The rights of free speech for private citizens has become something of a hot issue in recent weeks.  In J&D Dental, et al., Respondents, vs. Liya Hou, Appellant, the court provided a test for determining whether speech  is protected as a “matter of public concern” within the scope of Minnesota’s Uniform Public Expression Protection Act (“UPEPA”) which allows a party to seek expedited relief in civil actions against the party  based on their exercise of free speech, free press or the right to assemble, associate or petition, “guaranteed by the United States Constitution or the Minnesota Constitution on a matter of public concern.” While the  statute is to be broadly construed and applied it specifically does not apply to a cause of action against a governmental unit, employee, or agent acting in an official capacity generally, or to enforce a law for protection of public health or safety.

Appellant, Liya Hou (“Hou”), posted online reviews claiming her teeth were permanently damaged as a result of substandard dental treatments by respondents, J&D Dental and Jennifer Herbert (collectively “J&D Dental”). J&D Dental brought a suit alleging defamation.  Hue sought to dismiss the matter under  the expedited disposition procedures of UPEPA, claiming her reviews were protected free speech on matters of public concern.

The District Court, in considering whether Hou’s requested relief came within the scope of UPEPA,  held that Hou’s speech was not protected as a matter of public concern and therefore was outside the scope of UPEPA. In evaluating whether Hue’s reviews were constitutionally protected free speech, the Court cited to the “special” meaning assigned to a “matter of public concern” as articulated by the U.S. Supreme Court, as speech that can be “fairly considered as relating to any matter of political, social or other concern to the community; or, that is the subject of legitimate news interest; that is a subject of general interest, value and concern to the public.” Further, the Court noted that whether the speech is controversial  or inappropriate  is irrelevant to determining whether it is a matter of public concern.

The  Court applied a “content-form-context” test, to evaluate the totality of the circumstances surrounding the speech, considering content (what), form (where) and context (how) of the speech as well as other pertinent factors:

• What (content): Hou’s speech was specific to her individual personal dispute, rather than a statement on matters of broad public import and did not generate public discourse.
• Where (form): Hue met this element as posting on an online forum open to the public showed an intent to reach a broad public audience.
• How (context): The Court looked to the broader public context rather than relationship between the parties. The court found her speech did not connect her experience to broader public issues or reflect any “discourse , conversation or connection between her reviews and other business reviews.”

Based on its application of this test, the court concluded Hou’s speech was not a matter of public concern.

While this case determined a narrow question of whether speech was constitutionally protected as matter of public concern sufficient to trigger rights of expedited disposition under UPEPA, it considered principles of constitutionally protected speech by a private citizen in a non-employment setting.

In the era of social media, questions of protected speech are complex. For public employers, those questions will include additional First Amendment complexities.  If you or your organization have questions about the intersection of free speech and employee conduct, contact Wiley Reber Law for legal advice that works.