Court Rejects Online Activist Eugene Gu's #TheyLied Libel Suit Over Abuse Allegations in The Verge

From New York trial judge Shlomo Hagler's opinion released today in Gu v. The Verge: (you can also read Gu's argument to the contrary, and the underlying article):

Plaintiff Dr. Eugene Gu, appearing pro se in this media defamation case, is an online activist involved in a series of controversies, ranging from a Congressional investigation into research use of human fetal tissue, to online debates about racial discrimination and white supremacy, to a federal lawsuit challenging former President Trump's use of Twitter to block critics. Dr. Gu claims, on Twitter and elsewhere, to be the victim of retaliation, harassment, and online bullying for his activism, while his critics, on Twitter and elsewhere, claim that he is the bully and harasser.

In this action, Dr. Gu challenges a news profile about him which was published on March 5, 2019 … by defendants Vox Media, LLC, and its reporter, Laura Yan …. The Article chronicles Dr. Gu's rise to fame and the controversies in which he has been embroiled, including interviews with Dr. Gu and a number of his critics. Dr. Gu contends that seven discrete statements within the Article are defamatory, and asserts claims for defamation and intentional infliction of emotional distress….

Dr. Gu is a doctor and an outspoken social justice advocate on Twitter. On his Twitter account, @eugenegu, he has more than 443,000 followers. He posts regularly about his experiences as an Asian American in the medical field, his activism on Twitter, and retaliation and online harassment he has received in response.

Dr. Gu has also published opinion pieces, appeared on camera for interviews, and been the subject of numerous press reports on these topics (see e.g. Democracy Now interview transcript [NYSCEF Doc No. 11], at 8 ["I took the knee to fight against the very racism that I was the victim of …. And I was punished for it"]; Independent article [NYSCEF Doc No. 12], at 3 [discussing "Republican war on medical research involving fetal tissue" and Congressional subpoena]; Buzzfeed article [NYSCEF Doc No. 12] [discussing viral Tweet in support of Colin Kaepernick]).

Dr. Gu has also appeared as a named plaintiff in a widely publicized lawsuit challenging former President Trump's practice of blocking critics on Twitter as a violation of his and other Twitter users' First Amendment rights….

On February 20, 2018, Yan contacted Dr. Gu, identifying herself as a freelance writer from Brooklyn who wanted to do a profile or story on him. Dr. Gu agreed to an interview, and spoke with Yan via Skype on February 22, 2018, and then again on April 2, 2018. Dr. Gu alleges that most of the discussion was about activism for Asian American issues that he was involved in on social media.

Dr. Gu further alleges that, in May 2018, he discovered that Yan was publicly communicating on Twitter with an anonymous user claiming to be a physician called #MedTwitter. This anonymous user went by various Twitter handles including @nefariousMD, @nefariousBFT, and @thephoenixMD1. Dr. Gu alleges that, on multiple occasions, this anonymous account harassed him with racial epithets about his Asian American heritage, false accusations of domestic violence, and ganged up with other physicians on #MedTwitter to publicly ask him to commit suicide, and donate his organs to these physicians for further study. On June 7, 2018, Gu emailed Yan, explaining that, because of her tweets to anonymous user @nefariousMD, @thephoenixMD1, and @ñcfariousBFT who are believed to be the same individual, he would terminate communication with Yan, and pursue a defamation lawsuit if any malicious article resulted from baseless accusations without evidence.

The ensuing Article was published on the Vox Media website The Verge on March 5, 2019, and is entitled, "The Strange Case of Eugene Gu," with the subheading, "Behind one of Twitter's most outspoken social justice personalities is a history of abuse." The Article starts with an overview of Dr. Gu's rise to fame on Twitter, including his growing number of followers, a viral tweet showing Dr. Gu taking a knee to protest white supremacy, and his participation in the First Amendment challenge to the President's Twitter practices. Next, the Article states that "Gu had learned just how powerful the platform [Twitter] could be …. Eventually, the same platform that built him up would threaten to be his undoing."

The court concludes that some of the allegations were substantially true and some were opinions, and thus weren't actionable as defamation or as intentional infliction of emotional distress; here's an excerpt (though you can also read the whole opinion):

Dr. Gu challenges the Article's subheading, which reads, "Behind one of Twitter's most outspoken social justice personalities is a history of abuse." … Here, the subheading is a fair summary of the content in the Article, which reports on the various allegations of verbal, domestic, and sexual abuse that have been levied against Dr. Gu. As such, it is not actionable…. "If the headline is a fair index of an accurate article, it is not actionable" ….

Moreover, this statement is substantially true, because Dr. Gu does not dispute key factual statements that the subheading merely summarizes. The Article describes allegations of domestic violence, claims of sexual misconduct, and reports of online harassment surrounding Gu, as well as his response to these allegations….

