Free Speech

Libel Lawsuit Over University Rape Allegations Can Proceed

So holds a federal district judge, rejecting the defendant's motion to dismiss (though of course without resolving, at this early stage in the lawsuit, who is telling the truth).

|The Volokh Conspiracy |

From Goldman v. Reddington (E.D.N.Y.), decided Friday by Judge Roslynn R. Mauskopf:

Plaintiff Alex Goldman filed this action, pursuant to this Court's diversity jurisdiction, alleging defamation and tortious interference with prospective economic advantage and business relations by defendant Catherine Reddington…. In 2017, Reddington and Goldman were both students at Syracuse University. Goldman was a civil engineering student, on track to graduate with a bachelor's degree in 2018 and a master's in Business Administration ("MBA") in 2019.

Both Goldman and Reddington participated in Greek life on campus. On April 22, 2017, Goldman's fraternity and Reddington's sorority hosted a joint party at the Delta Kappa Epsilon ("DKE") fraternity house, where Goldman resided. After the party, Reddington spent the night in Goldman's room. Goldman alleges that surveillance footage shows him walking to his room at approximately 12:30 a.m., with Reddington following a few feet behind. When Goldman and Reddington awoke on April 23, 2017, it is undisputed that they were fully clothed, and that neither could remember what transpired after midnight.

The next day, on April 24, 2017, Reddington visited Crouse Hospital in Syracuse, New York, complaining of a possible sexual assault. She believed that she may have been drugged given her lack of memory. A Sexual Assault Nurse Examination ("SANE") was conducted, which showed no intoxicants present in her bloodstream other than caffeine and marijuana. She submitted items of clothing—specifically underwear, which had no visible blood, and a white leotard, which had a "blood stain in [the] crotch area." The examination found two "tears" to Reddington's labia, but "there were no internal cuts or abrasions to vaginal walls and she had smooth hymen edges." A DNA analysis indicated that her vagina was negative for male DNA.

In May 2017, Reddington reported the alleged sexual assault to the Syracuse Police Department ("SPD"). Following an investigation, Detective Michael Bates of the SPD closed the case, given the absence of any physical evidence and Reddington's statements in interviews that she had no recollection of the night in question after 12:30 a.m. Bates forwarded his report to the Onondaga County District Attorney's Office ("OCDA"), which conducted its own investigation, memorialized in a report by Assistant District Attorney Maureen Barry. Based on Barry's review of the evidence and the OCDA's own independent investigation, Barry concluded that there was "no corroborating evidence" and "no physical evidence from the SANE" to support allegations of sexual assault. The report also noted, "Ms. Reddington has stated repeatedly that she has no direct knowledge of any sexual acts that she may have engaged in," and that her "lack of memory and the lack of any witnesses … make it impossible to prove." The report recognized that sexual assaults are "inherently difficult" to prove, but ultimately concluded: "There is no credible proof of any sexual conduct in this case, consensual or non-consensual."

In approximately June 2017, Reddington filed a complaint with Syracuse, and the school's Title IX Investigator Bernerd Jacobson conducted an investigation. While Reddington initially told Jacobson that she could not recall the night in question, weeks later she reported experiencing "sudden flashes of memories following a visit to a therapist." Reddington told Jacobson that she had sexual intercourse with Goldman and was sodomized by him without her consent. Jacobson concluded that Goldman had violated the Student Code of Conduct, and he was expelled in November 2017. Reddington celebrated by visiting the DKE house the day after Goldman was expelled, "bragging" that "her 'rapist' was expelled." Goldman notes that he was seven credits shy of graduation at the time.

Following his expulsion, Goldman moved to New Jersey, enrolled in a new school (the New Jersey Institute of Technology ("NJIT")), and obtained an internship for the summer of 2018 with Bohler Engineering ("Bohler").

Goldman alleges that Reddington embarked on a campaign of defamation in a "systematic process of publicly and falsely" branding him a rapist…. The complaint identifies six specific statements as defamatory:

  1. November 17, 2017, text message to one of Goldman's friends, referring to Goldman as a "violent rapist."
  2. May 2018 text message to another one of Goldman's friends, repeatedly referring to him as a "monster."
  3. June 4, 2018, Facebook post, referring to Goldman as a "rapist" and stating that this was not the first time he "has raped someone and I want to make sure that it is the last." Reddington included a picture of Goldman, marked the location as NJIT, and tagged NJIT and Bohler.
  4. June 4, 2018, LinkedIn post, referring to Goldman as a "rapist," which tags NJIT and Bohler.
  5. June 5, 2018, Facebook post, which includes a screenshot of a direct Facebook message to Bohler. Only a portion of the message to Bohler is displayed, but the post shows Bohler's response, which states that Bohler "elected to immediately terminate the employment relationship" with Goldman upon learning of the "allegations." Reddington posts that she is "feeling happy" that Goldman lost his position, and calls him a "monster" and "a disgusting excuse for a man."
  6. June 6, 2018, Facebook review of NJIT, stating: "A school that accepts recently expelled rapists, despite it being marked on their transcript…………………. "

