STATE OF MINNESOTA IN SUPREME COURT

May 31, 2017

______________________________________________________________________________

CASE TITLE: Trivedi, LLC, et al., Respondents, vs.

Dennis Lang, Petitioner.

PETITION FOR REVIEW OF DECISION OF THE COURT OF APPEALS APPELLATE COURT CASE NUMBER: A16-1209 DATE OF FILING OF COURT OF APPEALS DECISION: May 1, 2017

________________________________________________________________________ TO:

The Supreme Court of the State of Minnesota Petitioner Dennis Lang requests Supreme Court review of the above-entitled

decision of the Court of Appeals on the following grounds: 1. Statement of Legal Issues and Their Resolution by the Court of Appeals: Are the statements made by Petitioner Lang alleging that Respondent/plaintiff Trivedi sexually abused his employees and followers “related to” the controversy that caused Trivedi to be classified as a limited purpose public figure in this defamation action? Reversing the Ramsey County district court’s grant of summary judgment, the Court of Appeals held as a matter of law that those statements were not related to the controversy, and were therefore not subject to the elevated First Amendment protections provided by the actual malice standard, adopted by the Supreme Court in New York Times v. Sullivan, 376 U.S. 254 (1964). 1

2. Statement of the Criteria of the Rule Relied upon to Support the Petition: Petitioner relies on the criteria set out in Rule 117, subds. 2(a) and 2(d)(1)-(3). 3. Statement of the Case (Facts and Procedural History): Since retiring from a career in manufacturing, Petitioner Dennis Lang has spent much of his time working as a freelance nonfiction writer, and his articles have been published in various academic journals. Lang is a lifelong resident of St. Paul. Doc. 48 (Lang Affidavit), 1. Respondent Mahendra Trivedi claims that he can alter physical matter simply by transmitting energy with focused thought, which he refers to as “The Trivedi Effect.” Add. 23 (Order Granting Summary Judgment). He purports to have performed many extraordinary feats by employing the Trivedi Effect, including “70,000 medical miracles all over the world.” Id., 24. He has been promoted as “the Second Coming of Jesus” and “the next Einstein.” Id., 7. The other Respondents are entities established and controlled by Trivedi. Id., 23. Trivedi and his entities have earned millions of dollars selling the asserted benefits of the Trivedi Effect. Id., 10. In 2011, defendant Lang was exploring possible topics for a magazine feature article, and encountered references to Trivedi and his unusual claims. Id., 8. He decided to inquire further, collecting information from a large number of people who described for him their experiences with Trivedi. Id., 8-9. Eventually Lang began posting summaries of what he was learning along with periodic commentary on a blog known as PurQi. Id. Respondents commenced the present action in early 2014, alleging defamation and 2

other causes of action, citing Lang’s PurQi posts.1 On June 1, 2016, the district court (Hon. Robert Awsumb) entered summary judgment in favor of Lang. Respondents appealed the portion of the ruling dismissing their defamation claims, and on May 1, 2017 the Court of Appeals reversed a key portion of the district court’s decision, holding that several of the statements made by Lang were not protected by the actual malice doctrine. 4. Brief Argument in Support of the Petition: The rapid growth of social media (including blogs like Petitioner Lang used) has significantly changed the nature and character of communications, though most of the law that governs communications— including defamation law—was developed well before social media existed.2 The legal basis on which the Court of Appeals reversed the district court’s Order for summary judgment involves one of the major issues in defamation law—whether allegedly defamatory statements are protected by the actual malice standard, first established by the Supreme Court in New York Times v. Sullivan, 376 U.S. 254 (1964). In Sullivan and subsequent decisions, the Court emphasized the “profound national commitment to the principle that debate on public issues should be uninhibited, 1

The present action closely resembles an earlier lawsuit brought in October, 2012 against Lang (and others who had been critical of Trivedi) by Trivedi and his affiliated entities in Arizona state court advancing several claims, including defamation. Default judgments were entered against Lang totaling $59 million, which were subsequently docketed in Ramsey County. Lang then successfully moved to vacate the judgments on jurisdictional grounds. See Trivedi LLC v. Lang, No. A13-2087, 2014 WL 2807981 (Minn. App. June 23, 2014) (unpublished). 2 According to the Pew Research Center, “[t]oday, around seven-in-ten Americans use social media to connect with one another, engage with news content, share information and entertain themselves,” yet “[w]hen Pew Research Center began tracking social media adoption in 2005, just 5% of American adults used at least one of these platforms.” See “Social Media Fact Sheet” dated January 17, 2017, at http://www.pewinternet.org/fact-sheet/social-media/. 3

