Wednesday, August 31, 2011

Truthful Blogging = Tortious Interference with Contract?

My apologies for the lack of blogging this week. My wife and I recently added a new member to our family so I have been a little (actually, A LOT) preoccupied. Now, back to your regularly scheduled blog entry...

The Minneapolis Star Tribune has some bad news for bloggers: Blogger Johnny Northside Must Pay $60,000 to Fired Community Leader. The short version of the fact pattern:
Though blogger John (Johnny Northside) Hoff told the truth when he linked ex-community leader Jerry Moore to a high-profile mortgage fraud, the scathing blog post that got Moore fired justifies $60,000 in damages, a Hennepin County jury decided Friday.
The lawsuit was based on a "tortious interference of contract" theory. Surely truthful criticism is protected by the First Amendment though, right? Prof. Eugene Volokh thinks so: "people are constitutionally entitled to speak the truth about others, even with the goal of trying to get them fired." As Volokh also points out, the Restatement (Second) of Torts addresses this issue:
One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other's contractual relation, by giving the third person . . . truthful information.
I'll note that a comment in the Restatement further clarifies (my emphasis added):
There is of course no liability for interference with a contract or with a prospective contractual relation on the part of one who merely gives truthful information to another.
Although the Minnesota state court disagrees in this case, my Pennsylvania readers can rejoice. In Walnut Street Associates, Inc. v. Brokerage Concepts, Inc., the Pennsylvania Superior Court adopted the Restatement on this issue, concluding that " true statements may not be the basis for a claim of intentional interference with contractual relationships."

Bloggers and employment lawyers may want to keep an eye on this one. Volokh's sources tell him an appeal is forthcoming...

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.