The Facebook and LinkedIn posts were viewed and "liked" by thousands of people, and the posts have also been shared. Individuals commented on Reddington's posts, expressing their disdain for Goldman. One user wrote, "[h]opefully they'll catch this animal. I will share this post[] in hopes that someone out there who knows him sees it …." Another individual commented, "This person needs to be off the streets" and "he will get his, it's only the beginning!!!!"

Reddington moved to dismiss, but the court allowed Goldman's claim to go forward:

First, Reddington argues that the complaint fails to adequately allege that her statements were false. While plaintiffs must offer more than a conclusory statement of falsity, Reddington attempts to impose a heightened standard contrary to New York law. Goldman unambiguously disavows the accusation of rape as "utterly unfounded," and presents specific facts through the OCDA report to plausibly allege that Reddington's claims are not true….

Reddington cautions the Court against the use of the OCDA report, noting that the District Attorney's decision not to bring criminal charges "does not conclusively establish that no sexual assault occurred." However, the criminal standard of proof is immaterial here…. While the Court is sensitive to the exceedingly difficult task of corroborating claims of sexual assault, and has questions about the SANE examination and Title IX investigation, a motion to dismiss is an inappropriate forum to deal with these concerns. Reddington is free to renew her arguments regarding falsity in a motion for summary judgment following discovery.

Reddington also asks this Court to find that her statements were "substantially true" because there are merely "fine … distinctions" between her statements and "the truth" that Goldman acknowledges. This theory falls flat—her statement that Goldman raped her, on the one hand, and his contention that the accusation is a deliberate lie, on the other hand, are worlds apart. Their narratives of what transpired would not have the same effect on any reader. On a motion to dismiss, without the benefit of discovery, and considering the Court's duty to read the allegations in the complaint as true, this Court cannot find that Reddington's statements were substantially true; that is, it cannot find that Goldman raped Reddington, especially when the OCDA arrived at a contrary conclusion. Instead, the Court finds that the facts alleged in the complaint and its attachments allow Goldman to satisfy the liberal pleading standard and plausibly allege that Reddington published false statements….

Reddington next argues that the defamation count should be dismissed because the text message she sent to Goldman's friend in May 2018 referring to him as a "monster" is an opinion, and therefore constitutes protected speech. While hyperbole is typically not actionable, the Court finds that this statement survives as an actionable mixed opinion because it implies that it is based on facts, not disclosed to the reader, which support the opinion. See Levin v. McPhee, 119 F.3d 189, 197 (2d Cir. 1997) (Conjecture may be actionable if it "impl[ies] that the speaker's opinion is based on [her] knowledge of facts that are not disclosed to the reader." (citations omitted))….. Even if a reader could also reach the opposite conclusion, at this stage, the Court is tasked with assessing whether "any reading of the complaint supports a defamatory connotation." Here, given "the broader social context and surrounding circumstances," the recipient of the text could infer that Reddington called Goldman a monster to convey a fact, namely that he raped her….

Reddington further argues that her June 6, 2018, Facebook review of NJIT is not actionable because it was not "of and concerning" Goldman. The post stated: "A school that accepts recently expelled rapists, despite it being marked on their transcript …." Reddington argues that there was "no surrounding context," yet the review followed other social media posts, made two days earlier, in which she called Goldman a rapist, tagged NJIT, added a picture of Goldman, and linked to his social media pages. Because NJIT was tagged, it received a notification of her posts, and therefore, when it saw the review two days later, it presumably would have known that it referred to Goldman. While the review does not identify Goldman by name, it is plausible that those who knew him at the time would have known about the rape accusation and recognized that he was the subject of the review. The Court concludes that, drawing all reasonable inferences in his favor, a reasonable jury could conclude that the review on NJIT's Facebook page was "of and concerning" Goldman….

