Court Declines to Dismiss Libel Suit by Anthropologist Accused of Mishandling Human Remains from Project MOVE Bombing

The case was brought by Dr. Janet Monge against the University of Pennsylvania.

From yesterday's opinion by Judge Gene Pratter (E.D. Pa.) in Monge v. Univ. of Penn.:

In The Canceling of the American Mind, Greg Lukianoff and Rikki Schlott argue that the "modern era of Cancel Culture" began in 2014 and continues to the present. From 2014 to mid-2023, the authors argue that there were "more than 1,000 attempts to get professors fired, punished, or otherwise silenced."  Of those, two-thirds of cases were successful in that they led to "consequences from investigation to termination."  The authors argue that the sheer number of professors being fired is "truly unprecedented" and has not "been seen since the Supreme Court first established First Amendment protections of academic freedom and campus speech."  According to the authors, "more professors have been terminated during the era of Cancel Culture than in the era of McCarthyism[.]"

Enter Dr. Janet Monge, who spent much of her academic career working for the University of Pennsylvania in Philadelphia. Dr. Monge alleges that she is one of the numerous professors who has been a victim of the modern era of Cancel Culture. Dr. Monge brings defamation [claims, among others] against, among others, the University of Pennsylvania, former Penn President Dr. Amy Gutmann, and former Penn Provost Dr. Wendell Pritchett ("Penn Defendants") for statements that they made regarding Dr. Monge's role as an anthropology professor when she used bone fragments and unidentified remains of victims of the 1985 MOVE bombing in an online anthropology course….

To vastly oversimplify the factual backstory, in 1985 the Philadelphia police bombed a building inhabited by "the MOVE family," also known as the Africa family, a commune of self-described revolutionaries, killing "Eleven MOVE members …, presumably six adults and five children." There was some uncertainty about the identity of some of the remains, and Dr. Monge was one of the people who eventually investigated the matter, and was in charge of storing the bones. She also discussed and showed bone fragments in an online course, "Real Bones: Adventures in Forensic Anthropology":

In one of the classes, Dr. Monge works with one of her students in the Penn Museum. The bone remains are shown during the class, and Dr. Monge and her student compare those bones to other similar bone fragments for comparison. In the video, Dr. Monge describes the bones as "juicy" and "greasy," which are anthropological terms of art. Dr. Monge alleges that she and her student "properly, scientifically, and discreetly handled the remains, utilizing rubber gloves and observing all appropriate protocols" in the video.

Dr. Monge alleges that the course only became a matter of public controversy when Paul Mitchell "began his deliberate, retaliatory, and self-elevating smear campaign" against her. Dr. Monge first met Mr. Mitchell in 2009 when he was an undergraduate student in the Penn Anthropology Department. Mr. Mitchell took several of Dr. Monge's classes, and she advised his master's thesis, though after Mr. Mitchell enrolled in his doctoral program at another school, he was allegedly accused of plagiarism and was consequently removed from the program. Mr. Mitchell then contacted Dr. Monge, who worked with Penn to allow Mr. Mitchell to transfer to Penn to complete his doctorate degree.

Dr. Monge alleges that Mr. Mitchell engaged in misconduct while at Penn by defacing books in the Penn Museum, "engaging in published plagiarism," improperly accessing the lab with friends to explore bones and bone fragments stored for educational purposes, and stealing DNA samples without authorization. Dr. Monge alleges that once she discovered these actions, she "reported all these unlawful and disturbing activities to Penn Museum Security and Administrators, along with Dr. Kathleen Morrison, Chair of Penn's Anthropology Section." Neither Penn nor its administrators punished Mr. Mitchell for his actions. Additionally, in May 2019 in the presence of several witnesses, Mr. Mitchell allegedly screamed at Dr. Monge, threw objects at her, slammed his fists on a table, and threatened Dr. Monge. Dr. Monge filed a report with the Penn Museum's administration, though Dr. Monge alleges that neither Penn nor its administrators took action to punish Mr. Mitchell. Dr. Monge then changed the locks to the Museum and lab and denied Mr. Mitchell any unsupervised access to the Penn Museum's Physical Anthropology collections.

In April 2021, Mr. Mitchell met with Christopher Woods, then-Director of the Penn Museum, where he accused Dr. Monge of mishandling the MOVE bone fragments and engaging in professional misconduct regarding the MOVE bombing investigation. Mr. Mitchell allegedly referenced the Coursera course in that discussion.

Dr. Monge avers that Mr. Mitchell also worked with his then-girlfriend, Maya Kasutto, a writer for the news organization Billy Penn, to broadcast the same sentiment about Dr. Monge. Dr. Monge alleges that Ms. Kasutto had her own grudge against her because, while Ms. Kasutto was studying at Penn, Dr. Monge was forced to revoke her ability to work with remains in the Physical Anthropology section of the Penn Museum for her senior thesis when she left the biological anthropology program to instead receive her undergraduate degree in cultural anthropology and creative writing. Dr. Monge alleges that Ms. Kasutto and Mr. Mitchell then worked together to "cancel" Dr. Monge by declaring that "she harbors racist animus against persons of African descent even though they knew she had spent her entire career seeking to bring respect and humanity to identify remains of persons of all races."

