The Volokh Conspiracy
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From an opinion by Judge Ronnie Abrams (S.D.N.Y.) yesterday in Henry v. Fox News Network LLC:
Plaintiff Edward Henry brings this lawsuit for defamation, invasion of privacy, and tortious interference against his former employer Fox News Network LLC and Fox News' Chief Executive Officer Suzanne Scott.
Henry's claims arise from four statements issued by Fox and Scott that reported on the circumstances of Henry's termination. The statements indicated that, after receiving a complaint from a former employee against Henry regarding sexual misconduct, Fox retained an outside law firm to conduct an investigation and ultimately terminated Henry based on the findings of that investigation.
According to Henry, Defendants' statements were false because he was not in fact terminated based on the findings of the investigation, but instead to further a narrative that Fox was reforming its culture and in an effort for Scott to advance her career. Moreover, because Fox had permitted other consensual affairs between employees and because he claims that his sexual activity with former Fox Business producer Jennifer Eckhart—who has accused him of sexually assaulting and raping her—was in reality consensual, Henry asserts that Defendants' statements announcing his termination for "willful sexual misconduct" created the intentionally false impression that his conduct must have been "akin to rape."
No, said the court (what follows is just some excerpts from a considerably longer discussion):
Each of the four statements that Henry alleges are defamatory recount the steps taken by Defendants upon receipt of Eckhart's complaint and contain some combination of the following four factual assertions: (1) that Fox received a complaint from a former employee regarding sexual misconduct by Henry, (2) that Fox hired an outside law firm which conducted an independent investigation, (3) that Henry was suspended and then terminated (4) based on the results of the investigation…. Plaintiff has failed to plausibly allege that any of the factual assertions made in the four statements were false….
Henry insists that the assertion that he was terminated "based on investigative findings" is false because the investigation was a "sham." There are no facts alleged, however, to support this conclusion. When pressed at argument as to which particular facts supported a finding that the investigation was indeed a "sham," Henry's counsel responded only by noting the "short duration of the investigation vis-à-vis other investigations that had gone on at Fox," and Henry's cooperation in the investigation, including his voluntary production of text messages and emails supporting his contention that his relationship with Eckhart was consensual. These facts do not support a plausible inference that the findings of the outside law firm were not genuine, or that Defendants did not in fact terminate Henry "based on [those] investigative findings."
To the extent Henry is relying on the allegations pertaining to Scott to support an inference that the investigation was a "sham"—and that it was therefore untrue that Fox fired him based on its findings—this argument similarly fails. Henry repeatedly contends that Scott fired him "to save her own career and burnish her image as a tough, no nonsense female executive who cleaned up Fox." But while the complaint is replete with references to Scott's purported motivations, there are no allegations that Scott was involved in the investigation in any way or directed its outcome. There is, moreover, no information regarding the role Scott played in the ultimate decision to terminate Henry. Even if the Court assumes that Scott was motivated to terminate Henry in order to "burnish her image as a tough, no nonsense female executive," that alone cannot support an inference that Scott, who is not alleged to have had any involvement in the investigation, either directed its outcome from the start or disregarded its conclusions when they contradicted her purported objective of terminating Henry….
Henry's contention that Fox's statements are further actionable as either defamation by implication or defamation per quod because they imply that he did engage in "willful sexual misconduct" also fails….
Even if the statements here were read to imply that Henry did in fact engage in willful sexual misconduct, they would still fail to sustain a defamation claim because Henry has not plausibly alleged that they are false. Among other things, it is unclear from the complaint what Henry is claiming constitutes such sexual misconduct. The term "willful sexual misconduct" is vague in that it could encompass many different forms of conduct. The statements themselves imply that a variety of conduct may fall into the category of willful sexual misconduct. See Compl. ("[Fox] strictly prohibits all forms of sexual harassment, misconduct, and discrimination."); id. ("[Fox] maintains a zero tolerance policy that is strictly enforced throughout the company."). Indeed, Henry's own complaint and briefing repeatedly use the phrase "sexual misconduct" to describe consensual work-place affairs, as well as other misconduct. Under this definition, Henry's admitted "consensual affair with a non-subordinate" coworker could itself constitute willful sexual misconduct, making meritless his allegation regarding the falsity of the statements referencing such sexual misconduct….
Finally, Henry argues that the statements impart a false and defamatory inference because a reasonable reader would draw the conclusion that his conduct was "akin to rape." He asserts that the statements suggest such an inference because they:
[D]escribe Mr. Henry's actions as "involving willful sexual misconduct" and go[ ] on to add that Fox "strictly prohibits all forms of sexual harassment, misconduct and discrimination." … The implication of the statement is crystal clear and the reader is left with one indelible impression: Mr. Henry had committed sexual assault or, at minimum, non-consensual sexual contact.
Henry suggests that a reader would come to this conclusion in light of the serious allegations of assault contained in Eckhart's legal complaint, and because of the broader context of the history of "sexual abuses" at Fox. It is his view that, due to previous instances of misconduct and Fox's reaction to them, readers would infer that his conduct must have been significantly more severe than the conduct at issue in those other instances because he was publicly terminated while others were permitted to stay on or quietly resign. According to Henry, a reasonable reader would approach these statements with an understanding that Fox routinely permitted sexual misconduct in its workplace, and thus the statement that he was terminated for "sexual misconduct," would impart a false inference that his sexual misconduct must have been particularly egregious and amounted to "a non-consensual sexually-related touching, if not outright assault or rape." …
To the extent that Henry argues that the inference that he raped or sexually assaulted Eckhart is actionable as defamation by implication, this argument fails because he has not plausibly alleged that Fox intended or endorsed that defamatory inference. As noted above, to plead a defamation by implication claim, a plaintiff "must make a rigorous showing that the language of the communication as a whole … affirmatively suggest[s] that the author intended or endorsed [the defamatory] inference." …
Looking at the statements themselves, the Court finds that they offer no basis to conclude that Defendants intended or endorsed the defamatory inference Henry suggests. Rather than intentionally imply serious sexual assault or rape, the use of the nebulous phrase "willful sexual misconduct" instead seems calculated to prevent such an inference. Additionally, the reference to Fox's "zero tolerance policy," and the statement that "FOX News Media strictly prohibits all forms of sexual harassment, misconduct, and discrimination," suggest that Fox did not intend for the reader to understand that Henry necessarily assaulted or raped Eckhart. Finally, Defendants referenced only receiving a complaint "involving willful sexual misconduct in the workplace." None of Fox's statements, however, include any detail as to precisely what Eckhart's allegations were. And at no time does Fox say that Henry was fired because of any of Eckhart's specific allegations or that Fox deemed them to be true….
The court took basically the same view as to the false light claim, and also rejected the tortious interference with contract or economic advantage claim. Congratulations to Avi Weitzman, Alexandra Perloff-Giles, Eugene Scalia, and Jesenka Mrdjenovic (Gibson, Dunn & Crutcher), who successfully represented defendants here.