Finally, even if the court were to construe the first statement as endorsing the veracity of these allegations, rather than just reporting on their existence, the statement would still be protected as non-actionable opinion based on disclosed facts. New York courts recognize an important distinction between a statement of opinion that implies a basis in facts which are not disclosed to the reader or listener, and a statement of opinion that is accompanied by a recitation of the facts on which it is based, or one that does not imply the existence of undisclosed underlying fact. The Article here fulfils those requirements, setting forth the facts supporting the suggestion that there is "a history of abuse," and that "each reader may draw his own conclusion." …

The Second Statement, "Warning: this piece contains descriptions of sexual assault," is also non-actionable opinion…. [A] reasonable reader would consider this statement in context, and understand that it was an alert to readers who may be sensitive to certain subjects, commonly known as a trigger warning…. At most, a reasonable reader would understand this to be defendants' opinion that some readers might find portions of the story about a disputed sexual encounter uncomfortable, not any statement of fact about Dr. Gu that could be proven true or false….

The third, fifth and sixth statements identified by Dr. Gu are not actionable because they are not capable of a defamatory meaning as a matter of law:

"'Eventually, the same platform that built him up would threaten to be his undoing.'

'Maybe it was how easily Gu sounded indignant during our interviews, or the tense, charged terms he used to describe the alleged discrimination he suffered, or how, in every narrative, he was always the victim.'

'You're the only person in the world I can talk to,' Gu told her. 'If it wasn't for you, I might have killed myself tonight.'"

.In the amended complaint, Dr. Gu does not suggest any reason why these statements would "expose the plaintiff to public contempt, ridicule, aversion or disgrace," and no reasonable reader would understand them as such. There is nothing inherently defamatory about being characterized as "indignant" or being a victim, nor is it defamatory to say that Dr. Gu was threatened by the very platform that made him famous. Indeed, the third and fifth statements are also clear expressions of an opinion (that Twitter would threaten to undo Gu or that Gu played the victim), supported by the facts in the Article, and not actionable on that ground as well.

Likewise, with regard to the potential suicide reference, this statement is not defamatory as a matter of law, as millions of people in the United States suffer with mental health issues on a daily basis, and thus "does not arouse in the mind of the average person in the community an evil or unsavory opinion [] or expose plaintiff to public hatred, contempt, or aversion." Rather, such a statement would tend to induce sympathy or empathy in the mind of the average reader….

The statement regarding @NefariousMD and his publication of allegations of domestic violence against Dr. Gu is also not actionable under New York's fair report privilege for discussions of court records:

"I tweeted at an especially ardent critic, the (now deleted) @NefariousMD, asking for his perspective on Gu. @NefariousMD often posted screenshots of an unsettling piece of Gu's past: a series of arrest citations, including filed restraining orders and allegations of domestic violence" …

Court files from Dr. Gu's divorce show that his ex-wife sought and obtained a Temporary Restraining Order for domestic violence prevention against Dr. Gu on February 9, 2015, and that the order remained in place until March 9, 2015, when she declined to pursue the matter further….

The final statement upon which the amended complaint asserts a claim is also substantially true and/or protected as opinion:

"Back at Gu's apartment, he started 'pawing' at her while she tried to refuse. She tried to push him away. He kept at it. "It was just like that until he passed out. That's when I got up, turned on the shower, and was crying."

Such a statement might potentially be actionable as a statement of false fact if, for example, a plaintiff denied that an incident occurred. But here Dr. Gu does not deny his relationship with Allison, the in-person visit, or that they had a sexual relationship . The only dispute is how the two parties to that encounter characterized the interaction. Dr. Gu has contended—as defendants reported—that "Allison was the seducer, and he the unwilling victim." Dr. Gu only takes issue only with Allison's characterization of their tryst—i.e., that he was "pawing" at her, that she tried to push him away—but this is opinion, based on disclosed facts, and is not actionable. The Article explains the basis for Allison's opinion, provides Dr. Gu's response, and discusses the contradiction in the two individuals' opinions. Indeed, the author even describes her own conflict over including the "unresolved questions from [Dr. Gu's] past." This statement is therefore protected opinion, and thus cannot properly provide the basis for his defamation claim….

The court also concluded that, in any event, Gu was a limited purpose public figure and thus had to show defendants made their statements knowing they were false or at least likely false, something that Gu hadn't adequately alleged:

New York courts have found plaintiffs to be limited purpose public figures based on their political activities, solicitation of press coverage, and involvement in public controversies (see e.g. James, 40 NY2d at 423 [dancer became a limited purpose public figure by participating in interviews about and "welcome[ing] publicity regarding her performances"]; Blum v State of New York, 255 AD2d 878, 880 [4th Dept 1998] [former professor was a limited purpose public figure with regard to his public dispute with law school]; see also Perks v Town of Huntington, 251 F Supp 2d 1143, 1168-69 [ED NY 2003] [plaintiff became limited purpose public figure by giving press conferences and availing himself of the media to report harassment claims]).

Here, Dr. Gu has plainly "thrust [him] self into the public spotlight and sought a continuing public interest in [his] activities," by writing; appearing on camera; granting press interviews; and tweeting extensively about his social activism, racial discrimination against Asian Americans, and the retaliation and harassment he claims to have endured in response. Accordingly, Dr. Gu has clearly sought the public spotlight, and is thus a limited purpose public figure as it relates to his activism and the harassment and bullying surrounding it—precisely the issues explored by the Article….