*1 leg- offender statute. the career under offender stat- broadened the career

islature requirement by eliminating the

ute in 1992 por- derive a “substantial

that the offender pattern of crimi- his income from the

tion” of Minn.Laws ch. art.

nal conduct. 1992 if

§ has held that a defendant 10. This court basis, may regular he

commits crimes on the “career offender” sentenced under of a though the offenses are not

statute even Flemino, type. v.

similar See State (Minn.App.1995). was we conclude that Gorman

Because career offender

properly sentenced under the

statute, the trial court’s we need not address committed with

finding that the offense was cruelty.

particular

DECISION

The trial court did not abuse its discretion instructing jury. The court did not admitting

clearly abuse its discretion upward durational de-

Spreigl evidence.

parture sentencing not an abuse of

discretion.

Affirmed. RICHIE, al., Appellants, et

James PICTURES CORPORA-

PARAMOUNT (CX-94-2249),

TION, al., Respondents et (C5-94-2501),

Defendants Inc., KSTP, Broadcasting,

Hubbard d/b/a (CX-94-2249), al.,

et Defendants (C5-94-2501). Tatone,

Kathy Respondent CX-94-2249, C5-94-2501.

Nos. Appeals of Minnesota.

Court

May July

Review Granted *3 Beeman,

Tyrone Bujold, P. Arthur S. Rob- Gilbertson, Robins, Kaplan, ert J. Miller & Ciresi, Minneapolis, appellants. Jorstad, Borger, Faegre John P. Eric E. & Benson, Minneapolis, for Paramount Pictures Corp., et al. Bassford, Heckt, Hickey,

Kevin P. Lock- hart, P.A., Truesdell, Briggs, Minneapolis, & Kathy Tatone. RANDALL, by Considered and decided P.J., and DAVIES and JONES* JJ. OPINION RANDALL, Judge. challenge summary judgments

Appellants granted separately respondents Para- (Paramount) Corporation mount Pictures and (MoPo) Productions, respon- Inc. MoPo and Kathy appellants’ Tatone on claims for dent light priva- invasion of defamation and false cy.1 Appellants argue that the district court required finding they were to show erred reputations actual harm to their to maintain their defamation action and failed do so. They the district court errone- also contend ously respondent determined Tatone was attorney immunity qualified protected by and summary judgment privilege. agree that We inappropriate and reverse. was

FACTS Richie, goddaughter appel- Denise (her uncle) paternal Richie and lants James (her aunt), success- Karen Gerten maternal against par- fully litigated lawsuit her civil Gerten) (not for sexual ents Richie and * court, serving granted judge on their claims under the tort of false of the district Retired by ap- judge Appeals of the Minnesota Court of light privacy. We therefore do not invasion of Const, VI, § pointment pursuant to Minn. art. Haley, See Balder v. consider this issue. (Minn. 1987) (issue argued Although appellants cited it as an issue in their case, they appeal). of the did not brief the issue statement of whether briefs deemed waived improperly was host, Povich, Maury apologized explained was for sexu-

abuse. Her father found liable ally fail- Den- abusing Denise and her mother for not connected with ing to intervene. Denise was awarded a ise’s abuse. action, large in the jury verdict which she Appellants Paramount Pictures sued Kathy Ta- represented respondent light invasion MoPo for defamation and false tone. (the privacy, Broadcasting and Hubbard Maury representative A Povich broadcaster) Kathy for def- local Tatone (the “show”), nationally show broadcast They alleged their impairment amation. show, and con- talk learned of Denise’s case humiliation, community, reputations in the ap- arrange for tacted Tatone to Denise’s suffering. anguish and and mental Hubbard pearance Tatone claims that on the show. *4 Broadcasting from action was dismissed the arrangements; the she handled all of the by stipulation. di- representative Denise show’s contacted once, rectly only to determine whether she par- second motion for Paramouni/MoPo’s good guest.

was would make a articulate and The summary judgment granted. tial was required law district court found New York photographs requested of Denise The show proof reputation harm to a defama- of before (the parents and her defendants in the law- tion can be and Minne- claim established that suit) in con- to use the broadcast. Tatone recognize to a sota law had limitation Denise, told Tatone tacted who to send a Inc., Welch, under v. Robert 418 U.S. Gertz parents in photo her her she with which It S.Ct. L.Ed.2d wearing graduation gown. Tatone was a appellants this also found could not meet only photograph in Den- sent the she found addition, requirement. court the district appeared in ise’s albums which Denise with a recognize tort found Minnesota does the wearing couple gown. prob- was The and privacy. Judgment light of false invasion of the man and the woman in the lem was was immedi- for entered Paramount/MoPo photograph appellants, not Denise’s were ately, appeal. appellants and filed an parents. any The dou- record does not show ble-checking up by or Tatone further follow appeal pending, While was Tatone moved verify to man the woman in the the and summary grounds of judgment for below on parents. A second photograph were Denise’s attorney immunity. grant- The district court parents photograph of Denise with her and qualified privilege ed the motion on based sent. brother also inability appellants’ prove to and to harm A at- representative of the show said she reputation. Appellants appealed deci- morning tempted the interview to on the well, sion as and the cases consolidated parents confirm with Tatone that Denise’s by this court. people pictured graduation in the were the they gown photograph and said were. Tatone ISSUES to this conversation.

Tatone claims not recall photograph The with was selected concluding 1. the court in Did district err quality it was of use because better prove appellants had to show could photo- condition than the other better reputations resulting harm their from parents in it. graph, the one with Denise’s respondents’ actions to incorrectly featuring ap- photograph failed withstand pellants parents was as Denise’s broadcast so? do interview, during taped times several If York a conflict exists between New father moth- when references to Denise’s law, which and Minnesota being Ap- made. er and their conduct were applied in this state’s laws should be pellants of the mistaken use became aware action? 5, 1992, the their likenesses November ap- protected liability Is day Both immedi- Tatone from the show was broadcast. pellants prohibiting third ately A retraction was under the rule contacted counsel. attorney parties recovering an from from aired on the December show. performed scope for activities -withinthe Id. at 94 S.Ct. at 3012. This was con Time, Firestone, professional relationship? firmed Inc. v. in which the Court stated: “In it [Gertz ] we made finding court 4. Did the district err Ta- clear that States could base awards on ele- protected qualified privilege tone is injury reputation.” nients other than liability providing wrong from 448, 460, 958, 968, U.S. S.Ct. L.Ed.2d photograph show? ANALYSIS Thus, Gertz, private figure after reviewing grant When of sum plaintiff presumed cannot recover for harm mary judgment, appellate an court examines showing absent a of actual mal any the record to determine whether issues ice, involving at least in cases matters material fact exist or whether the district public concern. Jacobson v. Rochester Com application court erred in its of the law. munications, 836 n. 7 Ins., Hopkins Empire (Minn.1987) Fire & Marine Bradstreet, (citing Dun & Inc. v. (Minn.App.1991). Pacts are Builders, 749, 756, Greenmoss 472 U.S. light viewed in the favorable to the most 2939, 2944, (1985)).2 S.Ct. 86 L.Ed.2d 593 nonmoving party; doubts and factual infer principles But first amendment do not re *5 against moving party. ences are resolved quire reputation proved that harm to be as Id. an essential element of a defamation claim.

See, Dodrill, e.g., Newspapers Little Rock v. Harm-to-Reputation Prerequisite I. (1983) (im 25, 933, 281 Ark. 660 S.W.2d 936 posing harm-to-reputation prerequisite but The district court relied on v. Gertz noting constitutionally required); not Hearst Welch, Inc., 323, Robert 418 94 U.S. S.Ct. 112, 486, Corp. Hughes, v. 297 Md. 466 A.2d 2997, (1974), 41 L.Ed.2d 789 to rule that (trier (1983) constitutionally 491-93 of fact imposes harm-to-reputation Minnesota law awarding damages presumed barred from for prerequisite private figure plaintiffs in harms); reputation, proven harm to but not against defamation cases media defendants. (Second) § accord Restatement of Torts 621 We do not believe Gertz mandates that a point by at 320 This is conceded plaintiff by proof must show direct that actu respondents in their brief. reputation al harm to has occurred to with stand in a defamation We conclude that the district court se, here, per case where a direct inference determining erred as a matter of law that publicly lodged against appel of incest was appellants alleged showing have not facts lants. reputations harm to their occurred. Defa Gertz, Supreme long recognized In mation has that certain United States law private figure plaintiffs types defamatory held that can of statements are action Court presumed damages per proof special damages. recover in defamation able se without of not Keeton, al., Page proved. cases unless actual malice is Id. at W. et Prosser & Keeton on 1984). (5th 350, Further, § 94 at 3012. under a Torts 112 ed. cases involv S.Ct. statements, proof, plaintiff ing defamatory per dam lesser standard of is limited se Id., injuries.” damages age reputation presumed, compen “actual at is and for By broadly defining satory damages can awarded on this basis. 94 S.Ct. at 3012. “actual be Alloy Hardfacing injuries” reputation, Eng’g, mental Becker v. & to include loss of See (Minn.1987) humiliation, (rejecting pro anguish suffering how N.W.2d and and ever, implied posed requiring plaintiff to the Court that actual harm to rule substantiate reputation reputation being harm allowed re- did not have to be established. before Alloy Eng’g, Supreme Hardfacing 2. Court has held that Becker v. & 401 N.W.2d Minnesota against presumed damages (Minn.1987). argue the rule stated in Appellants do not involving does not extend to cases non- public Gertz media Co., involve of that this case does not matters Parke, Stuempges defendants. v. Davis & they presumed are entitled to concern or 297 N.W.2d 258 n. 5 The court damages. presumed damages upheld an award based on as a not types of “the evidence taken whole does covery). Under both defamation (libel slander) by jury recognized support the common would and reach a threshold which law, Tilson, com- imputing to another the statements v. verdict of defamation.” McDevitt particularly involv- of a one mission (Minn.App.1990),pet. N.W.2d crime— for mis- turpitude serious sexual ing moral (Minn. 23,1990). If, May rev. denied at —or per Re- se. conduct constitute repu- stage, appellants have not shown their (Second) § Torts 559-570 statement through tations have suffered —either direct (1977); Baufield, v. Glass see also supporting Safelite harm or evidence an evidence of (D.Minn.1993) Corp., F.Supp. harm —then should re- inference of not (“A defamatory per if is se it statement damages their cover under claims for defa- sexual misconduct to the imputes serious mation. statement”); v. subject of the Anderson primary purpose of defamation Kammeier, (Minn.1977) 366, 262 N.W.2d impose liability on a defendant actions is imputation categories (listing crime injuries by reputation “unprivi se). caused per slander publication leged or of false communication Here, wrongly public- injures matter which ly father committed incest labelled as a who Kennedy, of another.” Matthis happen. a mother who stood and let it 219, 222-23, 413, 416 243 Minn. injury reputa- At actual to their least “some” (1954). Damages for can emotional distress can be assumed from the seriousness tions recovered, only plaintiff but when the has TV, on national at this false statement seen claim defamation. See established valid enough to survive a motion for sum- least Broadcasting, Bradley v. Hubbard judgment. mary Common sense tells us that (noting (Minn.App.1991) possible of the hundreds thousands of an emotional distress can be recovered as law, all, thought as a matter of viewers *6 damages plaintiff a element of when has been only absolutely nothing appellants, ill of if to (Minn. defamed), 2, pet. Aug. rev. denied degree. Appellants’ a burden at trial small for 1991). all remains the same as the burden on who only damages. viewing But are a claim we summary II. judgment for in which all Conflict Laws

motion disputes to and inferences are be factual dispute parties The whether New nonmovants’) (the fa- in appellants’ resolved York or Minnesota defamation law should be Respondents vor. concede that an accusa- Respondents applied in this case. contend se, they defamatory per incest is tion of applied, that New York law should be while against exist in innumer- must: taboos incest appellants argue appli that law is Minnesota cultures, ancient as well as modern. able apply choice cable. Minnesota’s of law We evidence, jury hearing a After all the rules determine what state’s substantive may appellants’ reputations that conclude applied involving in law should cases damaged. point at not But this have been conflict of laws. Schwartz v. Consolidated injury specific we cannot. The evidence of 487, 492-93, Freightways, 221 300 Minn. summary by opposing in appellants offered 665, 668 N.W.2d However, overwhelming. is judgment is Our first consideration wheth principles our traditional defamation dictate an conflict laws er outcome-determinative purposes at least of with- conclusion that for Co., Casualty Jepson v. exists. General summary judgment, standing a for motion (Minn.1994). 467, district harm suffered at least some have no existed because it court found conflict respondents note can reputation. We had to be concluded that harm judgment at the close renew their motion proved states’ defamation laws. chief, under both in at close of appellants’ case issue New York law this unsett court dismiss We find all evidence. The district can exists, jury Assuming prerequisite than it if led.3 any action rather submit Ctr., 79, (1981) 441 N.Y.S.2d Compare Hosp. St. Health 82 A.D.2d v. Clare’s & France plies primarily to consensual transactions our above creates an outcome-deter decision Further, parties where the desire advance notice of the two states minative conflict. govern which state law will in future dis proof to defama apply different standards of putes.” Hime v. Farm Fire & State Casual by private figures: Minnesota tion actions (Minn.1979), ty, 284 N.W.2d cert. standard, negligence v. applies a Jadwin denied, 444 U.S. 100 S.Ct. Tribune, Minneapolis Star & (1980). Thus, generally it L.Ed.2d 668 is not (Minn.1985), gross and New York a cases, given in significant attention tort standard, irresponsibility Chapadeau v. Uti injuries. unplanned Jep which involve See Observer-Dispatch, 38 N.Y.2d ca son, 513 N.W.2d at 470. 61, 64-65, 569, 571 N.Y.S.2d 341 N.E.2d is Because the Minnesota standard Respondents interesting argu make the lower, application of either state’s laws could ment that this factor favors New York law be outcome-determinative. producing because the activities involved in nationally publications broadcast are A second consideration is wheth They might planned. contend broadcasters application er of either state’s law is constitu by possibility subject being be chilled signifi tional. A state must have sufficient varying Appellants to the of 50 states. laws litigation to create cant contacts with the by noting respond that broadcasters —like applica state interests the action so voluntarily expose ear them manufacturers — arbitrary tion of its laws is not or fundamen liability in all the to which selves states tally Jepson, N.W.2d at 469. unfair. product. their But car manufac send case, signifi states have sufficient this both turers, defendants, unlike media are not enti cant to create state interest. contacts protection; Amendment tled to First plaintiffs, is the domicile of the Minnesota defendants, predictability media need for injured by a who were in Minnesota broad required comply would be who otherwise Minnesota, cast televised and one differing governing laws with attor respondents is Minnesota-licensed states, fifty analogous is to the need of those ney. produced in New York show entering into a contract to know which state’s personnel produc and the connected with its govern contract. laws See Davis Cos tion are situated there. (S.D.N.Y. tad-Gavras, F.Supp. 1984) (First policy exist Amendment reasons a conflict exists and both states’ When deciding impacting media defen issues *7 constitutionally applied, five laws could be jurisdic according to dants’ future behavior influencing” “choice factors are considered: giving in conduct rise to defama tion which (2) (1) result; predictability mainte- of occurred). Thus, this we conclude that tion order; nance of interstate and international York applying factor favors New law. (4) (3) task; judicial simplification of the factor, maintenance of inter- The second governmental advancement of the forum’s order, requires suffi- state and international (5) interest; application of the better and the state whose law is cient contacts between law. rule of litigation being applied and the to meet due Jepson, 513 N.W.2d at 470. Corp., 702 process requirements. SCM factor, predictability The first of re above, states F.Supp. at 1431. As noted both sults, “justified protect is intended to the litigation. the have sufficient contacts with parties the transac expectations of the to under this primary interest addressed factor, however, Corp. Corp., applying 702 Minne- tion.” SCM v. Deltak is whether (D.Minn.1988). 1428, “ap disrespect” for New F.Supp. 1430 It sota law would “manifest statement, 836, (1982), 470, aff'd, defamatory per summary 58 (despite 446 N.Y.S.2d 842 se 630, 538, plaintiff N.E.2d 1002 judgment appropriate N.Y.2d 458 N.Y.S.2d 444 where offered no malice) (1982) required (proof reputation proof actual of harm to not of harm to or Co., summary judgment Publishing where state 77 to v. MacMillan withstand Salomone 501, 441, (1980) se) (reversing per v. Mar ment was libelous chello, and Matherson 429 N.Y.S.2d A.D.2d 233, (1984) grounds 473 N.Y.S.2d 998 100 A.D.2d denial of prove special (plaintiff required plead not plaintiff could not show he suffered harm to se). Co., involving per Hogan damages A.D.2d in cases reputation) with v. Herald 84 242 Jadwin, Thus, applica- impede com 367 N.W.2d at 491. sovereignty interstate or

York’s require of York law could Minneso- Evi tion New Jepson, N.W.2d at 471. merce. are impose restrictions that application ta’s courts forum-shopping, or that dence of It also unacceptable under Minnesota law. promote forum- would of Minnesota’s law strong interest disrespect. Minnesota’s would undermine shopping, indicate would Ins., compensa- ensuring victims receive id.; in tort Hague v. 289 N.W.2d See Allstate 302, Jepson, N.W.2d at 472 (Minn.1978), tion. See aff'd, 449 U.S. (“Minnesota (1981). great compensat- in places value There is 66 L.Ed.2d S.Ct. victims”). forum-shopping ing tort no evidence Minnesota, brought they in where when suit factor, do reach fifth which We the plaintiffs reside in Because the reside. only law applied the choice of should when Minnesota, injured in and were Minnesota question after the other remains unresolved weigh apply in this does not favor of factor Myers v. factors are considered. Govern- ing York law. New Ins., Minn. Employees ment Although the factor, judi- simplification of the The third of York supports application factor New first task, insignificant usually cial is considered law, heavily the favor latter two Minnesota easily just apply can as anoth- because courts cases, fac- the fourth and fifth law. tort Jepson, 513 er laws as their own. See state’s are considered the most relevant. above, however, tors N.W.2d at As noted Hime, at We conclude that 284 N.W.2d New law on the issue of a harm-to- York apply- of rule Minnesota’s choice law favors Although reputation prerequisite is unclear. ing law case. Minnesota this yet the has not been addressed in issue involving public cases issues Minnesota Attorney Liability Third Parties III. concern, ap- are capable Minnesota courts attorney Generally, acting “an within plying precedent to resolve Minnesota this attorney scope employment as an [her] issue. This factor favors Minnesota law. persons liability third is immune from is The fourth factor advancement professional arising actions out of that rela interest, intend- governmental forum’s and is Stewart, tionship.” Minn. McDonald v. ed to that Minnesota courts are not ensure 35, 40, Excep 182 N.W.2d required apply with laws inconsistent this attorney acts tions exist when fraudulent concepts equity. fairness state’s in ly, maliciously, or an otherwise commits Hime, at 833. This factor 284 N.W.2d Lechner, Melrose Floor Co. tentional tort. First, strongly favors Minnesota’s we laws. (Minn.App.1989). Tatone summary note our conclusion above protects liability argues rule her from this case, giv- judgment inappropriate this attorney Richie’s acting because she was the de- per en se nature of photograph appel provided when she famatory Application of New statements. lants the show. prohibit *8 proceedings York could further law appellants that dispute There is no Further, the Su- in this case. Minnesota only relationship parties to the are third rejected New preme explicitly the Court Fur Tatone and Denise Richie. between standard, finding irresponsibility gross York ther, appellants acted do claim Tatone not “virtually indistinguishable” practice in it fraudulently Appel intent. or with malicious standard, finding from the actual malice argument on whether Tatone lants’ focuses malice too harsh: the actual standard lawyer as acting was as a on Denise’s behalf private figurej’s sole means [a Given that not contemplated by the If Tatone was rule. reputation may his her be to vindicate or acting attorney, immunity would as Richie’s judicial injurious determination that the not attach. false, is in to foreclose that statement fact specifically found a fact by stan- The district court adopting the actual malice redress Ta- question on the issue whether go too far in extin- existed dard seems us attorney acting Richie's only indi- was as Denise guishing protection private the a tone arrangements making with the show. may when invoke. vidual agree. testified that she made all The district court found Tatone was Tatone We protected liability by quali not from defamation arrangements with the show. It does privilege. disagree. that advised fied We exis appear “[T]he from the record she privilege tence of a from the court’s representatives or the show’s results either Denise par determination that statements made in against communicating directly with one an- ticular contexts or on certain occasions question other. There is a fact as to whether encouraged despite should be the risk that simply acting capacity in the Tatone was might defamatory.” the statements be Id. any agent, show business but not as an attor- gratuitously forwarding pho find that We a ney. photographs Had Tatone submitted the tograph persons to be discussed on a talk investigating possible to law enforcement a type show is not of occasion for which the photographs to some- crime or submitted qualified privilege gratu is intended. It was discovery part in the course of one itous, any ongoing not related to business or litigation, compelling argu- there a would be Richie, litigation. client, not a Tatone’s was in ment that the submission was the course planner producer, any way in or or connected attorney-client relationship. of the But those guest. with the show other than as a The not our facts. The lawsuit was over. are gratuitous production photograph of the Maury Povich heard about it and show necessary way protect any not or in en any that simply got curious the same sense previously hance the civil verdict obtained. gets talk show or tabloid curious about mat- No harm could come to Tatone’s client Richie might with sensationalism that ters tinted photograph if the had not been forwarded. coverage ratings. boost or only possible penalty is that Povich attorney-client We do not state might guest not have wanted Richie to be a in this privilege did or did not shield Tatone photographs. if there no on the show merely We state that the trial instance. hardly penalty get go It is not to on properly legitimate found that a fact court your national and have intimate details of TV question Tatone “was exists as to whether your parents exposed country. life and to the attorney” simply for- acting as an when she protect activity We find no reason photograph a talk show warded a for use on application artificially through the of an cre litiga- any way pending connected with legal privilege. ated Tatone’s actions will tion. to rise or fall on the merits without the have qualified privilege. of a benefit question that a fact exists on

We conclude precluding summary judgment on this issue DECISION again free this We note that Tatone is basis. verdict at the close of granting

to move for directed sum- The district court erred appellants’ respondents. case or all the evidence. mary judgment for It cannot determined, proceed- stage at this Privilege

IV. Defamation a matter of law are ings, that as recognizes qualified Minnesota at have suffered unable to establish privilege for statements under reputation. harm to least some actual appropriate circumstances. Friedell re- A factual issue exists as to whether 226, 229-30, Printing, Blakely 163 Minn. protected by attorney- spondent Tatone was protected To be N.W. immunity photo- when she forwarded a client privilege, a communication must be made graph the Povich talk show. *9 motive, occasion, proper a proper a with ap- privilege qualified No for defamation probable cause. upon reasonable or be based alleged conduct. plies to Tatone’s Parke, Co., 297 Stuempges v. Davis & (Minn.1980). 252, 256-57 Whether trial. and remanded for Reversed question of law for proper occasion exists is Equitable v. the court to decide. Lewis Life DAVIES, (dissenting). Judge (Minn. 876, Soc’y, 889 389 N.W.2d Assur.

1986). reasons. respectfully I dissent two

244 applica-

First, summary judgment. Its to to be advisable read Gertz defeat it would Inc., 323, inappropriate. Welch, tion 94 418 U.S. S.Ct. v. Robert (1974), 2997, prohibiting as L.Ed.2d per se of defamation

the use of the doctrine damages to media cases. open

to door applied in a reading

That of Gertz has been suggested by a jurisdictions and

number of Rock See Little

number of commentators. Dodrill, 25, 281 Ark. Newspapers, Inc. v. Minnesota, Respondent, of STATE (without (1983) showing 933, S.W.2d v. injury reputation, malice or to either actual jury); go to to Gobin v. evidence insufficient MANNING, Appellant. Otis Co., 232 Kan. P.2d Globe Pub. No. C7-94-2242. (1982) (because damage reputation to is gravamen” of defamation ac “essence and Appeals of Minnesota. Court tion, injury reputation plaintiff must show May defamation); Salomone claim for to establish Co., A.D.2d v. Pub. MacMillan July Review Denied (1980); 441, 443 France v. St. N.Y.S.2d Ctr., 1, 441 Hosp. Health 82 A.D.2d Clare’s & generally Anno

N.Y.S.2d See

tation, Injury Reputation Pre Proof Recovery Damages requisite Defamation Cases, Acti on—P o sb-Gertz (1985 (not Supp.1994) &

A.L.R.4th require proof of

ing harm states that claims). See, e.g., Eaton, D. The American Law Joel of Defa Welch, Through Robert Inc.

mation Gertz v. Primer, Beyond: Analytical An 61 Va.

L.Rev. 1347

Here, majority inadvisably relies on per permit se

the doctrine of defamation summary judgment.

appellants to survive “to purpose

But the is chaff and relieve

separate the wheat from the expense system

the court burden Connolly, litigation.”

of‘unfounded Cook (Minn.1985). 287, 292 that,

My is even reason for dissent second law for defama-

if there is room Minnesota se, per inappropriately

tion the doctrine is Maury Povich show

applied in this case. The name,

specifically identified the offenders

clearly appel- establishing were not identification, ap-

lants. face of that required to show that

pellants should be mistakenly understood

someone nonetheless offending parties. been

appellants to have make

Because failed

showing, defamation was unavailable per se