Free Speech

#TheyLied and the Fair Report Privilege

"A person cannot confer [the privilege for fair report of court filings] upon himself by making the original defamatory publication himself and then reporting to other people what he had stated"

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From Magistrate Judge Eric Long's opinion in Sun v. Xu (C.D. Ill.), decided in May 2020 but just posed on Westlaw:

The three Plaintiffs are two former students and one professor at the University of Illinois. The three Plaintiffs are suing former University of Illinois Professor Gary Xu …. The first Plaintiff, Xingjian Sun …, a female student at the University, claims Xu raped her, forced her to get an abortion, beat her, and attempted to hit her with a car during their two-year relationship. The second Plaintiff, Xing Zhao …, a female student at the University of Illinois, claims Xu sexually harassed her and took credit for her work. The third Plaintiff, Ao Wang …, is a professor at the University of Illinois. Professor Wang claims Xu tried to ruin his career in retaliation for an online article Professor Wang wrote about Xu abusing female students….

Plaintiffs made public comments about their allegations against Xu. The first Plaintiff, Sun, was interviewed by CBS Morning News, and a video of the interview was aired on CBS's television channel. Additionally, CBS published an article of Sun's interview on CBS News' website. In this interview, Sun stated Xu raped her, beat her, and tried to kill her by running her over with his car.

The second plaintiff, Zhao, is not quoted in the Sixth Tone report that details the allegations against Xu. {Sixth Tone is an online magazine that is owned by the Chinese Government. However, Sixth Tone's target audience is readers in the western hemisphere.} In the Sixth Tone article, two females make anonymous allegations against Xu, alleging sexual abuse and sexual harassment. Xu alleges that Zhao was one of the anonymous sources for the Sixth Tone article. According to Xu, Zhao told Sixth Tone: (1) Xu harassed her; (2) Xu forced her into horrifying sexual behavior; (3) Xu threatened her; and (4) Xu attempted to kiss her but his attempt failed.

The third Plaintiff, Professor Wang, published a post on an online platform stating Xu sexually harassed students for 20 years. Additionally, Xu's Answer states Professor Wang accused him of sexual assault, sexual harassment, and beating women via internet posts from March 11, 2018, until March 19, 2018. Moreover, Xu's Answer alleges that Professor Wang posted written statements on a website called Weibo that stated Xu sexually assaulted and harassed women. Lastly, Xu alleged that Professor Wang stated in an online post that he was trained in Thai boxing and could "beat up" Xu….

Xu denies Plaintiffs' allegations in his Answer, and Xu asserts four counterclaims against the three Plaintiffs [for intentional infliction of emotional distress and defamation]….

Sun argues Xu's defamation counterclaim should be dismissed because her interview with CBS News is protected under the Fair Report Privilege [which covers, among other things, fair reports of judicial proceedings -EV]…. [But] the Illinois Supreme Court [has] endorsed Restatement (Second) of Torts § 611 ["Report of Official Proceeding or Public Meeting"] Comment c[, which states] …: "… A person cannot confer this privilege upon himself by making the original defamatory publication himself and then reporting to other people what he had stated." Importantly, the word "publication" in this context is defined as: "Any act by which defamatory matter is communicated to someone other than the person defamed[.]"

Here, Sun made statements to a CBS News reporter asserting sexual assault allegations against Xu. After Sun gave the interview to CBS, CBS News made an oral and written report for the public. For this reason, under Comment (c), the reporter and CBS News are eligible to use the Fair Report Privilege [presumably because they are reporting on Sun's complaint filed in court six days before -EV], but Sun's statements are not privileged because Sun made the original allegedly defamatory statement, and Sun cannot confer the privilege upon herself….

Note that not all states follow the § 611 comment c rule; some California courts, for instance, conclude (applying California's statutory fair report privilege) that a plaintiff indeed has an absolute privilege to publicly report the allegations in the complaint that she filed in court, just as third parties have an absolute privilege to report on those allegations.

The court also held that the alleged defamation could form the basis for the intentional infliction of emotional distress counterclaims as well as the defamation counterclaims:

Here, Xu has pled sufficient facts to establish the "extreme and outrageous" element for his three IIED counterclaims. Specifically, Xu alleged that Plaintiffs made false statements about him committing sexual assaults on students. At this stage of the litigation, the Court must accept these alleged facts as true. The Court denies Plaintiffs' Motion to Dismiss these claims because Xu sufficiently alleged conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of human decency." … The Court holds that a reasonable person would know there is a high probability that false allegations of sexual assault would cause the accused individual severe emotional distress. For this reason, Plaintiffs' argument is denied…. [And] Xu sufficiently plead that he suffered severe emotional distress from Plaintiffs' conduct.