The Volokh Conspiracy
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Notre Dame Pro-Abortion-Rights Professor Loses Libel Lawsuit Against Student Newspaper
Prof. Tamara Kay, a sociology professor at Notre Dame, sued a student newspaper (The Irish Rover) for libel. Prof. Kay's position was apparently that these statements—in an October article, a March article, and a Tweet regarding the October article—"were not made in good faith and with a reasonable basis in law and fact" (see also the Complaint):
- Keough School Professor Offers Abortion Access to Students
- Abortion assistance offered to students despite IN law, ND policy
- Notre Dame Professors Help Students Obtain Abortions
- Kay used this panel as a platform…complementing her work to bring abortion to Notre Dame students.
- The letter "J" on office doors denotes Notre Dame professors who are willing to help students access abortion.
- Much of Kay's efforts to help students obtain abortion services…
In yesterday's Kay v. Irish Rover Inc., Judge Steven David (St. Joseph County, Indiana) held that the statements were basically accurate, and as a result granted defendant's "anti-SLAPP" motion to dismiss; an excerpt:
On September 15, 2022, Indiana S.B.1 took effect, limiting abortion in Indiana, although the law was enjoined shortly thereafter.
In addition, on the same day, Dr. Kay affixed a poster to her office door that read: "This is a SAFE SPACE to get help and information on ALL healthcare issues and access –confidentially and with care and compassion. My non-ND email is reprohealthahumanright@pm.me." Dr. Kay also put a J surrounded by a circle on her door.
Around this same time, Dr. Kay tweeted: "Such a devastating day to be a woman in IN. But women faculty @NotreDame are organizing. We are here (as private citizens, not representatives of ND) to help you access healthcare when you need it, & we are prepared in every way. Look for the "J" Spread the word to students!"
Dr. Kay also tweeted links to organizations providing Plan B and Plan C abortifacient pills. Both Abortion Finder and Catholics for Choice provide information on how to receive reimbursement for costs for traveling out of state for abortion and how to get abortion pills by mail and describe what the woman will have to do if her state does not legally permit such abortions.
The Catholics for Choice tweet publicized a Twitter account "@PlanCpills," which provides a guide for abortion pills by mail in all 50 States and encourages women to "Get Abortion Pills Now, Just In Case." See id. Dr. Kay's September 16, 2022, tweet, in which she shared photos of "Need to be un-pregnant" stickers with QR codes that led to "PlanCPills.org," preceded by the text, "DM me if you want some physical stickers. A lot have been ordered. Sharing information is still legal in Indiana!"
The J symbol, which was on Dr. Kay's door, was commonly understood by some people on Notre Dame's campus, and some people outside Notre Dame to symbolize those who were upset about abortion bans/or fighting for abortion rights/access.
Dr. Kay maintained that the "J" in the tweet was only meant to indicate that she was an advocate for victims of sexual assault. The Court finds that the "J" on Dr. Kay's door, particularly when read in context with the other words and statements on her door, and her statements and tweets and work that was being done contemporaneous to this relevant time, can most reasonably mean to infer something much broader than just being an advocate for victims of sexual assault but was being used, in conjunction with the other statements on the door, and her other statements, tweets, writings and social media, to identify her as one who is "willing to help students access abortions," including abortion pills, as well as assist victims of sexual violence. This is consistent with her position on abortion as set forth in her articles and social media communications.
The Court finds that the reference to "All healthcare issues and access" on Dr. Kay's door refers to global health care issues, including access to abortion, including abortion pills, not just assistance for victims of sexual violence….
Dr. Kay spoke at a panel event called "Post-Roe America: Making Intersectional Feminist Sense of Abortion Bans" on September 21, 2022. Mr. DeReuil [then editor of the Irish Rover] attended and recorded the Post-Roe panel, as part of his research for writing the October Article. After the panel concluded, DeReuil approached Dr. Kay and introduced himself as the Editor of The Irish Rover. He proceeded to interview Dr. Kay for 20 minutes, recording the interview to verify quotes later on, in compliance with Indiana's one-party consent recording law….
The Court finds that the October Article reasonably accurately quoted and summarized Dr. Kay's poster on her office door, her social media posts, and her public statements, including at the Post-Roe event….
The Court finds that the March Article accurately quoted and accurately summarized the interactions between Dr. Kay and students at [a] College Democrats meeting, which were largely centered on Dr. Kay's work on abortion rights and the related issue of academic freedom at Notre Dame for students and professors….
Dr. Kay's work in support of victims of sexual violence is to be applauded and praised and her advocating for abortion rights should not be condemned or result in threats against her person or property.
The subject of abortion is a difficult conversation for most Americans and many have strong opinions on the subject which can't always be reconciled, but we are a nation of ideas and opinions and our democratic form of government provides for free speech and the citizens of our country must be able to have the difficult discussions on controversial matters with respect for the opinions of others and with respect for the individual expressing those opinions. We cannot survive as a nation without civil public discourse. Disagreement should not translate into contempt or hatred.
It is unreasonable to confine Dr. Kay's work on sexual violence from being entirely separate from her work on abortion rights and abortion access. The Defendant's interpretation of her writings, statements, door material, and other forms of communication have to be taken together in context.
Dr. Kay supports assistance for women of sexual violence and Dr. Kay supports abortion rights and support for abortion information and access. While she should be able to make any statements she wants about anything she wants, she cannot pick or choose what she meant or which subject she was speaking about or writing about at her discretion….
Dr. Kay alleges her property was vandalized on two occasions. That is very unfortunate, inexcusable, and reprehensible…. The Court finds that there is no evidence that the vandalism of her property was linked in any way to the Articles.
Dr. Kay provided copies of "threatening" emails she received. However, the Court finds that there is no evidence that these threatening emails were linked in any way to the Articles.
Dr. Kay expressed her first amendment right to freedom of speech…. However, she cannot voluntarily put herself into the national abortion issue either on the campus of Notre Dame or in a broader, national forum, by making multiple strong statements in favor of abortion rights and access to abortion and expect that it will not become newsworthy at Notre Dame and elsewhere. The Court finds that there is a reasonable basis in fact for describing Dr. Kay as "willing to help students access abortion," as providing "abortion assistance," or "offers abortion access to student," and as "posting offers to procure abortion pills on her office door," and other substantively similar statements…..
Jim Bopp and Melena Siebert (The Bopp Law Firm) represent Irish Rover.
