#TheyLied Libel Case, Stemming from Allegations of "Mental and Physical Abuse[]" by Fellow High School Student, Can Go Forward

The culture of public accusation and shaming, in high school (and stemming from a relationship that apparently happened when the accuser and accused were sophomores).

From Friday's California Court of Appeal decision in Norway v. Lee (written by Justices Kathleen Banke, joined by Justice Monique Langhorne Wilson and Alameda Superior Court Judge Arturo Castro):

This case arises from a wave of cyber bullying that occurred at Lowell High School when plaintiff and respondent Kimi Norway, and defendant and appellant Jonathan Lee, were students there…. In the fall of 2021, Norway was a senior …, involved in numerous school activities, and a student officer. As a student officer she was required to take a leadership class.

In October of that year, she attended a school dance and took photographs. She uploaded a number of the photos to a school Instagram account as part of her leadership class requirements. Unbeknownst to her (she had not been living in the area the prior year during the Covid-19 closure), one of the photos contained the image of a student accused of sexual assault.

Within hours, students posted disparaging comments about the accused student on the photo in which he was shown. One student sent a message to Norway stating the photo should be removed. Norway immediately did so, but also questioned whether the negative comments about the accused student were an example of bullying.

A week later, during a discussion in the leadership class about "recent allegations of sexual harassment and sexual assault at the school," several of the students, including [another student, referred to as] C.K., "publicly and vocally accused [Norway] of enabling sexual abuse and minimizing the plight of sexual abuse victims." The teacher allowed the discussion to continue unchecked, resulting in more "defamatory" and "vitriolic" verbal attacks on Norway.

The following day, Norway was the subject of "myriad Instagram posts" accusing her of "'victim blaming,'" "'invalidating survivor's experiences,'" "'defend[ing] sexual assaulters,'" engaging in "'performance ass activism,'" and using "'her power as [a Lowell Student Association] Officer to defend abusers.'" {Students in the leadership class had "unfettered access to post on official school Instagram accounts" and continually updated the accounts, including updates about Norway's supposed support of sexual assaulters and harassers.} Students branded her an "'abuser,'" "'sexual assaulter,'" "'serial manipulator,'" and "'literal abuser.'" Some called for her to be removed from her student office.

Among the Instagram posts that day was one by Lee, stating as follows:

"I'm going to start this off by thanking those who have been brave enough to share their experiences through their statements. They have all inspired me to come out and speak upon [sic] my own experiences. Similar to [another student's post], I'm not sure what 'category' my experience falls under. I've also been reluctant about sharing my experience as the wider majority of abusers have appeared to be male. Nonetheless, I have come to reason that there is no reason for male experiences with sexual assault, sexual harassment, abuse, manipulation, etc. not to be heard. To echo a message that others have spread through their statements, I know that there are many survivors out there and I hope that my speaking out against a manipulator/harasser/abuser inspires others to do the same. Unfortunately, our school systems are not equipped with administrators who make survivors feel comfortable enough to share our stories, leaving us with no choice but to speak out on social media.

"With that being said, here are some of the major incidents that occurred between myself and my mental and physical abuser, Kimi Norway:

"Kimi and I met in 8th grade, getting closer throughout the rest of 8th grade up until my sophomore year in high school. Although we never officially dated, we would do things that 'just friends' would not do. At the time, I didn't know any better, allowing her to take advantage of my body for her own pleasure. She would guilt me into letting her use my body, at times telling me that she was upset and that she needed comforting, and other times telling me that I should let her use my body because I had feelings for her. Even though I knew what she was doing was wrong, I couldn't say no to her because it felt like that was my only way of receiving validation from her. When I finally worked up the courage to tell my friends about how her actions made me feel, they told me that I was crazy and that I should have been happy that a girl was [sic] doing these things to me. Foolishly, I listened to what they had told me and continued to let her use my body for her own pleasure.