The parties dispute whether the statements at issue are "arguably within the sphere of legitimate public concern," and thus whether the gross irresponsibility standard applies [under New York libel law]. However, the Court need not reach the issue because even if gross irresponsibility is the requisite level of fault, Goldman satisfies that standard. The complaint repeatedly alleges that Reddington "knowingly" and intentionally made false statements. On a motion to dismiss, the Court accepts this assertion as true, considering the additional facts pleaded by Goldman, such as the insufficiency of evidence to corroborate sexual assault and Reddington's lack of memory. Intentional lies not only satisfy, but surpass, the culpability of "gross irresponsibility," which signifies "something more than … negligence." …

Goldman has [also] adequately pled all elements of tortious interference with prospective economic advantage or business relations. Reddington "specifically targeted" Goldman's relationships with Syracuse and Bohler, allegedly making "knowingly false statements designed to interfere" with his standing. Her direct communications with these institutions "evidence a calculated purpose … to convince these third parties to cease their business relationships with" him. Although Reddington argues that her statements were driven by a desire to prevent further sexual assaults, Goldman satisfies the requirement of "wrongful means" by plausibly alleging that she committed the independent tort of defamation.

Reddington also argues that Goldman has not suffered any injury attributable to her conduct, but he was expelled from his university and fired from his internship. If Reddington reported false accusations, and Goldman was subsequently expelled and fired, these amount to cognizable injuries. Moreover, contrary to Reddington's theory, the fact that Syracuse conducted its own investigation does not eviscerate the complaint; if the investigation was premised on lies she propagated, then her interference would still be the primary cause and the "but for" cause of his expulsion.

Still, Goldman has failed to allege any injury related to his standing at NJIT…. In an affidavit submitted in connection with his Order to Show Cause, Goldman stated, "now I am nervous about my situation at NJIT as they are evaluating my standing at the university." … [But] the vague statement that Goldman is "nervous" does not allege any concrete harm, and thus fails to meet the threshold requirement of pleading injury [for a tortious interference claim]. Accordingly, while Goldman is not foreclosed from pursuing his claim with respect to Syracuse and Bohler, his claim that Reddington interfered with his relationship with NJIT is dismissed without prejudice….

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  1. Noteworthy, this case is being conducted without pseudonyms or anonymizing, nor any attempt at sealing.
    From the plaintiff’s perspective, this makes sense. Not only as a matter of “getting back”, but also so he can have some future employment and educational prospects by pointing at what looks to be at this time a winning case.

    1. Unless he creates a Streisand effect, and wildly inflates the number of people who associate his name with the word “rapist”.

      1. Whatevs. If you have to subject yourself to further publicity in order to clear your name, then that is a small price to pay for doing so. Given the facts of the case, he has every reason to pursue a remedy.

        1. If you create a large body of people who think “rapist” when they see or hear your name, you haven’t really cleared your name.

  2. IANAL I am surprised that the word malice appears nowhere in the analysis. It certainly sounds like Reddington acted with malice. Doesn’t that make a difference?

    1. I think malice is only necessary if you’re a public figure.

      1. Also NAL but I believe you are correct, malice is only necessary for a public figure, however it can certainly help other cases so its omission here is still surprising

        1. Actual Malice takes the cake for the worst bit of legal jargon out there. It’s just being reckless with the truth or intentionally false. Why that’s not what they call it, I don’t know.

          1. Sarcastr0, I don’t know either, but have long assumed it has to do with putting the emphasis on an “act,” (hence “actual”), to distinguish it from “malice” as a mere unprovable state of mind. Presumably, the practice of conjoining some provable act, with some notion of hostility behind the act, does something or other to illuminate, expand, or constrict (maybe based on circumstances) the straightforward meaning you cite. I agree that it seems to be stumbling block whenever the term comes up among anyone but lawyers.

            1. This seems like a remarkably unpersuasive explanation, particularly in light of the fact that the “actual malice” standard is purely a matter of the defendant’s state of mind, and does not require proof of a “provable act”.

              1. Noscitur, do you think you see that in NYT v. Sullivan? Or is it in some case decided since? Either way, can you point me to whatever it is that makes “reckless disregard” totally a matter of state of mind, disqualifying inference from the defendant’s conduct?

          2. “Actual Malice takes the cake for the worst bit of legal jargon out there.”

            I still think “Congress shall make no law…” wins, considering how many laws Congress has made abridging the freedoms that follow the quoted text.

          3. You know that the term “malice” has been used in this manner since (at least) Blackstone to distinguish murder from other homicides, right?

            1. The point was that “actual malice” as used in defamation law has nothing whatsoever to do with “malice” as used in other areas of law. Did you miss that?

