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Free Speech

Prof. Mark Crispin Miller's Libel Suit Against NYU Colleagues Rejected by Appellate Court


From New York trial court judge Paul Goetz's decision last year, the facts:

On October 21, 2020, defendants signed a letter (the Letter) addressed to nonparties Dean Jack Knott (Knott) and Provost Katherine Fleming at NYU purporting to advance certain facts about plaintiff. The Letter begins with the statement that the "undersigned faculty … affirm the values of academic freedom," and continues with,

"[plaintiff] is currently circulating a petition accusing our department of violating his academic freedom and conducting an email campaign against the department. Over the years, many of us have been distressed and concerned over the positions that Professor Miller has espoused on his highly visible website, where he prominently displays his title as a full tenured professor in our department. These positions include characterization of transgender surgery as a eugenic form of sterilization, direct mockery ridicule of trans individuals, and denial of the Sandy Hook elementary school shooting."

Defendants referred to student complaints about plaintiff's classroom conduct and "the way in which he engages discussion around controversial views and non-evidenced based arguments." They wrote that he has "attacked a student who publicly objected to his criticism of mask usage in an in-classroom setting, and used his position of authority to intimidate students who choose to wear masks and abide by NYU policy, New York State law, and CDC guidelines," and that his act of naming and publishing the student's contact information had led to cyberbullying. Defendants expressed, "[w]e do not condone nor will we tolerate intimidation of students, staff, and colleagues" The Letter concludes:

"We call on Steinhardt and University leadership to publicly support the NYU community and undertake an expedited review, as per the Faculty Handbook and Title IV, of Professor Miller's intimidation tactics, abuses of authority, aggressions and microaggressions, and explicit hate speech, none of which are excused by academic freedom and First Amendment protections. If your review substantiates our claims, we ask that you publicly condemn his actions and take whatever further disciplinary measures are deemed appropriate. It is unacceptable to remain silent in the face of ongoing harm to our students. Further, we call upon the administration to establish stronger protocols and policies to protect students, staff, and nontenured faculty members from intimidation and harm."

And from today's opinion by New York's intermediate appellate court, Miller v. Appadurai:

Dismissal of the complaint was, nevertheless warranted under CPLR 3211(a)(7) because the Letter was nonactionable opinion. The Letter, read as a whole and in context, would not lead a reasonable reader to believe that it was conveying facts but rather, that its clear purpose was to advocate for an expedited investigation into plaintiff's purported misconduct.

The court also concluded that the defendants weren't entitled to recover fees under the New York anti-SLAPP statute, because

The Letter concerns "a purely private matter" and was "directed only to a limited, private audience." Although the Letter touched on topics of public interest, those topics were not its focus. Rather, the Letter was an internal complaint about the behavior of a fellow employee. Under these circumstances, its content was not within the sphere of public interest.

Congratulations to Jeremy Chase of Davis Wright Tremaine LLP, who represents defendants.