STATE OF MINNESOTA

DISTRICT COURT

COUNTY OF HENNEPIN

FOURTH JUDICIAL DISTRICT

Paula A. Polinsky f/k/a Paula A. Prescott, Plaintiff, v.

Court File No. 27-CV-16-5356

ORDER DENYING MOTION Charles M. Bolton Defendant.

The above-entitled matter came on for hearing before the Honorable Francis J. Magill, Judge of District Court, on June 10, 2016 upon Defendant Charles M. Bolton’s motion to dismiss. (“Bolton”). Bolton was represented by Zorislav R. Leyderman. Plaintiff Paula A. Polinsky f/k/a Paula A. Prescott was represented by Andrew H. Bardwell. (“Polinsky” or “Prescott”). Based upon all the filings, records, and proceedings herein, the Court makes the following: ORDER 1. Defendant Bolton’s motion to dismiss is DENIED. 2. The following Memorandum is incorporated herein.

September 7, 2016

2016.09.07 09:46:42 -05'00' _________________________ The Honorable Francis J. Magill Judge of District Court

MEMORANDUM BACKGROUND This is a case about defamation and parties to this case have a long history. They were involved in a romantic relationship that lasted roughly four years and ended approximately seven years ago. (Cmpl, at ¶¶ 6, 15). After Polinsky ended that relationship, Bolton continued to contact her. (Id. at ¶ 16). Polinsky eventually reported Bolton to the police because she wanted him to stop. (Id. at ¶17-19). Bolton was ultimately charged with crimes and two restraining orders were put in place to protect Polinsky. (Id. at 19). Bolton was convicted by a jury for violating one of those restraining orders. (Id. at ¶¶20-28). Specifically, the conduct at issue occurred in February 2011 when Bolton went too near Polinsky’s workplace, while she was at work, at approximately 3:00 a.m. (Id. at ¶25). Bolton’s restraining order violation resulted in two trials where Polinsky testified. (Id. at ¶26). The first trial in June of 2011 was a mistrial. (Id. at ¶27). A second trial in which he was found guilty was held in December 2011. (Id. at ¶28). Bolton appealed his conviction and the Minnesota Court of Appeals affirmed. (Id. at ¶32). Just three days prior to the conclusion of the second trial in December 2011 Bolton started “following” Polinsky’s activity on a social networking service called Twitter. (Id. at ¶29). 1 Polinsky contacted law enforcement about Bolton’s social media behavior on the belief that it was a violation of a restraining order. (Id. at ¶30). However, the jurisdiction did not bring charges. (Id. at ¶¶30, 33, 34). In addition to his Twitter activities Bolton established a blog entitled “Men for Justice.” (Id. at ¶34). Bolton used the Twitter account to republish and further advertise the content on the Men

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The Court takes note that a person “following” a Twitter user receives updates of the other user’s activity delivered to their personal Twitter timeline. Twitter informs its users of who follows them and provides an avenue for the follower to view, interact, and retweet social media content including that of the user they are following. (See also Cmpl, at ¶¶4447).

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for Justice blog. (Id. at ¶37). 2 The Men for Justice blog is central to Polinsky’s defamation claim now at issue. The blog states that, among other things Polinsky, committed the crime of perjury while under oath and testifying in the 2011 court proceedings. (Id. at ¶¶37-40) (referring to Polinsky’s former name of Paula Prescott).

Selected excerpts from the blog published online in

March and April of 2015 are attached to the Complaint as exhibits, and are as follows: a. “Prescott lied when she testified . . ..” b. “Prescott had the means to perjure. She had the motivation to perjure and she was motivated to perjure by the prosecutor . . .” c. “Paula Prescott and City of Minneapolis Assistant City Attorney Conspire to Introduce False Testimony . . .” d. “Prescott lied to the Minneapolis Police on February 10, 2011 . . .” e. “Prescott filed a fabricated police report filled with lies.” (Id. at ¶¶40-41). Polinsky is not a public figure. Bolton posted and republished the Men for Justice blog containing these statements on Twitter. (Id. at ¶44-45) (tweeting and retweeting). Shortly thereafter in May 2015 Polinsky was married at a hotel in California. (Id. at ¶56). Less than a week before the ceremony her fiancée received an envelope at the hotel containing printouts from the blog and other documents. (Id. at ¶56). In her Complaint Polinsky alleges that Bolton sent the envelope and that she has suffered emotional and reputational damages as a result. (Id. at ¶66-68). DISCUSSION I.