robust, and wide-open.” Id., 270. It expressed concern about the potential for libel suits to cause “self-censorship,” observing that such self-censorship “does not mean that only false speech will be deterred,” and thus libel litigation that is not properly limited “dampens the vigor and limits the variety of public debate.” Id., 279. Central to the Court’s attempt to address this concern was its adoption of the actual malice standard, premised on its view that certain kinds of libel plaintiffs invite a heightened degree of public interest and scrutiny, and that as a result, there is a correspondingly greater need to protect “robust and wide-open” speech about them. The Court held that these plaintiffs, which it termed public officials and public figures, must show by clear and convincing evidence that the defendant's fault in publishing false and defamatory statements amounted to actual malice, defined by the Court as publication with knowledge of falsity or with “serious doubts as to the truth of [the] publication.”3 See Chafoulias v. Peterson, 668 N.W.2d 648, 654-655 (Minn. 2003). For this reason, the criteria to be used by courts in distinguishing among defamation plaintiffs and the statements made about them are critical to the operation of the actual malice doctrine. The U. S. Supreme Court has identified three kinds of public figures, “the rare ‘involuntary’ public figure,” “celebrities and prominent social figures who are deemed public figures for ‘all purposes,’” and “limited purpose public figures.” Jadwin, supra, 367 N.W.2d at 485, citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). The limited purpose variety is the most common in defamation litigation. This Court has in 3

The “determination of the plaintiffs' status is a question of law.” Jadwin v. Minneapolis Star and Tribune Co., 367 N.W.2d 476, 486 (Minn. 1985). 4

turn described certain criteria to be used in determining whether a libel plaintiff is a limited purpose public figure, and whether the statements at issue are subject to the actual malice doctrine: “(1) whether a public controversy existed; (2) whether the plaintiff played a meaningful role in the controversy; and (3) whether the allegedly defamatory statement related to the controversy.” Chafoulias, supra, 668 N.W.2d at 651, citing Gertz, 418 U.S. at 352. In reversing the district court below, the Court of Appeals focused on the third element of this test. Though it found that Respondents were limited purpose public figures because a public controversy existed, and that they had played a meaningful role in the controversy, it held that Lang’s “statements concerning Trivedi’s alleged sexual misconduct and improprieties are not related to the controversy surrounding Trivedi’s claims of miraculous abilities and appellants’ products,” and that consequently, those statements are not protected by the actual malice standard. May 1, 2017 Opinion, 16. Although the Court refers to “Trivedi’s claims of miraculous abilities” and “appellants’ products,” the district court documented in detail that those “products” are based almost entirely on Trivedi’s extraordinary claims, stating that “[t]he entire focus” of Trivedi’s business enterprise is “on Trivedi’s ‘unique abilities.’” Add. 23. The district court cited his representation that he possessed a “’unique ability’ to open a connection to ‘Divine power,’” the “undisputed evidence” that Trivedi claimed to have performed “70, 000 medical miracles all over the world,” and the assertion of Trivedi’s marketing director that “he’s the Second Coming of Jesus.” Add. 24-25. In 5

his initial brief to the Court of Appeals, Trivedi described himself as “a spiritual teacher.” App. Br. Ct. App., 4. Thus Trivedi was not the typical business promoter selling kitchen utensils or exercise equipment—Trivedi was the product. Only he could bestow the “Trivedi Effect.” Because of this, and because it is difficult to empirically verify claims of having miraculous abilities and divine connections, to reliably determine if they are legitimate, information that might reflect on Trivedi’s credibility was arguably the next best option. It seems fair to believe that someone promoted as “the Second Coming of Jesus” having the “’unique ability’ to open a connection to ‘Divine power’” and describing himself as “a spiritual teacher” would adhere to relatively elevated moral standards, and that if the opposite turned out to be true—that he may have engaged in morally depraved behavior—it would cast doubt on his credibility and therefore on his extraordinary claims. Thus information about Trivedi’s moral compass provided an alternative method of evaluating the credibility of his claims, and the information was therefore germane to the controversy surrounding Trivedi and his operations. Furthermore, as the district court specifically found, Lang’s criticisms of Trivedi’s sexual behavior were not simply gratuitous comments about his personal life unrelated to the Trivedi commercial operation and “appellants’ products.” Rather, those comments focused on Trivedi’s treatment of women who worked for him, or who were his acolytes: “A review of the alleged defamatory statements, and the evidence in the record, confirms that the statements relating to sexual misconduct are directed specifically about 6