              1. “Malice” when used as applied to defamation is almost exactly synonymous with the term “malice” in the context of murder.

                It’s only “the worst bit of legal jargon” if you don’t have a legal education or knowledge of the history of law.

                There’s nothing wrong with you or Sarcastro lacking an academic legal background, but it’s strange for non-lawyers to be so interested in a blog that (at least until fairly recently) tends to focus on legal particulars.

                1. ““Malice” when used as applied to defamation is almost exactly synonymous with the term “malice” in the context of murder.”

                  In the sense that, as I said, “Actual malice” in a defamation law context has almost nothing to with the definition of “malice” in other areas of law (or in common English usage).

                  In defamation law, “Actual malice” has a specific meaning, outlined by the Supreme Court in NYT v. Sullivan:

                  “The constitutional guarantees require, we think, a Federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

                  Meanwhile, dictionary.com offers definitions for ordinary usage and in law:
                  “Malice, noun
                  desire to inflict injury, harm, or suffering on another, either because of a hostile impulse or out of deep-seated meanness: the malice and spite of a lifelong enemy.
                  Law. evil intent on the part of a person who commits a wrongful act injurious to others.”

                  In short, you are full of shit if you think these are “almost synonomous”

                  “There’s nothing wrong with you or Sarcastro lacking an academic legal background”

                  I can’t speak for Sarcastro, but my JD provided sufficient academic legal background to let me pass a state bar exam. Perhaps you could let go of your badly misplaced condescension long enough to check your facts, and avoid saying stupid things? Just give it a try, you don’t have to stick with it if it’s too difficult for you.

    2. This case involves a private figure suing on a matter of public concern, and one who can point to specific damages. He therefore only needs to show negligence to overcome a First Amendment defense, though New York law also requires a showing of “gross irresponsibility” (i.e., gross negligence). “Actual malice,” in the sense of knowing or reckless falsehood, would only be required for a showing of presumed and punitive damages; debate about those items of damage will arise later, well after the motion to dismiss.

      But in any event, as the court notes, plaintiff’s “complaint repeatedly alleges that Reddington ‘knowingly’ and intentionally made false statements,” which — if proved — would satisfy any mental state requirement that libel law might impose.

      1. I don’t practice personal injury, but there may be a good reason for omitting allegations of malice. Generally, when you bring a claim like this, you want to trigger insurance coverage. If you allege malice, there’s probably an increased likelihood that the insurer denies coverage under an intentional-act exclusion.

    3. ” I am surprised that the word malice appears nowhere in the analysis.”

      “Malice” isn’t an element of libel.

      1. I don’t believe David Bremer suggested “malice” was an element, only surprise that it wasn’t mentioned in the complaint. There are other reasons that “malice” may appear in a civil complaint. For example, if the plaintiff is making a claim for punitive damages.

        1. Correction: It was not Mr. Bremer that expressed surprise. My apologies.

        2. “I don’t believe David Bremer suggested “malice” was an element, only surprise that it wasn’t mentioned in the complaint.”

          What you have to do in the complaint is allege that defendant did something (or several somethings) that meet all the elements of a tort for which relief can be granted.
          So, if something isn’t mentioned in the complaint that IS an element of the tort charged, that would be significant. If something IS NOT an element, then it doesn’t belong in the complaint and the absence of it is not significant.

  3. How is this possible? Women never lie. #believeallwoman #metoo #snarc

    1. Notice all the people arguing for that? No? Maybe you somehow have it wrong.

      Believe all women means don’t assume someone claiming they got raped is lying immediately, as apparently happens a lot.
      Even if they’re a prostitute or promiscuous or a drug user or whatever.

      1. “Believe all women means don’t assume someone claiming they got raped is lying immediately…”

        Er, notice all the people arguing for that? No? Maybe you somehow have it wrong.

        1. “notice all the people arguing for that?”

          Just the one, and his name is on the masthead (and he’s careful to include his rationale for believing that she is lying.)

        2. …I was correcting AustinRoth’s post misapprehending what #believeallwomen means, not saying it applied in this case.

          1. And no one is arguing that someone claiming that they got raped should be immediately dismissed as liars.

            But there are load of feminists arguing (falsely) that data proves that 92-98% of women who make rape allegations are telling the truth. So AustinRoth’s claim isn’t the straw-man that you claim it is.

            1. “But there are load of feminists arguing (falsely) that data proves that 92-98% of women who make rape allegations are telling the truth”

              They don’t seem to have showed up here.

  4. Who is telling the truth when each side has documentation from a government proceeding supporting their contradictory claims?

    While the opinion doesn’t delve into this question given that it’s a motion to dismiss, this seems to be a central issue. Goldman points to a extensive series of facts that culminated in the OCDA’s assertion that “There is no credible proof of any sexual conduct in this case, consensual or non-consensual.” He argues that the OCDA investigation supports the claim that he did not rape or sexually assault Reddington. As such, Reddington’s written statements that Goldman raped her are false.

    The opinion does not go into detail on the Title IX investigation and conclusion (so I’m left to make some inferences), but it does state that the university investigator concluded that Goldman had violated the student code of conduct. Syracuse states on its website that Title IX hearings do not follow formal court rules of evidence, and that “the University uses a ‘preponderance of the evidence’ standard” in making its decision. The university’s procedure may certainly be flawed, and even constitute a violation of the accused’s due process rights (Goldman argues as much in his response to Reddington’s motion to dismiss). But that does not negate the fact that the university (presumably) found that a sexual assault occurred. If the university did in fact reach such a conclusion, then wouldn’t Reddington be able to argue that her general assertion – that Goldman raped her – was not a false statement (that ignores the inflated terminology she uses, which may exceed the bounds of truth afforded by the university’s conclusion). In other words, it would seem that Reddington could respond to an argument that her claim was false by pointing to the outcome from the University’s Title IX hearing, which found that her claim was true (again, presumably).

    The puzzle arises from the fact that two different government entities, each employing different standards of proof, have reached opposing conclusions on whether an act did in fact occur. If the case continues to trial and that becomes a central issue, it will be interesting to see how the court handles it.

    1. One government entity is a neutral law enforcement agency with no political axe to grind, and deep expertise in conducting fact-based investigations.

      The other is an agenda driven group of political actors working to achieve a pre-determinated narrative.

      Yet you consider them equivalent. That is sad.

    2. One document is based on objective physical evidence, the other is just, “Yup, she accused him, that’s good enough for us.”

      1. Thank you for spending the hours it must have taken to conduct this extensive, thorough analysis.

        1. I suppose I have logged hours, once you add up all the time spent reading accounts like this over the years. I believe I’ve actually given an accurate description of the “process” in many of these hearings.

          You’ve got physical evidence indicating she didn’t have sex with anybody that night, you’ve got an undisputed admission that they both woke up fully clothed, she only started to “remember” the incident after a long delay. (Hint: Memory doesn’t actually work that way, “repressed memories” are a psychiatric scam that was debunked decades ago.)

          Essentially the only basis there is for believing her IS, “Yup, she accused him, that’s good enough for us.” There’s no other basis for thinking the accusation true.

          1. ” I believe I’ve actually given an accurate description of the ‘process’ in many of these hearings.”

            I believe you believe this, yes.

            “You’ve got physical evidence indicating she didn’t have sex with anybody that night”

            No, you don’t.

            ” you’ve got an undisputed admission that they both woke up fully clothed”

            Gosh, I’ve never gotten dressed after having sex.

            “Hint: Memory doesn’t actually work that way”

            Hint: Except when it does.

            1. “Gosh, I’ve never gotten dressed after having sex.”

              Well, maybe someday you’ll meet the right girl and all that will change.

              1. You’re calling my ex-wife “not the right girl”? She’ll be crushed…

                1. If she was “the right girl”, why is she your ex wife?

                  1. Was. Not “is”.

    3. “that does not negate the fact that the university (presumably) found that a sexual assault occurred.”

      The university (presumably) found that its student code of conduct was violated. You’re not correct in assuming that the specific violation they found was a sexual assault.
      Alas, this makes the rest of your conclusion untenable.

      For all I know (and I’m not willing to research to find out) the student code of conduct bans involving yourself in events which might lead to an inference of rape… which makes him guilty for letting an intoxicated woman share his overnight accommodations, whether any sex, consensual or otherwise, took place.
      Back in the day, when I lived in a dorm, having overnight guests of what they considered the incorrect gender was grounds for being ejected from the dorm, AND freshmen were REQUIRED to live in a dorm (with a handful of exceptions).

      1. You are correct that I was making inferences based on what was stated in the opinion. After reading Reddington’s motion to dismiss, which discusses the Title IX investigation and the finding reached by the University, I’m content with my ability to draw inferences.

        But please continue with your method of analysis, which appears to entail little actual reading and a strong reliance on your dorm experiences back in the day.

        1. “I’m content with my ability to draw inferences.”

          What a surprise.

          “But please continue with your method of analysis, which appears to entail little actual reading”

          I accept the apology you’re too embarrassed to make.

    4. QuantumBoxCat: I’m not sure it would matter much, but Syracuse University is a private entity. I don’t think even a public university Title IX proceeding would be binding on the court (say, on a collateral estoppel proceeding), but certainly Syracuse’s wouldn’t be. A police department decision not to charge wouldn’t be binding, either.

      Whether the police department’s or the private university’s conclusions would be admissible evidence for the truth of the underlying assertions (even if they aren’t dispositive), I can’t say.

      1. My statement that the case involves decisions from two government proceedings is clearly incorrect given the private nature of Syracuse University. In reading Reddington’s motion to dismiss, Goldman’s motion in response, and the court’s opinion, it does appear clear that both parties not only have different version of the facts, but that they support their version by pointing to the different proceedings that were had.

        Reddington specifically points to the Title IX investigation and the conclusion reached by the university as evidence supporting her argument that her statements are not false. Goldman’s motion incorporates the OCDA investigation and specifically points to its conclusion to support his argument that Reddington’s claims are false. My reading of the two motions leads me to believe that the parties place a heavy emphasis on the proceeding (Title IX vs OCDA investigation) that supports their version of the facts. This is particularly evident in each party’s argument on the issue of falsity. The aspect of the opinion that I initially found intriguing (and still do after further reading) involves the nature of a truth claim when each side has a proceeding that supports its view of whether an act did or did not occur. Are Reddington’s statements concerning Goldman true or false?

        I certainly recognize that your legal education and experience surpasses my own arm-chair reading of court documents. So your analysis of the motions and supporting documentation is likely more accurate.

        1. I don’t see where the court is discussing where “each side has a proceeding that supports its view.” Most of the discussion on falsity is on page 12, were you looking elsewhere?

          In the page 12 discussion the defendant is asserting that her statement is “substantially true,” and not “actually true.” I think if the school had found that a rape (or sexual assault) had actually occurred then she would have been more insistent that the rape allegation was true. I suspect the school found that the plaintiff had violated the school’s code of conduct without further elaboration.

          Later in the opinion the Court discusses that the school’s investigation does not absolve her of responsibility because she may have lied (page 18), but I don’t read that as the school found the plaintiff guilty of rape or sexual assault.

          Maybe you’re right, but I’m not seeing it.

      2. Since Syracuse is private, doesn’t that make it just like any other private actor who takes action against the plaintiff because of the defamation? Certainly the court is counting the expulsion as damages. Liability is imposed, and special damages occur because other persons believe the accusation. But… in order to prove damages from expulsion, the plaintiff will have to introduce the school’s conclusion, which may open the door for the jury to hear more about the process. A good defense attorney might be able to make something of that. Also interesting question is, if defendant relies on the memory flashes from therapy, can plaintiff discover the therapist’s notes and depose him or her? Might also have a battle of experts regarding what the bloodstains prove.
        Another question is whether there is a fair reporting privilege lurking here, in terms of stating what Syracuse found. I expect that would apply to someone else, but not the source of the defamation. It would seem logical that you cannot create the publication, and then be protected as if you are only quoting another source (though that is the way the litigation privilege works.) Still, if she had strictly limited her statements to reporting that Syracuse had reached the conclusion, would that be a defense as being literally true?

      3. Professor Volokh,

        Whether or not admissible for the truth of the underlying facts, wouldn’t it be admissae on the question of whether she acted negligently, grossly negligently, or with actual malice?

        The existence of an independent investigation finding her account to be true, whatever its flaws might be, would appear to be some evidence suggesting absence of negligence.

        Assuming this is an issue of public concern and merits at least the gross negligence standard, it seems to me that a jury could find that she was not sexually assaulted, and yet also find that although mistaken she wasn’t grossly negligent in believing, and therefore in writing publicly, that she was.

        1. And if I were the judge, and possibly the plaintiff the possibility of this type of verdict would suggest requesting asking that the jury ask the two questions separately. Even if the jury doesn’t find gross negligence and hence no compensation is available for the past, a jury ruling finding the statements false might give him some vindication for the future.

    5. Who is telling the truth when each side has documentation from a government proceeding supporting their contradictory claims?

      Syracuse University is a private university. Their kangaroo courts don’t qualify as a “government proceeding”.

  5. You are reading a lot into the opinion to get to your hypothetical. “Violated the student code of conduct” might mean “sexual assault” but it could also mean far less serious behavior. And “sexual assault” is itself generally considered lots less than “rape”. And that’s all well before you get to the questions about the reliability of the Title IX investigation.

    In theory, yes Reddington could rely on the Title IX investigation to rebut the high standards of falsity required for a libel claim unless, of course, Goldman can show that Reddington “created” the Title IX conclusion through false claims, etc. From the article, ‘the fact that Syracuse conducted its own investigation does not eviscerate the complaint; if the investigation was premised on lies she propagated, then her interference would still be the primary cause and the “but for” cause of his expulsion.’

    1. That was intended as a reply to QuantumBoxCat. Really not happy with the Reason commenting system today…

  6. Example 3,982 demonstrating why schools should stay out of these kinds of issues. Let the police deal with it.

    1. Sure, except that the schools are neck-deep in it, and “staying out of it” isn’t an option.

      1. “Neck deep in it” may mean that “staying out of it” isn’t an option, but “getting back out of it” certainly is.

        1. So, schools should stop educating people?

          That’s an interesting approach, but I’m fairly sure they’re going to decline to take you up on it.

          1. I wasn’t aware educating people required taking on the role of adjudicant in assault cases

            1. And now you are.

          2. “So, schools should stop educating people?”

            No, schools should continue to educate people even after somebody that they never touched claims to have hazy, recovered memories being assaulted.

            Please try to keep up with the discussion.

            1. Thank you for your contribution, when you get around to making one.

          3. Don’t be willfully ignorant of the point.
            There is no reason that investigations and punishments for criminal actions should be conducted by the school. The school discipline process was created to punish cheaters and mediate between minor issues.

            Sexual assault and rape are criminal acts that carry years in prison if convicted. There is no reason that a school should be investigating and punishing students for something that should be decided by police and jury. They certainly have no reason creating a situation with a lesser standard of evidence and no representation for the defense.

            1. “Don’t be willfully ignorant of the point.
              There is no reason that investigations and punishments for criminal actions should be conducted by the school.”

              Back atcha. Title IX violations are civil law, not criminal.

              “There is no reason that a school should be investigating and punishing students for something that should be decided by police and jury.”

              They aren’t. They’re deciding civil law, which has different rules and different standards from criminal law. Criminal courts are biased in favor of the accused. Better that a dozen guilty men go free than a single innocent be put in jail, and all that.

              ” They certainly have no reason creating a situation with a lesser standard of evidence”

              Today you learned that civil law and criminal law have different standards.

              1. You may think this is a crafty response, but it’s not. The comments above are saying that, for various policy reasons, school’s shouldn’t be in the business of adjudicating these types of issues. Replying by saying that law requires them to be isn’t helpful. We all know there’s a law; the debate is whether there should be.

                Just saying it is a civil matter doesn’t justify depriving people of due process. With increased severity of consequences, the more process you get. That’s why you get more in standard litigation than, say, conciliation court. Just because it’s a civil, rather than criminal, matter doesn’t change the consequences of the finding. I’d rather have respondents in these cases get strong protections than, say, someone charged with speeding – even though speeding is a criminal matter.

                1. ” The comments above are saying that, for various policy reasons, school’s shouldn’t be in the business of adjudicating these types of issues. ”

                  Sure. But they have no choice in the matter.

                  “Replying by saying that law requires them to be isn’t helpful.”

                  It’s true. That’s not what I said, but it’s true, too.

                  “Just saying it is a civil matter doesn’t justify depriving people of due process.”

                  Duh. Save that argument for someone who says it does.

                  “Just because it’s a civil, rather than criminal, matter doesn’t change the consequences of the finding.”

                  That’s an odd statement to make. If this is an accurate statement of your opinion, there’s no point in continuing until you rejoin reality.

  7. No lawyer I; but that “knowingly” seems to be the pivot on which this case should turn. It seems as though Goldman needs to show that Reddington was aware that her claims were false, or at least had no reason to believe they were true.

    But this might not have been the case. Reddington maintained that she experienced “sudden flashes of memories following a visit to a therapist”. While these might well have been confabulations induced by the therapy, Reddington presumably wouldn’t be able to tell a confabulation from an actual memory of an actual event, so believes her statements about Goldman to be true based on her own recollections.

    1. Or they might just be confabulations induced by the need to bolster her case, since “I don’t know, it might have happened.” wasn’t getting her anywhere.

      1. Might be. How would you go about proving this? Your wise knowledge of the way young women’s minds work? Obviously, you know her state of mind better than she does…

        1. Well, you’d look for corroborating evidence, of an objective physical nature.

          Oh, wait, all of that says she’s wrong.

          1. “Well, you’d look for corroborating evidence, of an objective physical nature.”

            Since there isn’t any corroborating evidence of an objective physical nature that supports either side of this, what do you move on to?

            Besides your own internal biases, I mean.

            1. Well, there’s always the guilty until proven innocent standard you seen to favor…

              1. ” the guilty until proven innocent standard you seen to favor”

                The what now?

                I took up the possibility that she’s NOT guilty. Are you slow?

    2. I don’t think “implanted memories” is going to hold up all that well as a defense against libel.

      1. But Reddington isn’t claiming that she’s innocent of intentional libel because she was led astray by implanted memories. She’s claiming that in the course of the therapy, she gained access to some actual memories of the event, which she didn’t have at the time of the SPD and OCDA investigations.

        It’s by no means inconceivable that these memories are in fact confabulations, but that Reddington sincerely believes them to be true memories of something that she experienced. If they’re false, then perhaps the finger of blame should point not at Reddington, but at the therapists, at Jacobson, or at Bohler.

    3. He’s alleging she intentionally interfered with his contractual/business relations, in part by getting him expelled from Syracuse and in part because her postings got him fired from his [paid] internship [with a very well-regarded company, Bohler]. For a plaintiff to succeed on an intentional interference with contractual/business relations claim, one has to plead and prove that she acted intentionally, i.e., knowingly.
      Fact is, if she wrote the posts and promoted them, that’s acting “knowingly”.
      As to the note upthread about not going overboard with mental state so as to not jeopardize insurance coverage, that is a correct interpretation and a concern every plaintiff’s lawyer has. I’m inclined to believe one’s generic homeowner’s policy is likely to cover defamation liability (so long as one isn’t doing the defamation as part of a commercial enterprise or for money at all). I would be inclined to believe the intentional interference with contractual/business relations would not be covered under the generic homeowner’s policy, because the acts complained about are “intentional” and it’s difficult if not impossible to get coverage for intentional acts.
      She’ll be facing a coverage suit, in which the insurance company will turn on her and try to deny her coverage.
      As to the claims which are ultimately not covered by insurance, getting rid of them through bankruptcy is a lot harder than merely filing. There are several exceptions to discharge which would conceivably apply here to make any judgment non-dischargeable (at least without going through multiple bankruptcies, a topic for another day).

      1. ” For a plaintiff to succeed on an intentional interference with contractual/business relations claim”

        Is this raised as a separate claim, or is it part of the damage calculation for a defamation claim?

        I only took one semester of torts, and interference with business relationships torts were barely even mentioned. Is truth an absolute defense to those torts, as it is with defamation claims?
        (I don’t think her defense will be built around denying that she said what she certainly appears to have said, but rather that they are not libelous. She’ll win on at least one… calling him a “monster” isn’t libel, it’s opinion… but his case can be lost if he can’t prove that her claims are false, which is his burden.

    4. The more I look at this, the more I think it’s entirely possible that there was no sexual assault, and yet she wasn’t subjectively lying, and may not have been objectively grossly negligent, in believing there was and saying what she believed.

  8. Intentional interference with business relations/contracts is an entirely separate species of tort, when compared with defamation. Truth of the statements made is no defense to those torts, as compared to defamation.
    Calling him a “monster” in the context can be argued to be a conclusion and as such might be recoverable. She’ll argue it’s protected opinion, but context will have a lot to say there.

    1. scribe: Generally speaking, the intentional interference tort can’t be based on constitutionally protected speech (at least when the speech is on a matter of public concern, which allegations of sex crimes generally are) — Snyder v. Phelps makes that clear. One way speech can be unprotected is if it contains a false factual assertion, which is why defamation claims are often accompanied with intentional interference claims. But, given Snyder, I don’t think that a true rape allegation (or an expression of opinion) can form the basis for an intentional interference tort. See also Moore v. Hoff (Minn. Ct. App. 2012), as well as Restatement (Second) of Torts sec. 772 cmt. b (“There is of course no liability for interference with a contract … on the part of one who merely gives truthful information to another.”).

  9. The more I think about it, the more I think it’s entirely possible that no sexual assault occurred, and yet she wasn’t lying in believing it did, wasn’t grossly negligent in saying so, and also did not do so for the purpose of interfering with his business relationships. In other words, he might be able to show that the statements were more likely false than not, and yet not be able to establish the necessary mens rea.

    1. I find it highly likely that nobody will ever know with any kind of certainty whether any assault took place. Which will not stop the people from advocating their own preferred opinion as to the subject.

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