publication to a third

party; (c) that harmed the plaintiff’s reputation in the community.’ ” Maethner, 929 N.W.2d at 873 (alteration in original) (quoting Weinberger v. Maplewood Rev., 668 N.W.2d 667, 673 (Minn. 2003)). Certain types of speech, like accusations of “criminal behavior or moral turpitude”—including accusations of sexual assault—are considered

“defamation per se.” Id. at 875 (citing Richie v. Paramount Pictures Corp., 544 N.W.2d

21, 25 (Minn. 1996) (internal quotation marks omitted). If a statement is found to be

defamatory per se, we then presume harm to a plaintiff’s reputation without requiring the plaintiff to prove actual damages. Id. Johnson asserts that he is entitled to presumed damages under this standard.

Like all laws regulating speech, however, “the doctrine of defamation per se cannot offend the constitutional guarantees of the First Amendment.” Id. We have long

recognized that “personal reputation has been cherished as important and highly worthy of protection.” Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 491 (Minn. 1985).

But we cannot “offer recourse for injury to reputation at the cost of chilling speech on matters of public concern, which ‘occupies the highest rung of the hierarchy of First

Amendment values, and is entitled to special protection.’ ” Maethner, 929 N.W.2d at 875

(quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011)).

Given this commitment to “uninhibited, robust, and wide-open” debate on issues of public concern, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), “a private plaintiff may not recover presumed damages for defamatory statements involving a matter of public concern unless the plaintiff can establish actual malice.” Maethner, 929 N.W.2d at 878–79. To meet this constitutional actual-malice standard, “a statement must be ‘made

with the knowledge that it was false or with reckless disregard of whether it was false or not.’ ” Id. at 873 (quoting Weinberger, 668 N.W.2d at 673) (internal quotation marks omitted). Freborg contends that this heightened standard applies to her speech because her posts involved a matter of public concern.

In Maethner, a defamation case, we held that the determination of whether speech

is of public or private concern in a particular case is “based on a totality of the circumstances.” Id. at 881. In particular, “courts should consider the content, form, and context of the speech.” Id. “No single factor is ‘dispositive;’ rather, courts should ‘evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.’ ” Id. (quoting Snyder, 562 U.S. at 454). In addition, in weighing the circumstances of the speech, we must make “an independent examination of the whole record.” Snyder, 562 U.S. at 454 (citation omitted) (internal quotation marks omitted).

Maethner involved statements by Maethner’s ex-wife—posted on her private

Facebook page under the name Jacki Hansen Maethner—identifying herself as a survivor of domestic violence, as well as an article published in a newsletter of a domestic

violence organization describing the “Survivor Award” that she had received. Maethner, 929 N.W.2d at 871. Maethner’s ex-wife and the organization also posted pictures on

Facebook of her holding the award. Id.

Even though he was not named in the posts, Maethner claimed that, given the use of his distinct last name by his ex-wife, the speech essentially accused him of domestic violence. Id. at 872. We recognized that “as a general proposition,” speech relating to domestic violence is a matter of public concern. Id. at 881. But, in addition to the subject of the speech, we explained that “the form and the context of the speech must also be considered, as well as any other relevant factors.” Id. Because neither the district court nor the court of appeals had specifically addressed the issue of public concern, we

remanded the case back to the district court “to decide in the first instance whether the challenged statements involve a matter of public or private concern.” Id. at 881–82.

Similar to Maethner, we recognize that “as a general proposition,” speech relating to sexual assault is a matter of public concern. See also Richie, 544 N.W.2d at 26

(concluding that “discussion of sexual abuse of children by their parents and legal recourse available to the abused child” were “certainly of public concern”). But Maethner clearly instructs us that no per se rule applies to suggest that statements about sexual abuse (or any other crime) are always matters of public concern. Instead, we must, on a case-by-case basis, apply the totality of the circumstances test and balance the content, form, and context of the speech, as well as any other pertinent factors, to determine whether speech involves a purely private matter or is a statement about a matter of public concern intended to influence public discussion about desired political or social change. Balancing the totality of the circumstances of the Facebook posts here, we conclude that, although the speech involved personal aspects, the predominant theme of Freborg’s speech involved a matter of public concern, namely sexual assault in the context of the #MeToo movement.

A.

We begin with the content—the “what”—of Freborg’s speech, and we review the entire thread of the Facebook postings when determining whether “a forbidden intrusion on the field of free expression” has occurred. See Sullivan, 376 U.S. 284–86; see also

Snyder, 562 U.S. at 453–54. The subject of the Facebook posts involved accusations of sexual assault by three dance instructors in the local Twin Cities dance community. In her first post, Freborg stated that she had been “gaslighted/coerced into having sex, sexual[ly] assaulted, and/or raped” by three specific dance instructors, including Johnson. She amended her post 2 days later to delete the word “raped,” stating instead that she had

“experienced varying degrees of sexual assault” by the three dance instructors, again including Johnson. ^[3] The last line of the original and amended posts stated, “If you have a problem with me naming you in a public format, then perhaps you shouldn’t do it.”

In evaluating whether these personal portions of Freborg’s posts—the identification, tagging, and admonishing of the three instructors—make the speech a private affair, we must weigh these statements against the remaining text. First, the original and amended post prominently begin with this statement: “Feeling fierce with all these women dancers coming out.” Then, before listing the varying degrees of sexual assault that she says she experienced, Freborg states, “So here goes . . . .” This introduction suggests that she was encouraged by other women speaking out about sexual assault in the dance community to reveal her own experience and to add her voice to the community conversation.

Second, Freborg ends her posts with the well-known #MeToo hashtag and a

#DancePredators hashtag, connecting her experience directly to the dance community and the broader #MeToo movement. This social movement is characterized by survivors of sexual abuse creating social media posts disclosing their experiences with sexual violence

and identifying their abusers. Benedetta Faedi Duramy, #MeToo and the Pursuit of Women’s International Human Rights, 54 U.S.F. L. Rev. 215, 217 (2020). The movement

seeks to connect survivors, encourage victims to tell their story, and increase awareness of the scope of the problem of sexual assault. JoAnne Sweeney, Social Media Vigilantism, 88 Brook. L. Rev. 1175, 1219–21 (2023). “ ‘For many #MeToo claimants, what they want is to tell their story.’ Indeed, the phrase ‘me too’ is inherently about connection; it tells others that they are not alone and that they are understood. Such affirmations can be healing in their own right as a form of social support.” Id. at 1219 (citation omitted).

Third, her subsequent explanation of her motives in the post thread—that she made the posts “for the safety of other women” and to show how “women can disrupt the status quo”—suggests that her posts were an attempt to raise awareness for other women, including women in the dance community, and inspire social change. These three factors, considered together, in addition to the broader context and response to the posts, show that

Freborg frames her Facebook posts “as her contribution to the larger discussions occurring at the time of the #MeToo movement.” Coleman v. Grand, 523 F. Supp. 3d 244, 259

(E.D.N.Y. 2021).

Johnson claims that the explicit use of “you” three times in the last line of the initial and amended post to condemn the instructors’ alleged abusive behavior, and Freborg’s reply to his comment on her posts, show that the content of Freborg’s speech was not to add her voice to the #MeToo movement but to get “vengeance” on him. He asserts that

Freborg’s posts—identifying him and two other instructors in the local dance community—were too limited in scope to implicate the broader #MeToo movement. He

further contends that his preexisting relationship with Freborg shows that she used the movement to mask a purely private attack on his character. He cites the Supreme Court’s decision in Snyder to show that the content of Freborg’s posts was personal in nature.

A preexisting relationship—or the lack thereof—is certainly a consideration in weighing whether the speech involves a matter of public concern. See Snyder, 562 U.S. at

455 (stating that there was no prior relationship between the Westboro Baptist Church and the soldier “that might suggest Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter”). Here, however, two considerations cause us not to heavily weigh Johnson’s assertion that Freborg’s speech was a matter of private concern because she was a “jilted former lover, who waited five years before publicly attacking Johnson.” First, the passage of that many years between the end of the parties’ relationship, which Johnson described as a “casual sexual relationship,” and the post suggests that the speech was not a personal attack in response to the relationship ending.

Second, the inclusion of two other dance instructors implies that the post had less to do with Freborg’s previous relationship with Johnson, and more about speaking up about alleged sexual abuse in the Twin Cities dance community generally.

Johnson cites the Supreme Court’s decision in Snyder to show that the content of Freborg’s post was personal in nature. In Snyder, the issue was whether the speech of the leader of the Westboro Baptist Church could receive First Amendment protection when he organized a protest with offensive placards near the funeral of a soldier killed in the Iraq

war. The signs included general messages such as “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “God Hates Fags,” and “Priests Rape Boys.” Snyder, 562 U.S. at 448, 454. The Court held that the signs addressed “matters of public import” including “homosexuality in the military, and scandals involving the Catholic clergy.” Id.

The Supreme Court acknowledged, however, that the content of a few signs like “You’re

Going to Hell” and “God Hates You” could be viewed as containing personal messages to the dead soldier and his family. Id. The Court concluded, however, that the few personal messages did “not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.” Id.

After weighing the personal aspects of the posts here with those elements addressing broader public issues, we reach a similar conclusion about content: even though Freborg named, tagged, and admonished three specific instructors in her post, these personal

messages do not outweigh the dominant theme of her speech—to discuss sexual assault in the dance community, a matter of public import.

The dissent takes a narrow view of a “matter of public concern,” essentially limiting those matters “to self-government,” “government officials,” or “government performance.” But that narrow perspective is rooted primarily in decades-old Supreme

Court case law. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 (1974); Time, Inc. v. Firestone, 424 U.S. 448 (1975).

The dissent’s narrow perspective disregards the development of the law over the past five decades and the Supreme Court’s broader view of matters of public concern. According to a more recent case, “Speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’

or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’ ” Snyder, 562 U.S. at 453 (citations omitted), quoted in Maethner, 929 N.W.2d at 880. 4 As we noted in Maethner, speech involving a matter of public concern is within “the core of First Amendment protection . . . to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Maethner, 929 N.W.2d at 879 (citation omitted) (internal quotation marks omitted) (emphasis added). 5

Consistent with Snyder, we conclude that Freborg’s Facebook post fits this broader conception of public concern.

Finally, although not binding upon us when weighing the content of Freborg’s

speech, we find persuasive a recent defamation case with similar facts. Fredin v. Middlecamp, 500 F. Supp. 3d 752 (D. Minn. 2020), aff'd, 855 F. App’x 314 (8th Cir. 2021)

(per curiam) (unpublished). In Fredin the federal district court, applying Minnesota law, 283 A.3d 1140, 1149–52 (Del. 2022) (applying the Snyder public concern test to hold that a claimed defamatory email was “speech that addressed a matter of public concern: the ongoing national debate about the use of American Indian iconography in sports logos,” noting that “the First Amendment’s Free Speech Clause can serve as a defense in state tort suits” generally (emphasis added)); Monge v. Univ. of Pa., ___ F. Supp. 3d ___, No. CV22-2942, 2023 WL 3692935, at *2 (E.D. Pa. May 26, 2023) (applying the Snyder public concern test to a defamation claim). Overall, it is the nature of the speech itself that guides our public concern inquiry, not the nature of the claim. 5 Even if we were to view matters of public concern as relating primarily to “self-government” or “government performance,” there are strong indications that the #MeToo movement has catalyzed government action. For example, since 2017, several federal laws have been amended or passed in direct response to the movement. See, e.g., Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 13307, 26 U.S.C. § 162(q)(1) (removing tax deductions for “any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement”); Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Pub. L. No. 117-90, § 2(a), 136 Stat. 27 (2022) (amended the Federal Arbitration Act, 9 U.S.C. § 402, to make any “predispute arbitration agreement or predispute joint-action waiver” for sexual harassment claims unenforceable); Speak Out Act, 42 U.S.C. §§ 19401–04 (recognizing that because “[s]exual harassment and assault remain pervasive in the workplace and throughout civic society,” 42 U.S.C § 19401(1), “no nondisclosure clause or nondisparagement clause agreed to before the dispute arises shall be judicially enforceable” 42 U.S.C § 19403(a)).

found that a post on a public Twitter account that included pictures of a person and explicitly accused him of repeated sexual harassment and rape qualified as a matter of public concern. Id. at 777. In weighing the totality of the circumstances, the district court found that “[t]he content of the speech here addressed harassment and rape, and more specifically, the subject of women coming forward to share their experiences in this regard.” Id. The court therefore concluded that the speech was entitled to the actual malice standard of protection. Id. We believe the same conclusion about content is justified here.

In sum, although Freborg’s speech identifies and addresses Johnson directly and has

some aspects of airing a personal dispute, the dominant theme of her posts speaks to the broader issue of sexual abuse in the context of the #MeToo movement, a matter of public

concern. After seeing other women share their experiences, she offered her own story, hoping to raise awareness about the prevalence of sexual assault, to keep other women safe, and to show that women “can disrupt the status quo” to bring about social change.

B.

Turning next to the form—the “where”—of Freborg’s speech, this factor further supports a conclusion that Freborg’s posts were on a matter of public concern. ^[6] Freborg disseminated her speech on her Facebook account, making her post publicly available to anyone. The use of the internationally recognized hashtag for the #MeToo movement allowed her message to be disseminated publicly and broadly on Facebook. Here, the #MeToo hashtag does what a public account, blog, or journal dedicated to these issues would by spreading the message to an unlimited audience.

The Supreme Court has acknowledged the power of Facebook, declaring that today

“the ‘vast democratic forums of the Internet’ . . . and social media in particular” provide

the “most important places . . . for the exchange of views.” Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (quoting Reno v. Am. C.L. Union, 521 U.S. 844, 868 (1997)). The Court further noted that social media acts as the “modern public square” and that sites like

Facebook “allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’ ” Id. at 107. It follows that Freborg specifically chose this modern public square as a way for her message “to reach as broad a public audience as possible.” Snyder, 562 U.S. at 454; see also Fredin, 500 F. Supp. 3d at

777. Accordingly, this factor weighs in favor of concluding that Freborg’s speech involved a matter of public concern.

To be clear, attaching a hashtag—even the well-recognized #MeToo hashtag—to the end of a social media post is not in and of itself determinative of whether the speech involves a matter of public concern. The use of a hashtag is only one relevant consideration

in balancing the totality of the circumstances. ^[7] Importantly, when courts are reviewing the use of a specific hashtag, they should consider all other relevant factors, including content and context. ^[8] A hashtag, even the globally recognized hashtag at issue here, can never provide blanket First Amendment protections. The critical question will remain: based upon the totality of the circumstances in light of the record as a whole, does the speech involve a matter of public or private concern?

C.

Finally, the full context—the “how”—of Freborg’s posts also weighs in favor of holding that her speech involved a matter of public concern. Johnson agrees that we can

and should look at the entire thread associated with Freborg’s posts. He asserts, however, that it engendered “no discussion about how to engage in democratic self-governance,” which he maintains would help support Freborg’s theory that the context of her post was intended to raise awareness and bring accountability.

The responses to the posts refute that claim on its face. The posts generated much

discussion and mixed reactions: some gave Freborg their full support and validated the claims in her posts by citing their own negative experiences, while others were critical of the posts and how Freborg chose to speak about what happened to her. These reactions facilitated conversations about the appropriate measures that victims should take when

speaking out and how to properly support sexual assault victims generally. The robust and unfettered discussion in the thread following the initial post supports the conclusion that the form and context of this speech makes this speech a matter of public concern, rather than a purely private matter.

As discussed above, the context of the #MeToo movement is a key factor in our analysis. The #MeToo movement has had a direct impact on society and how communities address sexual assault across industries. Data shows, for example, the number of sexual harassment complaints the U.S. Equal Employment Opportunity Commission received

jumped by 13.6 percent after #MeToo went viral. Sweeney, Social Media Vigilantism, 88 Brook. L. Rev. at 1222. Further, reports now show that more people believe that “those who commit harassment or assault are now more likely to be held responsible and victims are more likely to be believed.” Anna Brown, More Than Twice as Many Americans

Support Than Oppose the #MeToo Movement, Pew Rsch. Ctr. ^[12] (Sept. 29, 2022). And Congress has taken steps to lessen the shroud of secrecy that surrounds settlements relating to sexual harassment or sexual abuse. See Speak Out Act, 42 U.S.C. §§ 19401–04; Tax

Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 13307, 26 U.S.C. § 162(q)(1).

Many other jurisdictions also have acknowledged the importance of #MeToo speech

in the context of the First Amendment. Fredin, 500 F. Supp. 3d 752; Coleman v. Grand, 523 F. Supp. 3d 244, 259 (E.D.N.Y. 2021) (finding that the open letter that the defendant circulated accusing the plaintiff of abuse and sexual harassment involved a matter of public concern); Dossett v. Ho-Chunk, Inc., 472 F. Supp. 3d 900, 908 (D. Or. 2020) (finding that the publication of workplace-related #MeToo allegations involved a matter of public concern); Fells v. Serv. Emps. Int’l Union, 281 A.3d 572, 584 (D.C. App. 2022) (holding that there was a prima facie showing that the publication of workplace-related #MeToo allegations involved a matter of public concern); Goldman v. Reddington, No. 18-CV-

3662, 2021 WL 4099462, at *4 (E.D.N.Y. Sept. ^[9], 2021) (finding that a defendant’s LinkedIn and Facebook posts accusing plaintiff of sexual assault concerned “more than a purely private matter” (internal quotation marks omitted)).

In addition, Freborg provided adequate evidence of the #MeToo conversations happening about predatory behavior in the dance community, including a series of similar posts made on and around the time of her own July 14, 2020 post. Her statements fit well within the context of a legitimate social movement. ^[9]

Johnson cites other contextual factors to show that Freborg’s posts are not a matter of public import. As noted above, he contends that his previous relationship with Freborg demonstrates that the nature of her speech was private. But the mere existence of a previous relationship is not a dispositive factor in assessing the nature of the speech, and it does not negate the importance of speaking out against sexual assault in society. Many victims who come forward to speak about their experiences of sexual assault often have a preexisting relationship with their abusers. See, e.g., Fredin, 500 F. Supp. 3d at 763–64

(granting summary judgment to one of the women named in the plaintiff’s defamation lawsuit who previously had been romantically involved with the plaintiff); see also Lauren

R. Taylor & Nicole Gaskin-Laniyan, Sexual Assault in Abusive Relationships, 256 Nat’l

Inst. of Just. ^[12], 12–14 (Jan. 2007). In Minnesota, for example, a grim statistic shows that one in every three women will experience violence, rape, or stalking by an intimate partner in their lifetime. Domestic Violence in Minnesota, Nat’l Coal. Against Domestic Violence

(2020). If we were to hold that the mere existence of a previous relationship between

Johnson and Freborg makes Freborg’s speech private in nature, the impact would be an

unnecessary chilling effect on the exercise of free speech by victims of sexual assault and their ability to effect social change.

Johnson next contends that, unlike Westboro Baptist Church and the owner of the account used to tweet about Fredin, Freborg had no prior history speaking out about the #MeToo movement or sexual abuse and harassment generally. We do not give this contention much, if any, weight. To hold that victims of sexual assault can only speak out about their experiences if they themselves are already advocates would certainly chill other

alleged victims from coming forward. See Fredin, 500 F. Supp. 3d at 777 (noting the importance of and protecting speech that addressed “harassment and rape, and more specifically, the subject of women coming forward to share their experiences in this regard” (emphasis added)). Johnson’s argument also fails to consider that every alleged victim, be they an advocate or not, must make a first statement. If we were to conclude

that Freborg’s speech was private in nature simply because she had no history of advocacy, that would discourage any person not already engaged in advocacy work from telling their story about what happened to them and adding their voice to the desire for social change because they could be liable for per se defamation.

Moreover, even with the heightened protection of the actual-malice constitutional standard, the speech of victims of sexual assault may well 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. See Shaina Weisbrot, The Impact of the #MeToo Movement on Defamation Claims Against Survivors, 23 CUNY L. Rev. 332, 352–53 (2020)

(explaining that while #MeToo has empowered more people to speak out, this speech has led to more defamation lawsuits, especially if the accused has significant power or resources).

Finally, Johnson cites Maethner and a lack of media coverage of Freborg’s posts to show that the posts concerned a private matter. Maethner does not require, however, that

Freborg’s speech be later disseminated by the media for it to be considered a statement of public import. There, we held that the dispositive inquiry regarding the availability of presumed damages “is not on the status of the defendant as a media or nonmedia defendant” but “whether the matter at issue is one of public concern.” Maethner, 929 N.W.2d at 877.

We later cited Eighth Circuit cases that noted that “media coverage is a good indication of the public’s interest” and stressed “the importance of journalistic freedom in investigating and reporting on matters of public interest.” Id. at 881 (citations omitted) (internal quotation marks omitted). We then noted that dissemination of statements in the news media is “one of many relevant factors in determining whether the statements involve a matter of public concern.” Id. Our discussion in Maethner therefore suggests that this non-dispositive factor serves to protect journalists in traditional media by adding another

consideration to identify speech on a matter of public concern. Given this background and that Freborg’s posts were made on Facebook, a website that Packingham describes as a

“powerful mechanism” for the robust exchange of views, 582 U.S. at 107, the fact that no news media reported Freborg’s posts is not a decisive factor in assessing the public import of the speech.

After considering the context of Freborg’s posts, we conclude that this factor shows that her speech involved a matter of public concern.

D.

In sum, weighing the content, form, and context of Freborg’s statements in light of the whole record, we conclude that the overall thrust and dominant theme of the posts involved a matter of public concern. We therefore hold that Freborg’s speech is subject to heightened protection under the First Amendment. Accordingly, to prevail on his defamation claim for presumed damages, Johnson must show that Freborg’s posts not only were false, but that they were made with actual malice.

II.

Turning to the issue of actual malice, we note that the court of appeals did not rule on this issue because it held that Freborg’s speech involved a matter of private concern.

Freborg, 978 N.W.2d at 923 n.25. Nor did Freborg raise the issue of actual malice in her petition for review. Consequently, the parties agree that, if we conclude that the challenged speech here involved a matter of public concern, we should remand the case to the district court for a trial on the veracity of Freborg’s speech and actual malice. We agree for the following reasons.

The district court concluded as a matter of law that the record contained insufficient evidence of actual malice. But the court of appeals held that a genuine issue of material fact existed as to the veracity of Freborg’s speech, making summary judgment improper.

Id. at 918. Given the fact issue on falsity—and because Freborg was both the speaker and the publisher of the alleged defamatory statements—if a jury finds that Freborg’s speech was false, sufficient evidence may allow the jury to further find that Freborg made the statements with actual malice. ^[10] We therefore reverse the district court’s ruling on actual malice and remand this case for further proceedings.

CONCLUSION

For the foregoing reasons, we reverse the decision of the court of appeals and remand the case to the district court for further proceedings.

Reversed and remanded.

DISSENT

GILDEA, Chief Justice (dissenting).

In this defamation case, we are asked to decide whether heightened First

Amendment protections apply to Kaija Freborg’s accusation that Byron Johnson, her

former dance instructor and romantic partner, “gaslighted/coerced [her] into having sex, sexual[ly] assaulted, and/or raped” her. The question is not whether Freborg’s speech is

protected at all; it is. Existing precedent already dictates those protections. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974) (noting that states may “not impose liability without fault”); Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 492 (Minn.

1985) (adopting negligence standard in response to Gertz). The narrow question here is whether Freborg’s speech is so central to the purpose of the First Amendment that it is entitled to the heightened protections reflected in the constitutional actual malice standard.

The majority concludes that the actual malice standard applies to Freborg’s speech because

Freborg wrote about sexual assault and included #MeToo in her post. I disagree. In my view, Freborg’s personal Facebook post, on her personal Facebook page, concerning

private conduct between two people with a private relationship, is not speech that the constitutional actual malice standard protects. Accordingly, I dissent.

A.

Historically, defamatory speech, such as allegations of criminal behavior akin to those made here, fell outside the scope of the First Amendment. Moreno v. Crookston

Times Printing Co., 610 N.W.2d 321, 328 (Minn. 2000) (noting that “defamatory comments were, by definition, not protected speech under the First Amendment.”). But in D-1

New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court said, “that the reputational interests protected by state libel law must yield when in conflict with the central meaning of the First Amendment.” Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 481 (Minn. 1985) (citing New York Times, 376 U.S. at 273–75). The New York Times Court adopted the actual malice standard to strike a balance between reputational interests and First Amendment protections. ^[1]

The majority concludes that Minnesotans’ reputational interests must yield here

because Freborg’s speech is a matter of public concern and therefore worthy of the heightened First Amendment protection of the constitutional actual malice standard. I disagree. Providing redress for Minnesotans who have been accused by name of sexual

assault does not conflict with the “central meaning of the First Amendment.” Jadwin, 367 N.W.2d at 481. Accordingly, under Supreme Court precedent, the constitutional actual

malice standard does not apply. Examination of the Court’s precedent and application of the required totality of the circumstances test confirms this.

1.

Our analysis of Supreme Court precedent must begin with New York Times, the case in which the Court created the constitutional actual malice standard. There, the Supreme

Court recognized that speech by the press that criticized public officials for their official conduct was so valuable that, even if it was defamatory, the First Amendment required that

1 Under this constitutional standard, a plaintiff cannot recover damages for injury to reputation unless the plaintiff proves that the defendant made the statement at issue knowing it was false or with reckless disregard for the statement’s falsity. New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).

D-2 the speech be given some protections so that the speech was not unnecessarily chilled.

376 U.S. at 278–79. The Court created the “actual malice” standard to provide that protection—public officials may not recover damages for a defamatory falsehood relating to their official conduct unless they prove that the statement was made with “actual malice.” Id. at 279–80. The Court grounded the result in the fact that the speech at issue—

citizen commentary on the performance of their government—went to the very heart or “central meaning of the First Amendment.” Id. at 273; see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 (1974) (describing New York Times as “defin[ing] a constitutional

privilege intended to free criticism of public officials from the restraints imposed by the common law of defamation”).

The majority holds that this actual malice standard from New York Times applies to

Freborg’s allegation that Johnson sexually assaulted her. But the animating principle in New York Times was the connection of the speech to principles necessary to a successful democracy, such as the citizenry’s ability to comment freely on the performance of their government. See New York Times, 376 U.S. at 273, 279–80. Freborg’s speech has nothing whatsoever to do with the government or government officials, and nothing in New York

Times supports the majority’s extension of the actual malice standard to the speech at issue here.

The Supreme Court’s jurisprudence on the actual malice standard since New York

Times likewise does not support the majority’s extension of the standard to Freborg’s

speech. The Court discussed the applicability of the actual malice standard in Gertz v. Robert Welch, 418 U.S. 323 (1974). In Gertz, as in New York Times, the speech was

D-3

grounded in commentary about government performance. See Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749, 756 (1985) (noting that the speech at issue in Gertz “involved expression on a matter of undoubted public concern” because the article questioned whether a prosecution of a police officer was part of a Communist campaign to discredit local law enforcement agencies).

The Gertz Court recognized that states have a “legitimate interest” in providing compensation to people whose reputations have been harmed by defamation, and that that interest needed to be balanced against competing First Amendment considerations to ensure that speech the First Amendment values is not chilled. 418 U.S. at 348–50. When

the plaintiff is a private individual, the Court concluded, the government’s interest in compensating for reputational harm was greater than in the case of public official/public

figure plaintiffs, such as the plaintiff in New York Times. Gertz, 418 U.S. at 343–44. The Court held that states have “substantial latitude” in providing remedies to private plaintiffs

for reputational injuries and that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood.” Id. at 345, 347. But the Court clarified that “the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Id. at

349.

The Supreme Court limited Gertz in Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). Unlike the facts of New York Times and Gertz, Dun & Bradstreet involved only private, nonmedia parties: the plaintiff was a construction contractor and D-4 defendant was a credit reporting agency. Dun & Bradstreet, 472 U.S. at 751. The plaintiff

sued the defendant for erroneously reporting to third parties that the plaintiff had filed for bankruptcy. Id. at 751–52. The plurality opinion reasoned that Gertz applied only to speech on matters of public concern and that Dun & Bradstreet involved a matter of “purely

private concern.” See id. at 763 (“We conclude that permitting recovery of presumed and punitive damages in defamation cases absent a showing of ‘actual malice’ does not violate the First Amendment when the defamatory statements do not involve matters of public concern.”). Thus, the Court allowed the plaintiff to recover presumed damages without proving actual malice.

Read together, New York Times, Gertz, and Dun & Bradstreet hold that the actual

malice standard applies to protect speech about a public figure, government official or the performance of government more generally, but the standard does not apply to speech

about a private plaintiff on a matter of private concern. See Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 877–78 (Minn. 2019). 2 For the former, a plaintiff must show actual malice to recover; for the latter, state law governs. And for speech to be a “matter of public concern” sufficient to warrant application of the constitutional actual malice standard, that speech must relate to self-government. See Dun & Bradstreet, 472 U.S. at 759 (noting that

“the role of the Constitution in regulating state libel law is far more limited when the concerns that activated New York Times and Gertz are absent”); New York Times, 376 U.S.

2 The parties agree that there is no media defendant here as in New York Times, and they also agree that the parties involved are not public or government figures. Thus, the only way that the actual malice standard would apply is if Freborg’s Facebook post is speech on a matter of public concern.

D-5 at 269 (“The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.”); see also Elena Kagan, A Libel Story: Sullivan

Then and Now, 18 L. & Soc. Inquiry 197, 212 (1993) (noting that one approach to understanding the New York Times v. Sullivan line of cases is to “view[] Sullivan as primarily a case about the speech necessary for democratic governance”).

2.

The majority argues that I have interpreted the Supreme Court’s precedent too narrowly. For support, the majority essentially equates matters of interest to the public to those of public concern. Supra at 17. But the Supreme Court has already concluded that when the issue is the application of the constitutional actual malice standard, there is a dispositive difference between matters of public interest and matters of public concern.

Time, Inc. v. Firestone, 424 U.S. 448, 454 (1975). In Time, Inc., the Court made clear that

not all matters of interest to the public are matters of public concern for purposes of applying the First Amendment. See Time, Inc., 424 U.S. at 454, 457 (rejecting petitioner’s

attempt to “equate ‘public controversy’ with all controversies of interest to the public” and concluding the speech at issue was private speech because it “add[s] almost nothing toward

advancing the uninhibited debate on public issues thought to provide principal support for the decision in New York Times.”). And the Court confirmed that Gertz had “repudiated” the view that the “New York Times privilege should be extended to falsehoods defamatory of private persons whenever the statements concern matters of general or public interest.”