Background Polinsky brings this action with a single count for defamation. “In order for a statement to

be considered defamatory it must be communicated to someone other than the plaintiff, it must be false, and it must tend to harm the plaintiff’s reputation.” Stuempges v. Park, Davis & Co., 297 N.W.2d 252, 256 (Minn. 1980). A false statement that someone committed the crime of perjury at a court hearing “is not the sort of loose, figurative, or hyperbolic language which would negate the

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In his motion papers, Bolton asks the Court to directly access the Men for Justice blog on the Internet for purposes of deciding this motion to dismiss. (Mem. Supp. at 2-3). Although the blog is referenced in the Complaint and portions of it are attached to the Complaint as exhibits, the Court denies this request. The entire blog is not part of the official record and the Court does not need to view the entire blog to decide this motion.

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impression that the writer was seriously maintaining that [the person] committed the crime of perjury.” Milkovich v. Lorian Journal CO., 497 U.S. 1, 21-22 (1990); see also Becker v. Alloy Hardfacing & Engineering Co., 401 N.W.2d 655, 661 (Minn. 1987). In Minnesota a vague allegation of a crime that imputes a person’s reputation or character constitutes defamation per se. See LeDoux v. NW Pub., Inc., 521 N.W.2d 59, 66-67 (Minn. Ct. App. 1994) (discussing crime of theft) (citing Milkovich); Longbehn v, Schoenrock, 727 N.W.2d 153, 158-59 (Minn. Ct. App. 2007). The final element of the cause of action relates to damages and normally requires that the plaintiff establish reputational harm. Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 25 (Minn. 1996). However, in defamation per se cases not involving a media defendant the plaintiff’s damages are presumed. Id. (citing Becker v. Alloy Hardfacing & Engineering Co., 401 N.W.2d 655, 661 (Minn. 1987); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Anderson v. Kammeier, 262 N.W.2d 366, 372 (Minn. 1977). 3 Bolton argues that his motion to dismiss should be granted for three reasons. First, that he is entitled to immunity pursuant to Minnesota’s anti-SLAPP statute. Minn. Stat. § 554.01, et seq. (Strategic Lawsuit Against Public Participation), (Mem. Supp. at 7). Second, that the alleged defamatory statements are not actionable. (Mem. Supp. at 7). And finally, that the statements are protected First Amendment speech. (Mem. Supp. at 7). Bolton’s arguments fail for the reasons discussed below. II.

Anti-SLAPP Statute A. Anti-SLAPP Standard of Review

Bolton argues that he is immune to Polinsky’s defamation claim because of Minnesota’s anti-

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In Milkovich the United States Supreme Court indicated that in defamation cases it views an accusation of perjury as creating a fact question. “We also think that the connotation that petitioner committed perjury is sufficiently factual to be susceptible of being proved true or false” by weighing competing evidence. Milkovich, 497 U.S. at 21-22.

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SLAPP statute. Generally, anti-SLAPP statutes are intended to “protect the exercise of two types of public-participation rights: the right to free speech and the right to petition the government.” Leiendecker v. Asian Women United of Minn., 848 N.W.2d 224, 228 (Minn. 2014). The statute is applicable to actions where “the claim materially relates to an act of the moving party that involves public participation.” Minn. Stat. § 554.02 subd. 1. “Public participation” is lawful conduct or speech that is targeted at securing, in whole or part, “favorable government action, including but not limited to reporting unlawful activity to law enforcement, communicating with an elected official, peaceful demonstration against government action, or filing a complaint with a government entity. Id. at subd. 6. The term “favorable government action” is not defined, however, the statute defines “Government” to mean “a branch, department, agency, official, employee, agent, or other person with authority to act on behalf of the federal government, this state, or any political subdivision of this state, including municipalities and their boards, commissions, and departments, or other public authority.” Minn. Stat. § 554.01 subd. 2. Thus, under the statute for immunity, Bolton must establish that his conduct or speech was “genuinely aimed in whole or in part at procuring favorable government action.” Minn. Stat. § 554.03. However, even if Bolton meets his burden, the statute provides that Polinsky can still pursue her claim if she proves by clear and convincing evidence that the conduct or speech at issue constitutes a tort or violates her constitutional rights. Minn. Stat. § 554.02 subd. 2 (3).