Shortly thereafter, starting in April 2021, a number of news articles and statements began to be published regarding Dr. Monge's involvement in identifying the MOVE bone remains and her use of the bones in the Coursera course…. On April 26, 2021, the Association of Black Anthropologists ("ABA"), the Society of Black Archaeologists ("SBA"), and the Black in Bioanthropology Collective ("BiBA") released a statement that they "condemn in the strongest possible language the University of Pennsylvania, … along with Professors Alan Mann and Janet Monge, for their horrific treatment of the remains of Tree and Delisha Africa, and for the unfathomable heartlessness and disrespect shown towards the Africa family." That same day, Dr. Monge alleges that Penn locked Dr. Monge out of her laboratory and all Physical Anthropology collection storage spaces.

The Penn defendants responded with an email to all Penn Museum employees, and allegedly a similar statement "to the full Penn community":

We were profoundly disturbed to learn this past week that human remains, provided to a faculty member by the medical examiner many decades ago in an effort to identify a victim from the 1985 bombing of the MOVE house, had been kept at the Penn Museum for much of that time. Simply said, this was insensitive, unprofessional and unacceptable.

An official apology has been extended to the Africa family by the Museum and the University, and the Museum is currently working to return the remains to the family. In our judgment, it is imperative that we bring in an outside investigator who can examine how this unfolded and provide us with a complete report on what transpired. To this end, we have hired attorneys Joe Tucker and Carl Singley of the Tucker Law Group to investigate how the remains came into the possession of the Museum and what transpired with them for nearly four decades. We will share this report with the community and use its findings to help us ensure that nothing of this nature is repeated in the future.

Monge also alleges that,

[S]hortly after the publication of this statement, the Chair of Penn's Anthropology Department told Dr. Monge that she was being put on a "work pause" and would be removed from teaching Penn classes. In early May, Dr. Monge alleges that her summer programs at the Penn Museum and scheduled high school talks for Penn were being canceled, all while Penn posted a call to action to terminate Dr. Monge's employment on the Penn Anthropology Department website. Three months later, according to Dr. Monge, she was informed that she would not "teach any of her current classes, be an adjunct professor, or even be an associate curator at the Penn Museum, and was being demoted to Museum Keeper." The demotion led to a $65,000 salary cut, and, after two years, Penn would deem Dr. Monge retired.

The Institutional Review Board is Penn's internal mechanism that investigates whether faculty research is appropriate. Dr. Monge alleges that the Institutional Review Board could have investigated Dr. Monge's research and potentially "cleared her name." However, Penn never contacted the Institutional Review Board to review her case. In fact, Dr. Monge "has never been found to have violated any professional, ethical, or legal standards" when handling the bone fragments from the MOVE Bombing….

Monge sued for defamation and related torts, and the court concluded that she had alleged enough for the case to go forward. (As usual with such decisions on a motion to dismiss, the court assumed that the facts were as plaintiff alleged them to be; the case will now go on to discovery, and then perhaps to a trial where a jury will decide the facts.) The court noted that the Penn statement could be understood as a factual assertion:

"[B]ased on these facts, the statement appears to be an official declaration issued on behalf of the University of Pennsylvania by its President and its Provost, rather than a statement expressing the subjective opinions of Drs. Gutmann and Pritchett." By characterizing Dr. Monge as "unprofessional," the Penn Defendants made a statement harmful "to Dr. Monge's ability to conduct business as an anthropologist, a professor, or a museum curator, or to engage in the profession of anthropology."

And it concluded that, though Monge was a limited purpose public figure with regard to discussion of the Project MOVE remains, and thus had to allege "actual malice" (knowing or reckless falsehood) by the defendants, she had adequately done so:

Dr. Monge alleges that she made Penn and its administrators aware multiple times that Mr. Mitchell had engaged in "unlawful and disturbing" activities while he was pursuing his doctorate degree. Penn and the administration, of which Dr. Gutmann and Dr. Pritchett are members, took no action against Mr. Mitchell. Mr. Mitchell also allegedly discussed the bone fragments and Dr. Monge's mishandling of them with the Penn Museum Director shortly before the media firestorm about Dr. Monge began. In the wake of those allegations, Penn and its administrators did take action when Penn (1) locked Dr. Monge out of her lab and all Physical Anthropology collection storage spaces, (2) released a statement from Dr. Gutmann and Dr. Pritchett to employees of the Penn Museum describing Dr. Monge's actions as "insensitive, unprofessional, and unacceptable," (3) released a later statement from Dr. Gutmann and Dr. Pritchett to the broader Penn community, (4) placed Dr. Monge on a "work pause," (5) canceled Dr. Monge's summer classes, (6) removed Dr. Monge from the Anthropology Department's website, (7) canceled all of Dr. Monge's regular semester courses, (8) demoted her, (9) cut her pay by $65,000, and (10) told her that she would be deemed retired after two years because of her demotion.