D-6

Id. at 454; see also Gertz, 418 U.S. at 346 (rejecting “[t]he ‘public or general interest’ test for determining the applicability of the New York Times standard” because that test

“inadequately serves both of the competing values at stake”); cf. Waldbaum v. Fairchild

Pub., Inc., 627 F.2d 1287, 1296 (D.C. Cir. 1980) (“A public controversy is not simply a matter of interest to the public.”). Time, Inc. involved a news magazine article that included reports that the defendant had extramarital affairs. The Court declined to apply the New

York Times “actual malice” standard, opting instead for the standard requiring some proof of fault from Gertz. Time, Inc., 424 U.S. at 457; see also id. at 469–70 (Powell, J., concurring). In short, the Court in Time, Inc. continued the long line of cases including

New York Times, Gertz, and Dun & Bradstreet, that hold that speech about governance and self-government is speech on a matter of public concern for purposes of the constitutional actual malice standard.

I acknowledge, as we have recognized in other cases, that as a general proposition

speech discussing crime can be speech on a matter of public concern. See Maethner, 929 N.W.2d at 881 (noting that as a “general proposition” “speech relating to domestic

violence involves a matter of public concern”); Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 25–26 (Minn. 1996) (noting that child sexual abuse is matter of public concern). 3 But Freborg was not discussing crime in general, the prevalence of crime in our

3 Importantly, neither Maethner nor Richie adopts a per se rule. In Maethner, we did not disagree with the “general proposition” that “speech relating to domestic violence involves a matter of public concern,” but we declined to address whether the speech in that case (all of which discussed domestic violence) was speech on a matter of public concern. 929 N.W.2d at 881. Instead we noted that the district court did not reach a conclusion on the question and remanded the case to the district court for further consideration. Id. Richie

D-7

society, or the government’s response to crime. Rather, she made a specific accusation of criminal conduct on Facebook—that a person she identified by name sexually assaulted her. Although the public may be interested in Freborg’s allegations, I would hold that such

speech is not a matter of public concern for First Amendment purposes. Bierman v. Weier, 826 N.W.2d 436, 462 (Iowa 2013) (holding that book author’s allegation that identified person committed sexual assault was not a matter of public concern for First Amendment purposes); W.J.A. v. D.A., 43 A.3d 1148, 1157–58 (N.J. 2012) (holding that defendant’s speech on website he created where he alleged that his uncle sexually abused him was not a matter of public concern).

The majority disagrees but it makes no real attempt to connect Freborg’s Facebook post to commentary that goes to an issue important to self-government or to the “central

meaning of the First Amendment.” See New York Times, 376 U.S. at 273; see also Jadwin, 367 N.W.2d at 481. Instead, the majority focuses its analysis on how the broader MeToo movement related to social change. I acknowledge the important contributions the MeToo movement has made to our society. But 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.” We are tasked with evaluating whether Freborg’s single Facebook post was

speech on a matter of public concern, not the entire MeToo movement. Moreover, the majority cannot connect Freborg’s post to any particular change in statute, nor do the involved media defendants, which is a material difference to application of the constitutional actual malice standard. Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 23 (Minn. 1996). In short, we did not hold in either case that speech about sexual abuse and harassment is always entitled to First Amendment protection. See supra at 17.

D-8

changes to federal law cited by the majority—changes that concern settlement, arbitration, and nondisclosure—even apply to this case. The focus of those changes is apparently on workplace sexual assault and harassment, and has nothing to do with sexual violence committed at a private party between people with a personal relationship who met through a hobby. ^[4]

The majority also supports its focus on the importance of the MeToo movement generally with statistics that show the prevalence of sexual violence and domestic abuse against women. Supra at 22–24. This reliance on statistics and the MeToo movement generally reveals a values-based approach to applying the First Amendment that is not consistent with the First Amendment’s prohibition on “viewpoint discrimination.” See

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 383–84, 391 (1992) (noting that unprotected

categories of speech “can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)—not that they are

categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content”).

I see no reason to apply the First Amendment differently in the MeToo context.

4 For similar reasons, the majority’s reliance on statistics about the increase in Equal Employment Opportunity Commission complaints and the fact that “people who commit sexual harassment or assault in the workplace are now more likely to be held responsible for their actions” are misplaced. See supra at 22; Anna Brown, More Than Twice as Many Americans Support Than Oppose the #MeToo Movement, Pew Rsch. Ctr. ^[4] (Sept. 29, 2022). Freborg’s speech was not about workplace sexual violence. D-9 3. Snyder, a case about intentional infliction of emotional distress—not defamation— does not compel a contrary conclusion. Anthony List v. Dierhaus, 779 F.3d 628, 632 (6th Cir. 2015) (observing that Snyder was not a defamation case and suggesting that Snyder was of limited application to defamation cases). 5 In Snyder, the U.S. Supreme Court held that a claim for intentional infliction of emotional distress will not lie in the face of a First Amendment challenge when the allegedly distress-causing conduct is speech about a matter of public concern. Speech intended to inflict emotional distress does not fall into the category of speech that was 5 In Maethner, we said that the test discussed in Snyder, which looks at the form, content, and context for the alleged tortious activity, should be considered but that no one factor was dispositive and that our test would require an examination of the totality of the circumstances to decide whether the actual malice standard applied. 929 N.W.2d 881. The majority’s focus on the result in Snyder to compel a result in this case is not consistent with that direction. The majority also cites three cases to support its reliance on Snyder to compel the result here. Supra at 17–18 (citing Dongguk Univ. v. Yale Univ. 734 F.3d 113 (2d Cir. 2013), Cousins v. Goodier, 283 A.3d 1140 (Del. 2022), and Monge v. Univ. of Pa., ___ F. Supp. 3d ___, No. CV22-2942, 2023 WL 3692935 (E.D. Pa. May 26, 2023)). These cases are inapposite. Dongguk is of no help because the defendant in that case “concede[d] that the defamatory statements addressed public figures and matters of public concern.” 734 F.3d at 122. And the court’s use of Snyder was confined to the negligence claim stated in the complaint. In other words, unlike the majority here, the Second Circuit in Dongguk did not use Snyder to resolve the plaintiff’s defamation claim. Id. at 127. Cousins is likewise unhelpful to the majority because Cousins, like Snyder, is not about the actual malice standard in a defamation case. The defamation claim in that case was dismissed because the plaintiff could not prove that the alleged defamatory statement was false. 283 A.3d at 1160. And Monge involves a media defendant and criticism of a university professor’s performance. 2023 WL 3692935, at *1. The court did not use Snyder to compel a conclusion on the application of the constitutional actual malice standard (which is what the majority does here). Id. at *3. Rather, the court relied on Snyder’s public- concern analysis for the proposition that the plaintiff had to prove falsity, something that is not at issue here. Id. D-10 historically unprotected by the First Amendment, whereas defamatory speech does. See Snyder, 562 U.S. at 451 n.3. This makes the State’s interest in preserving a cause of action weigh more heavily here than in Snyder, and the First Amendment interest in protecting speech weigh less. Maethner, 929 N.W.2d at 870–71 (noting that the purpose of the content, form, and context inquiry is “to strike a delicate balance between the State’s interest in providing redress for citizens claiming reputational injury and the free speech protections the First Amendment provides”). Another important distinction between defamation and intentional infliction of emotional distress also influenced the Court’s analysis in Snyder. An element of intentional infliction of emotional distress is the outrageousness of the conduct. But outrageousness can have important value to speech, and permitting liability based on the “outrageousness” of speech permits juries to discriminate on speech based on its content or the viewpoint conveyed. See Snyder, 562 U.S. at 458 (“ ‘Outrageousness,’ however, is a highly malleable standard with an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.”) (citation omitted) (internal quotation marks omitted)). The Court found the risk of chilling speech based on a malleable standard of outrageousness “unacceptable” because “ ‘in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate “breathing space” to the freedoms protected by the First Amendment.’ ” Id. (citing Boos v. Barry, 485 U.S. 312, 322 (1988)). In other words, it was important to the Court’s analysis that the D-11 outrageousness element of the tort of intentional infliction of emotional distress risked a jury verdict on the basis of jurors’ opinions and subjective judgments. That risk is much lower in a defamation case. In a defamation case, a jury will consider the content of the speech only to evaluate its truth or falsity. Unlike the intentional-infliction-of-emotional-distress context, the jury in a defamation case cannot impose liability based on their own subjective judgments about the outrageousness of the speech. ^[6] Finally, regarding the relevance of Snyder to the result here, the Court said in Snyder that it was writing a “narrow” holding, one “limited by the particular facts” of Snyder. 562 U.S. at 460. The case did not even discuss the constitutional actual malice standard, 6 The majority disagrees that the cause of action affects our application of Snyder, arguing that the “form, content, and context” test should apply in exactly the same way in an intentional infliction of emotional distress case as in a defamation case. See supra at 17 n.4. The reason for the “form, content, and context” inquiry is “to ensure that courts themselves do not become inadvertent censors.” See Snyder, 562 U.S. at 452. And the risk of becoming inadvertent censors turns on the cause of action. See id. at 458 (balancing the First Amendment against the state’s interest in preserving a cause of action for “outrageous” speech). The touchstone of the test in a defamation case is balancing the First Amendment protections against the state’s interest in preserving a cause of action for damage to reputation, whereas the touchstone in an intentional infliction of emotional distress case is balancing the First Amendment with the state’s interest in maintaining a cause of action for infliction of emotional distress. See id. at 462–63 (Breyer, J., concurring) (“To uphold the application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm.”). The cause of action necessarily affects the balance. D-12 and the majority is unable to explain how a case that does not even mention the standard compels the conclusion that the standard applies here. ^[7] 4. Even though Snyder cannot compel the result here, we have recognized that analyzing the form, content, and context of the speech, as the Court did in Snyder, can be a helpful piece of the totality of the circumstances analysis. Maethner, 929 N.W.2d at 881. i. The “form” asks where the speech occurred. The parties agree that the speech here occurred on a social media platform that was publicly viewed by many people, and that the use of a hashtag made the post more accessible to the public. ^[8] The fact that the speech was made in a “modern public square” is a relevant consideration in assessing whether the speech is deserving of First Amendment protection. See Packingham v. North Carolina, 582 U.S. 98, 107 (2017). But it is not dispositive. Indeed, even though the speech at issue in Time, Inc. appeared in a national news magazine, the Supreme Court held that the speech did not rise to the level of warranting First Amendment protection. Time, Inc., 424 U.S. at 457. 7 Snyder is, as the majority notes, more recent than New York Times Gertz, and Time, Inc. Supra at 17. But nothing in Snyder can be fairly read as modifying the analysis courts should follow for application of the constitutional actual malice standard, a standard that was not even mentioned in the case. ^[8] The majority considers Freborg’s use of #MeToo as relevant to the form, content, and context of her post. I consider it relevant only to form. D-13 ii. Turning next to the “content” of Freborg’s Facebook post, I conclude that the “overall thrust and dominant theme” of Freborg’s Facebook post was to accuse Johnson of sexual violence. Maethner, 929 N.W.2d at 880–81. Specifically, Freborg identifies Johnson and two others by name, accuses them of sexual violence, and speaks directly to them in her post. She also “tags” Johnson in the post, which made sure that her post would be linked to him through his own Facebook presence. By tagging Johnson in the post, Freborg further confirms that Johnson—and not some broader societal issue—is the target of her speech. But, according to the majority, the thing that separates Freborg’s Facebook post from any other speech accusing another of sexual assault is that Freborg included #MeToo (and to a lesser extent, #DancePredators), which shows that she intended to participate in a hashtag-based social movement. ^[9] I disagree. While use of a hashtag makes the post available more broadly to the public, it does not change the overall thrust of Freborg’s speech. Freborg’s speech included #MeToo, but the post made no mention of government policy changes or systemic problems. Moreover, the content of Freborg’s speech was disconnected from the MeToo movement. Unlike the

CHUTICH, Justice.

This case involves a defamation claim brought by respondent Byron Johnson—a private figure—against appellant Kaija Freborg. Johnson sued Freborg after a post on

Freborg’s Facebook page accused Johnson and two other dance instructors from the Twin Cities dance community of varying degrees of sexual assault. Johnson was one of Freborg’s dance teachers, and the two previously had a casual sexual relationship that lasted for about a year.

The district court granted Freborg’s motion for summary judgment, finding that

Freborg’s speech was true and, alternatively, that her speech involved a matter of public concern and was not made with actual malice. The court of appeals reversed. It held that

the truth or falsity of Freborg’s statement presented a genuine issue of material fact. The court of appeals further held, in a divided opinion, that because the dominant theme of Freborg’s post involved a matter of private concern, Johnson was not required to prove actual malice to recover presumed damages. The court of appeals remanded the case to the district court for further proceedings.

We granted Freborg’s petition for review on whether her statement involved a matter of public concern. Because the overall thrust and dominant theme of Freborg’s

post—based on its content, form, and context—involved a matter of public concern, namely, sexual assault in the context of the #MeToo movement, her statement is entitled to heightened protection under the First Amendment to the United States Constitution.

Before Johnson may recover presumed damages, he must therefore show that Freborg’s speech was not only false, but also that the post was made with actual malice.

Accordingly, we reverse the court of appeals on the issue of public concern and remand the case to the district court for further proceedings to determine the veracity of Freborg’s post and, if the post is found to be false, whether the making of the post meets the constitutional actual-malice standard.

FACTS

Freborg and Johnson met in 2011, and Freborg, then a faculty member at a local university, began to take dance lessons from Johnson at a Twin Cities dance studio.

Sometime in 2012, the parties began a casual sexual relationship. Freborg agrees that many of their sexual encounters were consensual. She claims, however, that not all of their interactions were consensual, including an allegation that Johnson approached her in 2015

at his home during a party “while [she] was intoxicated and alone, grabbed [her] hand and put it down his pants onto his genitals” without her consent. This allegation, and its veracity, is at the heart of her Facebook post and the litigation.

After the 2015 party, Freborg and Johnson ended their sexual relationship and continued to contact one another only in the context of dance lessons; these dance-related communications lasted until sometime in 2017. By 2020, they had not spoken to one another for several years.

On July 14, 2020, Freborg posted the following public message 1 on her Facebook page:

After receiving feedback about her message, Freborg clarified in the post’s comment thread that she was not accusing Johnson of rape (“[t]his type of coercion [rape] has nothing to do with [Johnson]”). She also edited her post 2 days later to exclude allegations of rape: Johnson posted a response on Freborg’s public Facebook thread: Freborg posted the following response on the thread:

Over 300 people “reacted” to Freborg’s posts, 182 readers commented on them, and they were publicly “shared” 16 times. Some of the response to Freborg’s posts was positive. Commenters told her that she was “brave” and a “survivor.” Others seemingly reinforced her posts by explaining their own negative experiences in the Twin Cities dance community. For example, one commenter noted that Freborg was “not the only one of us who has been sexually assaulted in the dance world.” Another commented that she does not “dance in certain spaces within the [Twin Cities] because of feeling diminished, preyed upon, unvalued, etc.” Other commenters, however, came to Johnson’s defense. One person, for example, explained that people should “wash [their] laundry at the COURTS” and only come forward on social media “after the person [accused of sexual assault] is PROVEN guilty.” Another accused Freborg of slander and criticized her unwillingness to engage with Johnson’s response to her posts. In response to the varied comments to her posts, Freborg later explained that she “did this for the safety of other women, and really to show that we as women can disrupt the status quo by calling sh*t out.” On July 27, 2020, just shy of 2 weeks after the original post was published, Freborg deactivated her Facebook account, removing the post and its thread from public view.

Johnson sued Freborg for defamation. He claimed that both Freborg’s original and edited posts accused Johnson of raping Freborg, thereby painting him as a rapist. Johnson argued that his reputation suffered as a result and that he lost business because of the posts.

After discovery, Freborg moved for summary judgment claiming that: (1) her speech was true; (2) her speech was a matter of public concern; and (3) Johnson failed to show that her speech was made with actual malice.

To support her summary judgment motion on the issue of public concern, Freborg

presented the following evidence about the global impact of the #MeToo movement. The #MeToo movement was conceived to allow women to share their experiences of sexual assault and harassment and to seek accountability from their abusers. ^[2] The hashtag collects the posts and enables a community discussion to occur on the subject of sexual abuse. One

study submitted by Freborg stated that the movement “was exceptionally effective in rapidly increasing awareness around sexual misconduct,” and that researchers have opined that “social movements [like #MeToo] can rapidly affect the norms for behavior by changing perceptions of a societal problem.”

Freborg also submitted information about sexual assault specifically in the dance community. She submitted a blog titled “Dance Predators” that provided suggestions on how to combat predatory behavior by dance instructors; a news story by Minnesota Public

Radio about sexual assault in a local Twin Cities dance studio; and seven other social media

posts from dancers, two posted the same day as Freborg’s post in July, that called out the predatory behavior of three prominent international dance instructors in the global dance community.

Johnson also moved for partial summary judgment on the issues of liability and actual malice. Additionally, he moved to amend his complaint to add a claim for punitive

damages. Johnson claimed that Freborg’s posts involved a matter of private, not public, concern because even if the #MeToo movement qualifies as a matter of public concern, Freborg’s specific posts were personal in nature. He asserted that the sources Freborg relied upon about the dance community were insufficient to show that her speech involved a matter of public concern. Johnson also argued that Freborg’s posts suggested that

Johnson raped her even though she openly admitted he had not, so Freborg acted with actual malice because she knowingly posted false information. He asked the district court for a jury trial only on the issue of damages.

The district court granted Freborg’s motion for summary judgment. First, the court found that Freborg’s statements were true. Second, the court rejected Johnson’s claim that the posts were too personal in nature to be a matter of public concern, specifically relying on Freborg’s use of the #MeToo hashtag and the context of the posts. The court also noted that “[t]he record is replete with other content regarding this specific problem [sexual

assault] in this specific community [the Twin Cities dance community].” Finally, the district court found that—even if Freborg’s speech was false—Johnson failed to show actual malice, which is required to recover presumed damages for defamatory statements that involve a matter of public concern.

The court of appeals reversed. Johnson v. Freborg, 978 N.W.2d 911 (Minn. App.

2022). The court held that a genuine issue of material fact existed about the veracity of Freborg’s posts, making summary judgment inappropriate. Id. at 917–18. In a divided opinion, the court further held that Freborg’s speech was a matter of private, not public concern. Id. at 923. The court therefore did not reach the issue of actual malice. Id. at 923 n.25.

One judge dissented, stating that the totality of circumstances showed that Freborg’s

statements relate to a matter of public concern. Id. at 924–29 (Wheelock, J., concurring in part, dissenting in part). Considering the content, form, and context of the speech, the dissent reasoned that Freborg “made the post as part of a now-global conversation about the prevalence of sexual harassment and assault and the need to shine light on once-secreted personal experiences.” Id. at 926.

Freborg petitioned this court for review on one issue: whether her speech involved a matter of public concern, which we granted. She does not challenge the court of appeals’

conclusion that a genuine issue of material fact exists about the veracity of her speech and agrees that a remand to the district court is appropriate on this issue. Consequently, we do not address the veracity issue further here and limit our analysis to the claim that her speech involved a matter of public concern.

ANALYSIS

We review the district court’s grant of summary judgment de novo. Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 874 (Minn. 2019). To decide whether summary judgment is appropriate, we must determine “whether the district court erred in its application of the law to the facts.” Id. (citation omitted) (internal quotation marks omitted). In addressing whether a statement involves a matter of public concern, federal courts have viewed the issue as a question of law, see Connick v. Myers, 461 U.S. 138, 148

n.7 (1983), and we likewise review the question of whether speech involves a matter of public concern de novo. We also review de novo the determination of “[w]hether evidence in the record is sufficient to support a finding of actual malice.” Maethner, 929 N.W.2d at

879 n.7.

I.

To determine whether Freborg’s speech involved a matter of public concern, we start with some general principles involving defamation. “Under the common law, a

plaintiff pursuing a defamation claim ‘must prove that the defendant made: (a) a false and defamatory statement about the plaintiff; (b) in [an] unprivileged publication to a third

party; (c) that harmed the plaintiff’s reputation in the community.’ ” Maethner, 929 N.W.2d at 873 (alteration in original) (quoting Weinberger v. Maplewood Rev., 668 N.W.2d 667, 673 (Minn. 2003)). Certain types of speech, like accusations of “criminal behavior or moral turpitude”—including accusations of sexual assault—are considered

“defamation per se.” Id. at 875 (citing Richie v. Paramount Pictures Corp., 544 N.W.2d

21, 25 (Minn. 1996) (internal quotation marks omitted). If a statement is found to be

defamatory per se, we then presume harm to a plaintiff’s reputation without requiring the plaintiff to prove actual damages. Id. Johnson asserts that he is entitled to presumed damages under this standard.

Like all laws regulating speech, however, “the doctrine of defamation per se cannot offend the constitutional guarantees of the First Amendment.” Id. We have long

recognized that “personal reputation has been cherished as important and highly worthy of protection.” Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 491 (Minn. 1985).

But we cannot “offer recourse for injury to reputation at the cost of chilling speech on matters of public concern, which ‘occupies the highest rung of the hierarchy of First

Amendment values, and is entitled to special protection.’ ” Maethner, 929 N.W.2d at 875

(quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011)).

Given this commitment to “uninhibited, robust, and wide-open” debate on issues of public concern, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), “a private plaintiff may not recover presumed damages for defamatory statements involving a matter of public concern unless the plaintiff can establish actual malice.” Maethner, 929 N.W.2d at 878–79. To meet this constitutional actual-malice standard, “a statement must be ‘made

with the knowledge that it was false or with reckless disregard of whether it was false or not.’ ” Id. at 873 (quoting Weinberger, 668 N.W.2d at 673) (internal quotation marks omitted). Freborg contends that this heightened standard applies to her speech because her posts involved a matter of public concern.

In Maethner, a defamation case, we held that the determination of whether speech

is of public or private concern in a particular case is “based on a totality of the circumstances.” Id. at 881. In particular, “courts should consider the content, form, and context of the speech.” Id. “No single factor is ‘dispositive;’ rather, courts should ‘evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.’ ” Id. (quoting Snyder, 562 U.S. at 454). In addition, in weighing the circumstances of the speech, we must make “an independent examination of the whole record.” Snyder, 562 U.S. at 454 (citation omitted) (internal quotation marks omitted).

Maethner involved statements by Maethner’s ex-wife—posted on her private

Facebook page under the name Jacki Hansen Maethner—identifying herself as a survivor of domestic violence, as well as an article published in a newsletter of a domestic

violence organization describing the “Survivor Award” that she had received. Maethner, 929 N.W.2d at 871. Maethner’s ex-wife and the organization also posted pictures on

Facebook of her holding the award. Id.

Even though he was not named in the posts, Maethner claimed that, given the use of his distinct last name by his ex-wife, the speech essentially accused him of domestic violence. Id. at 872. We recognized that “as a general proposition,” speech relating to domestic violence is a matter of public concern. Id. at 881. But, in addition to the subject of the speech, we explained that “the form and the context of the speech must also be considered, as well as any other relevant factors.” Id. Because neither the district court nor the court of appeals had specifically addressed the issue of public concern, we

remanded the case back to the district court “to decide in the first instance whether the challenged statements involve a matter of public or private concern.” Id. at 881–82.

Similar to Maethner, we recognize that “as a general proposition,” speech relating to sexual assault is a matter of public concern. See also Richie, 544 N.W.2d at 26

(concluding that “discussion of sexual abuse of children by their parents and legal recourse available to the abused child” were “certainly of public concern”). But Maethner clearly instructs us that no per se rule applies to suggest that statements about sexual abuse (or any other crime) are always matters of public concern. Instead, we must, on a case-by-case basis, apply the totality of the circumstances test and balance the content, form, and context of the speech, as well as any other pertinent factors, to determine whether speech involves a purely private matter or is a statement about a matter of public concern intended to influence public discussion about desired political or social change. Balancing the totality of the circumstances of the Facebook posts here, we conclude that, although the speech involved personal aspects, the predominant theme of Freborg’s speech involved a matter of public concern, namely sexual assault in the context of the #MeToo movement.

A.

We begin with the content—the “what”—of Freborg’s speech, and we review the entire thread of the Facebook postings when determining whether “a forbidden intrusion on the field of free expression” has occurred. See Sullivan, 376 U.S. 284–86; see also

Snyder, 562 U.S. at 453–54. The subject of the Facebook posts involved accusations of sexual assault by three dance instructors in the local Twin Cities dance community. In her first post, Freborg stated that she had been “gaslighted/coerced into having sex, sexual[ly] assaulted, and/or raped” by three specific dance instructors, including Johnson. She amended her post 2 days later to delete the word “raped,” stating instead that she had

“experienced varying degrees of sexual assault” by the three dance instructors, again including Johnson. ^[3] The last line of the original and amended posts stated, “If you have a problem with me naming you in a public format, then perhaps you shouldn’t do it.”

In evaluating whether these personal portions of Freborg’s posts—the identification, tagging, and admonishing of the three instructors—make the speech a private affair, we must weigh these statements against the remaining text. First, the original and amended post prominently begin with this statement: “Feeling fierce with all these women dancers coming out.” Then, before listing the varying degrees of sexual assault that she says she experienced, Freborg states, “So here goes . . . .” This introduction suggests that she was encouraged by other women speaking out about sexual assault in the dance community to reveal her own experience and to add her voice to the community conversation.

Second, Freborg ends her posts with the well-known #MeToo hashtag and a

#DancePredators hashtag, connecting her experience directly to the dance community and the broader #MeToo movement. This social movement is characterized by survivors of sexual abuse creating social media posts disclosing their experiences with sexual violence

and identifying their abusers. Benedetta Faedi Duramy, #MeToo and the Pursuit of Women’s International Human Rights, 54 U.S.F. L. Rev. 215, 217 (2020). The movement

seeks to connect survivors, encourage victims to tell their story, and increase awareness of the scope of the problem of sexual assault. JoAnne Sweeney, Social Media Vigilantism, 88 Brook. L. Rev. 1175, 1219–21 (2023). “ ‘For many #MeToo claimants, what they want is to tell their story.’ Indeed, the phrase ‘me too’ is inherently about connection; it tells others that they are not alone and that they are understood. Such affirmations can be healing in their own right as a form of social support.” Id. at 1219 (citation omitted).

Third, her subsequent explanation of her motives in the post thread—that she made the posts “for the safety of other women” and to show how “women can disrupt the status quo”—suggests that her posts were an attempt to raise awareness for other women, including women in the dance community, and inspire social change. These three factors, considered together, in addition to the broader context and response to the posts, show that

Freborg frames her Facebook posts “as her contribution to the larger discussions occurring at the time of the #MeToo movement.” Coleman v. Grand, 523 F. Supp. 3d 244, 259

(E.D.N.Y. 2021).

Johnson claims that the explicit use of “you” three times in the last line of the initial and amended post to condemn the instructors’ alleged abusive behavior, and Freborg’s reply to his comment on her posts, show that the content of Freborg’s speech was not to add her voice to the #MeToo movement but to get “vengeance” on him. He asserts that

Freborg’s posts—identifying him and two other instructors in the local dance community—were too limited in scope to implicate the broader #MeToo movement. He

further contends that his preexisting relationship with Freborg shows that she used the movement to mask a purely private attack on his character. He cites the Supreme Court’s decision in Snyder to show that the content of Freborg’s posts was personal in nature.

A preexisting relationship—or the lack thereof—is certainly a consideration in weighing whether the speech involves a matter of public concern. See Snyder, 562 U.S. at

455 (stating that there was no prior relationship between the Westboro Baptist Church and the soldier “that might suggest Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter”). Here, however, two considerations cause us not to heavily weigh Johnson’s assertion that Freborg’s speech was a matter of private concern because she was a “jilted former lover, who waited five years before publicly attacking Johnson.” First, the passage of that many years between the end of the parties’ relationship, which Johnson described as a “casual sexual relationship,” and the post suggests that the speech was not a personal attack in response to the relationship ending.

Second, the inclusion of two other dance instructors implies that the post had less to do with Freborg’s previous relationship with Johnson, and more about speaking up about alleged sexual abuse in the Twin Cities dance community generally.

Johnson cites the Supreme Court’s decision in Snyder to show that the content of Freborg’s post was personal in nature. In Snyder, the issue was whether the speech of the leader of the Westboro Baptist Church could receive First Amendment protection when he organized a protest with offensive placards near the funeral of a soldier killed in the Iraq

war. The signs included general messages such as “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “God Hates Fags,” and “Priests Rape Boys.” Snyder, 562 U.S. at 448, 454. The Court held that the signs addressed “matters of public import” including “homosexuality in the military, and scandals involving the Catholic clergy.” Id.

The Supreme Court acknowledged, however, that the content of a few signs like “You’re

Going to Hell” and “God Hates You” could be viewed as containing personal messages to the dead soldier and his family. Id. The Court concluded, however, that the few personal messages did “not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.” Id.

After weighing the personal aspects of the posts here with those elements addressing broader public issues, we reach a similar conclusion about content: even though Freborg named, tagged, and admonished three specific instructors in her post, these personal

messages do not outweigh the dominant theme of her speech—to discuss sexual assault in the dance community, a matter of public import.

The dissent takes a narrow view of a “matter of public concern,” essentially limiting those matters “to self-government,” “government officials,” or “government performance.” But that narrow perspective is rooted primarily in decades-old Supreme

Court case law. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 (1974); Time, Inc. v. Firestone, 424 U.S. 448 (1975).

The dissent’s narrow perspective disregards the development of the law over the past five decades and the Supreme Court’s broader view of matters of public concern. According to a more recent case, “Speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’

or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’ ” Snyder, 562 U.S. at 453 (citations omitted), quoted in Maethner, 929 N.W.2d at 880. 4 As we noted in Maethner, speech involving a matter of public concern is within “the core of First Amendment protection . . . to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Maethner, 929 N.W.2d at 879 (citation omitted) (internal quotation marks omitted) (emphasis added). 5

Consistent with Snyder, we conclude that Freborg’s Facebook post fits this broader conception of public concern.

