The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
First, the backstory from the lower court decision, in Shuman v. New York Magazine:
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 ("professor 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 "house-napping" libel, a weaponized Title IX sexual harassment investigation at Harvard libel, and by describing their actions as belonging to a "punitive game."
The content of the magazine articles at issue is well within the sphere of legitimate public concern, and plaintiffs did not adequately allege facts to show defendants acted in a grossly irresponsible manner in writing and publishing them. Where, as here, a publication encompasses matters of public concern and related private behavior, it is not for courts to determine the balance to be stricken; instead, "[t]his is precisely the sort of line-drawing that … is best left to the judgment of journalists and editors."
Plaintiffs' efforts to show defendants abused their editorial discretion in this regard are unavailing. To the extent the articles discuss their sexual relationships and other private conduct, they do so in connection with the matters of significant public concern: their apparent involvement in wrongful activity within and around the Harvard University community. The articles zero in on plaintiffs' ostensible paternity extortion scheme involving nonparty Professor Bruce Hay, and related extortion or attempted extortion of other men, including via accusations of rape, assault and, in Hay's case, sexual harassment. They address plaintiffs' engagement in other wrongful behavior, such as their apparent scheme to defraud Hay out of his home, and the Title IX process at Harvard. Those matters warrant public exposition, and contrary to plaintiffs' contention, the court properly made this determination at the pleading stage.
Plaintiffs' blanket denials of having been involved in any paternity extortion scheme, their insistence that plaintiff Mischa Shuman's Title IX action against Hay was brought in good faith, and their rendition of the supposedly legitimate way they came to live in Hay's home do not bear on the analysis of whether these are matters of public concern. Plaintiffs' denials instead go to the question of whether defendants were grossly irresponsible in having produced articles in which wrongful acts such as extortion and fraud are attributed to plaintiffs, a question the motion court properly resolved against them. The gross irresponsibility standard "demands no more than that a publisher utilize methods of verification that are reasonably calculated to produce accurate copy" and does not require "exhaustive research nor painstaking judgments." A publisher's "obligation is to base its story on a reliable source."
Plaintiffs' arguments as to defendants' gross irresponsibility are largely based on conclusory assertions as to what defendants knew or should have known pre-publication. For example, they aver that they "provided documentary evidence that challenged the accuracy of Hay's story and the documents Hay claimed supported him," but neither their briefs nor the pages they cite to in the record indicate what "documentary evidence" they provided. Nor do they adequately show, beyond conclusory denials, what other "information" they furnished defendants that unambiguously showed the falsity of the statements. Moreover, defendants' decision to credit sources other than plaintiffs' blanket denials is no indication of gross irresponsibility, but instead a provident exercise of defendants' editorial discretion…. "The decision to choose one source over another is an editorial judgment in which the courts and juries have no proper function" ….
Plaintiffs' gross irresponsibility arguments are further weakened by evidence in the record showing that they declined defendants' request to interview them for the article, that the first article reported that they "denied most of Hay's account," and that defendants' fact-checker sought their input on statements to be included in the then-forthcoming first article. Moreover, the first article was more nuanced than plaintiffs suggest in that, while it does depict their involvement in wrongful conduct, it also mentions that when "Hay reached out to local law enforcement," they "told him it would be difficult to prove [plaintiffs] had committed a crime."
The parties do not dispute that Hay was the primary source of the first article, and plaintiffs' other arguments as to defendants' gross irresponsibility, which rest on Hay's supposed unreliability as a source, are also unavailing. Plaintiffs' gross irresponsibility arguments also do not account for the fact that, as the articles show, defendants relied on sources in addition to Hay.
Congratulations to Katherine Bolger (Davis Wright Tremaine LLP), who represents the magazine.