The asymmetry between Penn's response to the complaints of Paul Mitchell regarding Dr. Monge with those of Dr. Monge regarding Paul Mitchell certainly raises a reasonable inference that the Penn Defendants acted with actual malice with regards to their statements about Dr. Monge. Indeed, the Penn Defendants had "obvious reasons to doubt the veracity of" Mr. Mitchell's claims against Dr. Monge, and Mr. Mitchell's statements largely coincided with those published throughout the media firestorm during which the Penn Defendants published the defamatory statements about Dr. Monge. Taking Dr. Monge's allegations as true, the Second Amended Complaint sufficiently demonstrates that the Penn Defendants were aware of Paul Mitchell's potential bias against Dr. Monge yet took no action to corroborate his complaints or investigate the matter further before publishing the statements about Dr. Monge….

An even stronger indicator of the potential for actual malice is the fact that Penn did not properly investigate the claims against Dr. Monge through its own internal mechanism for such claims. Dr. Monge alleges that Penn has an Institutional Review Board that investigates claims  regarding faculty research to determine if research is appropriate. In Dr. Monge's case, however, Penn allegedly never contacted the Institutional Review Board. Without using the proper channels of investigation for claims against Penn faculty and then publishing a statement describing Dr. Monge's actions as "insensitive, unprofessional, and unacceptable" before conducting any investigation, there is a reasonable inference that the Penn Defendants acted with reckless disregard and "entertained serious doubts as to the truth of the statement[s]" about Dr. Monge." Though "mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth," here, in addition to Penn's failure to investigate, Penn also had reasons to doubt the veracity of Mr. Mitchell's statements. Thus, the Court finds that Dr. Monge has adequately pled actual malice and that the defamation claim against the Penn Defendants proceeds beyond the motion to dismiss stage.

And the court also held the same as to Monge's defamation by implication claim:

[A]s the Court previously held, the statement calling Dr. Monge's actions "insensitive, unprofessional, and unacceptable" "'could fairly and reasonably be construed to have the meaning imputed in the innuendo,' specifically that Dr. Monge deviated from professional standards governing anthropologists." Such a statement is "particularly harmful" to Dr. Monge's work in anthropology…. At this stage, the Court cannot ascertain whether the Penn Defendants had actual knowledge that there was a defamatory meaning to the two statements they made; however, a holistic reading of the Second Amended Complaint contains sufficient allegations that they did.

Dr. Monge specifically pleads that on April 26, 2021, "a collective statement by the Association of Black Anthropologists (ABA), the Society of Black Archaeologists (SBA), and the Black in Bioanthropology Collective (BiBa) … stat[ed] that they 'condemn[ed] in the strongest possible language the University of Pennsylvania, … along with Professors Alan Mann and Janet  Monge" regarding Penn's and Dr. Monge's actions regarding the bone fragments and then requested that Dr. Monge be removed from her position at Penn. Their statement specifically reads "that their members were 'outraged by the stunning ethical indifference shown by all parties … [and] that these entities effectively monetized the remains of Black children murdered in a state terrorist attack….'"

Only two days later, Dr. Gutmann and Dr. Pritchett published their statement to all employees of the Penn Museum calling Dr. Monge's actions "insensitive, unprofessional, and unacceptable."  Though the Penn Defendants' statement may not mention race or ethics, by issuing their statement only two days after a collective of Dr. Monge's Black peers in anthropology accused her of racism and ethical violations, the possible implication is that the Penn Defendants agreed with the message from these anthropology groups making such accusations. Dr. Monge avers that the Penn Defendants' statement, along with the alleged statement later sent to the full Penn community, legitimized such claims against her. After Penn, her employer, and Drs. Gutmann and Pritchett, two of the highest-ranking personnel within the university, published their own statements, "there was simply no way to pull it back and return Dr. Monge's reputation to normal."

As discussed above, the Penn Defendants' statements, on their own, are capable of defamatory meaning and demonstrate actual malice. Furthermore, considering the backdrop against which the Penn Defendants published their statements, it is plausible that the Penn Defendants may have known that their statements would hurt Dr. Monge's reputation within the anthropology field and her ability to continue working within the discipline. This satisfies the final element needed for the defamation by implication claim that the Penn Defendants "either intended to communicate the defamatory meaning or knew of the defamatory meaning and was reckless in regard to it." Although the Penn Defendants may not have known that their statements were capable of defamatory meaning, the Court presently only evaluates the Second Amended Complaint, which adequately pleads that the Penn Defendants knew that their statements would curtail Dr. Monge's career in anthropology and academia. Thus, the defamation by implication claim against the Penn Defendants also survives their motion to dismiss.

Note that, to show "actual malice" (which means, again, making a statement knowing that it was false or reckless about the possibility that it is false), it's not enough for plaintiff to show "failure to investigate before publishing, even when a reasonably prudent person would have done so." But "recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports."