The Volokh Conspiracy

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Free Speech

Getting Dartmouth to Revoke Plaintiff's Admission Wasn't Speech on Issue of Public Interest,

under California's "anti-SLAPP" statute (which allows for prompt dismissal of claims brought based on certain kinds of speech).


From Doe v. Ledor, decided today by the California Court of Appeal, in an opinion by Justice Tracie Brown, joined by Justice Jon Streeter and Judge Joni Hiramoto:

Plaintiff filed a lawsuit alleging that his ex-girlfriend and her friends, including defendant and appellant Gina Ledor, embarked upon a "vengeful smear campaign" to harass and defame him after his senior year of high school.

Pertinent to this appeal, in the summer of 2020, Gina Ledor sent emails to school officials at Dartmouth College, stating essentially that plaintiff had committed voter fraud to win an election for student body president at Berkeley High School (BHS) and providing links to what she represented to be articles and a podcast about the incident. She wrote that she was sharing the information so that Dartmouth would be "truly aware of whom you have admitted," and the BHS election incident was only one of many instances where plaintiff had shown a lack of empathy and character, but it "just happened to be the most well-documented."

Sometime after receiving these emails, Dartmouth revoked plaintiff's offer of admission….

Plaintiff asserted claims against Gina for defamation, false light, invasion of privacy, civil harassment, civil stalking, and intentional infliction of emotional distress, and he asserted a claim for vicarious liability against Gina's parents.

The Ledors moved to have the case dismissed at the outset, using California's "anti-SLAPP" statute, which provides for prompt dismissal (and other remedies, such as a requirement that plaintiff pay defendants' attorney fees) for legally meritless cases. The statute is limited, in relevant part, to cases brought based on defendants' speech that "contribute[d] to or further[ed] the public conversation on an issue of public interest," and the court concluded that Gina's speech didn't qualify:

The complaint alleges that plaintiff and defendant Nishat Sheikh began a romantic relationship when plaintiff was a junior in high school. Then, in the summer of 2020, Sheikh and her friends, Ayumi Namba and Gina, embarked upon a conspiracy to ruin plaintiff's life when he sought to end his relationship with Sheikh. At that time, plaintiff had been accepted to Dartmouth, and Sheikh and her friends disseminated false and defamatory information about him to Dartmouth officials and incoming students, causing Dartmouth to rescind plaintiff's offer of admission. The defamatory statements cast plaintiff in a false light, and defendants went to great lengths to humiliate him, assassinate his character, and falsely portray him as dangerous, violent, unethical, and lacking empathy….

In her June 13, 2020, email to admissions and the President's Office at Dartmouth, Gina wrote: "To whom it may concern, [¶] I'm writing to share with you some crucial information about an incoming freshman to your school and a peer of mine, [plaintiff]. I am a senior who just graduated from Berkeley High, and I trust you will keep the source of your information anonymous. [¶] In the spring of 2019, [plaintiff] ran for Student Body President and was found to have cheated in order to win the election. He hacked into over 500 of his peers' emails so they appeared to vote for him. I'm assuming that this is the first you are hearing of this, because my school chose not to leave it on his disciplinary record. (We are a restorative justice-based school.) [¶] If you wish to contact others to verify the credibility of this information, please reach out to John Villavicencio, the Director of Student Activities … or … the Commissioner of Elections …. [¶] I am also attaching several articles that have been written about [plaintiff] with [plaintiff's] name omitted. [¶] I am sharing this with you only so that you are truly aware of whom you have admitted. Because this never impacted his academic record, he has shown no remorse and has yet to take accountability for his actions. This incident is not isolated‑-it is only one of many instances where [plaintiff] has shown a lack of empathy and character, but this just happened to be the most well-documented. For these reasons, I believe that there are many others who deserve a spot at your prestigious institution far more than he. [¶] Again, for my own safety, please preserve my anonymity. [¶] Thank you, [¶] Gina Ledor." Gina's email included links to articles from April 2019 about the BHS election incident.

The Director of Admissions at Dartmouth replied to Gina's email, stating that Dartmouth took the allegations in the email and potential violations of Dartmouth's standards and expectations seriously, and they would address the matter as appropriate.

On July 4, 2020, Gina emailed the Director of Admissions, "Hi again, [¶] I just wanted to let you know about a new piece from a reputable podcast about [plaintiff] and his election hack. The link is below. [¶] Thank you, [¶] Gina Ledor." …

The Ledors argue that the Dartmouth emails implicate issues of public interest—the BHS election incident, including plaintiff's role therein, as evidenced by the 2019 media coverage and the podcast, and the issue of restorative justice. In applying the above-outlined body of law to the present case, we need not decide whether Gina's speech "implicate[s] issues of public interest"—because even assuming that it does, the Ledors have not satisfied the second part of the test. They have not shown that Gina's speech "contribute[d] to or further[ed] the public conversation on an issue of public interest."

First, the speech at issue occurred in private. Gina sent two emails to school officials at their Dartmouth email addresses…. Although …"no single element is dispositive" in determining whether a defendant's speech is entitled to protection, the private context "makes heavier" the defendant's "burden of showing that, notwithstanding the private context, the alleged statements nevertheless contributed to discussion or resolution of a public issue for purposes of [section 425.16](e)(4)."

Second, nothing in the record indicates that Dartmouth, a college, used Gina's statements for anything other than its private purposes.

Third, there is no evidence that Gina intended the Dartmouth emails to reach the public sphere. Gina sent the emails more than a year after the BHS election incident and the conclusion of the restorative justice proceeding, and the evidence before the court showed that defendant Sheikh assisted in drafting the content of Gina's first email at a time when plaintiff attempted to end his relationship with Sheikh.

In her own words, Gina shared the information "only so that" Dartmouth was "truly aware of whom [it had] admitted." Gina also wrote that the BHS election incident "just happened to be the most well-documented" of many instances where plaintiff had shown a "lack of empathy and character," and she opined that many others deserved a spot at Dartmouth "far more than [plaintiff]." The content of Gina's speech objectively suggests that she shared the information not to "further[] public discussion" of the BHS incident or of restorative justice, but instead merely to provide an example for Dartmouth of plaintiff's lack of good character for Dartmouth's private purposes only. Thus, both the content and context of the emails at issue show they were not intended for a wide public audience.

Finally, there is no evidence that the Dartmouth emails ever reached a wider public audience….

The court also concluded that a separate provision of the California anti-SLAPP statute, which applies on "any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law" (without any "public interest" limitation) didn't apply here, because the provision is limited to statements related to pending matters and not ones that had already been concluded (such as the school election hacking investigation in this case).

For a story that relates to a 2019 Berkeley High School election hacking claim, see here; naturally, I can't speak to whether the story was accurate, and whether defendants' assertions were accurate in light of that. [UPDATE: Just to be clear, the appellate decision simply means that the soundness or not of the plaintiff's substantive claims will be decided in due course in trial court.] Note also that the lower court allowed the case to proceed pseudonymously before the 2022 California Court of Appeal decision that made clear that pseudonymous litigation is highly disfavored in California courts.

Mario A. Moya and Rebecca Hoberg (Moya Law Firm) represent Doe.