allegations of sexual harassment and misconduct involving Trivedi employees or students” and “[t]hey are a part of a theme of challenging Trivedi’s legitimacy and his integrity, work environment and professional ethics.“ Add. 27. Lang’s allegations were therefore related to the controversy surrounding Trivedi’s unusual claims. The Court of Appeals appears to have concluded that particular statements must be specifically about the controversy, rather than simply related to it, though the Court cited no authority supporting its conclusion, and its crabbed reading of the law conflicts with what most other courts have held. As a leading commentator on defamation law notes, “[n]arrowly construed, the protection [of the actual malice standard] would exist only as to statements about the plaintiff’s involvement in the dispute in issue. But courts have not read Gertz so narrowly.” Robert D. Sack, Sack on Defamation, §5:3.3 (4th ed. 2010). “[T]he burden of the case law” is “that the statement need be no more than generally related to the dispute to qualify for protection.” Id.4 See also Jankovic v. International Crisis Group, 822 F.3d 576, 589 (D.C.Cir. 2016) (“’Misstatements wholly unrelated to the controversy’ are not protected, but statements, including those highlighting a plaintiff’s ‘talents, education, experience, and motives,’ can be germane.”) (Emphasis in 4

Among the decisions cited by Sack is Kisser v. Coalition for Religious Freedom, No. 92 C 4508, 1995 WL 3996 (N.D. Ill. 1995), where the limited purpose public figure plaintiff argued that statements asserting she had once worked as a topless dancer were not related to the controversy at issue. The Court disagreed, responding (at 3) that the statements “could affect the public's assessment of her as a critic of religious cults,” because some people “might regard such activity as the symptom of a character” flaw which could cause them to “expect other symptoms, such as untruthfulness.” The Court concluded: “Standing as close as we are to the First Amendment's core, we must diminish this risk by taking a view of ‘relevance’ broad enough to reveal whether the statement might affect public opinion without discriminating based on the reasons why.” Id. 7

original, citation omitted.) The conclusion reached by the Court of Appeals also invites skepticism because the Court did find that comments posted by Lang about issues such as Trivedi’s “visa misuse, questionable employment and bank transactions,” and “green-card violations” were related to the controversy surrounding Trivedi. May 1, 2017 Opinion, 16. But it is difficult to understand how comments about these kinds of topics would be related to the controversy, if allegations that Trivedi was sexually abusing his employees and followers are not. The decision of the Court of Appeals demonstrates the risk to protected expression that can result from ambiguity about the governing legal standards. The present action therefore provides an opportunity for this Court to articulate reference points to be used in applying the third element of the limited purpose public figure test, as other courts have done. In its Jadwin and Chafoulias decisions, this Court discussed the first and second elements of the limited purpose public figure test in considerable detail, but it has never illuminated the criteria applicable to the third element, nor has the Court of Appeals. Yet as the U. S. Supreme Court has noted, in this context, the process of clarification is itself constitutionally important: “[O]nly through the course of case-by-case adjudication can we give content to these otherwise elusive constitutional standards,” yet “such elucidation is particularly important in the area of free speech for precisely the same reason that the actual malice standard is itself necessary. Uncertainty as to the scope of the constitutional protection can only 8

dissuade protected speech--the more elusive the standard, the less protection it affords.” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 686 (1989). In a time when the rapid growth of social media use is dramatically expanding the universe of expression (and of potential libel claims), the importance of minimizing uncertainty about the scope of constitutional protection for that expression is greater than ever. Petitioner therefore respectfully requests that the Court review the decision of the Court of Appeals. DATED: May 31, 2017

s/ Mark R. Anfinson Mark R. Anfinson Attorney for Petitioner Dennis Lang Lake Calhoun Professional Building 3109 Hennepin Ave. S. Minneapolis, MN 55408 Phone: 612-827-5611 [email protected] Atty. Reg. No. 2744

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STATE OF MINNESOTA IN SUPREME COURT ______________________________________________________________________________

CASE TITLE: Trivedi, LLC, et al., Respondents, vs.

CERTIFICATION OF DOCUMENT LENGTH APPELLATE COURT CASE NUMBER: A16-1209

Dennis Lang, Petitioner. ________________________________________________________________________ I hereby certify that this document conforms to the requirements of the applicable rules, is produced with a proportional font, and the length of this document is 1918 words. This document was prepared using Microsoft Office WORD 2007. DATED: May 31, 2017

s/ Mark R. Anfinson Mark R. Anfinson Attorney for Petitioner Dennis Lang Lake Calhoun Professional Building 3109 Hennepin Ave. S. Minneapolis, MN 55408 Phone: 612-827-5611 [email protected] Atty. Reg. No. 2744

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ADDENDUM -- TABLE OF CONTENTS Petition For Review Of Decision Of Court Of Appeals

Trivedi, LLC, et al., Respondent v. Dennis Lang, Petitioner Appellate Court Case No. A16-1209

Order and Memorandum of District Court Granting Summary Judgment (Doc. #61) ... 1

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