Finally, although not binding upon us when weighing the content of Freborg’s

speech, we find persuasive a recent defamation case with similar facts. Fredin v. Middlecamp, 500 F. Supp. 3d 752 (D. Minn. 2020), aff'd, 855 F. App’x 314 (8th Cir. 2021)

(per curiam) (unpublished). In Fredin the federal district court, applying Minnesota law, 283 A.3d 1140, 1149–52 (Del. 2022) (applying the Snyder public concern test to hold that a claimed defamatory email was “speech that addressed a matter of public concern: the ongoing national debate about the use of American Indian iconography in sports logos,” noting that “the First Amendment’s Free Speech Clause can serve as a defense in state tort suits” generally (emphasis added)); Monge v. Univ. of Pa., ___ F. Supp. 3d ___, No. CV22-2942, 2023 WL 3692935, at *2 (E.D. Pa. May 26, 2023) (applying the Snyder public concern test to a defamation claim). Overall, it is the nature of the speech itself that guides our public concern inquiry, not the nature of the claim. 5 Even if we were to view matters of public concern as relating primarily to “self-government” or “government performance,” there are strong indications that the #MeToo movement has catalyzed government action. For example, since 2017, several federal laws have been amended or passed in direct response to the movement. See, e.g., Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 13307, 26 U.S.C. § 162(q)(1) (removing tax deductions for “any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement”); Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Pub. L. No. 117-90, § 2(a), 136 Stat. 27 (2022) (amended the Federal Arbitration Act, 9 U.S.C. § 402, to make any “predispute arbitration agreement or predispute joint-action waiver” for sexual harassment claims unenforceable); Speak Out Act, 42 U.S.C. §§ 19401–04 (recognizing that because “[s]exual harassment and assault remain pervasive in the workplace and throughout civic society,” 42 U.S.C § 19401(1), “no nondisclosure clause or nondisparagement clause agreed to before the dispute arises shall be judicially enforceable” 42 U.S.C § 19403(a)).

found that a post on a public Twitter account that included pictures of a person and explicitly accused him of repeated sexual harassment and rape qualified as a matter of public concern. Id. at 777. In weighing the totality of the circumstances, the district court found that “[t]he content of the speech here addressed harassment and rape, and more specifically, the subject of women coming forward to share their experiences in this regard.” Id. The court therefore concluded that the speech was entitled to the actual malice standard of protection. Id. We believe the same conclusion about content is justified here.

In sum, although Freborg’s speech identifies and addresses Johnson directly and has

some aspects of airing a personal dispute, the dominant theme of her posts speaks to the broader issue of sexual abuse in the context of the #MeToo movement, a matter of public

concern. After seeing other women share their experiences, she offered her own story, hoping to raise awareness about the prevalence of sexual assault, to keep other women safe, and to show that women “can disrupt the status quo” to bring about social change.

B.

Turning next to the form—the “where”—of Freborg’s speech, this factor further supports a conclusion that Freborg’s posts were on a matter of public concern. ^[6] Freborg disseminated her speech on her Facebook account, making her post publicly available to anyone. The use of the internationally recognized hashtag for the #MeToo movement allowed her message to be disseminated publicly and broadly on Facebook. Here, the #MeToo hashtag does what a public account, blog, or journal dedicated to these issues would by spreading the message to an unlimited audience.

The Supreme Court has acknowledged the power of Facebook, declaring that today

“the ‘vast democratic forums of the Internet’ . . . and social media in particular” provide

the “most important places . . . for the exchange of views.” Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (quoting Reno v. Am. C.L. Union, 521 U.S. 844, 868 (1997)). The Court further noted that social media acts as the “modern public square” and that sites like

Facebook “allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’ ” Id. at 107. It follows that Freborg specifically chose this modern public square as a way for her message “to reach as broad a public audience as possible.” Snyder, 562 U.S. at 454; see also Fredin, 500 F. Supp. 3d at

777. Accordingly, this factor weighs in favor of concluding that Freborg’s speech involved a matter of public concern.

To be clear, attaching a hashtag—even the well-recognized #MeToo hashtag—to the end of a social media post is not in and of itself determinative of whether the speech involves a matter of public concern. The use of a hashtag is only one relevant consideration

in balancing the totality of the circumstances. ^[7] Importantly, when courts are reviewing the use of a specific hashtag, they should consider all other relevant factors, including content and context. ^[8] A hashtag, even the globally recognized hashtag at issue here, can never provide blanket First Amendment protections. The critical question will remain: based upon the totality of the circumstances in light of the record as a whole, does the speech involve a matter of public or private concern?

C.

Finally, the full context—the “how”—of Freborg’s posts also weighs in favor of holding that her speech involved a matter of public concern. Johnson agrees that we can

and should look at the entire thread associated with Freborg’s posts. He asserts, however, that it engendered “no discussion about how to engage in democratic self-governance,” which he maintains would help support Freborg’s theory that the context of her post was intended to raise awareness and bring accountability.

The responses to the posts refute that claim on its face. The posts generated much

discussion and mixed reactions: some gave Freborg their full support and validated the claims in her posts by citing their own negative experiences, while others were critical of the posts and how Freborg chose to speak about what happened to her. These reactions facilitated conversations about the appropriate measures that victims should take when

speaking out and how to properly support sexual assault victims generally. The robust and unfettered discussion in the thread following the initial post supports the conclusion that the form and context of this speech makes this speech a matter of public concern, rather than a purely private matter.

As discussed above, the context of the #MeToo movement is a key factor in our analysis. The #MeToo movement has had a direct impact on society and how communities address sexual assault across industries. Data shows, for example, the number of sexual harassment complaints the U.S. Equal Employment Opportunity Commission received

jumped by 13.6 percent after #MeToo went viral. Sweeney, Social Media Vigilantism, 88 Brook. L. Rev. at 1222. Further, reports now show that more people believe that “those who commit harassment or assault are now more likely to be held responsible and victims are more likely to be believed.” Anna Brown, More Than Twice as Many Americans

Support Than Oppose the #MeToo Movement, Pew Rsch. Ctr. ^[12] (Sept. 29, 2022). And Congress has taken steps to lessen the shroud of secrecy that surrounds settlements relating to sexual harassment or sexual abuse. See Speak Out Act, 42 U.S.C. §§ 19401–04; Tax

Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 13307, 26 U.S.C. § 162(q)(1).

Many other jurisdictions also have acknowledged the importance of #MeToo speech

in the context of the First Amendment. Fredin, 500 F. Supp. 3d 752; Coleman v. Grand, 523 F. Supp. 3d 244, 259 (E.D.N.Y. 2021) (finding that the open letter that the defendant circulated accusing the plaintiff of abuse and sexual harassment involved a matter of public concern); Dossett v. Ho-Chunk, Inc., 472 F. Supp. 3d 900, 908 (D. Or. 2020) (finding that the publication of workplace-related #MeToo allegations involved a matter of public concern); Fells v. Serv. Emps. Int’l Union, 281 A.3d 572, 584 (D.C. App. 2022) (holding that there was a prima facie showing that the publication of workplace-related #MeToo allegations involved a matter of public concern); Goldman v. Reddington, No. 18-CV-

3662, 2021 WL 4099462, at *4 (E.D.N.Y. Sept. ^[9], 2021) (finding that a defendant’s LinkedIn and Facebook posts accusing plaintiff of sexual assault concerned “more than a purely private matter” (internal quotation marks omitted)).

In addition, Freborg provided adequate evidence of the #MeToo conversations happening about predatory behavior in the dance community, including a series of similar posts made on and around the time of her own July 14, 2020 post. Her statements fit well within the context of a legitimate social movement. ^[9]

Johnson cites other contextual factors to show that Freborg’s posts are not a matter of public import. As noted above, he contends that his previous relationship with Freborg demonstrates that the nature of her speech was private. But the mere existence of a previous relationship is not a dispositive factor in assessing the nature of the speech, and it does not negate the importance of speaking out against sexual assault in society. Many victims who come forward to speak about their experiences of sexual assault often have a preexisting relationship with their abusers. See, e.g., Fredin, 500 F. Supp. 3d at 763–64

(granting summary judgment to one of the women named in the plaintiff’s defamation lawsuit who previously had been romantically involved with the plaintiff); see also Lauren

R. Taylor & Nicole Gaskin-Laniyan, Sexual Assault in Abusive Relationships, 256 Nat’l

Inst. of Just. ^[12], 12–14 (Jan. 2007). In Minnesota, for example, a grim statistic shows that one in every three women will experience violence, rape, or stalking by an intimate partner in their lifetime. Domestic Violence in Minnesota, Nat’l Coal. Against Domestic Violence

(2020). If we were to hold that the mere existence of a previous relationship between

Johnson and Freborg makes Freborg’s speech private in nature, the impact would be an

unnecessary chilling effect on the exercise of free speech by victims of sexual assault and their ability to effect social change.

Johnson next contends that, unlike Westboro Baptist Church and the owner of the account used to tweet about Fredin, Freborg had no prior history speaking out about the #MeToo movement or sexual abuse and harassment generally. We do not give this contention much, if any, weight. To hold that victims of sexual assault can only speak out about their experiences if they themselves are already advocates would certainly chill other

alleged victims from coming forward. See Fredin, 500 F. Supp. 3d at 777 (noting the importance of and protecting speech that addressed “harassment and rape, and more specifically, the subject of women coming forward to share their experiences in this regard” (emphasis added)). Johnson’s argument also fails to consider that every alleged victim, be they an advocate or not, must make a first statement. If we were to conclude

that Freborg’s speech was private in nature simply because she had no history of advocacy, that would discourage any person not already engaged in advocacy work from telling their story about what happened to them and adding their voice to the desire for social change because they could be liable for per se defamation.

Moreover, even with the heightened protection of the actual-malice constitutional standard, the speech of victims of sexual assault may well 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. See Shaina Weisbrot, The Impact of the #MeToo Movement on Defamation Claims Against Survivors, 23 CUNY L. Rev. 332, 352–53 (2020)

(explaining that while #MeToo has empowered more people to speak out, this speech has led to more defamation lawsuits, especially if the accused has significant power or resources).

Finally, Johnson cites Maethner and a lack of media coverage of Freborg’s posts to show that the posts concerned a private matter. Maethner does not require, however, that

Freborg’s speech be later disseminated by the media for it to be considered a statement of public import. There, we held that the dispositive inquiry regarding the availability of presumed damages “is not on the status of the defendant as a media or nonmedia defendant” but “whether the matter at issue is one of public concern.” Maethner, 929 N.W.2d at 877.

We later cited Eighth Circuit cases that noted that “media coverage is a good indication of the public’s interest” and stressed “the importance of journalistic freedom in investigating and reporting on matters of public interest.” Id. at 881 (citations omitted) (internal quotation marks omitted). We then noted that dissemination of statements in the news media is “one of many relevant factors in determining whether the statements involve a matter of public concern.” Id. Our discussion in Maethner therefore suggests that this non-dispositive factor serves to protect journalists in traditional media by adding another

consideration to identify speech on a matter of public concern. Given this background and that Freborg’s posts were made on Facebook, a website that Packingham describes as a

“powerful mechanism” for the robust exchange of views, 582 U.S. at 107, the fact that no news media reported Freborg’s posts is not a decisive factor in assessing the public import of the speech.

After considering the context of Freborg’s posts, we conclude that this factor shows that her speech involved a matter of public concern.

D.

In sum, weighing the content, form, and context of Freborg’s statements in light of the whole record, we conclude that the overall thrust and dominant theme of the posts involved a matter of public concern. We therefore hold that Freborg’s speech is subject to heightened protection under the First Amendment. Accordingly, to prevail on his defamation claim for presumed damages, Johnson must show that Freborg’s posts not only were false, but that they were made with actual malice.

II.

Turning to the issue of actual malice, we note that the court of appeals did not rule on this issue because it held that Freborg’s speech involved a matter of private concern.

Freborg, 978 N.W.2d at 923 n.25. Nor did Freborg raise the issue of actual malice in her petition for review. Consequently, the parties agree that, if we conclude that the challenged speech here involved a matter of public concern, we should remand the case to the district court for a trial on the veracity of Freborg’s speech and actual malice. We agree for the following reasons.

The district court concluded as a matter of law that the record contained insufficient evidence of actual malice. But the court of appeals held that a genuine issue of material fact existed as to the veracity of Freborg’s speech, making summary judgment improper.

Id. at 918. Given the fact issue on falsity—and because Freborg was both the speaker and the publisher of the alleged defamatory statements—if a jury finds that Freborg’s speech was false, sufficient evidence may allow the jury to further find that Freborg made the statements with actual malice. ^[10] We therefore reverse the district court’s ruling on actual malice and remand this case for further proceedings.

CONCLUSION

For the foregoing reasons, we reverse the decision of the court of appeals and remand the case to the district court for further proceedings.

Reversed and remanded.

DISSENT

GILDEA, Chief Justice (dissenting).

In this defamation case, we are asked to decide whether heightened First

Amendment protections apply to Kaija Freborg’s accusation that Byron Johnson, her

former dance instructor and romantic partner, “gaslighted/coerced [her] into having sex, sexual[ly] assaulted, and/or raped” her. The question is not whether Freborg’s speech is

protected at all; it is. Existing precedent already dictates those protections. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974) (noting that states may “not impose liability without fault”); Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 492 (Minn.

1985) (adopting negligence standard in response to Gertz). The narrow question here is whether Freborg’s speech is so central to the purpose of the First Amendment that it is entitled to the heightened protections reflected in the constitutional actual malice standard.

The majority concludes that the actual malice standard applies to Freborg’s speech because

Freborg wrote about sexual assault and included #MeToo in her post. I disagree. In my view, Freborg’s personal Facebook post, on her personal Facebook page, concerning

private conduct between two people with a private relationship, is not speech that the constitutional actual malice standard protects. Accordingly, I dissent.

A.

Historically, defamatory speech, such as allegations of criminal behavior akin to those made here, fell outside the scope of the First Amendment. Moreno v. Crookston

Times Printing Co., 610 N.W.2d 321, 328 (Minn. 2000) (noting that “defamatory comments were, by definition, not protected speech under the First Amendment.”). But in D-1

New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court said, “that the reputational interests protected by state libel law must yield when in conflict with the central meaning of the First Amendment.” Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 481 (Minn. 1985) (citing New York Times, 376 U.S. at 273–75). The New York Times Court adopted the actual malice standard to strike a balance between reputational interests and First Amendment protections. ^[1]

The majority concludes that Minnesotans’ reputational interests must yield here

because Freborg’s speech is a matter of public concern and therefore worthy of the heightened First Amendment protection of the constitutional actual malice standard. I disagree. Providing redress for Minnesotans who have been accused by name of sexual

assault does not conflict with the “central meaning of the First Amendment.” Jadwin, 367 N.W.2d at 481. Accordingly, under Supreme Court precedent, the constitutional actual

malice standard does not apply. Examination of the Court’s precedent and application of the required totality of the circumstances test confirms this.

1.

Our analysis of Supreme Court precedent must begin with New York Times, the case in which the Court created the constitutional actual malice standard. There, the Supreme

Court recognized that speech by the press that criticized public officials for their official conduct was so valuable that, even if it was defamatory, the First Amendment required that

1 Under this constitutional standard, a plaintiff cannot recover damages for injury to reputation unless the plaintiff proves that the defendant made the statement at issue knowing it was false or with reckless disregard for the statement’s falsity. New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).

D-2 the speech be given some protections so that the speech was not unnecessarily chilled.

376 U.S. at 278–79. The Court created the “actual malice” standard to provide that protection—public officials may not recover damages for a defamatory falsehood relating to their official conduct unless they prove that the statement was made with “actual malice.” Id. at 279–80. The Court grounded the result in the fact that the speech at issue—

citizen commentary on the performance of their government—went to the very heart or “central meaning of the First Amendment.” Id. at 273; see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 (1974) (describing New York Times as “defin[ing] a constitutional

privilege intended to free criticism of public officials from the restraints imposed by the common law of defamation”).

The majority holds that this actual malice standard from New York Times applies to

Freborg’s allegation that Johnson sexually assaulted her. But the animating principle in New York Times was the connection of the speech to principles necessary to a successful democracy, such as the citizenry’s ability to comment freely on the performance of their government. See New York Times, 376 U.S. at 273, 279–80. Freborg’s speech has nothing whatsoever to do with the government or government officials, and nothing in New York

Times supports the majority’s extension of the actual malice standard to the speech at issue here.

The Supreme Court’s jurisprudence on the actual malice standard since New York

Times likewise does not support the majority’s extension of the standard to Freborg’s

speech. The Court discussed the applicability of the actual malice standard in Gertz v. Robert Welch, 418 U.S. 323 (1974). In Gertz, as in New York Times, the speech was

D-3

grounded in commentary about government performance. See Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749, 756 (1985) (noting that the speech at issue in Gertz “involved expression on a matter of undoubted public concern” because the article questioned whether a prosecution of a police officer was part of a Communist campaign to discredit local law enforcement agencies).

The Gertz Court recognized that states have a “legitimate interest” in providing compensation to people whose reputations have been harmed by defamation, and that that interest needed to be balanced against competing First Amendment considerations to ensure that speech the First Amendment values is not chilled. 418 U.S. at 348–50. When

the plaintiff is a private individual, the Court concluded, the government’s interest in compensating for reputational harm was greater than in the case of public official/public

figure plaintiffs, such as the plaintiff in New York Times. Gertz, 418 U.S. at 343–44. The Court held that states have “substantial latitude” in providing remedies to private plaintiffs

for reputational injuries and that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood.” Id. at 345, 347. But the Court clarified that “the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Id. at

349.

The Supreme Court limited Gertz in Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). Unlike the facts of New York Times and Gertz, Dun & Bradstreet involved only private, nonmedia parties: the plaintiff was a construction contractor and D-4 defendant was a credit reporting agency. Dun & Bradstreet, 472 U.S. at 751. The plaintiff

sued the defendant for erroneously reporting to third parties that the plaintiff had filed for bankruptcy. Id. at 751–52. The plurality opinion reasoned that Gertz applied only to speech on matters of public concern and that Dun & Bradstreet involved a matter of “purely

private concern.” See id. at 763 (“We conclude that permitting recovery of presumed and punitive damages in defamation cases absent a showing of ‘actual malice’ does not violate the First Amendment when the defamatory statements do not involve matters of public concern.”). Thus, the Court allowed the plaintiff to recover presumed damages without proving actual malice.

Read together, New York Times, Gertz, and Dun & Bradstreet hold that the actual

malice standard applies to protect speech about a public figure, government official or the performance of government more generally, but the standard does not apply to speech

about a private plaintiff on a matter of private concern. See Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 877–78 (Minn. 2019). 2 For the former, a plaintiff must show actual malice to recover; for the latter, state law governs. And for speech to be a “matter of public concern” sufficient to warrant application of the constitutional actual malice standard, that speech must relate to self-government. See Dun & Bradstreet, 472 U.S. at 759 (noting that

“the role of the Constitution in regulating state libel law is far more limited when the concerns that activated New York Times and Gertz are absent”); New York Times, 376 U.S.

2 The parties agree that there is no media defendant here as in New York Times, and they also agree that the parties involved are not public or government figures. Thus, the only way that the actual malice standard would apply is if Freborg’s Facebook post is speech on a matter of public concern.

D-5 at 269 (“The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.”); see also Elena Kagan, A Libel Story: Sullivan

Then and Now, 18 L. & Soc. Inquiry 197, 212 (1993) (noting that one approach to understanding the New York Times v. Sullivan line of cases is to “view[] Sullivan as primarily a case about the speech necessary for democratic governance”).

2.

The majority argues that I have interpreted the Supreme Court’s precedent too narrowly. For support, the majority essentially equates matters of interest to the public to those of public concern. Supra at 17. But the Supreme Court has already concluded that when the issue is the application of the constitutional actual malice standard, there is a dispositive difference between matters of public interest and matters of public concern.

Time, Inc. v. Firestone, 424 U.S. 448, 454 (1975). In Time, Inc., the Court made clear that

not all matters of interest to the public are matters of public concern for purposes of applying the First Amendment. See Time, Inc., 424 U.S. at 454, 457 (rejecting petitioner’s

attempt to “equate ‘public controversy’ with all controversies of interest to the public” and concluding the speech at issue was private speech because it “add[s] almost nothing toward

advancing the uninhibited debate on public issues thought to provide principal support for the decision in New York Times.”). And the Court confirmed that Gertz had “repudiated” the view that the “New York Times privilege should be extended to falsehoods defamatory of private persons whenever the statements concern matters of general or public interest.”

D-6

Id. at 454; see also Gertz, 418 U.S. at 346 (rejecting “[t]he ‘public or general interest’ test for determining the applicability of the New York Times standard” because that test

“inadequately serves both of the competing values at stake”); cf. Waldbaum v. Fairchild

Pub., Inc., 627 F.2d 1287, 1296 (D.C. Cir. 1980) (“A public controversy is not simply a matter of interest to the public.”). Time, Inc. involved a news magazine article that included reports that the defendant had extramarital affairs. The Court declined to apply the New

York Times “actual malice” standard, opting instead for the standard requiring some proof of fault from Gertz. Time, Inc., 424 U.S. at 457; see also id. at 469–70 (Powell, J., concurring). In short, the Court in Time, Inc. continued the long line of cases including

New York Times, Gertz, and Dun & Bradstreet, that hold that speech about governance and self-government is speech on a matter of public concern for purposes of the constitutional actual malice standard.

I acknowledge, as we have recognized in other cases, that as a general proposition

speech discussing crime can be speech on a matter of public concern. See Maethner, 929 N.W.2d at 881 (noting that as a “general proposition” “speech relating to domestic

violence involves a matter of public concern”); Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 25–26 (Minn. 1996) (noting that child sexual abuse is matter of public concern). 3 But Freborg was not discussing crime in general, the prevalence of crime in our

3 Importantly, neither Maethner nor Richie adopts a per se rule. In Maethner, we did not disagree with the “general proposition” that “speech relating to domestic violence involves a matter of public concern,” but we declined to address whether the speech in that case (all of which discussed domestic violence) was speech on a matter of public concern. 929 N.W.2d at 881. Instead we noted that the district court did not reach a conclusion on the question and remanded the case to the district court for further consideration. Id. Richie

D-7

society, or the government’s response to crime. Rather, she made a specific accusation of criminal conduct on Facebook—that a person she identified by name sexually assaulted her. Although the public may be interested in Freborg’s allegations, I would hold that such

speech is not a matter of public concern for First Amendment purposes. Bierman v. Weier, 826 N.W.2d 436, 462 (Iowa 2013) (holding that book author’s allegation that identified person committed sexual assault was not a matter of public concern for First Amendment purposes); W.J.A. v. D.A., 43 A.3d 1148, 1157–58 (N.J. 2012) (holding that defendant’s speech on website he created where he alleged that his uncle sexually abused him was not a matter of public concern).

The majority disagrees but it makes no real attempt to connect Freborg’s Facebook post to commentary that goes to an issue important to self-government or to the “central

meaning of the First Amendment.” See New York Times, 376 U.S. at 273; see also Jadwin, 367 N.W.2d at 481. Instead, the majority focuses its analysis on how the broader MeToo movement related to social change. I acknowledge the important contributions the MeToo movement has made to our society. But 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.” We are tasked with evaluating whether Freborg’s single Facebook post was

speech on a matter of public concern, not the entire MeToo movement. Moreover, the majority cannot connect Freborg’s post to any particular change in statute, nor do the involved media defendants, which is a material difference to application of the constitutional actual malice standard. Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 23 (Minn. 1996). In short, we did not hold in either case that speech about sexual abuse and harassment is always entitled to First Amendment protection. See supra at 17.

D-8

changes to federal law cited by the majority—changes that concern settlement, arbitration, and nondisclosure—even apply to this case. The focus of those changes is apparently on workplace sexual assault and harassment, and has nothing to do with sexual violence committed at a private party between people with a personal relationship who met through a hobby. ^[4]

The majority also supports its focus on the importance of the MeToo movement generally with statistics that show the prevalence of sexual violence and domestic abuse against women. Supra at 22–24. This reliance on statistics and the MeToo movement generally reveals a values-based approach to applying the First Amendment that is not consistent with the First Amendment’s prohibition on “viewpoint discrimination.” See

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 383–84, 391 (1992) (noting that unprotected

categories of speech “can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)—not that they are

categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content”).

I see no reason to apply the First Amendment differently in the MeToo context.

4 For similar reasons, the majority’s reliance on statistics about the increase in Equal Employment Opportunity Commission complaints and the fact that “people who commit sexual harassment or assault in the workplace are now more likely to be held responsible for their actions” are misplaced. See supra at 22; Anna Brown, More Than Twice as Many Americans Support Than Oppose the #MeToo Movement, Pew Rsch. Ctr. ^[4] (Sept. 29, 2022). Freborg’s speech was not about workplace sexual violence. D-9 3. Snyder, a case about intentional infliction of emotional distress—not defamation— does not compel a contrary conclusion. Anthony List v. Dierhaus, 779 F.3d 628, 632 (6th Cir. 2015) (observing that Snyder was not a defamation case and suggesting that Snyder was of limited application to defamation cases). 5 In Snyder, the U.S. Supreme Court held that a claim for intentional infliction of emotional distress will not lie in the face of a First Amendment challenge when the allegedly distress-causing conduct is speech about a matter of public concern. Speech intended to inflict emotional distress does not fall into the category of speech that was 5 In Maethner, we said that the test discussed in Snyder, which looks at the form, content, and context for the alleged tortious activity, should be considered but that no one factor was dispositive and that our test would require an examination of the totality of the circumstances to decide whether the actual malice standard applied. 929 N.W.2d 881. The majority’s focus on the result in Snyder to compel a result in this case is not consistent with that direction. The majority also cites three cases to support its reliance on Snyder to compel the result here. Supra at 17–18 (citing Dongguk Univ. v. Yale Univ. 734 F.3d 113 (2d Cir. 2013), Cousins v. Goodier, 283 A.3d 1140 (Del. 2022), and Monge v. Univ. of Pa., ___ F. Supp. 3d ___, No. CV22-2942, 2023 WL 3692935 (E.D. Pa. May 26, 2023)). These cases are inapposite. Dongguk is of no help because the defendant in that case “concede[d] that the defamatory statements addressed public figures and matters of public concern.” 734 F.3d at 122. And the court’s use of Snyder was confined to the negligence claim stated in the complaint. In other words, unlike the majority here, the Second Circuit in Dongguk did not use Snyder to resolve the plaintiff’s defamation claim. Id. at 127. Cousins is likewise unhelpful to the majority because Cousins, like Snyder, is not about the actual malice standard in a defamation case. The defamation claim in that case was dismissed because the plaintiff could not prove that the alleged defamatory statement was false. 283 A.3d at 1160. And Monge involves a media defendant and criticism of a university professor’s performance. 2023 WL 3692935, at *1. The court did not use Snyder to compel a conclusion on the application of the constitutional actual malice standard (which is what the majority does here). Id. at *3. Rather, the court relied on Snyder’s public- concern analysis for the proposition that the plaintiff had to prove falsity, something that is not at issue here. Id. D-10 historically unprotected by the First Amendment, whereas defamatory speech does. See Snyder, 562 U.S. at 451 n.3. This makes the State’s interest in preserving a cause of action weigh more heavily here than in Snyder, and the First Amendment interest in protecting speech weigh less. Maethner, 929 N.W.2d at 870–71 (noting that the purpose of the content, form, and context inquiry is “to strike a delicate balance between the State’s interest in providing redress for citizens claiming reputational injury and the free speech protections the First Amendment provides”). Another important distinction between defamation and intentional infliction of emotional distress also influenced the Court’s analysis in Snyder. An element of intentional infliction of emotional distress is the outrageousness of the conduct. But outrageousness can have important value to speech, and permitting liability based on the “outrageousness” of speech permits juries to discriminate on speech based on its content or the viewpoint conveyed. See Snyder, 562 U.S. at 458 (“ ‘Outrageousness,’ however, is a highly malleable standard with an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.”) (citation omitted) (internal quotation marks omitted)). The Court found the risk of chilling speech based on a malleable standard of outrageousness “unacceptable” because “ ‘in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate “breathing space” to the freedoms protected by the First Amendment.’ ” Id. (citing Boos v. Barry, 485 U.S. 312, 322 (1988)). In other words, it was important to the Court’s analysis that the D-11 outrageousness element of the tort of intentional infliction of emotional distress risked a jury verdict on the basis of jurors’ opinions and subjective judgments. That risk is much lower in a defamation case. In a defamation case, a jury will consider the content of the speech only to evaluate its truth or falsity. Unlike the intentional-infliction-of-emotional-distress context, the jury in a defamation case cannot impose liability based on their own subjective judgments about the outrageousness of the speech. ^[6] Finally, regarding the relevance of Snyder to the result here, the Court said in Snyder that it was writing a “narrow” holding, one “limited by the particular facts” of Snyder. 562 U.S. at 460. The case did not even discuss the constitutional actual malice standard, 6 The majority disagrees that the cause of action affects our application of Snyder, arguing that the “form, content, and context” test should apply in exactly the same way in an intentional infliction of emotional distress case as in a defamation case. See supra at 17 n.4. The reason for the “form, content, and context” inquiry is “to ensure that courts themselves do not become inadvertent censors.” See Snyder, 562 U.S. at 452. And the risk of becoming inadvertent censors turns on the cause of action. See id. at 458 (balancing the First Amendment against the state’s interest in preserving a cause of action for “outrageous” speech). The touchstone of the test in a defamation case is balancing the First Amendment protections against the state’s interest in preserving a cause of action for damage to reputation, whereas the touchstone in an intentional infliction of emotional distress case is balancing the First Amendment with the state’s interest in maintaining a cause of action for infliction of emotional distress. See id. at 462–63 (Breyer, J., concurring) (“To uphold the application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm.”). The cause of action necessarily affects the balance. D-12 and the majority is unable to explain how a case that does not even mention the standard compels the conclusion that the standard applies here. ^[7] 4. Even though Snyder cannot compel the result here, we have recognized that analyzing the form, content, and context of the speech, as the Court did in Snyder, can be a helpful piece of the totality of the circumstances analysis. Maethner, 929 N.W.2d at 881. i. The “form” asks where the speech occurred. The parties agree that the speech here occurred on a social media platform that was publicly viewed by many people, and that the use of a hashtag made the post more accessible to the public. ^[8] The fact that the speech was made in a “modern public square” is a relevant consideration in assessing whether the speech is deserving of First Amendment protection. See Packingham v. North Carolina, 582 U.S. 98, 107 (2017). But it is not dispositive. Indeed, even though the speech at issue in Time, Inc. appeared in a national news magazine, the Supreme Court held that the speech did not rise to the level of warranting First Amendment protection. Time, Inc., 424 U.S. at 457. 7 Snyder is, as the majority notes, more recent than New York Times Gertz, and Time, Inc. Supra at 17. But nothing in Snyder can be fairly read as modifying the analysis courts should follow for application of the constitutional actual malice standard, a standard that was not even mentioned in the case. ^[8] The majority considers Freborg’s use of #MeToo as relevant to the form, content, and context of her post. I consider it relevant only to form. D-13 ii. Turning next to the “content” of Freborg’s Facebook post, I conclude that the “overall thrust and dominant theme” of Freborg’s Facebook post was to accuse Johnson of sexual violence. Maethner, 929 N.W.2d at 880–81. Specifically, Freborg identifies Johnson and two others by name, accuses them of sexual violence, and speaks directly to them in her post. She also “tags” Johnson in the post, which made sure that her post would be linked to him through his own Facebook presence. By tagging Johnson in the post, Freborg further confirms that Johnson—and not some broader societal issue—is the target of her speech. But, according to the majority, the thing that separates Freborg’s Facebook post from any other speech accusing another of sexual assault is that Freborg included #MeToo (and to a lesser extent, #DancePredators), which shows that she intended to participate in a hashtag-based social movement. ^[9] I disagree. While use of a hashtag makes the post available more broadly to the public, it does not change the overall thrust of Freborg’s speech. Freborg’s speech included #MeToo, but the post made no mention of government policy changes or systemic problems. Moreover, the content of Freborg’s speech was disconnected from the MeToo movement. Unlike the

CHUTICH, Justice.

This case involves a defamation claim brought by respondent Byron Johnson—a private figure—against appellant Kaija Freborg. Johnson sued Freborg after a post on

Freborg’s Facebook page accused Johnson and two other dance instructors from the Twin Cities dance community of varying degrees of sexual assault. Johnson was one of Freborg’s dance teachers, and the two previously had a casual sexual relationship that lasted for about a year.

The district court granted Freborg’s motion for summary judgment, finding that

Freborg’s speech was true and, alternatively, that her speech involved a matter of public concern and was not made with actual malice. The court of appeals reversed. It held that

the truth or falsity of Freborg’s statement presented a genuine issue of material fact. The court of appeals further held, in a divided opinion, that because the dominant theme of Freborg’s post involved a matter of private concern, Johnson was not required to prove actual malice to recover presumed damages. The court of appeals remanded the case to the district court for further proceedings.

We granted Freborg’s petition for review on whether her statement involved a matter of public concern. Because the overall thrust and dominant theme of Freborg’s

post—based on its content, form, and context—involved a matter of public concern, namely, sexual assault in the context of the #MeToo movement, her statement is entitled to heightened protection under the First Amendment to the United States Constitution.

Before Johnson may recover presumed damages, he must therefore show that Freborg’s speech was not only false, but also that the post was made with actual malice.

Accordingly, we reverse the court of appeals on the issue of public concern and remand the case to the district court for further proceedings to determine the veracity of Freborg’s post and, if the post is found to be false, whether the making of the post meets the constitutional actual-malice standard.

FACTS

Freborg and Johnson met in 2011, and Freborg, then a faculty member at a local university, began to take dance lessons from Johnson at a Twin Cities dance studio.

Sometime in 2012, the parties began a casual sexual relationship. Freborg agrees that many of their sexual encounters were consensual. She claims, however, that not all of their interactions were consensual, including an allegation that Johnson approached her in 2015

at his home during a party “while [she] was intoxicated and alone, grabbed [her] hand and put it down his pants onto his genitals” without her consent. This allegation, and its veracity, is at the heart of her Facebook post and the litigation.

After the 2015 party, Freborg and Johnson ended their sexual relationship and continued to contact one another only in the context of dance lessons; these dance-related communications lasted until sometime in 2017. By 2020, they had not spoken to one another for several years.

On July 14, 2020, Freborg posted the following public message 1 on her Facebook page:

After receiving feedback about her message, Freborg clarified in the post’s comment thread that she was not accusing Johnson of rape (“[t]his type of coercion [rape] has nothing to do with [Johnson]”). She also edited her post 2 days later to exclude allegations of rape: Johnson posted a response on Freborg’s public Facebook thread: Freborg posted the following response on the thread:

Over 300 people “reacted” to Freborg’s posts, 182 readers commented on them, and they were publicly “shared” 16 times. Some of the response to Freborg’s posts was positive. Commenters told her that she was “brave” and a “survivor.” Others seemingly reinforced her posts by explaining their own negative experiences in the Twin Cities dance community. For example, one commenter noted that Freborg was “not the only one of us who has been sexually assaulted in the dance world.” Another commented that she does not “dance in certain spaces within the [Twin Cities] because of feeling diminished, preyed upon, unvalued, etc.” Other commenters, however, came to Johnson’s defense. One person, for example, explained that people should “wash [their] laundry at the COURTS” and only come forward on social media “after the person [accused of sexual assault] is PROVEN guilty.” Another accused Freborg of slander and criticized her unwillingness to engage with Johnson’s response to her posts. In response to the varied comments to her posts, Freborg later explained that she “did this for the safety of other women, and really to show that we as women can disrupt the status quo by calling sh*t out.” On July 27, 2020, just shy of 2 weeks after the original post was published, Freborg deactivated her Facebook account, removing the post and its thread from public view.

Johnson sued Freborg for defamation. He claimed that both Freborg’s original and edited posts accused Johnson of raping Freborg, thereby painting him as a rapist. Johnson argued that his reputation suffered as a result and that he lost business because of the posts.

After discovery, Freborg moved for summary judgment claiming that: (1) her speech was true; (2) her speech was a matter of public concern; and (3) Johnson failed to show that her speech was made with actual malice.

To support her summary judgment motion on the issue of public concern, Freborg

presented the following evidence about the global impact of the #MeToo movement. The #MeToo movement was conceived to allow women to share their experiences of sexual assault and harassment and to seek accountability from their abusers. ^[2] The hashtag collects the posts and enables a community discussion to occur on the subject of sexual abuse. One

study submitted by Freborg stated that the movement “was exceptionally effective in rapidly increasing awareness around sexual misconduct,” and that researchers have opined that “social movements [like #MeToo] can rapidly affect the norms for behavior by changing perceptions of a societal problem.”

Freborg also submitted information about sexual assault specifically in the dance community. She submitted a blog titled “Dance Predators” that provided suggestions on how to combat predatory behavior by dance instructors; a news story by Minnesota Public

Radio about sexual assault in a local Twin Cities dance studio; and seven other social media

posts from dancers, two posted the same day as Freborg’s post in July, that called out the predatory behavior of three prominent international dance instructors in the global dance community.

Johnson also moved for partial summary judgment on the issues of liability and actual malice. Additionally, he moved to amend his complaint to add a claim for punitive

damages. Johnson claimed that Freborg’s posts involved a matter of private, not public, concern because even if the #MeToo movement qualifies as a matter of public concern, Freborg’s specific posts were personal in nature. He asserted that the sources Freborg relied upon about the dance community were insufficient to show that her speech involved a matter of public concern. Johnson also argued that Freborg’s posts suggested that

Johnson raped her even though she openly admitted he had not, so Freborg acted with actual malice because she knowingly posted false information. He asked the district court for a jury trial only on the issue of damages.

The district court granted Freborg’s motion for summary judgment. First, the court found that Freborg’s statements were true. Second, the court rejected Johnson’s claim that the posts were too personal in nature to be a matter of public concern, specifically relying on Freborg’s use of the #MeToo hashtag and the context of the posts. The court also noted that “[t]he record is replete with other content regarding this specific problem [sexual

assault] in this specific community [the Twin Cities dance community].” Finally, the district court found that—even if Freborg’s speech was false—Johnson failed to show actual malice, which is required to recover presumed damages for defamatory statements that involve a matter of public concern.

The court of appeals reversed. Johnson v. Freborg, 978 N.W.2d 911 (Minn. App.

2022). The court held that a genuine issue of material fact existed about the veracity of Freborg’s posts, making summary judgment inappropriate. Id. at 917–18. In a divided opinion, the court further held that Freborg’s speech was a matter of private, not public concern. Id. at 923. The court therefore did not reach the issue of actual malice. Id. at 923 n.25.

One judge dissented, stating that the totality of circumstances showed that Freborg’s

statements relate to a matter of public concern. Id. at 924–29 (Wheelock, J., concurring in part, dissenting in part). Considering the content, form, and context of the speech, the dissent reasoned that Freborg “made the post as part of a now-global conversation about the prevalence of sexual harassment and assault and the need to shine light on once-secreted personal experiences.” Id. at 926.

Freborg petitioned this court for review on one issue: whether her speech involved a matter of public concern, which we granted. She does not challenge the court of appeals’

conclusion that a genuine issue of material fact exists about the veracity of her speech and agrees that a remand to the district court is appropriate on this issue. Consequently, we do not address the veracity issue further here and limit our analysis to the claim that her speech involved a matter of public concern.

ANALYSIS

We review the district court’s grant of summary judgment de novo. Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 874 (Minn. 2019). To decide whether summary judgment is appropriate, we must determine “whether the district court erred in its application of the law to the facts.” Id. (citation omitted) (internal quotation marks omitted). In addressing whether a statement involves a matter of public concern, federal courts have viewed the issue as a question of law, see Connick v. Myers, 461 U.S. 138, 148

n.7 (1983), and we likewise review the question of whether speech involves a matter of public concern de novo. We also review de novo the determination of “[w]hether evidence in the record is sufficient to support a finding of actual malice.” Maethner, 929 N.W.2d at

879 n.7.

I.

To determine whether Freborg’s speech involved a matter of public concern, we start with some general principles involving defamation. “Under the common law, a

plaintiff pursuing a defamation claim ‘must prove that the defendant made: (a) a false and defamatory statement about the plaintiff; (b) in [an] unprivileged publication to a third

party; (c) that harmed the plaintiff’s reputation in the community.’ ” Maethner, 929 N.W.2d at 873 (alteration in original) (quoting Weinberger v. Maplewood Rev., 668 N.W.2d 667, 673 (Minn. 2003)). Certain types of speech, like accusations of “criminal behavior or moral turpitude”—including accusations of sexual assault—are considered

“defamation per se.” Id. at 875 (citing Richie v. Paramount Pictures Corp., 544 N.W.2d

21, 25 (Minn. 1996) (internal quotation marks omitted). If a statement is found to be

defamatory per se, we then presume harm to a plaintiff’s reputation without requiring the plaintiff to prove actual damages. Id. Johnson asserts that he is entitled to presumed damages under this standard.

Like all laws regulating speech, however, “the doctrine of defamation per se cannot offend the constitutional guarantees of the First Amendment.” Id. We have long

recognized that “personal reputation has been cherished as important and highly worthy of protection.” Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 491 (Minn. 1985).

But we cannot “offer recourse for injury to reputation at the cost of chilling speech on matters of public concern, which ‘occupies the highest rung of the hierarchy of First

Amendment values, and is entitled to special protection.’ ” Maethner, 929 N.W.2d at 875

(quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011)).

Given this commitment to “uninhibited, robust, and wide-open” debate on issues of public concern, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), “a private plaintiff may not recover presumed damages for defamatory statements involving a matter of public concern unless the plaintiff can establish actual malice.” Maethner, 929 N.W.2d at 878–79. To meet this constitutional actual-malice standard, “a statement must be ‘made

with the knowledge that it was false or with reckless disregard of whether it was false or not.’ ” Id. at 873 (quoting Weinberger, 668 N.W.2d at 673) (internal quotation marks omitted). Freborg contends that this heightened standard applies to her speech because her posts involved a matter of public concern.

In Maethner, a defamation case, we held that the determination of whether speech

is of public or private concern in a particular case is “based on a totality of the circumstances.” Id. at 881. In particular, “courts should consider the content, form, and context of the speech.” Id. “No single factor is ‘dispositive;’ rather, courts should ‘evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.’ ” Id. (quoting Snyder, 562 U.S. at 454). In addition, in weighing the circumstances of the speech, we must make “an independent examination of the whole record.” Snyder, 562 U.S. at 454 (citation omitted) (internal quotation marks omitted).

Maethner involved statements by Maethner’s ex-wife—posted on her private

Facebook page under the name Jacki Hansen Maethner—identifying herself as a survivor of domestic violence, as well as an article published in a newsletter of a domestic

violence organization describing the “Survivor Award” that she had received. Maethner, 929 N.W.2d at 871. Maethner’s ex-wife and the organization also posted pictures on

Facebook of her holding the award. Id.

Even though he was not named in the posts, Maethner claimed that, given the use of his distinct last name by his ex-wife, the speech essentially accused him of domestic violence. Id. at 872. We recognized that “as a general proposition,” speech relating to domestic violence is a matter of public concern. Id. at 881. But, in addition to the subject of the speech, we explained that “the form and the context of the speech must also be considered, as well as any other relevant factors.” Id. Because neither the district court nor the court of appeals had specifically addressed the issue of public concern, we

remanded the case back to the district court “to decide in the first instance whether the challenged statements involve a matter of public or private concern.” Id. at 881–82.

Similar to Maethner, we recognize that “as a general proposition,” speech relating to sexual assault is a matter of public concern. See also Richie, 544 N.W.2d at 26

(concluding that “discussion of sexual abuse of children by their parents and legal recourse available to the abused child” were “certainly of public concern”). But Maethner clearly instructs us that no per se rule applies to suggest that statements about sexual abuse (or any other crime) are always matters of public concern. Instead, we must, on a case-by-case basis, apply the totality of the circumstances test and balance the content, form, and context of the speech, as well as any other pertinent factors, to determine whether speech involves a purely private matter or is a statement about a matter of public concern intended to influence public discussion about desired political or social change. Balancing the totality of the circumstances of the Facebook posts here, we conclude that, although the speech involved personal aspects, the predominant theme of Freborg’s speech involved a matter of public concern, namely sexual assault in the context of the #MeToo movement.

A.

We begin with the content—the “what”—of Freborg’s speech, and we review the entire thread of the Facebook postings when determining whether “a forbidden intrusion on the field of free expression” has occurred. See Sullivan, 376 U.S. 284–86; see also

Snyder, 562 U.S. at 453–54. The subject of the Facebook posts involved accusations of sexual assault by three dance instructors in the local Twin Cities dance community. In her first post, Freborg stated that she had been “gaslighted/coerced into having sex, sexual[ly] assaulted, and/or raped” by three specific dance instructors, including Johnson. She amended her post 2 days later to delete the word “raped,” stating instead that she had

“experienced varying degrees of sexual assault” by the three dance instructors, again including Johnson. ^[3] The last line of the original and amended posts stated, “If you have a problem with me naming you in a public format, then perhaps you shouldn’t do it.”

In evaluating whether these personal portions of Freborg’s posts—the identification, tagging, and admonishing of the three instructors—make the speech a private affair, we must weigh these statements against the remaining text. First, the original and amended post prominently begin with this statement: “Feeling fierce with all these women dancers coming out.” Then, before listing the varying degrees of sexual assault that she says she experienced, Freborg states, “So here goes . . . .” This introduction suggests that she was encouraged by other women speaking out about sexual assault in the dance community to reveal her own experience and to add her voice to the community conversation.

Second, Freborg ends her posts with the well-known #MeToo hashtag and a

#DancePredators hashtag, connecting her experience directly to the dance community and the broader #MeToo movement. This social movement is characterized by survivors of sexual abuse creating social media posts disclosing their experiences with sexual violence

and identifying their abusers. Benedetta Faedi Duramy, #MeToo and the Pursuit of Women’s International Human Rights, 54 U.S.F. L. Rev. 215, 217 (2020). The movement

seeks to connect survivors, encourage victims to tell their story, and increase awareness of the scope of the problem of sexual assault. JoAnne Sweeney, Social Media Vigilantism, 88 Brook. L. Rev. 1175, 1219–21 (2023). “ ‘For many #MeToo claimants, what they want is to tell their story.’ Indeed, the phrase ‘me too’ is inherently about connection; it tells others that they are not alone and that they are understood. Such affirmations can be healing in their own right as a form of social support.” Id. at 1219 (citation omitted).

Third, her subsequent explanation of her motives in the post thread—that she made the posts “for the safety of other women” and to show how “women can disrupt the status quo”—suggests that her posts were an attempt to raise awareness for other women, including women in the dance community, and inspire social change. These three factors, considered together, in addition to the broader context and response to the posts, show that

Freborg frames her Facebook posts “as her contribution to the larger discussions occurring at the time of the #MeToo movement.” Coleman v. Grand, 523 F. Supp. 3d 244, 259

(E.D.N.Y. 2021).

Johnson claims that the explicit use of “you” three times in the last line of the initial and amended post to condemn the instructors’ alleged abusive behavior, and Freborg’s reply to his comment on her posts, show that the content of Freborg’s speech was not to add her voice to the #MeToo movement but to get “vengeance” on him. He asserts that

Freborg’s posts—identifying him and two other instructors in the local dance community—were too limited in scope to implicate the broader #MeToo movement. He

further contends that his preexisting relationship with Freborg shows that she used the movement to mask a purely private attack on his character. He cites the Supreme Court’s decision in Snyder to show that the content of Freborg’s posts was personal in nature.

A preexisting relationship—or the lack thereof—is certainly a consideration in weighing whether the speech involves a matter of public concern. See Snyder, 562 U.S. at

455 (stating that there was no prior relationship between the Westboro Baptist Church and the soldier “that might suggest Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter”). Here, however, two considerations cause us not to heavily weigh Johnson’s assertion that Freborg’s speech was a matter of private concern because she was a “jilted former lover, who waited five years before publicly attacking Johnson.” First, the passage of that many years between the end of the parties’ relationship, which Johnson described as a “casual sexual relationship,” and the post suggests that the speech was not a personal attack in response to the relationship ending.

Second, the inclusion of two other dance instructors implies that the post had less to do with Freborg’s previous relationship with Johnson, and more about speaking up about alleged sexual abuse in the Twin Cities dance community generally.

Johnson cites the Supreme Court’s decision in Snyder to show that the content of Freborg’s post was personal in nature. In Snyder, the issue was whether the speech of the leader of the Westboro Baptist Church could receive First Amendment protection when he organized a protest with offensive placards near the funeral of a soldier killed in the Iraq

war. The signs included general messages such as “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “God Hates Fags,” and “Priests Rape Boys.” Snyder, 562 U.S. at 448, 454. The Court held that the signs addressed “matters of public import” including “homosexuality in the military, and scandals involving the Catholic clergy.” Id.

The Supreme Court acknowledged, however, that the content of a few signs like “You’re

Going to Hell” and “God Hates You” could be viewed as containing personal messages to the dead soldier and his family. Id. The Court concluded, however, that the few personal messages did “not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.” Id.

After weighing the personal aspects of the posts here with those elements addressing broader public issues, we reach a similar conclusion about content: even though Freborg named, tagged, and admonished three specific instructors in her post, these personal

messages do not outweigh the dominant theme of her speech—to discuss sexual assault in the dance community, a matter of public import.

The dissent takes a narrow view of a “matter of public concern,” essentially limiting those matters “to self-government,” “government officials,” or “government performance.” But that narrow perspective is rooted primarily in decades-old Supreme

Court case law. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 (1974); Time, Inc. v. Firestone, 424 U.S. 448 (1975).

The dissent’s narrow perspective disregards the development of the law over the past five decades and the Supreme Court’s broader view of matters of public concern. According to a more recent case, “Speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’

or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’ ” Snyder, 562 U.S. at 453 (citations omitted), quoted in Maethner, 929 N.W.2d at 880. 4 As we noted in Maethner, speech involving a matter of public concern is within “the core of First Amendment protection . . . to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Maethner, 929 N.W.2d at 879 (citation omitted) (internal quotation marks omitted) (emphasis added). 5

Consistent with Snyder, we conclude that Freborg’s Facebook post fits this broader conception of public concern.

Finally, although not binding upon us when weighing the content of Freborg’s

speech, we find persuasive a recent defamation case with similar facts. Fredin v. Middlecamp, 500 F. Supp. 3d 752 (D. Minn. 2020), aff'd, 855 F. App’x 314 (8th Cir. 2021)

(per curiam) (unpublished). In Fredin the federal district court, applying Minnesota law, 283 A.3d 1140, 1149–52 (Del. 2022) (applying the Snyder public concern test to hold that a claimed defamatory email was “speech that addressed a matter of public concern: the ongoing national debate about the use of American Indian iconography in sports logos,” noting that “the First Amendment’s Free Speech Clause can serve as a defense in state tort suits” generally (emphasis added)); Monge v. Univ. of Pa., ___ F. Supp. 3d ___, No. CV22-2942, 2023 WL 3692935, at *2 (E.D. Pa. May 26, 2023) (applying the Snyder public concern test to a defamation claim). Overall, it is the nature of the speech itself that guides our public concern inquiry, not the nature of the claim. 5 Even if we were to view matters of public concern as relating primarily to “self-government” or “government performance,” there are strong indications that the #MeToo movement has catalyzed government action. For example, since 2017, several federal laws have been amended or passed in direct response to the movement. See, e.g., Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 13307, 26 U.S.C. § 162(q)(1) (removing tax deductions for “any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement”); Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Pub. L. No. 117-90, § 2(a), 136 Stat. 27 (2022) (amended the Federal Arbitration Act, 9 U.S.C. § 402, to make any “predispute arbitration agreement or predispute joint-action waiver” for sexual harassment claims unenforceable); Speak Out Act, 42 U.S.C. §§ 19401–04 (recognizing that because “[s]exual harassment and assault remain pervasive in the workplace and throughout civic society,” 42 U.S.C § 19401(1), “no nondisclosure clause or nondisparagement clause agreed to before the dispute arises shall be judicially enforceable” 42 U.S.C § 19403(a)).

found that a post on a public Twitter account that included pictures of a person and explicitly accused him of repeated sexual harassment and rape qualified as a matter of public concern. Id. at 777. In weighing the totality of the circumstances, the district court found that “[t]he content of the speech here addressed harassment and rape, and more specifically, the subject of women coming forward to share their experiences in this regard.” Id. The court therefore concluded that the speech was entitled to the actual malice standard of protection. Id. We believe the same conclusion about content is justified here.

In sum, although Freborg’s speech identifies and addresses Johnson directly and has

some aspects of airing a personal dispute, the dominant theme of her posts speaks to the broader issue of sexual abuse in the context of the #MeToo movement, a matter of public

concern. After seeing other women share their experiences, she offered her own story, hoping to raise awareness about the prevalence of sexual assault, to keep other women safe, and to show that women “can disrupt the status quo” to bring about social change.

B.

Turning next to the form—the “where”—of Freborg’s speech, this factor further supports a conclusion that Freborg’s posts were on a matter of public concern. ^[6] Freborg disseminated her speech on her Facebook account, making her post publicly available to anyone. The use of the internationally recognized hashtag for the #MeToo movement allowed her message to be disseminated publicly and broadly on Facebook. Here, the #MeToo hashtag does what a public account, blog, or journal dedicated to these issues would by spreading the message to an unlimited audience.

The Supreme Court has acknowledged the power of Facebook, declaring that today

“the ‘vast democratic forums of the Internet’ . . . and social media in particular” provide

the “most important places . . . for the exchange of views.” Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (quoting Reno v. Am. C.L. Union, 521 U.S. 844, 868 (1997)). The Court further noted that social media acts as the “modern public square” and that sites like

Facebook “allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’ ” Id. at 107. It follows that Freborg specifically chose this modern public square as a way for her message “to reach as broad a public audience as possible.” Snyder, 562 U.S. at 454; see also Fredin, 500 F. Supp. 3d at

777. Accordingly, this factor weighs in favor of concluding that Freborg’s speech involved a matter of public concern.

To be clear, attaching a hashtag—even the well-recognized #MeToo hashtag—to the end of a social media post is not in and of itself determinative of whether the speech involves a matter of public concern. The use of a hashtag is only one relevant consideration

in balancing the totality of the circumstances. ^[7] Importantly, when courts are reviewing the use of a specific hashtag, they should consider all other relevant factors, including content and context. ^[8] A hashtag, even the globally recognized hashtag at issue here, can never provide blanket First Amendment protections. The critical question will remain: based upon the totality of the circumstances in light of the record as a whole, does the speech involve a matter of public or private concern?

C.

Finally, the full context—the “how”—of Freborg’s posts also weighs in favor of holding that her speech involved a matter of public concern. Johnson agrees that we can

and should look at the entire thread associated with Freborg’s posts. He asserts, however, that it engendered “no discussion about how to engage in democratic self-governance,” which he maintains would help support Freborg’s theory that the context of her post was intended to raise awareness and bring accountability.

The responses to the posts refute that claim on its face. The posts generated much

discussion and mixed reactions: some gave Freborg their full support and validated the claims in her posts by citing their own negative experiences, while others were critical of the posts and how Freborg chose to speak about what happened to her. These reactions facilitated conversations about the appropriate measures that victims should take when

speaking out and how to properly support sexual assault victims generally. The robust and unfettered discussion in the thread following the initial post supports the conclusion that the form and context of this speech makes this speech a matter of public concern, rather than a purely private matter.

As discussed above, the context of the #MeToo movement is a key factor in our analysis. The #MeToo movement has had a direct impact on society and how communities address sexual assault across industries. Data shows, for example, the number of sexual harassment complaints the U.S. Equal Employment Opportunity Commission received

jumped by 13.6 percent after #MeToo went viral. Sweeney, Social Media Vigilantism, 88 Brook. L. Rev. at 1222. Further, reports now show that more people believe that “those who commit harassment or assault are now more likely to be held responsible and victims are more likely to be believed.” Anna Brown, More Than Twice as Many Americans

Support Than Oppose the #MeToo Movement, Pew Rsch. Ctr. ^[12] (Sept. 29, 2022). And Congress has taken steps to lessen the shroud of secrecy that surrounds settlements relating to sexual harassment or sexual abuse. See Speak Out Act, 42 U.S.C. §§ 19401–04; Tax

Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 13307, 26 U.S.C. § 162(q)(1).

Many other jurisdictions also have acknowledged the importance of #MeToo speech

in the context of the First Amendment. Fredin, 500 F. Supp. 3d 752; Coleman v. Grand, 523 F. Supp. 3d 244, 259 (E.D.N.Y. 2021) (finding that the open letter that the defendant circulated accusing the plaintiff of abuse and sexual harassment involved a matter of public concern); Dossett v. Ho-Chunk, Inc., 472 F. Supp. 3d 900, 908 (D. Or. 2020) (finding that the publication of workplace-related #MeToo allegations involved a matter of public concern); Fells v. Serv. Emps. Int’l Union, 281 A.3d 572, 584 (D.C. App. 2022) (holding that there was a prima facie showing that the publication of workplace-related #MeToo allegations involved a matter of public concern); Goldman v. Reddington, No. 18-CV-

3662, 2021 WL 4099462, at *4 (E.D.N.Y. Sept. ^[9], 2021) (finding that a defendant’s LinkedIn and Facebook posts accusing plaintiff of sexual assault concerned “more than a purely private matter” (internal quotation marks omitted)).

In addition, Freborg provided adequate evidence of the #MeToo conversations happening about predatory behavior in the dance community, including a series of similar posts made on and around the time of her own July 14, 2020 post. Her statements fit well within the context of a legitimate social movement. ^[9]

Johnson cites other contextual factors to show that Freborg’s posts are not a matter of public import. As noted above, he contends that his previous relationship with Freborg demonstrates that the nature of her speech was private. But the mere existence of a previous relationship is not a dispositive factor in assessing the nature of the speech, and it does not negate the importance of speaking out against sexual assault in society. Many victims who come forward to speak about their experiences of sexual assault often have a preexisting relationship with their abusers. See, e.g., Fredin, 500 F. Supp. 3d at 763–64

(granting summary judgment to one of the women named in the plaintiff’s defamation lawsuit who previously had been romantically involved with the plaintiff); see also Lauren

R. Taylor & Nicole Gaskin-Laniyan, Sexual Assault in Abusive Relationships, 256 Nat’l

Inst. of Just. ^[12], 12–14 (Jan. 2007). In Minnesota, for example, a grim statistic shows that one in every three women will experience violence, rape, or stalking by an intimate partner in their lifetime. Domestic Violence in Minnesota, Nat’l Coal. Against Domestic Violence

(2020). If we were to hold that the mere existence of a previous relationship between

Johnson and Freborg makes Freborg’s speech private in nature, the impact would be an

unnecessary chilling effect on the exercise of free speech by victims of sexual assault and their ability to effect social change.

Johnson next contends that, unlike Westboro Baptist Church and the owner of the account used to tweet about Fredin, Freborg had no prior history speaking out about the #MeToo movement or sexual abuse and harassment generally. We do not give this contention much, if any, weight. To hold that victims of sexual assault can only speak out about their experiences if they themselves are already advocates would certainly chill other

alleged victims from coming forward. See Fredin, 500 F. Supp. 3d at 777 (noting the importance of and protecting speech that addressed “harassment and rape, and more specifically, the subject of women coming forward to share their experiences in this regard” (emphasis added)). Johnson’s argument also fails to consider that every alleged victim, be they an advocate or not, must make a first statement. If we were to conclude

that Freborg’s speech was private in nature simply because she had no history of advocacy, that would discourage any person not already engaged in advocacy work from telling their story about what happened to them and adding their voice to the desire for social change because they could be liable for per se defamation.

Moreover, even with the heightened protection of the actual-malice constitutional standard, the speech of victims of sexual assault may well 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. See Shaina Weisbrot, The Impact of the #MeToo Movement on Defamation Claims Against Survivors, 23 CUNY L. Rev. 332, 352–53 (2020)

(explaining that while #MeToo has empowered more people to speak out, this speech has led to more defamation lawsuits, especially if the accused has significant power or resources).

Finally, Johnson cites Maethner and a lack of media coverage of Freborg’s posts to show that the posts concerned a private matter. Maethner does not require, however, that

Freborg’s speech be later disseminated by the media for it to be considered a statement of public import. There, we held that the dispositive inquiry regarding the availability of presumed damages “is not on the status of the defendant as a media or nonmedia defendant” but “whether the matter at issue is one of public concern.” Maethner, 929 N.W.2d at 877.

We later cited Eighth Circuit cases that noted that “media coverage is a good indication of the public’s interest” and stressed “the importance of journalistic freedom in investigating and reporting on matters of public interest.” Id. at 881 (citations omitted) (internal quotation marks omitted). We then noted that dissemination of statements in the news media is “one of many relevant factors in determining whether the statements involve a matter of public concern.” Id. Our discussion in Maethner therefore suggests that this non-dispositive factor serves to protect journalists in traditional media by adding another

consideration to identify speech on a matter of public concern. Given this background and that Freborg’s posts were made on Facebook, a website that Packingham describes as a

“powerful mechanism” for the robust exchange of views, 582 U.S. at 107, the fact that no news media reported Freborg’s posts is not a decisive factor in assessing the public import of the speech.

After considering the context of Freborg’s posts, we conclude that this factor shows that her speech involved a matter of public concern.

D.

In sum, weighing the content, form, and context of Freborg’s statements in light of the whole record, we conclude that the overall thrust and dominant theme of the posts involved a matter of public concern. We therefore hold that Freborg’s speech is subject to heightened protection under the First Amendment. Accordingly, to prevail on his defamation claim for presumed damages, Johnson must show that Freborg’s posts not only were false, but that they were made with actual malice.

II.

Turning to the issue of actual malice, we note that the court of appeals did not rule on this issue because it held that Freborg’s speech involved a matter of private concern.

Freborg, 978 N.W.2d at 923 n.25. Nor did Freborg raise the issue of actual malice in her petition for review. Consequently, the parties agree that, if we conclude that the challenged speech here involved a matter of public concern, we should remand the case to the district court for a trial on the veracity of Freborg’s speech and actual malice. We agree for the following reasons.

The district court concluded as a matter of law that the record contained insufficient evidence of actual malice. But the court of appeals held that a genuine issue of material fact existed as to the veracity of Freborg’s speech, making summary judgment improper.

Id. at 918. Given the fact issue on falsity—and because Freborg was both the speaker and the publisher of the alleged defamatory statements—if a jury finds that Freborg’s speech was false, sufficient evidence may allow the jury to further find that Freborg made the statements with actual malice. ^[10] We therefore reverse the district court’s ruling on actual malice and remand this case for further proceedings.

CONCLUSION

For the foregoing reasons, we reverse the decision of the court of appeals and remand the case to the district court for further proceedings.

Reversed and remanded.

DISSENT

GILDEA, Chief Justice (dissenting).

In this defamation case, we are asked to decide whether heightened First

Amendment protections apply to Kaija Freborg’s accusation that Byron Johnson, her

former dance instructor and romantic partner, “gaslighted/coerced [her] into having sex, sexual[ly] assaulted, and/or raped” her. The question is not whether Freborg’s speech is

protected at all; it is. Existing precedent already dictates those protections. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974) (noting that states may “not impose liability without fault”); Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 492 (Minn.

1985) (adopting negligence standard in response to Gertz). The narrow question here is whether Freborg’s speech is so central to the purpose of the First Amendment that it is entitled to the heightened protections reflected in the constitutional actual malice standard.

The majority concludes that the actual malice standard applies to Freborg’s speech because

Freborg wrote about sexual assault and included #MeToo in her post. I disagree. In my view, Freborg’s personal Facebook post, on her personal Facebook page, concerning

private conduct between two people with a private relationship, is not speech that the constitutional actual malice standard protects. Accordingly, I dissent.

A.

Historically, defamatory speech, such as allegations of criminal behavior akin to those made here, fell outside the scope of the First Amendment. Moreno v. Crookston

Times Printing Co., 610 N.W.2d 321, 328 (Minn. 2000) (noting that “defamatory comments were, by definition, not protected speech under the First Amendment.”). But in D-1

New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court said, “that the reputational interests protected by state libel law must yield when in conflict with the central meaning of the First Amendment.” Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 481 (Minn. 1985) (citing New York Times, 376 U.S. at 273–75). The New York Times Court adopted the actual malice standard to strike a balance between reputational interests and First Amendment protections. ^[1]

The majority concludes that Minnesotans’ reputational interests must yield here

because Freborg’s speech is a matter of public concern and therefore worthy of the heightened First Amendment protection of the constitutional actual malice standard. I disagree. Providing redress for Minnesotans who have been accused by name of sexual

assault does not conflict with the “central meaning of the First Amendment.” Jadwin, 367 N.W.2d at 481. Accordingly, under Supreme Court precedent, the constitutional actual

malice standard does not apply. Examination of the Court’s precedent and application of the required totality of the circumstances test confirms this.

1.

Our analysis of Supreme Court precedent must begin with New York Times, the case in which the Court created the constitutional actual malice standard. There, the Supreme

Court recognized that speech by the press that criticized public officials for their official conduct was so valuable that, even if it was defamatory, the First Amendment required that

1 Under this constitutional standard, a plaintiff cannot recover damages for injury to reputation unless the plaintiff proves that the defendant made the statement at issue knowing it was false or with reckless disregard for the statement’s falsity. New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).

D-2 the speech be given some protections so that the speech was not unnecessarily chilled.

376 U.S. at 278–79. The Court created the “actual malice” standard to provide that protection—public officials may not recover damages for a defamatory falsehood relating to their official conduct unless they prove that the statement was made with “actual malice.” Id. at 279–80. The Court grounded the result in the fact that the speech at issue—

citizen commentary on the performance of their government—went to the very heart or “central meaning of the First Amendment.” Id. at 273; see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 (1974) (describing New York Times as “defin[ing] a constitutional

privilege intended to free criticism of public officials from the restraints imposed by the common law of defamation”).

The majority holds that this actual malice standard from New York Times applies to

Freborg’s allegation that Johnson sexually assaulted her. But the animating principle in New York Times was the connection of the speech to principles necessary to a successful democracy, such as the citizenry’s ability to comment freely on the performance of their government. See New York Times, 376 U.S. at 273, 279–80. Freborg’s speech has nothing whatsoever to do with the government or government officials, and nothing in New York

Times supports the majority’s extension of the actual malice standard to the speech at issue here.

The Supreme Court’s jurisprudence on the actual malice standard since New York

Times likewise does not support the majority’s extension of the standard to Freborg’s

speech. The Court discussed the applicability of the actual malice standard in Gertz v. Robert Welch, 418 U.S. 323 (1974). In Gertz, as in New York Times, the speech was

D-3

grounded in commentary about government performance. See Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749, 756 (1985) (noting that the speech at issue in Gertz “involved expression on a matter of undoubted public concern” because the article questioned whether a prosecution of a police officer was part of a Communist campaign to discredit local law enforcement agencies).

The Gertz Court recognized that states have a “legitimate interest” in providing compensation to people whose reputations have been harmed by defamation, and that that interest needed to be balanced against competing First Amendment considerations to ensure that speech the First Amendment values is not chilled. 418 U.S. at 348–50. When

the plaintiff is a private individual, the Court concluded, the government’s interest in compensating for reputational harm was greater than in the case of public official/public

figure plaintiffs, such as the plaintiff in New York Times. Gertz, 418 U.S. at 343–44. The Court held that states have “substantial latitude” in providing remedies to private plaintiffs

for reputational injuries and that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood.” Id. at 345, 347. But the Court clarified that “the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Id. at

349.

The Supreme Court limited Gertz in Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). Unlike the facts of New York Times and Gertz, Dun & Bradstreet involved only private, nonmedia parties: the plaintiff was a construction contractor and D-4 defendant was a credit reporting agency. Dun & Bradstreet, 472 U.S. at 751. The plaintiff

sued the defendant for erroneously reporting to third parties that the plaintiff had filed for bankruptcy. Id. at 751–52. The plurality opinion reasoned that Gertz applied only to speech on matters of public concern and that Dun & Bradstreet involved a matter of “purely

private concern.” See id. at 763 (“We conclude that permitting recovery of presumed and punitive damages in defamation cases absent a showing of ‘actual malice’ does not violate the First Amendment when the defamatory statements do not involve matters of public concern.”). Thus, the Court allowed the plaintiff to recover presumed damages without proving actual malice.

Read together, New York Times, Gertz, and Dun & Bradstreet hold that the actual

malice standard applies to protect speech about a public figure, government official or the performance of government more generally, but the standard does not apply to speech

about a private plaintiff on a matter of private concern. See Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 877–78 (Minn. 2019). 2 For the former, a plaintiff must show actual malice to recover; for the latter, state law governs. And for speech to be a “matter of public concern” sufficient to warrant application of the constitutional actual malice standard, that speech must relate to self-government. See Dun & Bradstreet, 472 U.S. at 759 (noting that

“the role of the Constitution in regulating state libel law is far more limited when the concerns that activated New York Times and Gertz are absent”); New York Times, 376 U.S.

2 The parties agree that there is no media defendant here as in New York Times, and they also agree that the parties involved are not public or government figures. Thus, the only way that the actual malice standard would apply is if Freborg’s Facebook post is speech on a matter of public concern.

D-5 at 269 (“The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.”); see also Elena Kagan, A Libel Story: Sullivan

Then and Now, 18 L. & Soc. Inquiry 197, 212 (1993) (noting that one approach to understanding the New York Times v. Sullivan line of cases is to “view[] Sullivan as primarily a case about the speech necessary for democratic governance”).

2.

The majority argues that I have interpreted the Supreme Court’s precedent too narrowly. For support, the majority essentially equates matters of interest to the public to those of public concern. Supra at 17. But the Supreme Court has already concluded that when the issue is the application of the constitutional actual malice standard, there is a dispositive difference between matters of public interest and matters of public concern.

Time, Inc. v. Firestone, 424 U.S. 448, 454 (1975). In Time, Inc., the Court made clear that

not all matters of interest to the public are matters of public concern for purposes of applying the First Amendment. See Time, Inc., 424 U.S. at 454, 457 (rejecting petitioner’s

attempt to “equate ‘public controversy’ with all controversies of interest to the public” and concluding the speech at issue was private speech because it “add[s] almost nothing toward

advancing the uninhibited debate on public issues thought to provide principal support for the decision in New York Times.”). And the Court confirmed that Gertz had “repudiated” the view that the “New York Times privilege should be extended to falsehoods defamatory of private persons whenever the statements concern matters of general or public interest.”

D-6

Id. at 454; see also Gertz, 418 U.S. at 346 (rejecting “[t]he ‘public or general interest’ test for determining the applicability of the New York Times standard” because that test

“inadequately serves both of the competing values at stake”); cf. Waldbaum v. Fairchild

Pub., Inc., 627 F.2d 1287, 1296 (D.C. Cir. 1980) (“A public controversy is not simply a matter of interest to the public.”). Time, Inc. involved a news magazine article that included reports that the defendant had extramarital affairs. The Court declined to apply the New

York Times “actual malice” standard, opting instead for the standard requiring some proof of fault from Gertz. Time, Inc., 424 U.S. at 457; see also id. at 469–70 (Powell, J., concurring). In short, the Court in Time, Inc. continued the long line of cases including

New York Times, Gertz, and Dun & Bradstreet, that hold that speech about governance and self-government is speech on a matter of public concern for purposes of the constitutional actual malice standard.

I acknowledge, as we have recognized in other cases, that as a general proposition

speech discussing crime can be speech on a matter of public concern. See Maethner, 929 N.W.2d at 881 (noting that as a “general proposition” “speech relating to domestic

violence involves a matter of public concern”); Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 25–26 (Minn. 1996) (noting that child sexual abuse is matter of public concern). 3 But Freborg was not discussing crime in general, the prevalence of crime in our

3 Importantly, neither Maethner nor Richie adopts a per se rule. In Maethner, we did not disagree with the “general proposition” that “speech relating to domestic violence involves a matter of public concern,” but we declined to address whether the speech in that case (all of which discussed domestic violence) was speech on a matter of public concern. 929 N.W.2d at 881. Instead we noted that the district court did not reach a conclusion on the question and remanded the case to the district court for further consideration. Id. Richie

D-7

society, or the government’s response to crime. Rather, she made a specific accusation of criminal conduct on Facebook—that a person she identified by name sexually assaulted her. Although the public may be interested in Freborg’s allegations, I would hold that such

speech is not a matter of public concern for First Amendment purposes. Bierman v. Weier, 826 N.W.2d 436, 462 (Iowa 2013) (holding that book author’s allegation that identified person committed sexual assault was not a matter of public concern for First Amendment purposes); W.J.A. v. D.A., 43 A.3d 1148, 1157–58 (N.J. 2012) (holding that defendant’s speech on website he created where he alleged that his uncle sexually abused him was not a matter of public concern).

The majority disagrees but it makes no real attempt to connect Freborg’s Facebook post to commentary that goes to an issue important to self-government or to the “central

meaning of the First Amendment.” See New York Times, 376 U.S. at 273; see also Jadwin, 367 N.W.2d at 481. Instead, the majority focuses its analysis on how the broader MeToo movement related to social change. I acknowledge the important contributions the MeToo movement has made to our society. But 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.” We are tasked with evaluating whether Freborg’s single Facebook post was

speech on a matter of public concern, not the entire MeToo movement. Moreover, the majority cannot connect Freborg’s post to any particular change in statute, nor do the involved media defendants, which is a material difference to application of the constitutional actual malice standard. Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 23 (Minn. 1996). In short, we did not hold in either case that speech about sexual abuse and harassment is always entitled to First Amendment protection. See supra at 17.

D-8

changes to federal law cited by the majority—changes that concern settlement, arbitration, and nondisclosure—even apply to this case. The focus of those changes is apparently on workplace sexual assault and harassment, and has nothing to do with sexual violence committed at a private party between people with a personal relationship who met through a hobby. ^[4]

The majority also supports its focus on the importance of the MeToo movement generally with statistics that show the prevalence of sexual violence and domestic abuse against women. Supra at 22–24. This reliance on statistics and the MeToo movement generally reveals a values-based approach to applying the First Amendment that is not consistent with the First Amendment’s prohibition on “viewpoint discrimination.” See

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 383–84, 391 (1992) (noting that unprotected

categories of speech “can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)—not that they are

categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content”).

I see no reason to apply the First Amendment differently in the MeToo context.

4 For similar reasons, the majority’s reliance on statistics about the increase in Equal Employment Opportunity Commission complaints and the fact that “people who commit sexual harassment or assault in the workplace are now more likely to be held responsible for their actions” are misplaced. See supra at 22; Anna Brown, More Than Twice as Many Americans Support Than Oppose the #MeToo Movement, Pew Rsch. Ctr. ^[4] (Sept. 29, 2022). Freborg’s speech was not about workplace sexual violence. D-9 3. Snyder, a case about intentional infliction of emotional distress—not defamation— does not compel a contrary conclusion. Anthony List v. Dierhaus, 779 F.3d 628, 632 (6th Cir. 2015) (observing that Snyder was not a defamation case and suggesting that Snyder was of limited application to defamation cases). 5 In Snyder, the U.S. Supreme Court held that a claim for intentional infliction of emotional distress will not lie in the face of a First Amendment challenge when the allegedly distress-causing conduct is speech about a matter of public concern. Speech intended to inflict emotional distress does not fall into the category of speech that was 5 In Maethner, we said that the test discussed in Snyder, which looks at the form, content, and context for the alleged tortious activity, should be considered but that no one factor was dispositive and that our test would require an examination of the totality of the circumstances to decide whether the actual malice standard applied. 929 N.W.2d 881. The majority’s focus on the result in Snyder to compel a result in this case is not consistent with that direction. The majority also cites three cases to support its reliance on Snyder to compel the result here. Supra at 17–18 (citing Dongguk Univ. v. Yale Univ. 734 F.3d 113 (2d Cir. 2013), Cousins v. Goodier, 283 A.3d 1140 (Del. 2022), and Monge v. Univ. of Pa., ___ F. Supp. 3d ___, No. CV22-2942, 2023 WL 3692935 (E.D. Pa. May 26, 2023)). These cases are inapposite. Dongguk is of no help because the defendant in that case “concede[d] that the defamatory statements addressed public figures and matters of public concern.” 734 F.3d at 122. And the court’s use of Snyder was confined to the negligence claim stated in the complaint. In other words, unlike the majority here, the Second Circuit in Dongguk did not use Snyder to resolve the plaintiff’s defamation claim. Id. at 127. Cousins is likewise unhelpful to the majority because Cousins, like Snyder, is not about the actual malice standard in a defamation case. The defamation claim in that case was dismissed because the plaintiff could not prove that the alleged defamatory statement was false. 283 A.3d at 1160. And Monge involves a media defendant and criticism of a university professor’s performance. 2023 WL 3692935, at *1. The court did not use Snyder to compel a conclusion on the application of the constitutional actual malice standard (which is what the majority does here). Id. at *3. Rather, the court relied on Snyder’s public- concern analysis for the proposition that the plaintiff had to prove falsity, something that is not at issue here. Id. D-10 historically unprotected by the First Amendment, whereas defamatory speech does. See Snyder, 562 U.S. at 451 n.3. This makes the State’s interest in preserving a cause of action weigh more heavily here than in Snyder, and the First Amendment interest in protecting speech weigh less. Maethner, 929 N.W.2d at 870–71 (noting that the purpose of the content, form, and context inquiry is “to strike a delicate balance between the State’s interest in providing redress for citizens claiming reputational injury and the free speech protections the First Amendment provides”). Another important distinction between defamation and intentional infliction of emotional distress also influenced the Court’s analysis in Snyder. An element of intentional infliction of emotional distress is the outrageousness of the conduct. But outrageousness can have important value to speech, and permitting liability based on the “outrageousness” of speech permits juries to discriminate on speech based on its content or the viewpoint conveyed. See Snyder, 562 U.S. at 458 (“ ‘Outrageousness,’ however, is a highly malleable standard with an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.”) (citation omitted) (internal quotation marks omitted)). The Court found the risk of chilling speech based on a malleable standard of outrageousness “unacceptable” because “ ‘in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate “breathing space” to the freedoms protected by the First Amendment.’ ” Id. (citing Boos v. Barry, 485 U.S. 312, 322 (1988)). In other words, it was important to the Court’s analysis that the D-11 outrageousness element of the tort of intentional infliction of emotional distress risked a jury verdict on the basis of jurors’ opinions and subjective judgments. That risk is much lower in a defamation case. In a defamation case, a jury will consider the content of the speech only to evaluate its truth or falsity. Unlike the intentional-infliction-of-emotional-distress context, the jury in a defamation case cannot impose liability based on their own subjective judgments about the outrageousness of the speech. ^[6] Finally, regarding the relevance of Snyder to the result here, the Court said in Snyder that it was writing a “narrow” holding, one “limited by the particular facts” of Snyder. 562 U.S. at 460. The case did not even discuss the constitutional actual malice standard, 6 The majority disagrees that the cause of action affects our application of Snyder, arguing that the “form, content, and context” test should apply in exactly the same way in an intentional infliction of emotional distress case as in a defamation case. See supra at 17 n.4. The reason for the “form, content, and context” inquiry is “to ensure that courts themselves do not become inadvertent censors.” See Snyder, 562 U.S. at 452. And the risk of becoming inadvertent censors turns on the cause of action. See id. at 458 (balancing the First Amendment against the state’s interest in preserving a cause of action for “outrageous” speech). The touchstone of the test in a defamation case is balancing the First Amendment protections against the state’s interest in preserving a cause of action for damage to reputation, whereas the touchstone in an intentional infliction of emotional distress case is balancing the First Amendment with the state’s interest in maintaining a cause of action for infliction of emotional distress. See id. at 462–63 (Breyer, J., concurring) (“To uphold the application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm.”). The cause of action necessarily affects the balance. D-12 and the majority is unable to explain how a case that does not even mention the standard compels the conclusion that the standard applies here. ^[7] 4. Even though Snyder cannot compel the result here, we have recognized that analyzing the form, content, and context of the speech, as the Court did in Snyder, can be a helpful piece of the totality of the circumstances analysis. Maethner, 929 N.W.2d at 881. i. The “form” asks where the speech occurred. The parties agree that the speech here occurred on a social media platform that was publicly viewed by many people, and that the use of a hashtag made the post more accessible to the public. ^[8] The fact that the speech was made in a “modern public square” is a relevant consideration in assessing whether the speech is deserving of First Amendment protection. See Packingham v. North Carolina, 582 U.S. 98, 107 (2017). But it is not dispositive. Indeed, even though the speech at issue in Time, Inc. appeared in a national news magazine, the Supreme Court held that the speech did not rise to the level of warranting First Amendment protection. Time, Inc., 424 U.S. at 457. 7 Snyder is, as the majority notes, more recent than New York Times Gertz, and Time, Inc. Supra at 17. But nothing in Snyder can be fairly read as modifying the analysis courts should follow for application of the constitutional actual malice standard, a standard that was not even mentioned in the case. ^[8] The majority considers Freborg’s use of #MeToo as relevant to the form, content, and context of her post. I consider it relevant only to form. D-13 ii. Turning next to the “content” of Freborg’s Facebook post, I conclude that the “overall thrust and dominant theme” of Freborg’s Facebook post was to accuse Johnson of sexual violence. Maethner, 929 N.W.2d at 880–81. Specifically, Freborg identifies Johnson and two others by name, accuses them of sexual violence, and speaks directly to them in her post. She also “tags” Johnson in the post, which made sure that her post would be linked to him through his own Facebook presence. By tagging Johnson in the post, Freborg further confirms that Johnson—and not some broader societal issue—is the target of her speech. But, according to the majority, the thing that separates Freborg’s Facebook post from any other speech accusing another of sexual assault is that Freborg included #MeToo (and to a lesser extent, #DancePredators), which shows that she intended to participate in a hashtag-based social movement. ^[9] I disagree. While use of a hashtag makes the post available more broadly to the public, it does not change the overall thrust of Freborg’s speech. Freborg’s speech included #MeToo, but the post made no mention of government policy changes or systemic problems. Moreover, the content of Freborg’s speech was disconnected from the MeToo movement. Unlike the

CHUTICH, Justice.

This case involves a defamation claim brought by respondent Byron Johnson—a private figure—against appellant Kaija Freborg. Johnson sued Freborg after a post on

Freborg’s Facebook page accused Johnson and two other dance instructors from the Twin Cities dance community of varying degrees of sexual assault. Johnson was one of Freborg’s dance teachers, and the two previously had a casual sexual relationship that lasted for about a year.

The district court granted Freborg’s motion for summary judgment, finding that

Freborg’s speech was true and, alternatively, that her speech involved a matter of public concern and was not made with actual malice. The court of appeals reversed. It held that

the truth or falsity of Freborg’s statement presented a genuine issue of material fact. The court of appeals further held, in a divided opinion, that because the dominant theme of Freborg’s post involved a matter of private concern, Johnson was not required to prove actual malice to recover presumed damages. The court of appeals remanded the case to the district court for further proceedings.

We granted Freborg’s petition for review on whether her statement involved a matter of public concern. Because the overall thrust and dominant theme of Freborg’s

post—based on its content, form, and context—involved a matter of public concern, namely, sexual assault in the context of the #MeToo movement, her statement is entitled to heightened protection under the First Amendment to the United States Constitution.

Before Johnson may recover presumed damages, he must therefore show that Freborg’s speech was not only false, but also that the post was made with actual malice.

Accordingly, we reverse the court of appeals on the issue of public concern and remand the case to the district court for further proceedings to determine the veracity of Freborg’s post and, if the post is found to be false, whether the making of the post meets the constitutional actual-malice standard.

FACTS

Freborg and Johnson met in 2011, and Freborg, then a faculty member at a local university, began to take dance lessons from Johnson at a Twin Cities dance studio.

Sometime in 2012, the parties began a casual sexual relationship. Freborg agrees that many of their sexual encounters were consensual. She claims, however, that not all of their interactions were consensual, including an allegation that Johnson approached her in 2015

at his home during a party “while [she] was intoxicated and alone, grabbed [her] hand and put it down his pants onto his genitals” without her consent. This allegation, and its veracity, is at the heart of her Facebook post and the litigation.

After the 2015 party, Freborg and Johnson ended their sexual relationship and continued to contact one another only in the context of dance lessons; these dance-related communications lasted until sometime in 2017. By 2020, they had not spoken to one another for several years.

On July 14, 2020, Freborg posted the following public message 1 on her Facebook page:

After receiving feedback about her message, Freborg clarified in the post’s comment thread that she was not accusing Johnson of rape (“[t]his type of coercion [rape] has nothing to do with [Johnson]”). She also edited her post 2 days later to exclude allegations of rape: Johnson posted a response on Freborg’s public Facebook thread: Freborg posted the following response on the thread:

Over 300 people “reacted” to Freborg’s posts, 182 readers commented on them, and they were publicly “shared” 16 times. Some of the response to Freborg’s posts was positive. Commenters told her that she was “brave” and a “survivor.” Others seemingly reinforced her posts by explaining their own negative experiences in the Twin Cities dance community. For example, one commenter noted that Freborg was “not the only one of us who has been sexually assaulted in the dance world.” Another commented that she does not “dance in certain spaces within the [Twin Cities] because of feeling diminished, preyed upon, unvalued, etc.” Other commenters, however, came to Johnson’s defense. One person, for example, explained that people should “wash [their] laundry at the COURTS” and only come forward on social media “after the person [accused of sexual assault] is PROVEN guilty.” Another accused Freborg of slander and criticized her unwillingness to engage with Johnson’s response to her posts. In response to the varied comments to her posts, Freborg later explained that she “did this for the safety of other women, and really to show that we as women can disrupt the status quo by calling sh*t out.” On July 27, 2020, just shy of 2 weeks after the original post was published, Freborg deactivated her Facebook account, removing the post and its thread from public view.

Johnson sued Freborg for defamation. He claimed that both Freborg’s original and edited posts accused Johnson of raping Freborg, thereby painting him as a rapist. Johnson argued that his reputation suffered as a result and that he lost business because of the posts.

After discovery, Freborg moved for summary judgment claiming that: (1) her speech was true; (2) her speech was a matter of public concern; and (3) Johnson failed to show that her speech was made with actual malice.

To support her summary judgment motion on the issue of public concern, Freborg

presented the following evidence about the global impact of the #MeToo movement. The #MeToo movement was conceived to allow women to share their experiences of sexual assault and harassment and to seek accountability from their abusers. ^[2] The hashtag collects the posts and enables a community discussion to occur on the subject of sexual abuse. One

study submitted by Freborg stated that the movement “was exceptionally effective in rapidly increasing awareness around sexual misconduct,” and that researchers have opined that “social movements [like #MeToo] can rapidly affect the norms for behavior by changing perceptions of a societal problem.”

Freborg also submitted information about sexual assault specifically in the dance community. She submitted a blog titled “Dance Predators” that provided suggestions on how to combat predatory behavior by dance instructors; a news story by Minnesota Public

Radio about sexual assault in a local Twin Cities dance studio; and seven other social media

posts from dancers, two posted the same day as Freborg’s post in July, that called out the predatory behavior of three prominent international dance instructors in the global dance community.

Johnson also moved for partial summary judgment on the issues of liability and actual malice. Additionally, he moved to amend his complaint to add a claim for punitive

damages. Johnson claimed that Freborg’s posts involved a matter of private, not public, concern because even if the #MeToo movement qualifies as a matter of public concern, Freborg’s specific posts were personal in nature. He asserted that the sources Freborg relied upon about the dance community were insufficient to show that her speech involved a matter of public concern. Johnson also argued that Freborg’s posts suggested that

Johnson raped her even though she openly admitted he had not, so Freborg acted with actual malice because she knowingly posted false information. He asked the district court for a jury trial only on the issue of damages.

The district court granted Freborg’s motion for summary judgment. First, the court found that Freborg’s statements were true. Second, the court rejected Johnson’s claim that the posts were too personal in nature to be a matter of public concern, specifically relying on Freborg’s use of the #MeToo hashtag and the context of the posts. The court also noted that “[t]he record is replete with other content regarding this specific problem [sexual

assault] in this specific community [the Twin Cities dance community].” Finally, the district court found that—even if Freborg’s speech was false—Johnson failed to show actual malice, which is required to recover presumed damages for defamatory statements that involve a matter of public concern.

The court of appeals reversed. Johnson v. Freborg, 978 N.W.2d 911 (Minn. App.

2022). The court held that a genuine issue of material fact existed about the veracity of Freborg’s posts, making summary judgment inappropriate. Id. at 917–18. In a divided opinion, the court further held that Freborg’s speech was a matter of private, not public concern. Id. at 923. The court therefore did not reach the issue of actual malice. Id. at 923 n.25.

One judge dissented, stating that the totality of circumstances showed that Freborg’s

statements relate to a matter of public concern. Id. at 924–29 (Wheelock, J., concurring in part, dissenting in part). Considering the content, form, and context of the speech, the dissent reasoned that Freborg “made the post as part of a now-global conversation about the prevalence of sexual harassment and assault and the need to shine light on once-secreted personal experiences.” Id. at 926.

Freborg petitioned this court for review on one issue: whether her speech involved a matter of public concern, which we granted. She does not challenge the court of appeals’

conclusion that a genuine issue of material fact exists about the veracity of her speech and agrees that a remand to the district court is appropriate on this issue. Consequently, we do not address the veracity issue further here and limit our analysis to the claim that her speech involved a matter of public concern.

ANALYSIS

We review the district court’s grant of summary judgment de novo. Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 874 (Minn. 2019). To decide whether summary judgment is appropriate, we must determine “whether the district court erred in its application of the law to the facts.” Id. (citation omitted) (internal quotation marks omitted). In addressing whether a statement involves a matter of public concern, federal courts have viewed the issue as a question of law, see Connick v. Myers, 461 U.S. 138, 148

n.7 (1983), and we likewise review the question of whether speech involves a matter of public concern de novo. We also review de novo the determination of “[w]hether evidence in the record is sufficient to support a finding of actual malice.” Maethner, 929 N.W.2d at

879 n.7.

I.

To determine whether Freborg’s speech involved a matter of public concern, we start with some general principles involving defamation. “Under the common law, a

plaintiff pursuing a defamation claim ‘must prove that the defendant made: (a) a false and defamatory statement about the plaintiff; (b) in [an] unprivileged publication to a third

party; (c) that harmed the plaintiff’s reputation in the community.’ ” Maethner, 929 N.W.2d at 873 (alteration in original) (quoting Weinberger v. Maplewood Rev., 668 N.W.2d 667, 673 (Minn. 2003)). Certain types of speech, like accusations of “criminal behavior or moral turpitude”—including accusations of sexual assault—are considered

“defamation per se.” Id. at 875 (citing Richie v. Paramount Pictures Corp., 544 N.W.2d

21, 25 (Minn. 1996) (internal quotation marks omitted). If a statement is found to be

defamatory per se, we then presume harm to a plaintiff’s reputation without requiring the plaintiff to prove actual damages. Id. Johnson asserts that he is entitled to presumed damages under this standard.

Like all laws regulating speech, however, “the doctrine of defamation per se cannot offend the constitutional guarantees of the First Amendment.” Id. We have long

recognized that “personal reputation has been cherished as important and highly worthy of protection.” Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 491 (Minn. 1985).

But we cannot “offer recourse for injury to reputation at the cost of chilling speech on matters of public concern, which ‘occupies the highest rung of the hierarchy of First

Amendment values, and is entitled to special protection.’ ” Maethner, 929 N.W.2d at 875

(quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011)).

Given this commitment to “uninhibited, robust, and wide-open” debate on issues of public concern, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), “a private plaintiff may not recover presumed damages for defamatory statements involving a matter of public concern unless the plaintiff can establish actual malice.” Maethner, 929 N.W.2d at 878–79. To meet this constitutional actual-malice standard, “a statement must be ‘made

with the knowledge that it was false or with reckless disregard of whether it was false or not.’ ” Id. at 873 (quoting Weinberger, 668 N.W.2d at 673) (internal quotation marks omitted). Freborg contends that this heightened standard applies to her speech because her posts involved a matter of public concern.

In Maethner, a defamation case, we held that the determination of whether speech

is of public or private concern in a particular case is “based on a totality of the circumstances.” Id. at 881. In particular, “courts should consider the content, form, and context of the speech.” Id. “No single factor is ‘dispositive;’ rather, courts should ‘evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.’ ” Id. (quoting Snyder, 562 U.S. at 454). In addition, in weighing the circumstances of the speech, we must make “an independent examination of the whole record.” Snyder, 562 U.S. at 454 (citation omitted) (internal quotation marks omitted).

Maethner involved statements by Maethner’s ex-wife—posted on her private

Facebook page under the name Jacki Hansen Maethner—identifying herself as a survivor of domestic violence, as well as an article published in a newsletter of a domestic

violence organization describing the “Survivor Award” that she had received. Maethner, 929 N.W.2d at 871. Maethner’s ex-wife and the organization also posted pictures on

Facebook of her holding the award. Id.

Even though he was not named in the posts, Maethner claimed that, given the use of his distinct last name by his ex-wife, the speech essentially accused him of domestic violence. Id. at 872. We recognized that “as a general proposition,” speech relating to domestic violence is a matter of public concern. Id. at 881. But, in addition to the subject of the speech, we explained that “the form and the context of the speech must also be considered, as well as any other relevant factors.” Id. Because neither the district court nor the court of appeals had specifically addressed the issue of public concern, we

remanded the case back to the district court “to decide in the first instance whether the challenged statements involve a matter of public or private concern.” Id. at 881–82.

Similar to Maethner, we recognize that “as a general proposition,” speech relating to sexual assault is a matter of public concern. See also Richie, 544 N.W.2d at 26

(concluding that “discussion of sexual abuse of children by their parents and legal recourse available to the abused child” were “certainly of public concern”). But Maethner clearly instructs us that no per se rule applies to suggest that statements about sexual abuse (or any other crime) are always matters of public concern. Instead, we must, on a case-by-case basis, apply the totality of the circumstances test and balance the content, form, and context of the speech, as well as any other pertinent factors, to determine whether speech involves a purely private matter or is a statement about a matter of public concern intended to influence public discussion about desired political or social change. Balancing the totality of the circumstances of the Facebook posts here, we conclude that, although the speech involved personal aspects, the predominant theme of Freborg’s speech involved a matter of public concern, namely sexual assault in the context of the #MeToo movement.

A.

We begin with the content—the “what”—of Freborg’s speech, and we review the entire thread of the Facebook postings when determining whether “a forbidden intrusion on the field of free expression” has occurred. See Sullivan, 376 U.S. 284–86; see also

Snyder, 562 U.S. at 453–54. The subject of the Facebook posts involved accusations of sexual assault by three dance instructors in the local Twin Cities dance community. In her first post, Freborg stated that she had been “gaslighted/coerced into having sex, sexual[ly] assaulted, and/or raped” by three specific dance instructors, including Johnson. She amended her post 2 days later to delete the word “raped,” stating instead that she had

“experienced varying degrees of sexual assault” by the three dance instructors, again including Johnson. ^[3] The last line of the original and amended posts stated, “If you have a problem with me naming you in a public format, then perhaps you shouldn’t do it.”

In evaluating whether these personal portions of Freborg’s posts—the identification, tagging, and admonishing of the three instructors—make the speech a private affair, we must weigh these statements against the remaining text. First, the original and amended post prominently begin with this statement: “Feeling fierce with all these women dancers coming out.” Then, before listing the varying degrees of sexual assault that she says she experienced, Freborg states, “So here goes . . . .” This introduction suggests that she was encouraged by other women speaking out about sexual assault in the dance community to reveal her own experience and to add her voice to the community conversation.

Second, Freborg ends her posts with the well-known #MeToo hashtag and a

#DancePredators hashtag, connecting her experience directly to the dance community and the broader #MeToo movement. This social movement is characterized by survivors of sexual abuse creating social media posts disclosing their experiences with sexual violence

and identifying their abusers. Benedetta Faedi Duramy, #MeToo and the Pursuit of Women’s International Human Rights, 54 U.S.F. L. Rev. 215, 217 (2020). The movement

seeks to connect survivors, encourage victims to tell their story, and increase awareness of the scope of the problem of sexual assault. JoAnne Sweeney, Social Media Vigilantism, 88 Brook. L. Rev. 1175, 1219–21 (2023). “ ‘For many #MeToo claimants, what they want is to tell their story.’ Indeed, the phrase ‘me too’ is inherently about connection; it tells others that they are not alone and that they are understood. Such affirmations can be healing in their own right as a form of social support.” Id. at 1219 (citation omitted).

Third, her subsequent explanation of her motives in the post thread—that she made the posts “for the safety of other women” and to show how “women can disrupt the status quo”—suggests that her posts were an attempt to raise awareness for other women, including women in the dance community, and inspire social change. These three factors, considered together, in addition to the broader context and response to the posts, show that

Freborg frames her Facebook posts “as her contribution to the larger discussions occurring at the time of the #MeToo movement.” Coleman v. Grand, 523 F. Supp. 3d 244, 259

(E.D.N.Y. 2021).

Johnson claims that the explicit use of “you” three times in the last line of the initial and amended post to condemn the instructors’ alleged abusive behavior, and Freborg’s reply to his comment on her posts, show that the content of Freborg’s speech was not to add her voice to the #MeToo movement but to get “vengeance” on him. He asserts that

Freborg’s posts—identifying him and two other instructors in the local dance community—were too limited in scope to implicate the broader #MeToo movement. He

further contends that his preexisting relationship with Freborg shows that she used the movement to mask a purely private attack on his character. He cites the Supreme Court’s decision in Snyder to show that the content of Freborg’s posts was personal in nature.

A preexisting relationship—or the lack thereof—is certainly a consideration in weighing whether the speech involves a matter of public concern. See Snyder, 562 U.S. at

455 (stating that there was no prior relationship between the Westboro Baptist Church and the soldier “that might suggest Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter”). Here, however, two considerations cause us not to heavily weigh Johnson’s assertion that Freborg’s speech was a matter of private concern because she was a “jilted former lover, who waited five years before publicly attacking Johnson.” First, the passage of that many years between the end of the parties’ relationship, which Johnson described as a “casual sexual relationship,” and the post suggests that the speech was not a personal attack in response to the relationship ending.

Second, the inclusion of two other dance instructors implies that the post had less to do with Freborg’s previous relationship with Johnson, and more about speaking up about alleged sexual abuse in the Twin Cities dance community generally.

Johnson cites the Supreme Court’s decision in Snyder to show that the content of Freborg’s post was personal in nature. In Snyder, the issue was whether the speech of the leader of the Westboro Baptist Church could receive First Amendment protection when he organized a protest with offensive placards near the funeral of a soldier killed in the Iraq

war. The signs included general messages such as “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “God Hates Fags,” and “Priests Rape Boys.” Snyder, 562 U.S. at 448, 454. The Court held that the signs addressed “matters of public import” including “homosexuality in the military, and scandals involving the Catholic clergy.” Id.

The Supreme Court acknowledged, however, that the content of a few signs like “You’re

Going to Hell” and “God Hates You” could be viewed as containing personal messages to the dead soldier and his family. Id. The Court concluded, however, that the few personal messages did “not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.” Id.

After weighing the personal aspects of the posts here with those elements addressing broader public issues, we reach a similar conclusion about content: even though Freborg named, tagged, and admonished three specific instructors in her post, these personal

messages do not outweigh the dominant theme of her speech—to discuss sexual assault in the dance community, a matter of public import.

The dissent takes a narrow view of a “matter of public concern,” essentially limiting those matters “to self-government,” “government officials,” or “government performance.” But that narrow perspective is rooted primarily in decades-old Supreme

Court case law. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 (1974); Time, Inc. v. Firestone, 424 U.S. 448 (1975).

The dissent’s narrow perspective disregards the development of the law over the past five decades and the Supreme Court’s broader view of matters of public concern. According to a more recent case, “Speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’

or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’ ” Snyder, 562 U.S. at 453 (citations omitted), quoted in Maethner, 929 N.W.2d at 880. 4 As we noted in Maethner, speech involving a matter of public concern is within “the core of First Amendment protection . . . to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Maethner, 929 N.W.2d at 879 (citation omitted) (internal quotation marks omitted) (emphasis added). 5

Consistent with Snyder, we conclude that Freborg’s Facebook post fits this broader conception of public concern.

Finally, although not binding upon us when weighing the content of Freborg’s

speech, we find persuasive a recent defamation case with similar facts. Fredin v. Middlecamp, 500 F. Supp. 3d 752 (D. Minn. 2020), aff'd, 855 F. App’x 314 (8th Cir. 2021)

(per curiam) (unpublished). In Fredin the federal district court, applying Minnesota law, 283 A.3d 1140, 1149–52 (Del. 2022) (applying the Snyder public concern test to hold that a claimed defamatory email was “speech that addressed a matter of public concern: the ongoing national debate about the use of American Indian iconography in sports logos,” noting that “the First Amendment’s Free Speech Clause can serve as a defense in state tort suits” generally (emphasis added)); Monge v. Univ. of Pa., ___ F. Supp. 3d ___, No. CV22-2942, 2023 WL 3692935, at *2 (E.D. Pa. May 26, 2023) (applying the Snyder public concern test to a defamation claim). Overall, it is the nature of the speech itself that guides our public concern inquiry, not the nature of the claim. 5 Even if we were to view matters of public concern as relating primarily to “self-government” or “government performance,” there are strong indications that the #MeToo movement has catalyzed government action. For example, since 2017, several federal laws have been amended or passed in direct response to the movement. See, e.g., Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 13307, 26 U.S.C. § 162(q)(1) (removing tax deductions for “any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement”); Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Pub. L. No. 117-90, § 2(a), 136 Stat. 27 (2022) (amended the Federal Arbitration Act, 9 U.S.C. § 402, to make any “predispute arbitration agreement or predispute joint-action waiver” for sexual harassment claims unenforceable); Speak Out Act, 42 U.S.C. §§ 19401–04 (recognizing that because “[s]exual harassment and assault remain pervasive in the workplace and throughout civic society,” 42 U.S.C § 19401(1), “no nondisclosure clause or nondisparagement clause agreed to before the dispute arises shall be judicially enforceable” 42 U.S.C § 19403(a)).

found that a post on a public Twitter account that included pictures of a person and explicitly accused him of repeated sexual harassment and rape qualified as a matter of public concern. Id. at 777. In weighing the totality of the circumstances, the district court found that “[t]he content of the speech here addressed harassment and rape, and more specifically, the subject of women coming forward to share their experiences in this regard.” Id. The court therefore concluded that the speech was entitled to the actual malice standard of protection. Id. We believe the same conclusion about content is justified here.

In sum, although Freborg’s speech identifies and addresses Johnson directly and has

some aspects of airing a personal dispute, the dominant theme of her posts speaks to the broader issue of sexual abuse in the context of the #MeToo movement, a matter of public

concern. After seeing other women share their experiences, she offered her own story, hoping to raise awareness about the prevalence of sexual assault, to keep other women safe, and to show that women “can disrupt the status quo” to bring about social change.

B.

Turning next to the form—the “where”—of Freborg’s speech, this factor further supports a conclusion that Freborg’s posts were on a matter of public concern. ^[6] Freborg disseminated her speech on her Facebook account, making her post publicly available to anyone. The use of the internationally recognized hashtag for the #MeToo movement allowed her message to be disseminated publicly and broadly on Facebook. Here, the #MeToo hashtag does what a public account, blog, or journal dedicated to these issues would by spreading the message to an unlimited audience.

The Supreme Court has acknowledged the power of Facebook, declaring that today

“the ‘vast democratic forums of the Internet’ . . . and social media in particular” provide

the “most important places . . . for the exchange of views.” Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (quoting Reno v. Am. C.L. Union, 521 U.S. 844, 868 (1997)). The Court further noted that social media acts as the “modern public square” and that sites like

Facebook “allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’ ” Id. at 107. It follows that Freborg specifically chose this modern public square as a way for her message “to reach as broad a public audience as possible.” Snyder, 562 U.S. at 454; see also Fredin, 500 F. Supp. 3d at

777. Accordingly, this factor weighs in favor of concluding that Freborg’s speech involved a matter of public concern.

To be clear, attaching a hashtag—even the well-recognized #MeToo hashtag—to the end of a social media post is not in and of itself determinative of whether the speech involves a matter of public concern. The use of a hashtag is only one relevant consideration

in balancing the totality of the circumstances. ^[7] Importantly, when courts are reviewing the use of a specific hashtag, they should consider all other relevant factors, including content and context. ^[8] A hashtag, even the globally recognized hashtag at issue here, can never provide blanket First Amendment protections. The critical question will remain: based upon the totality of the circumstances in light of the record as a whole, does the speech involve a matter of public or private concern?

C.

Finally, the full context—the “how”—of Freborg’s posts also weighs in favor of holding that her speech involved a matter of public concern. Johnson agrees that we can

and should look at the entire thread associated with Freborg’s posts. He asserts, however, that it engendered “no discussion about how to engage in democratic self-governance,” which he maintains would help support Freborg’s theory that the context of her post was intended to raise awareness and bring accountability.

The responses to the posts refute that claim on its face. The posts generated much

discussion and mixed reactions: some gave Freborg their full support and validated the claims in her posts by citing their own negative experiences, while others were critical of the posts and how Freborg chose to speak about what happened to her. These reactions facilitated conversations about the appropriate measures that victims should take when

speaking out and how to properly support sexual assault victims generally. The robust and unfettered discussion in the thread following the initial post supports the conclusion that the form and context of this speech makes this speech a matter of public concern, rather than a purely private matter.

As discussed above, the context of the #MeToo movement is a key factor in our analysis. The #MeToo movement has had a direct impact on society and how communities address sexual assault across industries. Data shows, for example, the number of sexual harassment complaints the U.S. Equal Employment Opportunity Commission received

jumped by 13.6 percent after #MeToo went viral. Sweeney, Social Media Vigilantism, 88 Brook. L. Rev. at 1222. Further, reports now show that more people believe that “those who commit harassment or assault are now more likely to be held responsible and victims are more likely to be believed.” Anna Brown, More Than Twice as Many Americans

Support Than Oppose the #MeToo Movement, Pew Rsch. Ctr. ^[12] (Sept. 29, 2022). And Congress has taken steps to lessen the shroud of secrecy that surrounds settlements relating to sexual harassment or sexual abuse. See Speak Out Act, 42 U.S.C. §§ 19401–04; Tax

Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 13307, 26 U.S.C. § 162(q)(1).

Many other jurisdictions also have acknowledged the importance of #MeToo speech

in the context of the First Amendment. Fredin, 500 F. Supp. 3d 752; Coleman v. Grand, 523 F. Supp. 3d 244, 259 (E.D.N.Y. 2021) (finding that the open letter that the defendant circulated accusing the plaintiff of abuse and sexual harassment involved a matter of public concern); Dossett v. Ho-Chunk, Inc., 472 F. Supp. 3d 900, 908 (D. Or. 2020) (finding that the publication of workplace-related #MeToo allegations involved a matter of public concern); Fells v. Serv. Emps. Int’l Union, 281 A.3d 572, 584 (D.C. App. 2022) (holding that there was a prima facie showing that the publication of workplace-related #MeToo allegations involved a matter of public concern); Goldman v. Reddington, No. 18-CV-

3662, 2021 WL 4099462, at *4 (E.D.N.Y. Sept. ^[9], 2021) (finding that a defendant’s LinkedIn and Facebook posts accusing plaintiff of sexual assault concerned “more than a purely private matter” (internal quotation marks omitted)).

In addition, Freborg provided adequate evidence of the #MeToo conversations happening about predatory behavior in the dance community, including a series of similar posts made on and around the time of her own July 14, 2020 post. Her statements fit well within the context of a legitimate social movement. ^[9]

Johnson cites other contextual factors to show that Freborg’s posts are not a matter of public import. As noted above, he contends that his previous relationship with Freborg demonstrates that the nature of her speech was private. But the mere existence of a previous relationship is not a dispositive factor in assessing the nature of the speech, and it does not negate the importance of speaking out against sexual assault in society. Many victims who come forward to speak about their experiences of sexual assault often have a preexisting relationship with their abusers. See, e.g., Fredin, 500 F. Supp. 3d at 763–64

(granting summary judgment to one of the women named in the plaintiff’s defamation lawsuit who previously had been romantically involved with the plaintiff); see also Lauren

R. Taylor & Nicole Gaskin-Laniyan, Sexual Assault in Abusive Relationships, 256 Nat’l

Inst. of Just. ^[12], 12–14 (Jan. 2007). In Minnesota, for example, a grim statistic shows that one in every three women will experience violence, rape, or stalking by an intimate partner in their lifetime. Domestic Violence in Minnesota, Nat’l Coal. Against Domestic Violence

(2020). If we were to hold that the mere existence of a previous relationship between

Johnson and Freborg makes Freborg’s speech private in nature, the impact would be an

unnecessary chilling effect on the exercise of free speech by victims of sexual assault and their ability to effect social change.

Johnson next contends that, unlike Westboro Baptist Church and the owner of the account used to tweet about Fredin, Freborg had no prior history speaking out about the #MeToo movement or sexual abuse and harassment generally. We do not give this contention much, if any, weight. To hold that victims of sexual assault can only speak out about their experiences if they themselves are already advocates would certainly chill other

alleged victims from coming forward. See Fredin, 500 F. Supp. 3d at 777 (noting the importance of and protecting speech that addressed “harassment and rape, and more specifically, the subject of women coming forward to share their experiences in this regard” (emphasis added)). Johnson’s argument also fails to consider that every alleged victim, be they an advocate or not, must make a first statement. If we were to conclude

that Freborg’s speech was private in nature simply because she had no history of advocacy, that would discourage any person not already engaged in advocacy work from telling their story about what happened to them and adding their voice to the desire for social change because they could be liable for per se defamation.

Moreover, even with the heightened protection of the actual-malice constitutional standard, the speech of victims of sexual assault may well 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. See Shaina Weisbrot, The Impact of the #MeToo Movement on Defamation Claims Against Survivors, 23 CUNY L. Rev. 332, 352–53 (2020)

(explaining that while #MeToo has empowered more people to speak out, this speech has led to more defamation lawsuits, especially if the accused has significant power or resources).

Finally, Johnson cites Maethner and a lack of media coverage of Freborg’s posts to show that the posts concerned a private matter. Maethner does not require, however, that

Freborg’s speech be later disseminated by the media for it to be considered a statement of public import. There, we held that the dispositive inquiry regarding the availability of presumed damages “is not on the status of the defendant as a media or nonmedia defendant” but “whether the matter at issue is one of public concern.” Maethner, 929 N.W.2d at 877.

We later cited Eighth Circuit cases that noted that “media coverage is a good indication of the public’s interest” and stressed “the importance of journalistic freedom in investigating and reporting on matters of public interest.” Id. at 881 (citations omitted) (internal quotation marks omitted). We then noted that dissemination of statements in the news media is “one of many relevant factors in determining whether the statements involve a matter of public concern.” Id. Our discussion in Maethner therefore suggests that this non-dispositive factor serves to protect journalists in traditional media by adding another

consideration to identify speech on a matter of public concern. Given this background and that Freborg’s posts were made on Facebook, a website that Packingham describes as a

“powerful mechanism” for the robust exchange of views, 582 U.S. at 107, the fact that no news media reported Freborg’s posts is not a decisive factor in assessing the public import of the speech.

After considering the context of Freborg’s posts, we conclude that this factor shows that her speech involved a matter of public concern.

D.

In sum, weighing the content, form, and context of Freborg’s statements in light of the whole record, we conclude that the overall thrust and dominant theme of the posts involved a matter of public concern. We therefore hold that Freborg’s speech is subject to heightened protection under the First Amendment. Accordingly, to prevail on his defamation claim for presumed damages, Johnson must show that Freborg’s posts not only were false, but that they were made with actual malice.

II.

Turning to the issue of actual malice, we note that the court of appeals did not rule on this issue because it held that Freborg’s speech involved a matter of private concern.

Freborg, 978 N.W.2d at 923 n.25. Nor did Freborg raise the issue of actual malice in her petition for review. Consequently, the parties agree that, if we conclude that the challenged speech here involved a matter of public concern, we should remand the case to the district court for a trial on the veracity of Freborg’s speech and actual malice. We agree for the following reasons.

The district court concluded as a matter of law that the record contained insufficient evidence of actual malice. But the court of appeals held that a genuine issue of material fact existed as to the veracity of Freborg’s speech, making summary judgment improper.

Id. at 918. Given the fact issue on falsity—and because Freborg was both the speaker and the publisher of the alleged defamatory statements—if a jury finds that Freborg’s speech was false, sufficient evidence may allow the jury to further find that Freborg made the statements with actual malice. ^[10] We therefore reverse the district court’s ruling on actual malice and remand this case for further proceedings.

CONCLUSION

For the foregoing reasons, we reverse the decision of the court of appeals and remand the case to the district court for further proceedings.

Reversed and remanded.

DISSENT

GILDEA, Chief Justice (dissenting).

In this defamation case, we are asked to decide whether heightened First

Amendment protections apply to Kaija Freborg’s accusation that Byron Johnson, her

former dance instructor and romantic partner, “gaslighted/coerced [her] into having sex, sexual[ly] assaulted, and/or raped” her. The question is not whether Freborg’s speech is

protected at all; it is. Existing precedent already dictates those protections. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974) (noting that states may “not impose liability without fault”); Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 492 (Minn.

1985) (adopting negligence standard in response to Gertz). The narrow question here is whether Freborg’s speech is so central to the purpose of the First Amendment that it is entitled to the heightened protections reflected in the constitutional actual malice standard.

The majority concludes that the actual malice standard applies to Freborg’s speech because

Freborg wrote about sexual assault and included #MeToo in her post. I disagree. In my view, Freborg’s personal Facebook post, on her personal Facebook page, concerning

private conduct between two people with a private relationship, is not speech that the constitutional actual malice standard protects. Accordingly, I dissent.

A.

Historically, defamatory speech, such as allegations of criminal behavior akin to those made here, fell outside the scope of the First Amendment. Moreno v. Crookston

Times Printing Co., 610 N.W.2d 321, 328 (Minn. 2000) (noting that “defamatory comments were, by definition, not protected speech under the First Amendment.”). But in D-1

New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court said, “that the reputational interests protected by state libel law must yield when in conflict with the central meaning of the First Amendment.” Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 481 (Minn. 1985) (citing New York Times, 376 U.S. at 273–75). The New York Times Court adopted the actual malice standard to strike a balance between reputational interests and First Amendment protections. ^[1]

The majority concludes that Minnesotans’ reputational interests must yield here

because Freborg’s speech is a matter of public concern and therefore worthy of the heightened First Amendment protection of the constitutional actual malice standard. I disagree. Providing redress for Minnesotans who have been accused by name of sexual

assault does not conflict with the “central meaning of the First Amendment.” Jadwin, 367 N.W.2d at 481. Accordingly, under Supreme Court precedent, the constitutional actual

malice standard does not apply. Examination of the Court’s precedent and application of the required totality of the circumstances test confirms this.

1.

Our analysis of Supreme Court precedent must begin with New York Times, the case in which the Court created the constitutional actual malice standard. There, the Supreme

Court recognized that speech by the press that criticized public officials for their official conduct was so valuable that, even if it was defamatory, the First Amendment required that

1 Under this constitutional standard, a plaintiff cannot recover damages for injury to reputation unless the plaintiff proves that the defendant made the statement at issue knowing it was false or with reckless disregard for the statement’s falsity. New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).

D-2 the speech be given some protections so that the speech was not unnecessarily chilled.

376 U.S. at 278–79. The Court created the “actual malice” standard to provide that protection—public officials may not recover damages for a defamatory falsehood relating to their official conduct unless they prove that the statement was made with “actual malice.” Id. at 279–80. The Court grounded the result in the fact that the speech at issue—

citizen commentary on the performance of their government—went to the very heart or “central meaning of the First Amendment.” Id. at 273; see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 (1974) (describing New York Times as “defin[ing] a constitutional

privilege intended to free criticism of public officials from the restraints imposed by the common law of defamation”).

The majority holds that this actual malice standard from New York Times applies to

Freborg’s allegation that Johnson sexually assaulted her. But the animating principle in New York Times was the connection of the speech to principles necessary to a successful democracy, such as the citizenry’s ability to comment freely on the performance of their government. See New York Times, 376 U.S. at 273, 279–80. Freborg’s speech has nothing whatsoever to do with the government or government officials, and nothing in New York

Times supports the majority’s extension of the actual malice standard to the speech at issue here.

The Supreme Court’s jurisprudence on the actual malice standard since New York

Times likewise does not support the majority’s extension of the standard to Freborg’s

speech. The Court discussed the applicability of the actual malice standard in Gertz v. Robert Welch, 418 U.S. 323 (1974). In Gertz, as in New York Times, the speech was

D-3

grounded in commentary about government performance. See Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749, 756 (1985) (noting that the speech at issue in Gertz “involved expression on a matter of undoubted public concern” because the article questioned whether a prosecution of a police officer was part of a Communist campaign to discredit local law enforcement agencies).

The Gertz Court recognized that states have a “legitimate interest” in providing compensation to people whose reputations have been harmed by defamation, and that that interest needed to be balanced against competing First Amendment considerations to ensure that speech the First Amendment values is not chilled. 418 U.S. at 348–50. When

the plaintiff is a private individual, the Court concluded, the government’s interest in compensating for reputational harm was greater than in the case of public official/public

figure plaintiffs, such as the plaintiff in New York Times. Gertz, 418 U.S. at 343–44. The Court held that states have “substantial latitude” in providing remedies to private plaintiffs

for reputational injuries and that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood.” Id. at 345, 347. But the Court clarified that “the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Id. at

349.

The Supreme Court limited Gertz in Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). Unlike the facts of New York Times and Gertz, Dun & Bradstreet involved only private, nonmedia parties: the plaintiff was a construction contractor and D-4 defendant was a credit reporting agency. Dun & Bradstreet, 472 U.S. at 751. The plaintiff

sued the defendant for erroneously reporting to third parties that the plaintiff had filed for bankruptcy. Id. at 751–52. The plurality opinion reasoned that Gertz applied only to speech on matters of public concern and that Dun & Bradstreet involved a matter of “purely

private concern.” See id. at 763 (“We conclude that permitting recovery of presumed and punitive damages in defamation cases absent a showing of ‘actual malice’ does not violate the First Amendment when the defamatory statements do not involve matters of public concern.”). Thus, the Court allowed the plaintiff to recover presumed damages without proving actual malice.

Read together, New York Times, Gertz, and Dun & Bradstreet hold that the actual

malice standard applies to protect speech about a public figure, government official or the performance of government more generally, but the standard does not apply to speech

about a private plaintiff on a matter of private concern. See Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 877–78 (Minn. 2019). 2 For the former, a plaintiff must show actual malice to recover; for the latter, state law governs. And for speech to be a “matter of public concern” sufficient to warrant application of the constitutional actual malice standard, that speech must relate to self-government. See Dun & Bradstreet, 472 U.S. at 759 (noting that

“the role of the Constitution in regulating state libel law is far more limited when the concerns that activated New York Times and Gertz are absent”); New York Times, 376 U.S.

2 The parties agree that there is no media defendant here as in New York Times, and they also agree that the parties involved are not public or government figures. Thus, the only way that the actual malice standard would apply is if Freborg’s Facebook post is speech on a matter of public concern.

D-5 at 269 (“The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.”); see also Elena Kagan, A Libel Story: Sullivan

Then and Now, 18 L. & Soc. Inquiry 197, 212 (1993) (noting that one approach to understanding the New York Times v. Sullivan line of cases is to “view[] Sullivan as primarily a case about the speech necessary for democratic governance”).

2.

The majority argues that I have interpreted the Supreme Court’s precedent too narrowly. For support, the majority essentially equates matters of interest to the public to those of public concern. Supra at 17. But the Supreme Court has already concluded that when the issue is the application of the constitutional actual malice standard, there is a dispositive difference between matters of public interest and matters of public concern.

Time, Inc. v. Firestone, 424 U.S. 448, 454 (1975). In Time, Inc., the Court made clear that

not all matters of interest to the public are matters of public concern for purposes of applying the First Amendment. See Time, Inc., 424 U.S. at 454, 457 (rejecting petitioner’s

attempt to “equate ‘public controversy’ with all controversies of interest to the public” and concluding the speech at issue was private speech because it “add[s] almost nothing toward

advancing the uninhibited debate on public issues thought to provide principal support for the decision in New York Times.”). And the Court confirmed that Gertz had “repudiated” the view that the “New York Times privilege should be extended to falsehoods defamatory of private persons whenever the statements concern matters of general or public interest.”

D-6

Id. at 454; see also Gertz, 418 U.S. at 346 (rejecting “[t]he ‘public or general interest’ test for determining the applicability of the New York Times standard” because that test

“inadequately serves both of the competing values at stake”); cf. Waldbaum v. Fairchild

Pub., Inc., 627 F.2d 1287, 1296 (D.C. Cir. 1980) (“A public controversy is not simply a matter of interest to the public.”). Time, Inc. involved a news magazine article that included reports that the defendant had extramarital affairs. The Court declined to apply the New

York Times “actual malice” standard, opting instead for the standard requiring some proof of fault from Gertz. Time, Inc., 424 U.S. at 457; see also id. at 469–70 (Powell, J., concurring). In short, the Court in Time, Inc. continued the long line of cases including

New York Times, Gertz, and Dun & Bradstreet, that hold that speech about governance and self-government is speech on a matter of public concern for purposes of the constitutional actual malice standard.

I acknowledge, as we have recognized in other cases, that as a general proposition

speech discussing crime can be speech on a matter of public concern. See Maethner, 929 N.W.2d at 881 (noting that as a “general proposition” “speech relating to domestic

violence involves a matter of public concern”); Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 25–26 (Minn. 1996) (noting that child sexual abuse is matter of public concern). 3 But Freborg was not discussing crime in general, the prevalence of crime in our

3 Importantly, neither Maethner nor Richie adopts a per se rule. In Maethner, we did not disagree with the “general proposition” that “speech relating to domestic violence involves a matter of public concern,” but we declined to address whether the speech in that case (all of which discussed domestic violence) was speech on a matter of public concern. 929 N.W.2d at 881. Instead we noted that the district court did not reach a conclusion on the question and remanded the case to the district court for further consideration. Id. Richie

D-7

society, or the government’s response to crime. Rather, she made a specific accusation of criminal conduct on Facebook—that a person she identified by name sexually assaulted her. Although the public may be interested in Freborg’s allegations, I would hold that such

speech is not a matter of public concern for First Amendment purposes. Bierman v. Weier, 826 N.W.2d 436, 462 (Iowa 2013) (holding that book author’s allegation that identified person committed sexual assault was not a matter of public concern for First Amendment purposes); W.J.A. v. D.A., 43 A.3d 1148, 1157–58 (N.J. 2012) (holding that defendant’s speech on website he created where he alleged that his uncle sexually abused him was not a matter of public concern).

The majority disagrees but it makes no real attempt to connect Freborg’s Facebook post to commentary that goes to an issue important to self-government or to the “central

meaning of the First Amendment.” See New York Times, 376 U.S. at 273; see also Jadwin, 367 N.W.2d at 481. Instead, the majority focuses its analysis on how the broader MeToo movement related to social change. I acknowledge the important contributions the MeToo movement has made to our society. But 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.” We are tasked with evaluating whether Freborg’s single Facebook post was

speech on a matter of public concern, not the entire MeToo movement. Moreover, the majority cannot connect Freborg’s post to any particular change in statute, nor do the involved media defendants, which is a material difference to application of the constitutional actual malice standard. Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 23 (Minn. 1996). In short, we did not hold in either case that speech about sexual abuse and harassment is always entitled to First Amendment protection. See supra at 17.

D-8

changes to federal law cited by the majority—changes that concern settlement, arbitration, and nondisclosure—even apply to this case. The focus of those changes is apparently on workplace sexual assault and harassment, and has nothing to do with sexual violence committed at a private party between people with a personal relationship who met through a hobby. ^[4]

The majority also supports its focus on the importance of the MeToo movement generally with statistics that show the prevalence of sexual violence and domestic abuse against women. Supra at 22–24. This reliance on statistics and the MeToo movement generally reveals a values-based approach to applying the First Amendment that is not consistent with the First Amendment’s prohibition on “viewpoint discrimination.” See

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 383–84, 391 (1992) (noting that unprotected

categories of speech “can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)—not that they are

categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content”).

I see no reason to apply the First Amendment differently in the MeToo context.

4 For similar reasons, the majority’s reliance on statistics about the increase in Equal Employment Opportunity Commission complaints and the fact that “people who commit sexual harassment or assault in the workplace are now more likely to be held responsible for their actions” are misplaced. See supra at 22; Anna Brown, More Than Twice as Many Americans Support Than Oppose the #MeToo Movement, Pew Rsch. Ctr. ^[4] (Sept. 29, 2022). Freborg’s speech was not about workplace sexual violence. D-9 3. Snyder, a case about intentional infliction of emotional distress—not defamation— does not compel a contrary conclusion. Anthony List v. Dierhaus, 779 F.3d 628, 632 (6th Cir. 2015) (observing that Snyder was not a defamation case and suggesting that Snyder was of limited application to defamation cases). 5 In Snyder, the U.S. Supreme Court held that a claim for intentional infliction of emotional distress will not lie in the face of a First Amendment challenge when the allegedly distress-causing conduct is speech about a matter of public concern. Speech intended to inflict emotional distress does not fall into the category of speech that was 5 In Maethner, we said that the test discussed in Snyder, which looks at the form, content, and context for the alleged tortious activity, should be considered but that no one factor was dispositive and that our test would require an examination of the totality of the circumstances to decide whether the actual malice standard applied. 929 N.W.2d 881. The majority’s focus on the result in Snyder to compel a result in this case is not consistent with that direction. The majority also cites three cases to support its reliance on Snyder to compel the result here. Supra at 17–18 (citing Dongguk Univ. v. Yale Univ. 734 F.3d 113 (2d Cir. 2013), Cousins v. Goodier, 283 A.3d 1140 (Del. 2022), and Monge v. Univ. of Pa., ___ F. Supp. 3d ___, No. CV22-2942, 2023 WL 3692935 (E.D. Pa. May 26, 2023)). These cases are inapposite. Dongguk is of no help because the defendant in that case “concede[d] that the defamatory statements addressed public figures and matters of public concern.” 734 F.3d at 122. And the court’s use of Snyder was confined to the negligence claim stated in the complaint. In other words, unlike the majority here, the Second Circuit in Dongguk did not use Snyder to resolve the plaintiff’s defamation claim. Id. at 127. Cousins is likewise unhelpful to the majority because Cousins, like Snyder, is not about the actual malice standard in a defamation case. The defamation claim in that case was dismissed because the plaintiff could not prove that the alleged defamatory statement was false. 283 A.3d at 1160. And Monge involves a media defendant and criticism of a university professor’s performance. 2023 WL 3692935, at *1. The court did not use Snyder to compel a conclusion on the application of the constitutional actual malice standard (which is what the majority does here). Id. at *3. Rather, the court relied on Snyder’s public- concern analysis for the proposition that the plaintiff had to prove falsity, something that is not at issue here. Id. D-10 historically unprotected by the First Amendment, whereas defamatory speech does. See Snyder, 562 U.S. at 451 n.3. This makes the State’s interest in preserving a cause of action weigh more heavily here than in Snyder, and the First Amendment interest in protecting speech weigh less. Maethner, 929 N.W.2d at 870–71 (noting that the purpose of the content, form, and context inquiry is “to strike a delicate balance between the State’s interest in providing redress for citizens claiming reputational injury and the free speech protections the First Amendment provides”). Another important distinction between defamation and intentional infliction of emotional distress also influenced the Court’s analysis in Snyder. An element of intentional infliction of emotional distress is the outrageousness of the conduct. But outrageousness can have important value to speech, and permitting liability based on the “outrageousness” of speech permits juries to discriminate on speech based on its content or the viewpoint conveyed. See Snyder, 562 U.S. at 458 (“ ‘Outrageousness,’ however, is a highly malleable standard with an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.”) (citation omitted) (internal quotation marks omitted)). The Court found the risk of chilling speech based on a malleable standard of outrageousness “unacceptable” because “ ‘in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate “breathing space” to the freedoms protected by the First Amendment.’ ” Id. (citing Boos v. Barry, 485 U.S. 312, 322 (1988)). In other words, it was important to the Court’s analysis that the D-11 outrageousness element of the tort of intentional infliction of emotional distress risked a jury verdict on the basis of jurors’ opinions and subjective judgments. That risk is much lower in a defamation case. In a defamation case, a jury will consider the content of the speech only to evaluate its truth or falsity. Unlike the intentional-infliction-of-emotional-distress context, the jury in a defamation case cannot impose liability based on their own subjective judgments about the outrageousness of the speech. ^[6] Finally, regarding the relevance of Snyder to the result here, the Court said in Snyder that it was writing a “narrow” holding, one “limited by the particular facts” of Snyder. 562 U.S. at 460. The case did not even discuss the constitutional actual malice standard, 6 The majority disagrees that the cause of action affects our application of Snyder, arguing that the “form, content, and context” test should apply in exactly the same way in an intentional infliction of emotional distress case as in a defamation case. See supra at 17 n.4. The reason for the “form, content, and context” inquiry is “to ensure that courts themselves do not become inadvertent censors.” See Snyder, 562 U.S. at 452. And the risk of becoming inadvertent censors turns on the cause of action. See id. at 458 (balancing the First Amendment against the state’s interest in preserving a cause of action for “outrageous” speech). The touchstone of the test in a defamation case is balancing the First Amendment protections against the state’s interest in preserving a cause of action for damage to reputation, whereas the touchstone in an intentional infliction of emotional distress case is balancing the First Amendment with the state’s interest in maintaining a cause of action for infliction of emotional distress. See id. at 462–63 (Breyer, J., concurring) (“To uphold the application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm.”). The cause of action necessarily affects the balance. D-12 and the majority is unable to explain how a case that does not even mention the standard compels the conclusion that the standard applies here. ^[7] 4. Even though Snyder cannot compel the result here, we have recognized that analyzing the form, content, and context of the speech, as the Court did in Snyder, can be a helpful piece of the totality of the circumstances analysis. Maethner, 929 N.W.2d at 881. i. The “form” asks where the speech occurred. The parties agree that the speech here occurred on a social media platform that was publicly viewed by many people, and that the use of a hashtag made the post more accessible to the public. ^[8] The fact that the speech was made in a “modern public square” is a relevant consideration in assessing whether the speech is deserving of First Amendment protection. See Packingham v. North Carolina, 582 U.S. 98, 107 (2017). But it is not dispositive. Indeed, even though the speech at issue in Time, Inc. appeared in a national news magazine, the Supreme Court held that the speech did not rise to the level of warranting First Amendment protection. Time, Inc., 424 U.S. at 457. 7 Snyder is, as the majority notes, more recent than New York Times Gertz, and Time, Inc. Supra at 17. But nothing in Snyder can be fairly read as modifying the analysis courts should follow for application of the constitutional actual malice standard, a standard that was not even mentioned in the case. ^[8] The majority considers Freborg’s use of #MeToo as relevant to the form, content, and context of her post. I consider it relevant only to form. D-13 ii. Turning next to the “content” of Freborg’s Facebook post, I conclude that the “overall thrust and dominant theme” of Freborg’s Facebook post was to accuse Johnson of sexual violence. Maethner, 929 N.W.2d at 880–81. Specifically, Freborg identifies Johnson and two others by name, accuses them of sexual violence, and speaks directly to them in her post. She also “tags” Johnson in the post, which made sure that her post would be linked to him through his own Facebook presence. By tagging Johnson in the post, Freborg further confirms that Johnson—and not some broader societal issue—is the target of her speech. But, according to the majority, the thing that separates Freborg’s Facebook post from any other speech accusing another of sexual assault is that Freborg included #MeToo (and to a lesser extent, #DancePredators), which shows that she intended to participate in a hashtag-based social movement. ^[9] I disagree. While use of a hashtag makes the post available more broadly to the public, it does not change the overall thrust of Freborg’s speech. Freborg’s speech included #MeToo, but the post made no mention of government policy changes or systemic problems. Moreover, the content of Freborg’s speech was disconnected from the MeToo movement. Unlike the

CHUTICH, Justice.

This case involves a defamation claim brought by respondent Byron Johnson—a private figure—against appellant Kaija Freborg. Johnson sued Freborg after a post on

Freborg’s Facebook page accused Johnson and two other dance instructors from the Twin Cities dance community of varying degrees of sexual assault. Johnson was one of Freborg’s dance teachers, and the two previously had a casual sexual relationship that lasted for about a year.

The district court granted Freborg’s motion for summary judgment, finding that

Freborg’s speech was true and, alternatively, that her speech involved a matter of public concern and was not made with actual malice. The court of appeals reversed. It held that

the truth or falsity of Freborg’s statement presented a genuine issue of material fact. The court of appeals further held, in a divided opinion, that because the dominant theme of Freborg’s post involved a matter of private concern, Johnson was not required to prove actual malice to recover presumed damages. The court of appeals remanded the case to the district court for further proceedings.

We granted Freborg’s petition for review on whether her statement involved a matter of public concern. Because the overall thrust and dominant theme of Freborg’s

post—based on its content, form, and context—involved a matter of public concern, namely, sexual assault in the context of the #MeToo movement, her statement is entitled to heightened protection under the First Amendment to the United States Constitution.

Before Johnson may recover presumed damages, he must therefore show that Freborg’s speech was not only false, but also that the post was made with actual malice.

Accordingly, we reverse the court of appeals on the issue of public concern and remand the case to the district court for further proceedings to determine the veracity of Freborg’s post and, if the post is found to be false, whether the making of the post meets the constitutional actual-malice standard.

FACTS

Freborg and Johnson met in 2011, and Freborg, then a faculty member at a local university, began to take dance lessons from Johnson at a Twin Cities dance studio.

Sometime in 2012, the parties began a casual sexual relationship. Freborg agrees that many of their sexual encounters were consensual. She claims, however, that not all of their interactions were consensual, including an allegation that Johnson approached her in 2015

at his home during a party “while [she] was intoxicated and alone, grabbed [her] hand and put it down his pants onto his genitals” without her consent. This allegation, and its veracity, is at the heart of her Facebook post and the litigation.

After the 2015 party, Freborg and Johnson ended their sexual relationship and continued to contact one another only in the context of dance lessons; these dance-related communications lasted until sometime in 2017. By 2020, they had not spoken to one another for several years.

On July 14, 2020, Freborg posted the following public message 1 on her Facebook page:

After receiving feedback about her message, Freborg clarified in the post’s comment thread that she was not accusing Johnson of rape (“[t]his type of coercion [rape] has nothing to do with [Johnson]”). She also edited her post 2 days later to exclude allegations of rape: Johnson posted a response on Freborg’s public Facebook thread: Freborg posted the following response on the thread:

Over 300 people “reacted” to Freborg’s posts, 182 readers commented on them, and they were publicly “shared” 16 times. Some of the response to Freborg’s posts was positive. Commenters told her that she was “brave” and a “survivor.” Others seemingly reinforced her posts by explaining their own negative experiences in the Twin Cities dance community. For example, one commenter noted that Freborg was “not the only one of us who has been sexually assaulted in the dance world.” Another commented that she does not “dance in certain spaces within the [Twin Cities] because of feeling diminished, preyed upon, unvalued, etc.” Other commenters, however, came to Johnson’s defense. One person, for example, explained that people should “wash [their] laundry at the COURTS” and only come forward on social media “after the person [accused of sexual assault] is PROVEN guilty.” Another accused Freborg of slander and criticized her unwillingness to engage with Johnson’s response to her posts. In response to the varied comments to her posts, Freborg later explained that she “did this for the safety of other women, and really to show that we as women can disrupt the status quo by calling sh*t out.” On July 27, 2020, just shy of 2 weeks after the original post was published, Freborg deactivated her Facebook account, removing the post and its thread from public view.

Johnson sued Freborg for defamation. He claimed that both Freborg’s original and edited posts accused Johnson of raping Freborg, thereby painting him as a rapist. Johnson argued that his reputation suffered as a result and that he lost business because of the posts.

After discovery, Freborg moved for summary judgment claiming that: (1) her speech was true; (2) her speech was a matter of public concern; and (3) Johnson failed to show that her speech was made with actual malice.

To support her summary judgment motion on the issue of public concern, Freborg

presented the following evidence about the global impact of the #MeToo movement. The #MeToo movement was conceived to allow women to share their experiences of sexual assault and harassment and to seek accountability from their abusers. ^[2] The hashtag collects the posts and enables a community discussion to occur on the subject of sexual abuse. One

study submitted by Freborg stated that the movement “was exceptionally effective in rapidly increasing awareness around sexual misconduct,” and that researchers have opined that “social movements [like #MeToo] can rapidly affect the norms for behavior by changing perceptions of a societal problem.”

Freborg also submitted information about sexual assault specifically in the dance community. She submitted a blog titled “Dance Predators” that provided suggestions on how to combat predatory behavior by dance instructors; a news story by Minnesota Public

Radio about sexual assault in a local Twin Cities dance studio; and seven other social media

posts from dancers, two posted the same day as Freborg’s post in July, that called out the predatory behavior of three prominent international dance instructors in the global dance community.

Johnson also moved for partial summary judgment on the issues of liability and actual malice. Additionally, he moved to amend his complaint to add a claim for punitive

damages. Johnson claimed that Freborg’s posts involved a matter of private, not public, concern because even if the #MeToo movement qualifies as a matter of public concern, Freborg’s specific posts were personal in nature. He asserted that the sources Freborg relied upon about the dance community were insufficient to show that her speech involved a matter of public concern. Johnson also argued that Freborg’s posts suggested that

Johnson raped her even though she openly admitted he had not, so Freborg acted with actual malice because she knowingly posted false information. He asked the district court for a jury trial only on the issue of damages.

The district court granted Freborg’s motion for summary judgment. First, the court found that Freborg’s statements were true. Second, the court rejected Johnson’s claim that the posts were too personal in nature to be a matter of public concern, specifically relying on Freborg’s use of the #MeToo hashtag and the context of the posts. The court also noted that “[t]he record is replete with other content regarding this specific problem [sexual

assault] in this specific community [the Twin Cities dance community].” Finally, the district court found that—even if Freborg’s speech was false—Johnson failed to show actual malice, which is required to recover presumed damages for defamatory statements that involve a matter of public concern.

The court of appeals reversed. Johnson v. Freborg, 978 N.W.2d 911 (Minn. App.

2022). The court held that a genuine issue of material fact existed about the veracity of Freborg’s posts, making summary judgment inappropriate. Id. at 917–18. In a divided opinion, the court further held that Freborg’s speech was a matter of private, not public concern. Id. at 923. The court therefore did not reach the issue of actual malice. Id. at 923 n.25.

One judge dissented, stating that the totality of circumstances showed that Freborg’s

statements relate to a matter of public concern. Id. at 924–29 (Wheelock, J., concurring in part, dissenting in part). Considering the content, form, and context of the speech, the dissent reasoned that Freborg “made the post as part of a now-global conversation about the prevalence of sexual harassment and assault and the need to shine light on once-secreted personal experiences.” Id. at 926.

Freborg petitioned this court for review on one issue: whether her speech involved a matter of public concern, which we granted. She does not challenge the court of appeals’

conclusion that a genuine issue of material fact exists about the veracity of her speech and agrees that a remand to the district court is appropriate on this issue. Consequently, we do not address the veracity issue further here and limit our analysis to the claim that her speech involved a matter of public concern.

ANALYSIS

We review the district court’s grant of summary judgment de novo. Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 874 (Minn. 2019). To decide whether summary judgment is appropriate, we must determine “whether the district court erred in its application of the law to the facts.” Id. (citation omitted) (internal quotation marks omitted). In addressing whether a statement involves a matter of public concern, federal courts have viewed the issue as a question of law, see Connick v. Myers, 461 U.S. 138, 148

n.7 (1983), and we likewise review the question of whether speech involves a matter of public concern de novo. We also review de novo the determination of “[w]hether evidence in the record is sufficient to support a finding of actual malice.” Maethner, 929 N.W.2d at

879 n.7.

I.

To determine whether Freborg’s speech involved a matter of public concern, we start with some general principles involving defamation. “Under the common law, a

plaintiff pursuing a defamation claim ‘must prove that the defendant made: (a) a false and defamatory statement about the plaintiff; (b) in [an] unprivileged publication to a third

party; (c) that harmed the plaintiff’s reputation in the community.’ ” Maethner, 929 N.W.2d at 873 (alteration in original) (quoting Weinberger v. Maplewood Rev., 668 N.W.2d 667, 673 (Minn. 2003)). Certain types of speech, like accusations of “criminal behavior or moral turpitude”—including accusations of sexual assault—are considered

“defamation per se.” Id. at 875 (citing Richie v. Paramount Pictures Corp., 544 N.W.2d

21, 25 (Minn. 1996) (internal quotation marks omitted). If a statement is found to be

defamatory per se, we then presume harm to a plaintiff’s reputation without requiring the plaintiff to prove actual damages. Id. Johnson asserts that he is entitled to presumed damages under this standard.

Like all laws regulating speech, however, “the doctrine of defamation per se cannot offend the constitutional guarantees of the First Amendment.” Id. We have long

recognized that “personal reputation has been cherished as important and highly worthy of protection.” Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 491 (Minn. 1985).

But we cannot “offer recourse for injury to reputation at the cost of chilling speech on matters of public concern, which ‘occupies the highest rung of the hierarchy of First

Amendment values, and is entitled to special protection.’ ” Maethner, 929 N.W.2d at 875

(quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011)).

Given this commitment to “uninhibited, robust, and wide-open” debate on issues of public concern, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), “a private plaintiff may not recover presumed damages for defamatory statements involving a matter of public concern unless the plaintiff can establish actual malice.” Maethner, 929 N.W.2d at 878–79. To meet this constitutional actual-malice standard, “a statement must be ‘made

with the knowledge that it was false or with reckless disregard of whether it was false or not.’ ” Id. at 873 (quoting Weinberger, 668 N.W.2d at 673) (internal quotation marks omitted). Freborg contends that this heightened standard applies to her speech because her posts involved a matter of public concern.

In Maethner, a defamation case, we held that the determination of whether speech

is of public or private concern in a particular case is “based on a totality of the circumstances.” Id. at 881. In particular, “courts should consider the content, form, and context of the speech.” Id. “No single factor is ‘dispositive;’ rather, courts should ‘evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.’ ” Id. (quoting Snyder, 562 U.S. at 454). In addition, in weighing the circumstances of the speech, we must make “an independent examination of the whole record.” Snyder, 562 U.S. at 454 (citation omitted) (internal quotation marks omitted).

Maethner involved statements by Maethner’s ex-wife—posted on her private

Facebook page under the name Jacki Hansen Maethner—identifying herself as a survivor of domestic violence, as well as an article published in a newsletter of a domestic

violence organization describing the “Survivor Award” that she had received. Maethner, 929 N.W.2d at 871. Maethner’s ex-wife and the organization also posted pictures on

Facebook of her holding the award. Id.

Even though he was not named in the posts, Maethner claimed that, given the use of his distinct last name by his ex-wife, the speech essentially accused him of domestic violence. Id. at 872. We recognized that “as a general proposition,” speech relating to domestic violence is a matter of public concern. Id. at 881. But, in addition to the subject of the speech, we explained that “the form and the context of the speech must also be considered, as well as any other relevant factors.” Id. Because neither the district court nor the court of appeals had specifically addressed the issue of public concern, we

remanded the case back to the district court “to decide in the first instance whether the challenged statements involve a matter of public or private concern.” Id. at 881–82.

Similar to Maethner, we recognize that “as a general proposition,” speech relating to sexual assault is a matter of public concern. See also Richie, 544 N.W.2d at 26

(concluding that “discussion of sexual abuse of children by their parents and legal recourse available to the abused child” were “certainly of public concern”). But Maethner clearly instructs us that no per se rule applies to suggest that statements about sexual abuse (or any other crime) are always matters of public concern. Instead, we must, on a case-by-case basis, apply the totality of the circumstances test and balance the content, form, and context of the speech, as well as any other pertinent factors, to determine whether speech involves a purely private matter or is a statement about a matter of public concern intended to influence public discussion about desired political or social change. Balancing the totality of the circumstances of the Facebook posts here, we conclude that, although the speech involved personal aspects, the predominant theme of Freborg’s speech involved a matter of public concern, namely sexual assault in the context of the #MeToo movement.

A.

We begin with the content—the “what”—of Freborg’s speech, and we review the entire thread of the Facebook postings when determining whether “a forbidden intrusion on the field of free expression” has occurred. See Sullivan, 376 U.S. 284–86; see also

Snyder, 562 U.S. at 453–54. The subject of the Facebook posts involved accusations of sexual assault by three dance instructors in the local Twin Cities dance community. In her first post, Freborg stated that she had been “gaslighted/coerced into having sex, sexual[ly] assaulted, and/or raped” by three specific dance instructors, including Johnson. She amended her post 2 days later to delete the word “raped,” stating instead that she had

“experienced varying degrees of sexual assault” by the three dance instructors, again including Johnson. ^[3] The last line of the original and amended posts stated, “If you have a problem with me naming you in a public format, then perhaps you shouldn’t do it.”

In evaluating whether these personal portions of Freborg’s posts—the identification, tagging, and admonishing of the three instructors—make the speech a private affair, we must weigh these statements against the remaining text. First, the original and amended post prominently begin with this statement: “Feeling fierce with all these women dancers coming out.” Then, before listing the varying degrees of sexual assault that she says she experienced, Freborg states, “So here goes . . . .” This introduction suggests that she was encouraged by other women speaking out about sexual assault in the dance community to reveal her own experience and to add her voice to the community conversation.

Second, Freborg ends her posts with the well-known #MeToo hashtag and a

#DancePredators hashtag, connecting her experience directly to the dance community and the broader #MeToo movement. This social movement is characterized by survivors of sexual abuse creating social media posts disclosing their experiences with sexual violence

and identifying their abusers. Benedetta Faedi Duramy, #MeToo and the Pursuit of Women’s International Human Rights, 54 U.S.F. L. Rev. 215, 217 (2020). The movement

seeks to connect survivors, encourage victims to tell their story, and increase awareness of the scope of the problem of sexual assault. JoAnne Sweeney, Social Media Vigilantism, 88 Brook. L. Rev. 1175, 1219–21 (2023). “ ‘For many #MeToo claimants, what they want is to tell their story.’ Indeed, the phrase ‘me too’ is inherently about connection; it tells others that they are not alone and that they are understood. Such affirmations can be healing in their own right as a form of social support.” Id. at 1219 (citation omitted).

Third, her subsequent explanation of her motives in the post thread—that she made the posts “for the safety of other women” and to show how “women can disrupt the status quo”—suggests that her posts were an attempt to raise awareness for other women, including women in the dance community, and inspire social change. These three factors, considered together, in addition to the broader context and response to the posts, show that

Freborg frames her Facebook posts “as her contribution to the larger discussions occurring at the time of the #MeToo movement.” Coleman v. Grand, 523 F. Supp. 3d 244, 259

(E.D.N.Y. 2021).

Johnson claims that the explicit use of “you” three times in the last line of the initial and amended post to condemn the instructors’ alleged abusive behavior, and Freborg’s reply to his comment on her posts, show that the content of Freborg’s speech was not to add her voice to the #MeToo movement but to get “vengeance” on him. He asserts that

Freborg’s posts—identifying him and two other instructors in the local dance community—were too limited in scope to implicate the broader #MeToo movement. He

further contends that his preexisting relationship with Freborg shows that she used the movement to mask a purely private attack on his character. He cites the Supreme Court’s decision in Snyder to show that the content of Freborg’s posts was personal in nature.

A preexisting relationship—or the lack thereof—is certainly a consideration in weighing whether the speech involves a matter of public concern. See Snyder, 562 U.S. at

455 (stating that there was no prior relationship between the Westboro Baptist Church and the soldier “that might suggest Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter”). Here, however, two considerations cause us not to heavily weigh Johnson’s assertion that Freborg’s speech was a matter of private concern because she was a “jilted former lover, who waited five years before publicly attacking Johnson.” First, the passage of that many years between the end of the parties’ relationship, which Johnson described as a “casual sexual relationship,” and the post suggests that the speech was not a personal attack in response to the relationship ending.

Second, the inclusion of two other dance instructors implies that the post had less to do with Freborg’s previous relationship with Johnson, and more about speaking up about alleged sexual abuse in the Twin Cities dance community generally.

Johnson cites the Supreme Court’s decision in Snyder to show that the content of Freborg’s post was personal in nature. In Snyder, the issue was whether the speech of the leader of the Westboro Baptist Church could receive First Amendment protection when he organized a protest with offensive placards near the funeral of a soldier killed in the Iraq

war. The signs included general messages such as “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “God Hates Fags,” and “Priests Rape Boys.” Snyder, 562 U.S. at 448, 454. The Court held that the signs addressed “matters of public import” including “homosexuality in the military, and scandals involving the Catholic clergy.” Id.

The Supreme Court acknowledged, however, that the content of a few signs like “You’re

Going to Hell” and “God Hates You” could be viewed as containing personal messages to the dead soldier and his family. Id. The Court concluded, however, that the few personal messages did “not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.” Id.

After weighing the personal aspects of the posts here with those elements addressing broader public issues, we reach a similar conclusion about content: even though Freborg named, tagged, and admonished three specific instructors in her post, these personal

messages do not outweigh the dominant theme of her speech—to discuss sexual assault in the dance community, a matter of public import.

The dissent takes a narrow view of a “matter of public concern,” essentially limiting those matters “to self-government,” “government officials,” or “government performance.” But that narrow perspective is rooted primarily in decades-old Supreme

Court case law. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 (1974); Time, Inc. v. Firestone, 424 U.S. 448 (1975).

The dissent’s narrow perspective disregards the development of the law over the past five decades and the Supreme Court’s broader view of matters of public concern. According to a more recent case, “Speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’

or when it ‘is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.’ ” Snyder, 562 U.S. at 453 (citations omitted), quoted in Maethner, 929 N.W.2d at 880. 4 As we noted in Maethner, speech involving a matter of public concern is within “the core of First Amendment protection . . . to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Maethner, 929 N.W.2d at 879 (citation omitted) (internal quotation marks omitted) (emphasis added). 5

Consistent with Snyder, we conclude that Freborg’s Facebook post fits this broader conception of public concern.

Finally, although not binding upon us when weighing the content of Freborg’s

speech, we find persuasive a recent defamation case with similar facts. Fredin v. Middlecamp, 500 F. Supp. 3d 752 (D. Minn. 2020), aff'd, 855 F. App’x 314 (8th Cir. 2021)

(per curiam) (unpublished). In Fredin the federal district court, applying Minnesota law, 283 A.3d 1140, 1149–52 (Del. 2022) (applying the Snyder public concern test to hold that a claimed defamatory email was “speech that addressed a matter of public concern: the ongoing national debate about the use of American Indian iconography in sports logos,” noting that “the First Amendment’s Free Speech Clause can serve as a defense in state tort suits” generally (emphasis added)); Monge v. Univ. of Pa., ___ F. Supp. 3d ___, No. CV22-2942, 2023 WL 3692935, at *2 (E.D. Pa. May 26, 2023) (applying the Snyder public concern test to a defamation claim). Overall, it is the nature of the speech itself that guides our public concern inquiry, not the nature of the claim. 5 Even if we were to view matters of public concern as relating primarily to “self-government” or “government performance,” there are strong indications that the #MeToo movement has catalyzed government action. For example, since 2017, several federal laws have been amended or passed in direct response to the movement. See, e.g., Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 13307, 26 U.S.C. § 162(q)(1) (removing tax deductions for “any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement”); Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Pub. L. No. 117-90, § 2(a), 136 Stat. 27 (2022) (amended the Federal Arbitration Act, 9 U.S.C. § 402, to make any “predispute arbitration agreement or predispute joint-action waiver” for sexual harassment claims unenforceable); Speak Out Act, 42 U.S.C. §§ 19401–04 (recognizing that because “[s]exual harassment and assault remain pervasive in the workplace and throughout civic society,” 42 U.S.C § 19401(1), “no nondisclosure clause or nondisparagement clause agreed to before the dispute arises shall be judicially enforceable” 42 U.S.C § 19403(a)).

found that a post on a public Twitter account that included pictures of a person and explicitly accused him of repeated sexual harassment and rape qualified as a matter of public concern. Id. at 777. In weighing the totality of the circumstances, the district court found that “[t]he content of the speech here addressed harassment and rape, and more specifically, the subject of women coming forward to share their experiences in this regard.” Id. The court therefore concluded that the speech was entitled to the actual malice standard of protection. Id. We believe the same conclusion about content is justified here.

In sum, although Freborg’s speech identifies and addresses Johnson directly and has

some aspects of airing a personal dispute, the dominant theme of her posts speaks to the broader issue of sexual abuse in the context of the #MeToo movement, a matter of public

concern. After seeing other women share their experiences, she offered her own story, hoping to raise awareness about the prevalence of sexual assault, to keep other women safe, and to show that women “can disrupt the status quo” to bring about social change.

B.

Turning next to the form—the “where”—of Freborg’s speech, this factor further supports a conclusion that Freborg’s posts were on a matter of public concern. ^[6] Freborg disseminated her speech on her Facebook account, making her post publicly available to anyone. The use of the internationally recognized hashtag for the #MeToo movement allowed her message to be disseminated publicly and broadly on Facebook. Here, the #MeToo hashtag does what a public account, blog, or journal dedicated to these issues would by spreading the message to an unlimited audience.

The Supreme Court has acknowledged the power of Facebook, declaring that today

“the ‘vast democratic forums of the Internet’ . . . and social media in particular” provide

the “most important places . . . for the exchange of views.” Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (quoting Reno v. Am. C.L. Union, 521 U.S. 844, 868 (1997)). The Court further noted that social media acts as the “modern public square” and that sites like

Facebook “allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’ ” Id. at 107. It follows that Freborg specifically chose this modern public square as a way for her message “to reach as broad a public audience as possible.” Snyder, 562 U.S. at 454; see also Fredin, 500 F. Supp. 3d at

777. Accordingly, this factor weighs in favor of concluding that Freborg’s speech involved a matter of public concern.

To be clear, attaching a hashtag—even the well-recognized #MeToo hashtag—to the end of a social media post is not in and of itself determinative of whether the speech involves a matter of public concern. The use of a hashtag is only one relevant consideration

in balancing the totality of the circumstances. ^[7] Importantly, when courts are reviewing the use of a specific hashtag, they should consider all other relevant factors, including content and context. ^[8] A hashtag, even the globally recognized hashtag at issue here, can never provide blanket First Amendment protections. The critical question will remain: based upon the totality of the circumstances in light of the record as a whole, does the speech involve a matter of public or private concern?

C.

Finally, the full context—the “how”—of Freborg’s posts also weighs in favor of holding that her speech involved a matter of public concern. Johnson agrees that we can

and should look at the entire thread associated with Freborg’s posts. He asserts, however, that it engendered “no discussion about how to engage in democratic self-governance,” which he maintains would help support Freborg’s theory that the context of her post was intended to raise awareness and bring accountability.

The responses to the posts refute that claim on its face. The posts generated much

discussion and mixed reactions: some gave Freborg their full support and validated the claims in her posts by citing their own negative experiences, while others were critical of the posts and how Freborg chose to speak about what happened to her. These reactions facilitated conversations about the appropriate measures that victims should take when

speaking out and how to properly support sexual assault victims generally. The robust and unfettered discussion in the thread following the initial post supports the conclusion that the form and context of this speech makes this speech a matter of public concern, rather than a purely private matter.

As discussed above, the context of the #MeToo movement is a key factor in our analysis. The #MeToo movement has had a direct impact on society and how communities address sexual assault across industries. Data shows, for example, the number of sexual harassment complaints the U.S. Equal Employment Opportunity Commission received

jumped by 13.6 percent after #MeToo went viral. Sweeney, Social Media Vigilantism, 88 Brook. L. Rev. at 1222. Further, reports now show that more people believe that “those who commit harassment or assault are now more likely to be held responsible and victims are more likely to be believed.” Anna Brown, More Than Twice as Many Americans

Support Than Oppose the #MeToo Movement, Pew Rsch. Ctr. ^[12] (Sept. 29, 2022). And Congress has taken steps to lessen the shroud of secrecy that surrounds settlements relating to sexual harassment or sexual abuse. See Speak Out Act, 42 U.S.C. §§ 19401–04; Tax

Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 13307, 26 U.S.C. § 162(q)(1).

Many other jurisdictions also have acknowledged the importance of #MeToo speech

in the context of the First Amendment. Fredin, 500 F. Supp. 3d 752; Coleman v. Grand, 523 F. Supp. 3d 244, 259 (E.D.N.Y. 2021) (finding that the open letter that the defendant circulated accusing the plaintiff of abuse and sexual harassment involved a matter of public concern); Dossett v. Ho-Chunk, Inc., 472 F. Supp. 3d 900, 908 (D. Or. 2020) (finding that the publication of workplace-related #MeToo allegations involved a matter of public concern); Fells v. Serv. Emps. Int’l Union, 281 A.3d 572, 584 (D.C. App. 2022) (holding that there was a prima facie showing that the publication of workplace-related #MeToo allegations involved a matter of public concern); Goldman v. Reddington, No. 18-CV-

3662, 2021 WL 4099462, at *4 (E.D.N.Y. Sept. ^[9], 2021) (finding that a defendant’s LinkedIn and Facebook posts accusing plaintiff of sexual assault concerned “more than a purely private matter” (internal quotation marks omitted)).

In addition, Freborg provided adequate evidence of the #MeToo conversations happening about predatory behavior in the dance community, including a series of similar posts made on and around the time of her own July 14, 2020 post. Her statements fit well within the context of a legitimate social movement. ^[9]

Johnson cites other contextual factors to show that Freborg’s posts are not a matter of public import. As noted above, he contends that his previous relationship with Freborg demonstrates that the nature of her speech was private. But the mere existence of a previous relationship is not a dispositive factor in assessing the nature of the speech, and it does not negate the importance of speaking out against sexual assault in society. Many victims who come forward to speak about their experiences of sexual assault often have a preexisting relationship with their abusers. See, e.g., Fredin, 500 F. Supp. 3d at 763–64

(granting summary judgment to one of the women named in the plaintiff’s defamation lawsuit who previously had been romantically involved with the plaintiff); see also Lauren

R. Taylor & Nicole Gaskin-Laniyan, Sexual Assault in Abusive Relationships, 256 Nat’l

Inst. of Just. ^[12], 12–14 (Jan. 2007). In Minnesota, for example, a grim statistic shows that one in every three women will experience violence, rape, or stalking by an intimate partner in their lifetime. Domestic Violence in Minnesota, Nat’l Coal. Against Domestic Violence

(2020). If we were to hold that the mere existence of a previous relationship between

Johnson and Freborg makes Freborg’s speech private in nature, the impact would be an

unnecessary chilling effect on the exercise of free speech by victims of sexual assault and their ability to effect social change.

Johnson next contends that, unlike Westboro Baptist Church and the owner of the account used to tweet about Fredin, Freborg had no prior history speaking out about the #MeToo movement or sexual abuse and harassment generally. We do not give this contention much, if any, weight. To hold that victims of sexual assault can only speak out about their experiences if they themselves are already advocates would certainly chill other

alleged victims from coming forward. See Fredin, 500 F. Supp. 3d at 777 (noting the importance of and protecting speech that addressed “harassment and rape, and more specifically, the subject of women coming forward to share their experiences in this regard” (emphasis added)). Johnson’s argument also fails to consider that every alleged victim, be they an advocate or not, must make a first statement. If we were to conclude

that Freborg’s speech was private in nature simply because she had no history of advocacy, that would discourage any person not already engaged in advocacy work from telling their story about what happened to them and adding their voice to the desire for social change because they could be liable for per se defamation.

Moreover, even with the heightened protection of the actual-malice constitutional standard, the speech of victims of sexual assault may well 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. See Shaina Weisbrot, The Impact of the #MeToo Movement on Defamation Claims Against Survivors, 23 CUNY L. Rev. 332, 352–53 (2020)

(explaining that while #MeToo has empowered more people to speak out, this speech has led to more defamation lawsuits, especially if the accused has significant power or resources).

Finally, Johnson cites Maethner and a lack of media coverage of Freborg’s posts to show that the posts concerned a private matter. Maethner does not require, however, that

Freborg’s speech be later disseminated by the media for it to be considered a statement of public import. There, we held that the dispositive inquiry regarding the availability of presumed damages “is not on the status of the defendant as a media or nonmedia defendant” but “whether the matter at issue is one of public concern.” Maethner, 929 N.W.2d at 877.

We later cited Eighth Circuit cases that noted that “media coverage is a good indication of the public’s interest” and stressed “the importance of journalistic freedom in investigating and reporting on matters of public interest.” Id. at 881 (citations omitted) (internal quotation marks omitted). We then noted that dissemination of statements in the news media is “one of many relevant factors in determining whether the statements involve a matter of public concern.” Id. Our discussion in Maethner therefore suggests that this non-dispositive factor serves to protect journalists in traditional media by adding another

consideration to identify speech on a matter of public concern. Given this background and that Freborg’s posts were made on Facebook, a website that Packingham describes as a

“powerful mechanism” for the robust exchange of views, 582 U.S. at 107, the fact that no news media reported Freborg’s posts is not a decisive factor in assessing the public import of the speech.

After considering the context of Freborg’s posts, we conclude that this factor shows that her speech involved a matter of public concern.

D.

In sum, weighing the content, form, and context of Freborg’s statements in light of the whole record, we conclude that the overall thrust and dominant theme of the posts involved a matter of public concern. We therefore hold that Freborg’s speech is subject to heightened protection under the First Amendment. Accordingly, to prevail on his defamation claim for presumed damages, Johnson must show that Freborg’s posts not only were false, but that they were made with actual malice.

II.

Turning to the issue of actual malice, we note that the court of appeals did not rule on this issue because it held that Freborg’s speech involved a matter of private concern.

Freborg, 978 N.W.2d at 923 n.25. Nor did Freborg raise the issue of actual malice in her petition for review. Consequently, the parties agree that, if we conclude that the challenged speech here involved a matter of public concern, we should remand the case to the district court for a trial on the veracity of Freborg’s speech and actual malice. We agree for the following reasons.

The district court concluded as a matter of law that the record contained insufficient evidence of actual malice. But the court of appeals held that a genuine issue of material fact existed as to the veracity of Freborg’s speech, making summary judgment improper.

Id. at 918. Given the fact issue on falsity—and because Freborg was both the speaker and the publisher of the alleged defamatory statements—if a jury finds that Freborg’s speech was false, sufficient evidence may allow the jury to further find that Freborg made the statements with actual malice. ^[10] We therefore reverse the district court’s ruling on actual malice and remand this case for further proceedings.

CONCLUSION

For the foregoing reasons, we reverse the decision of the court of appeals and remand the case to the district court for further proceedings.

Reversed and remanded.

DISSENT

GILDEA, Chief Justice (dissenting).

In this defamation case, we are asked to decide whether heightened First

Amendment protections apply to Kaija Freborg’s accusation that Byron Johnson, her

former dance instructor and romantic partner, “gaslighted/coerced [her] into having sex, sexual[ly] assaulted, and/or raped” her. The question is not whether Freborg’s speech is

protected at all; it is. Existing precedent already dictates those protections. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974) (noting that states may “not impose liability without fault”); Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 492 (Minn.

1985) (adopting negligence standard in response to Gertz). The narrow question here is whether Freborg’s speech is so central to the purpose of the First Amendment that it is entitled to the heightened protections reflected in the constitutional actual malice standard.

The majority concludes that the actual malice standard applies to Freborg’s speech because

Freborg wrote about sexual assault and included #MeToo in her post. I disagree. In my view, Freborg’s personal Facebook post, on her personal Facebook page, concerning

private conduct between two people with a private relationship, is not speech that the constitutional actual malice standard protects. Accordingly, I dissent.

A.

Historically, defamatory speech, such as allegations of criminal behavior akin to those made here, fell outside the scope of the First Amendment. Moreno v. Crookston

Times Printing Co., 610 N.W.2d 321, 328 (Minn. 2000) (noting that “defamatory comments were, by definition, not protected speech under the First Amendment.”). But in D-1

New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court said, “that the reputational interests protected by state libel law must yield when in conflict with the central meaning of the First Amendment.” Jadwin v. Minneapolis Star & Trib. Co., 367 N.W.2d 476, 481 (Minn. 1985) (citing New York Times, 376 U.S. at 273–75). The New York Times Court adopted the actual malice standard to strike a balance between reputational interests and First Amendment protections. ^[1]

The majority concludes that Minnesotans’ reputational interests must yield here

because Freborg’s speech is a matter of public concern and therefore worthy of the heightened First Amendment protection of the constitutional actual malice standard. I disagree. Providing redress for Minnesotans who have been accused by name of sexual

assault does not conflict with the “central meaning of the First Amendment.” Jadwin, 367 N.W.2d at 481. Accordingly, under Supreme Court precedent, the constitutional actual

malice standard does not apply. Examination of the Court’s precedent and application of the required totality of the circumstances test confirms this.

1.

Our analysis of Supreme Court precedent must begin with New York Times, the case in which the Court created the constitutional actual malice standard. There, the Supreme

Court recognized that speech by the press that criticized public officials for their official conduct was so valuable that, even if it was defamatory, the First Amendment required that

1 Under this constitutional standard, a plaintiff cannot recover damages for injury to reputation unless the plaintiff proves that the defendant made the statement at issue knowing it was false or with reckless disregard for the statement’s falsity. New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).

D-2 the speech be given some protections so that the speech was not unnecessarily chilled.

376 U.S. at 278–79. The Court created the “actual malice” standard to provide that protection—public officials may not recover damages for a defamatory falsehood relating to their official conduct unless they prove that the statement was made with “actual malice.” Id. at 279–80. The Court grounded the result in the fact that the speech at issue—

citizen commentary on the performance of their government—went to the very heart or “central meaning of the First Amendment.” Id. at 273; see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 (1974) (describing New York Times as “defin[ing] a constitutional

privilege intended to free criticism of public officials from the restraints imposed by the common law of defamation”).

The majority holds that this actual malice standard from New York Times applies to

Freborg’s allegation that Johnson sexually assaulted her. But the animating principle in New York Times was the connection of the speech to principles necessary to a successful democracy, such as the citizenry’s ability to comment freely on the performance of their government. See New York Times, 376 U.S. at 273, 279–80. Freborg’s speech has nothing whatsoever to do with the government or government officials, and nothing in New York

Times supports the majority’s extension of the actual malice standard to the speech at issue here.

The Supreme Court’s jurisprudence on the actual malice standard since New York

Times likewise does not support the majority’s extension of the standard to Freborg’s

speech. The Court discussed the applicability of the actual malice standard in Gertz v. Robert Welch, 418 U.S. 323 (1974). In Gertz, as in New York Times, the speech was

D-3

grounded in commentary about government performance. See Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749, 756 (1985) (noting that the speech at issue in Gertz “involved expression on a matter of undoubted public concern” because the article questioned whether a prosecution of a police officer was part of a Communist campaign to discredit local law enforcement agencies).

The Gertz Court recognized that states have a “legitimate interest” in providing compensation to people whose reputations have been harmed by defamation, and that that interest needed to be balanced against competing First Amendment considerations to ensure that speech the First Amendment values is not chilled. 418 U.S. at 348–50. When

the plaintiff is a private individual, the Court concluded, the government’s interest in compensating for reputational harm was greater than in the case of public official/public

figure plaintiffs, such as the plaintiff in New York Times. Gertz, 418 U.S. at 343–44. The Court held that states have “substantial latitude” in providing remedies to private plaintiffs

for reputational injuries and that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood.” Id. at 345, 347. But the Court clarified that “the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” Id. at

349.

The Supreme Court limited Gertz in Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). Unlike the facts of New York Times and Gertz, Dun & Bradstreet involved only private, nonmedia parties: the plaintiff was a construction contractor and D-4 defendant was a credit reporting agency. Dun & Bradstreet, 472 U.S. at 751. The plaintiff

sued the defendant for erroneously reporting to third parties that the plaintiff had filed for bankruptcy. Id. at 751–52. The plurality opinion reasoned that Gertz applied only to speech on matters of public concern and that Dun & Bradstreet involved a matter of “purely

private concern.” See id. at 763 (“We conclude that permitting recovery of presumed and punitive damages in defamation cases absent a showing of ‘actual malice’ does not violate the First Amendment when the defamatory statements do not involve matters of public concern.”). Thus, the Court allowed the plaintiff to recover presumed damages without proving actual malice.

Read together, New York Times, Gertz, and Dun & Bradstreet hold that the actual

malice standard applies to protect speech about a public figure, government official or the performance of government more generally, but the standard does not apply to speech

about a private plaintiff on a matter of private concern. See Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 877–78 (Minn. 2019). 2 For the former, a plaintiff must show actual malice to recover; for the latter, state law governs. And for speech to be a “matter of public concern” sufficient to warrant application of the constitutional actual malice standard, that speech must relate to self-government. See Dun & Bradstreet, 472 U.S. at 759 (noting that

“the role of the Constitution in regulating state libel law is far more limited when the concerns that activated New York Times and Gertz are absent”); New York Times, 376 U.S.

2 The parties agree that there is no media defendant here as in New York Times, and they also agree that the parties involved are not public or government figures. Thus, the only way that the actual malice standard would apply is if Freborg’s Facebook post is speech on a matter of public concern.

D-5 at 269 (“The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.”); see also Elena Kagan, A Libel Story: Sullivan

Then and Now, 18 L. & Soc. Inquiry 197, 212 (1993) (noting that one approach to understanding the New York Times v. Sullivan line of cases is to “view[] Sullivan as primarily a case about the speech necessary for democratic governance”).

2.

The majority argues that I have interpreted the Supreme Court’s precedent too narrowly. For support, the majority essentially equates matters of interest to the public to those of public concern. Supra at 17. But the Supreme Court has already concluded that when the issue is the application of the constitutional actual malice standard, there is a dispositive difference between matters of public interest and matters of public concern.

Time, Inc. v. Firestone, 424 U.S. 448, 454 (1975). In Time, Inc., the Court made clear that

not all matters of interest to the public are matters of public concern for purposes of applying the First Amendment. See Time, Inc., 424 U.S. at 454, 457 (rejecting petitioner’s

attempt to “equate ‘public controversy’ with all controversies of interest to the public” and concluding the speech at issue was private speech because it “add[s] almost nothing toward

advancing the uninhibited debate on public issues thought to provide principal support for the decision in New York Times.”). And the Court confirmed that Gertz had “repudiated” the view that the “New York Times privilege should be extended to falsehoods defamatory of private persons whenever the statements concern matters of general or public interest.”

D-6

Id. at 454; see also Gertz, 418 U.S. at 346 (rejecting “[t]he ‘public or general interest’ test for determining the applicability of the New York Times standard” because that test

“inadequately serves both of the competing values at stake”); cf. Waldbaum v. Fairchild

Pub., Inc., 627 F.2d 1287, 1296 (D.C. Cir. 1980) (“A public controversy is not simply a matter of interest to the public.”). Time, Inc. involved a news magazine article that included reports that the defendant had extramarital affairs. The Court declined to apply the New

York Times “actual malice” standard, opting instead for the standard requiring some proof of fault from Gertz. Time, Inc., 424 U.S. at 457; see also id. at 469–70 (Powell, J., concurring). In short, the Court in Time, Inc. continued the long line of cases including

New York Times, Gertz, and Dun & Bradstreet, that hold that speech about governance and self-government is speech on a matter of public concern for purposes of the constitutional actual malice standard.

I acknowledge, as we have recognized in other cases, that as a general proposition

speech discussing crime can be speech on a matter of public concern. See Maethner, 929 N.W.2d at 881 (noting that as a “general proposition” “speech relating to domestic

violence involves a matter of public concern”); Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 25–26 (Minn. 1996) (noting that child sexual abuse is matter of public concern). 3 But Freborg was not discussing crime in general, the prevalence of crime in our

3 Importantly, neither Maethner nor Richie adopts a per se rule. In Maethner, we did not disagree with the “general proposition” that “speech relating to domestic violence involves a matter of public concern,” but we declined to address whether the speech in that case (all of which discussed domestic violence) was speech on a matter of public concern. 929 N.W.2d at 881. Instead we noted that the district court did not reach a conclusion on the question and remanded the case to the district court for further consideration. Id. Richie

D-7

society, or the government’s response to crime. Rather, she made a specific accusation of criminal conduct on Facebook—that a person she identified by name sexually assaulted her. Although the public may be interested in Freborg’s allegations, I would hold that such

speech is not a matter of public concern for First Amendment purposes. Bierman v. Weier, 826 N.W.2d 436, 462 (Iowa 2013) (holding that book author’s allegation that identified person committed sexual assault was not a matter of public concern for First Amendment purposes); W.J.A. v. D.A., 43 A.3d 1148, 1157–58 (N.J. 2012) (holding that defendant’s speech on website he created where he alleged that his uncle sexually abused him was not a matter of public concern).

The majority disagrees but it makes no real attempt to connect Freborg’s Facebook post to commentary that goes to an issue important to self-government or to the “central

meaning of the First Amendment.” See New York Times, 376 U.S. at 273; see also Jadwin, 367 N.W.2d at 481. Instead, the majority focuses its analysis on how the broader MeToo movement related to social change. I acknowledge the important contributions the MeToo movement has made to our society. But 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.” We are tasked with evaluating whether Freborg’s single Facebook post was

speech on a matter of public concern, not the entire MeToo movement. Moreover, the majority cannot connect Freborg’s post to any particular change in statute, nor do the involved media defendants, which is a material difference to application of the constitutional actual malice standard. Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 23 (Minn. 1996). In short, we did not hold in either case that speech about sexual abuse and harassment is always entitled to First Amendment protection. See supra at 17.

D-8

changes to federal law cited by the majority—changes that concern settlement, arbitration, and nondisclosure—even apply to this case. The focus of those changes is apparently on workplace sexual assault and harassment, and has nothing to do with sexual violence committed at a private party between people with a personal relationship who met through a hobby. ^[4]

The majority also supports its focus on the importance of the MeToo movement generally with statistics that show the prevalence of sexual violence and domestic abuse against women. Supra at 22–24. This reliance on statistics and the MeToo movement generally reveals a values-based approach to applying the First Amendment that is not consistent with the First Amendment’s prohibition on “viewpoint discrimination.” See

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 383–84, 391 (1992) (noting that unprotected

categories of speech “can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)—not that they are

categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content”).

I see no reason to apply the First Amendment differently in the MeToo context.

4 For similar reasons, the majority’s reliance on statistics about the increase in Equal Employment Opportunity Commission complaints and the fact that “people who commit sexual harassment or assault in the workplace are now more likely to be held responsible for their actions” are misplaced. See supra at 22; Anna Brown, More Than Twice as Many Americans Support Than Oppose the #MeToo Movement, Pew Rsch. Ctr. ^[4] (Sept. 29, 2022). Freborg’s speech was not about workplace sexual violence. D-9 3. Snyder, a case about intentional infliction of emotional distress—not defamation— does not compel a contrary conclusion. Anthony List v. Dierhaus, 779 F.3d 628, 632 (6th Cir. 2015) (observing that Snyder was not a defamation case and suggesting that Snyder was of limited application to defamation cases). 5 In Snyder, the U.S. Supreme Court held that a claim for intentional infliction of emotional distress will not lie in the face of a First Amendment challenge when the allegedly distress-causing conduct is speech about a matter of public concern. Speech intended to inflict emotional distress does not fall into the category of speech that was 5 In Maethner, we said that the test discussed in Snyder, which looks at the form, content, and context for the alleged tortious activity, should be considered but that no one factor was dispositive and that our test would require an examination of the totality of the circumstances to decide whether the actual malice standard applied. 929 N.W.2d 881. The majority’s focus on the result in Snyder to compel a result in this case is not consistent with that direction. The majority also cites three cases to support its reliance on Snyder to compel the result here. Supra at 17–18 (citing Dongguk Univ. v. Yale Univ. 734 F.3d 113 (2d Cir. 2013), Cousins v. Goodier, 283 A.3d 1140 (Del. 2022), and Monge v. Univ. of Pa., ___ F. Supp. 3d ___, No. CV22-2942, 2023 WL 3692935 (E.D. Pa. May 26, 2023)). These cases are inapposite. Dongguk is of no help because the defendant in that case “concede[d] that the defamatory statements addressed public figures and matters of public concern.” 734 F.3d at 122. And the court’s use of Snyder was confined to the negligence claim stated in the complaint. In other words, unlike the majority here, the Second Circuit in Dongguk did not use Snyder to resolve the plaintiff’s defamation claim. Id. at 127. Cousins is likewise unhelpful to the majority because Cousins, like Snyder, is not about the actual malice standard in a defamation case. The defamation claim in that case was dismissed because the plaintiff could not prove that the alleged defamatory statement was false. 283 A.3d at 1160. And Monge involves a media defendant and criticism of a university professor’s performance. 2023 WL 3692935, at *1. The court did not use Snyder to compel a conclusion on the application of the constitutional actual malice standard (which is what the majority does here). Id. at *3. Rather, the court relied on Snyder’s public- concern analysis for the proposition that the plaintiff had to prove falsity, something that is not at issue here. Id. D-10 historically unprotected by the First Amendment, whereas defamatory speech does. See Snyder, 562 U.S. at 451 n.3. This makes the State’s interest in preserving a cause of action weigh more heavily here than in Snyder, and the First Amendment interest in protecting speech weigh less. Maethner, 929 N.W.2d at 870–71 (noting that the purpose of the content, form, and context inquiry is “to strike a delicate balance between the State’s interest in providing redress for citizens claiming reputational injury and the free speech protections the First Amendment provides”). Another important distinction between defamation and intentional infliction of emotional distress also influenced the Court’s analysis in Snyder. An element of intentional infliction of emotional distress is the outrageousness of the conduct. But outrageousness can have important value to speech, and permitting liability based on the “outrageousness” of speech permits juries to discriminate on speech based on its content or the viewpoint conveyed. See Snyder, 562 U.S. at 458 (“ ‘Outrageousness,’ however, is a highly malleable standard with an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.”) (citation omitted) (internal quotation marks omitted)). The Court found the risk of chilling speech based on a malleable standard of outrageousness “unacceptable” because “ ‘in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate “breathing space” to the freedoms protected by the First Amendment.’ ” Id. (citing Boos v. Barry, 485 U.S. 312, 322 (1988)). In other words, it was important to the Court’s analysis that the D-11 outrageousness element of the tort of intentional infliction of emotional distress risked a jury verdict on the basis of jurors’ opinions and subjective judgments. That risk is much lower in a defamation case. In a defamation case, a jury will consider the content of the speech only to evaluate its truth or falsity. Unlike the intentional-infliction-of-emotional-distress context, the jury in a defamation case cannot impose liability based on their own subjective judgments about the outrageousness of the speech. ^[6] Finally, regarding the relevance of Snyder to the result here, the Court said in Snyder that it was writing a “narrow” holding, one “limited by the particular facts” of Snyder. 562 U.S. at 460. The case did not even discuss the constitutional actual malice standard, 6 The majority disagrees that the cause of action affects our application of Snyder, arguing that the “form, content, and context” test should apply in exactly the same way in an intentional infliction of emotional distress case as in a defamation case. See supra at 17 n.4. The reason for the “form, content, and context” inquiry is “to ensure that courts themselves do not become inadvertent censors.” See Snyder, 562 U.S. at 452. And the risk of becoming inadvertent censors turns on the cause of action. See id. at 458 (balancing the First Amendment against the state’s interest in preserving a cause of action for “outrageous” speech). The touchstone of the test in a defamation case is balancing the First Amendment protections against the state’s interest in preserving a cause of action for damage to reputation, whereas the touchstone in an intentional infliction of emotional distress case is balancing the First Amendment with the state’s interest in maintaining a cause of action for infliction of emotional distress. See id. at 462–63 (Breyer, J., concurring) (“To uphold the application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm.”). The cause of action necessarily affects the balance. D-12 and the majority is unable to explain how a case that does not even mention the standard compels the conclusion that the standard applies here. ^[7] 4. Even though Snyder cannot compel the result here, we have recognized that analyzing the form, content, and context of the speech, as the Court did in Snyder, can be a helpful piece of the totality of the circumstances analysis. Maethner, 929 N.W.2d at 881. i. The “form” asks where the speech occurred. The parties agree that the speech here occurred on a social media platform that was publicly viewed by many people, and that the use of a hashtag made the post more accessible to the public. ^[8] The fact that the speech was made in a “modern public square” is a relevant consideration in assessing whether the speech is deserving of First Amendment protection. See Packingham v. North Carolina, 582 U.S. 98, 107 (2017). But it is not dispositive. Indeed, even though the speech at issue in Time, Inc. appeared in a national news magazine, the Supreme Court held that the speech did not rise to the level of warranting First Amendment protection. Time, Inc., 424 U.S. at 457. 7 Snyder is, as the majority notes, more recent than New York Times Gertz, and Time, Inc. Supra at 17. But nothing in Snyder can be fairly read as modifying the analysis courts should follow for application of the constitutional actual malice standard, a standard that was not even mentioned in the case. ^[8] The majority considers Freborg’s use of #MeToo as relevant to the form, content, and context of her post. I consider it relevant only to form. D-13 ii. Turning next to the “content” of Freborg’s Facebook post, I conclude that the “overall thrust and dominant theme” of Freborg’s Facebook post was to accuse Johnson of sexual violence. Maethner, 929 N.W.2d at 880–81. Specifically, Freborg identifies Johnson and two others by name, accuses them of sexual violence, and speaks directly to them in her post. She also “tags” Johnson in the post, which made sure that her post would be linked to him through his own Facebook presence. By tagging Johnson in the post, Freborg further confirms that Johnson—and not some broader societal issue—is the target of her speech. But, according to the majority, the thing that separates Freborg’s Facebook post from any other speech accusing another of sexual assault is that Freborg included #MeToo (and to a lesser extent, #DancePredators), which shows that she intended to participate in a hashtag-based social movement. ^[9] I disagree. While use of a hashtag makes the post available more broadly to the public, it does not change the overall thrust of Freborg’s speech. Freborg’s speech included #MeToo, but the post made no mention of government policy changes or systemic problems. Moreover, the content of Freborg’s speech was disconnected from the MeToo movement. Unlike the