This clear and

convincing standard applies only to the Polinsky’s burden of proving that Bolton is not immune, and such evidence must be more than factual allegations contained in a complaint. Leiendecker, 848 N.W.2d at 229-30.

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B. Bolton Has Not Made a Minimal Threshold Showing To determine whether Bolton is entitled to immunity the Court’s first step is to determine if Bolton makes a “threshold showing that the underlying ‘claim materially relates to an act of the moving party that involves public participation.’” Leiendecker, 848 N.W.2d at 229 (citing MiddleSnake-Tamarac Rivers Watershed Dist. v. Stengrim, 784 N.W.2d 834, 841 (Minn. 2010) and Minn. Stat. § 554.02 subd. 1). Only “lawful conduct or speech that is genuinely aimed in whole or in part at procuring favorable government action” is entitled to immunity. Minn. Stat. § 554.03 (emphasis added). Bolton must meet a “minimal burden” to satisfy this initial threshold showing. Stengrim, 784 N.W.2d at 841. He has not done so. Bolton argues that the Men for Justice blog survives this minimal standard because it was published while he was involved in litigation with allegations of fraud and conspiracy and because the blog is allegedly within the category of peaceful demonstration pertaining to his civil rights. (Def. Mem. Reply Supp. at 3). Both of these arguments fail to reach the minimal threshold showing that the claim at issue materially relates to an act of public participation that is genuinely aimed, in whole or part, at securing favorable government action. See Minn. Stat. § 554.02-.03. Bolton cites to a single authority, Freeman v. Swift, to support his argument that he has satisfied his required showing that Polinsky’s defamation claim materially involves his acts of public participation. Freeman v. Swift, 776 N.W.2d 485, 490 (Minn. Ct. App. 2009). Bolton’s reliance on Swift is misplaced because it does not support his position. Swift holds that potentially defamatory statements on a blog are not genuinely aimed at public participation, and thus not entitled to antiSLAPP immunity, when the statements are primarily aimed at defaming private individuals, and not genuinely at securing favorable government action. See id. The circumstances in Swift evidence a greater level of genuine public participation than those here. See id. In Swift an individual, in collaboration with other members of an organization, 6

petitioned legislators and other government agents regarding their views that a juvenile sex-offender treatment center should not be relocated. Id. at 487-88. Swift also authored a blog in which she communicated not only how the proposed relocation would affect her personally, but also how the relocation would affect the community. Id. These facts are in juxtaposition to those here where Bolton is the only person associated with the Men for Justice blog and Polinsky is not an agent of the government as defined by Minn. Stat. § 554.01 subd. 2. (“person with authority to act on behalf of the federal government, this state, or any political subdivision of this state. . .”) The District Court in Swift considered the substance and context of the alleged defamatory statements contained in the blog. Id. at 490-92. The Court of Appeals affirmed the District Court’s determination that the blog was not genuinely aimed at public participation because the Swift blog contained numerous targeted defamatory statements about specific parties that were not involved in government or affecting Swift’s public participation. Id. The court concluded that “[a]lthough the blog audience may well include those who Swift could hope would take up her cause, the challenged statements plainly are not directed at bringing about any government action, but, like the email to [a university] dean, are aimed at creating ill-will toward D'Angelo and cannot be said to have been “genuinely aimed” at procuring favorable government action in the relocation controversy.” Id. at 491. Here, the facts relevant to an anti-SLAPP analysis are striking in comparison to Swift. The evidence from the Men for Justice blog, as well as the context in which the statements therein were made, shows that the genuine purpose of Bolton’s statements against Polinsky in the blog were not for Bolton to secure favorable government action through public participation. The allegedly defamatory statements at issue here and reproduced above all begin with factual assertions about what Prescott (Polinsky) did to Bolton. (e.g., “Presott lied when she testified…” [at a trial about Bolton’s restraining order violation]. (Cmpl. at ¶40)). Those statements are not genuine aimed at 7

the City of Minneapolis prosecutor and Minnesota judge they reference. (See id. at ¶¶40-41). Instead, those statements are genuinely aimed at creating ill will towards Polinsky. Swift, 776 N.W.2d at 491. Based upon this record the Court finds that Bolton’s statements about Polinsky were not genuinely aimed at or involving public participation and were instead a way for Bolton to use a public forum to further air his personal grievances with Polinsky. See id. at 491-92. Thus Bolton is not entitled to claim anti-SLAPP immunity for this reason alone and the Court need not turn to an analysis of the second anti-SLAPP prong. See id. at 491 (“Minnesota’s anti-SLAPP statute does not confer immunity on any statement made in connection with a controversy under government consideration or review.” (emphasis in original)). 4 III.

Motion to Dismiss Standard of Review Bolton has also made a motion to dismiss for failure to state a claim upon which relief can

be granted under Minn. R. Civ. P. 12.02(e). On a motion to dismiss, courts will consider “only the facts alleged in the complaint, accepting those facts as true and . . . constru[ing] all reasonable inferences in favor of the non-moving party.” Herbert v. City of Fifty Lakes, 744 N.W.2d 226, 229 (Minn. 2008) (quoting Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003)). A claim is pled sufficiently if it is possible that some evidence could be produced, consistent with the pleader’s theory, “to grant the relief demanded.” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 603-05 (Minn. 2014). It is insufficient, however, for a party to plead mere legal conclusions; the

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Even if Bolton had met this prong of the Anti-SLAPP statute, he would still not be entitled to immunity. Minn. Stat. §§ 554.02 subd. 2 (3); 554.03; Leiendecker, 848 N.W.2d at 229-30. Polinsky’s affidavit, which is contained in the Bardwell affidavit, states that Bolton published the statements in question to her friends, family, and business customers. (See Aff. Bardwell, Ex. 3 at ¶12). Further, in his deposition Bolton acknowledged that he knew perjury is a crime and that he knew Polinsky had not been convicted or charged with that offense. (See id. at Ex. 1 at 68, 72-73). He also confirmed that he is the sole party responsible for the creation, editing, and publishing of the Men for Justice blog. (See id. at 69, 174-77). Therefore Bolton is not entitled to claim anti-SLAPP immunity because Polinsky has produced clear and convincing evidence on each element of her defamation claim that Bolton’s “conduct or speech constitutes a tort.” Minn. Stat. § 554.03.

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party must plead facts. Id. (citing Herbert at 235 and Bahr v. Capella Univ., 788 N.W.2d 76, 80 (Minn. 2010)). Minnesota specifically rejects the federal plausibility pleading standard which necessarily requires “factual enhancement.” Id. at 604 (discussing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). A district court also must consider any documents that are attached to the complaint. Hardin Cnty. Sav. Bank v. Housing & Redevelopment Auth. of City of Brainerd, 821 N.W.2d 184, 192 (Minn. 2012) (citing Minn. R. Civ. P. 10.03). In addition, a district court may consider any documents that are referenced in a complaint but not attached to the complaint when appropriate. Northern States Power Co. v. Metropolitan Council, 684 N.W.2d 485, 490-91 (Minn. 2004); see also, 20/20 Group, Inc. v. Hydeaway II, LLC, 27-CV-13-15977 (Minn. Ct. App. Feb. 23, 2015). C. The statements at issue are actionable as defamatory Bolton raises two main issues with respect to whether Polinsky’s defamation claim is actionable. The first is whether his statements were opinion, rhetoric, or hyperbole. The second goes to damages. Bolton’s first argument is quickly disposed of because statements that a person has committed a crime, and in particular perjury, are as a matter of law not open to interpretation as an opinion or otherwise; it is presumptively actionable and determined either true or false as a fact question. Milkovich, 497 U.S. at 21-22; Becker, 401 N.W.2d at 661; LeDoux, 521 N.W.2d at 66-67; Longbehn, 727 N.W.2d at 158-59. The blog claims she perjured herself while testifying in an official court proceeding. See Minn. Stat. § 609.48 subd. 1(1) (acts constituting the crime of perjury). The blog also states that Polinsky filed false police reports which is a crime. See Minn. Stat. § 609.505 subd. 1. Here, Polinsky’s pleadings factually support and allege that Bolton falsely accused her of crimes and published those statements to others. The second issue raised by Bolton is whether Polinsky has made sufficient factual allegations to support damages to the extent that she is not entitled to per se damages. Here, the Court must 9