"She was also very manipulative, not allowing me to be myself, rather a version of myself that could please her. At the time, I would've done anything for her because of how I felt for her, and she knew that. She knew that she had the ability to get away with anything and that I would let things slide. After all, I was led to believe any excuse that she had made for herself. She knew that what she was doing was wrong, but she continued to do so because she seemed to enjoy seeing me in emotional pain. She knew that I was being vulnerable toward her, and despite that, she would force me to send her inappropriate pictures of myself, knowing that I was mentally unable to say no to her. When I had finally realized the severity of what she had done, I deleted the pictures that I had sent her. I remember her then confronting me about deleting the pictures, and when I told her I was uncomfortable with her having those pictures, she laughed at me, telling me that she had already screenshotted them and that there was nothing I could do to get her to delete them.

"She wouldn't allow me to have other female friends, telling me that if I truly liked her, I wouldn't feel the need to have other friends. During one of our last interactions, I remember her pulling me aside to talk during our lunch period. At the time, there was construction happening at my school, which meant that there were areas that had felt secluded enough for privacy. I remember her trying to take my phone out of my pocket, and continued even after I resisted, thinking that I was 'playing along.' When she finally tore the phone from out of my possession, she demanded for [sic] the password, threatening to spread lies about me hiding the 'truth' from her. Reluctantly, I gave her my password, giving her access to beyond personal information that I wasn't comfortable sharing with anyone. While searching through my phone, she came across a group chat that I was in for tutoring, containing two high school seniors and more importantly, another girl.

She asked me why I was friends with another girl, telling me that my feelings for her must have been fake. Unable to control her anger, she lashed out at me, kicking my shins repeatedly, telling me that I deserved the beating/abuse because I was friends with other girls. She also seemed to enjoy hurting me, telling me that she knew her kicks hurt because she played soccer. After she was done taking all her anger out on me, she went to class, and instead of doing the same, I took myself to the nurse's office to clean up the cuts left on my shins. This was the last straw.

"I've been hesitant on opening up about my experience with Kimi because I knew that she was popular in the sense that she was on our class board and it seemed like she had a lot of friends who I didn't think were going to support me.

"I want to make this as clear as possible, STOP GIVING THE ABUSERS/MANIPULATORS/ASSAULTERS/HARASSERS EXCUSES. DO WHAT IS RIGHT.

"If there is anyone out there that needs someone to talk to, know that my door is open to anyone, and I mean anyone, who feels comfortable talking about their experience. Stay safe."

Norway vehemently denies Lee's accusations and characterization of their relationship, and claims he initiated all the sexual contact about which he purported to complain in his post, and likewise, on his own initiative sent her the pictures of his "'sexual' body parts" about which he complained in the post. {Norway does not dispute that she and Lee became friends in the eighth grade and that they used to "kiss/make out," and that one occasion when her parents were not home, she removed her shirt. She claims she removed no other clothing, but Lee (without any request by her) removed all of his clothing.}

She believes he made the post in retaliation for her ending the relationship after the argument during the lunch hour Lee referred to in his post and disputes Lee's description of that interchange. According to Norway, Lee grabbed her as she was walking away, she tried to break his grip, and, failing to do so, she kicked him to get away. She also believes he made the post when he did to take advantage of the social media discourse on sexual assault and harassment that was particularly topical at the time, including on high school and college campuses. Norway asserts Lee "knew the internet [at the time] would blindly believe his side of the story."

Lee is equally adamant that he made no misstatements about their relationship and maintains he was expressing how he had felt as a middling teenager, who came to believe he was emotionally and sexually manipulated by Norway. In his declaration in support of his motion to strike, Lee states he "decided to share my experiences in the hopes that they might help someone else who had gone through something similar." He goes on to state, "the posting was related to things that happened to me when I was 15 years old. Everything that I wrote in my post is true and accurately reflects my factual recollections and my feelings. I spoke the truth. I did not accuse Kimi of committing sexual assault or any other crime. I only described accurately things that happened between us, and how I felt about those things. I wanted to share what happened and wanted to try and help others that might be in a similar situation."

The night Lee made the post, Norway's father texted Lee's mother and told her Lee had posted a defamatory Instagram. Lee took the post down the following morning.

However, C.K.'s post accusing Norway of being "an 'abuser,' 'serial manipulator,' [and a] 'defender of abusers,'" continued to be reshared "countless times." Other students "also repeated lies throughout Instagram, other social media, and face to face conversations" that Norway "had committed sexual assault." The student government's official account posted "a 'Statement Regarding Kimi Norway,' stating that 'the LSA 2022 board' 'reaffirm our support for survivors of sexual violence,'" and described Norway "as a 'perpetrator' of 'sexual assault,' 'condemned' her actions,' and stated the student government was 'doing everything in [their] power to remove her from leadership positions.'" By the end of that day, "more than twenty students had joined the cyberbullying campaign against [Norway], often by way of official school social media accounts."

The following day, school administrators ordered the media accounts "taken down 'due to legal concerns.'" "However, nearly immediately, new posts went up keeping nearly identical verbiage and defamatory allegations, but removing [Norway's] name," and it was "clear to all students" who the person "being targeted was." The senior prom committee posted a "'Statement Regarding Kimi Norway'" similar to that posted by the student government, "clarify[ing] that we do not tolerate any forms of assault or harassment regardless of who the perpetrator is." …

Norway sued Lee for defamation (among other claims, which weren't discussed in this iteration of the case). The Court of Appeal held that Norway alleged enough to allow the case to go forward, whether or not she could prove "special damages" (in the sense of specific, identifiable loss "in respect to … her property, business, trade, profession, or occupation"):

There can be no doubt that his allegedly false statements about Norway, on their face, exposed her "to hatred, contempt, ridicule, or obloquy" and caused her "to be shunned or avoided" and were therefore defamatory per se. Indeed, the posts that followed Lee's make it crystal clear his accusations exposed Norway to hatred, contempt, ridicule, and obloquy, and caused her to be shunned and avoided….

It is not entirely clear from Lee's briefing whether his challenge to the trial court's order is limited to the court's determination that Norway adequately alleged and sufficiently supported a claim of per se defamation, or whether he also maintains that her defamation claim, regardless of how it is characterized, is more fundamentally deficient because his post assertedly contained only nonactionable opinion and no provably false statement of fact. (See Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 426 (Bently Reserve) ["To be libelous, a '"statement must contain a provable falsehood …"' and, to this end, '"courts distinguish between statements of fact and statements of opinion for purposes of defamation liability"'" (quoting Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 695)].) In the trial court, he variously argued that the statements in his post were "too vague to be actionable" and reflected the opinions of an inexperienced, middling teenager. The court considered his "mere opinion" argument meritless stating, "The most cursory glance at the allegations (e.g. Complaint ¶ 61) reveals statements of apparent fact." …

[T]o the extent Lee … [argues] that his post amounts to the nonactionable opinion of a teenage boy and therefore cannot support any kind of defamation claim … we agree the post includes statements that are subject to being proved false….

Looking first at the language of the post, it plainly accused Norway of doing a number of specific things, all of which are provably false facts [i.e, can be proved false, if they are indeed false -EV]. Indeed, that Lee's post contained provably false facts is confirmed by his own declaration in support of his motion, wherein he states, for example, that "[e]verything that I wrote in my post [was] true and accurately reflects my factual recollections and my feelings," and that he described "accurately things that happened between us, and how I felt about those things."

The post also plainly accused Norway of sexually manipulating, harassing, or abusing him. He called her his "mental and physical abuser" and called himself a "survivor." True, he stated in the post he was "not sure what 'category' my experience falls under," but the clear import was that Norway acted in a sexualized, inappropriate, and hurtful manner. And while saying someone engaged in sexually manipulative, abusive, or harassing conduct may be an ultimate fact, based on operative facts, it is nevertheless a factual indictment the accused can disprove.

Turning to the context in which the post was made, it is all the more apparent that Lee was accusing Norway of sexual misconduct. As we have recited, this post was made on the heels of Norway having been accused by other students of supporting a student accused of sexual assault and being unsupportive and unsympathetic to victims of sexual misconduct. And by its plain language, the post purported to add to the public discourse on sexual assault, abuse, and harassment by chronicling sexual misconduct by a female student against a male student. In sum, when one looks at the totality of the circumstances, as Lee urges us to do, it is readily apparent the post portrayed Norway as having engaged in inappropriate and hurtful sexual or sexualized conduct….