The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Shuman v. N.Y. Magazine, decided yesterday by Justice Richard G. Latin (N.Y. trial ct.); for more on the litigation, see here on a related case, as well as here and here on the diversity jurisdiction questions raised by that case:
Plaintiffs commenced the instant action alleging they were libeled in two separate articles published by defendants entitled The Most Gullible Man in Cambridge [/] A Harvard Law Professor Who Teaches a Class on Judgment Wouldn't Seem Like an Obvious Mark, Would He? and The Harvard Professor Scam Gets Even Weirder Six Other Men Describe Their Encounters with the Same Mysterious Frenchwoman. At its most simplistic, the first article pertained to the complicated relationship between the plaintiffs and Harvard professor Bruce Hay …, but also concerns allegations of rape, paternity extortion, and abuse of process relating to the Title IX process and other judicial proceedings. The second article was a follow up that tells the accounts of six men who reached out to the article's author to recount their allegedly similar encounters with the plaintiffs.
Both articles were written by defendant Bolonik. While plaintiffs generally characterize the two articles as completely false and the result of poor investigative reporting, they specifically argue that plaintiffs were defamed through a paternity extortion scheme libel, a "housenapping" libel, a weaponized Title IX sexual harassment investigation at Harvard libel, and by describing their actions as belonging to a "punitive game." …
[Under New York law, when a libel claim] is brought by a nonpublic figure against a news publisher, the Court must determine whether "'the content of the article is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition.'" If the content of the article warrants public exposition, the defamed party may only recover damages upon a showing of the gross irresponsibility of the publishing defendants. [This is a standard peculiar to New York law in private figure/public concern cases, and is generally called the Chapadeau test. -EV]
There is no mechanical test to identify which subjects involve matters of genuine public concern. When an article's subject is merely gossip or only concerns prurient interests, it is not a matter of public concern. However, because there is a fine line between what is solely gossip and prurient and what may be a matter of public interest, courts generally defer to the judgment of editorial boards, absent clear abuse. Nonetheless, just because something is published by a news source does not automatically mean that the subject matter warrants public exposition.
Courts have found that there is no abuse of editorial discretion where the article can be "'fairly considered as relating to any matter of political, social, or other concern of the community.'" Moreover, matters may be considered to be of the public concern so long as some theme of legitimate public concern can be derived from a "'human interest' portrayal of events in the lives of persons who are not themselves public figures."
Here, the core of the articles reasonably relates to deceptive and/or criminal activity in the community, which is of greater public significance than plaintiffs' private sexual encounters. Likewise, the intent imputed on plaintiffs, prevalent in both articles, involves underlying themes of evolving gender power dynamics in sexual relationships, which is an important modern social issue. Similarly, accounts of sexual harassment, rape, and/or the potential abuse of the Title IX process at well-known academic institutions are matters of social concern to the public….
The next relevant inquiry is whether the defendants acted with gross irresponsibility…. A publisher acts in a grossly irresponsible manner when it fails to exercise due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties. "Absent specific proof that such reliance was substantially improper, the mere fact that the published information might later be proven false is insufficient to justify a trial." Furthermore, an emotionally distraught or embittered person is not a presumptively unreliable source, as a victim to an incident is still more reliable than a trustworthy source whose information is based on hearsay.
Here, the pleadings and the exhibits to the pleadings make clear that professor Hay was the principal source of information to Bolonik for the potentially libelous statements. He answered her questions, provided her with his account, and provided evidence in many forms including, among other things, text messages, court documents from various litigations, and Title IX documents. Given his personal experiences with plaintiffs, his position as a professor of judgment, and the corroborating evidence provided, defendants had no reason to doubt the veracity of the information provided. Moreover, though professor Hay's perspective may have subsequently evolved after publication, the pleading exhibits demonstrate that he believed that he was telling Bolonik the truth at the time the article was written.
In addition to professor Hay, the pleading exhibits also demonstrate that the defendants consulted with at least seven other individuals, many with first-hand knowledge. Furthermore, the pleading exhibits show that Bolonik sought to interview plaintiffs and had an off-record phone call with plaintiff Mischa Schuman, and defendants' fact checker reached out to plaintiffs to provide their perspective prior to publication of the first article. To that end, plaintiffs' denials were included in the first article. Defendants decision to credit the sources they did and omit or downplay the information provided by plaintiffs or other sources is a "matter of editorial judgment in which the courts, and juries, have no proper function." Thus, defendants were not grossly irresponsible in their reporting….
[I]t is also worth noting that the Title IX report, that was based on over 2,000 attorney hours and over six months of investigation in preparing and conduction interviews of the plaintiffs, professor Hay, and others, and reviewing documents provided by the aforementioned (including emails and text messages), as well as documents from court filings and other public records, serves to demonstrate that what plaintiffs claim as libel was, by a preponderance of the evidence, more substantially accurate than false. Also, the court transcript concerning "Poe," another alleged victim, demonstrates that plaintiff Maria-Pia Shuman did state that she told "Poe" through an intermediary that he was the father of her child, and that "Poe" did state that she called him and said that he did not need to take a paternity test, but he had to give his time and/or money, for which he paid over $11,000….