determine if, in the light most favorable to Polinsky, her pleadings establish that she could succeed on the damages element of her defamation claim. The Court finds she does. (See Cmpl. and at p. 10). Although Polinsky does not specifically cite a numerical value for her damages, she alleges that Bolton engaged in a pattern of unwanted contact with her and that he published false statements about her on the Men for Justice blog and Twitter. The reasonable inference from these facts and Polinsky’s allegation that she suffered occupational, emotional, and reputational damages are sufficient to state a claim for damages to the extent that she cannot recover damages per se. Herbert at 229-35. For these reasons the Court finds that Polinsky has sufficiently stated a defamation claim upon which relief could be granted. Bolton’s motion to dismiss is therefore denied. D. The alleged defamatory statements are not entitled to First Amendment protection Bolton argues that he is afforded a “heightened” level of First Amendment protection because the content of the Men for Justice blog is allegedly a matter of public concern. See U.S. Const. amend. I; Minn. Const. art. I, § 3; Moore v. Hoff, 821 N.W.2d 591, 598 (Minn. Ct. App. 2012). Historically an individual’s defamatory statements are explicitly excluded from First Amendment protections as “unprotected speech.” State v. Crawley, 819 N.W.2d 94, 100 (Minn. 2012) (citing United States v. Stevens, 559 U.S. 460, 467 (2010)). Defamatory statements about matter of public concern or public figure may result in heightened protection even for unprotected speech. Notably, these heightened protections constitute an exception to longstanding First Amendment jurisprudence which clearly states “injury to the reputation of private individuals requires … a different rule.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 343 (1974). Bolton cites to Moore v. Hoff to support his argument but that case does not turn on the public concern doctrine. 821 N.W.2d at 598. Instead, Moore largely turns on a pre-trial determination that a party was a limited purpose public figure.

Id. at 595-98. (“Because Hoff was publishing

information on a public figure, his first amendment protection was heightened.”) Here, nothing 10

indicates that Polinsky is or was a public figure. Thus the public figure analysis in Moore is inapplicable. See id. The Court now turns to Bolton’s alternative argument that his allegedly defamatory statements aimed at Polinsky are a matter of public concern, thus entitling him to heightened protection. In this context “[a] public controversy requires to elements: (1) there must be some real dispute that is being publicly debated; and (2) it must be reasonably foreseeable that the dispute could have substantial ramifications for persons beyond the immediate participants.” Chafoulias v. Peterson, 668 N.W.2d 642, 652 (Minn. 2003) (citing Waldbaum v. Fairchild Publ’ns, Inc., 627 F.2d 1287, 1297 (D.C. Cir. 1980) and Gertz, 418 U.S. at 344-45). The controversy must “already be the subject of debate in the public arena at the time of the alleged defamation.” Id. Unless the foregoing is answered in the positive, even a newsworthy story within the public’s attention is not a public controversy. See id. at 652. 5 Consideration of whether an issue falls within these parameters is necessarily a factual inquiry. Id. at 656. Here, the Court is presented with Bolton’s motion to dismiss. On this standard the Court must consider a limited record and draw all reasonable inference in favor of the non-moving party. See Walsh, 851 N.W.2d at 604-06. At this early stage in the litigation there are no facts which substantiate a theory that the blog was about a public controversy as defined in Chafoulias. Put another way, as this is a motion to dismiss focused on Polinsky’s complaint her position is effectively undisputed. Therefore Bolton is not entitled to heightened First Amendment protections because nothing in the limited record justifies finding that the alleged defamation was anything other than unlawful individual defamation as articulated by Crawley, 819 N.W.2d 100.

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The parties here do not address the issue of malice.

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CONCLUSION For all the reasons discussed herein and review of the record, Bolton’s motion to dismiss is DENIED in full. FJM

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