The Volokh Conspiracy
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"Stealthing" #TheyLied Libel Case Can Go Forward
From Luke v. Schwartz, decided yesterday by Judge Robert Pitman (W.D. Tex.); of course, as usual, keep in mind that at this stage of the lawsuit these are only allegations:
Plaintiff David Luke … alleges the following facts …. Luke dated [defendant Jeffrey] Schwartz's daughter, Emma Schwartz …, … while they were both 17-year-olds attending Park City High School in Park City Utah. [Sex between 17-year-olds is not itself criminal in Utah. -EV] Luke and Emma had consensual sex on multiple occasions during their relationship. Luke alleges that he and Emma had a tacit agreement that sex without a condom was an acceptable option as Emma had initiated unprotected sex once before and had performed unprotected oral sex on Luke on more than one occasion.
On December 18, 2021, Luke and Emma had sex. Luke was intoxicated and Emma was not. Luke removed his condom during sex, which he did not believe would upset Emma because they had engaged in unprotected sex before. During the encounter on December 18, Emma did not realize Luke had removed his condom until she noticed it lying on the bed next to her. Emma told Luke that she "was upset by him removing the condom without discussing it with her first, and he apologized." A few weeks later, Luke and Emma broke up. Luke alleges that Emma tried to get back together with Luke and "certainly did not act like he had sexually assaulted her."
In May of 2022, Emma, Schwartz, and Emma's mother, filed a civil lawsuit against Luke and his parents in Utah state court (the "Utah civil suit"). Emma and her mother then went to the Summit County District Attorney's office and "complained that [Emma] had been sexually assaulted." Emma gave a full statement to the District Attorney's office in which she claimed that because Luke "had taken the condom off … without her verbal consent, she was a victim of sexual assault." The District Attorney declined to prosecute Luke because "those acts do not amount to sexual assault under Utah Law." The Utah civil suit proceeded publicly for about a year before being sealed and dismissed.
Luke alleges that Schwartz has been "obsessed with [Luke]'s family and specifically obsessed with doing anything he can to hurt [Luke]." Schwartz sent an email to Bobby Orr … stating that "[Luke] sexually assaulted my daughter during their senior year in high school." Orr is on the board of the Phi Gamma Delta Fraternity at the University of Texas where Luke attends college. Luke is a member of Phi Gamma Delta. Luke further alleges that Schwartz "has also engaged in a letter-writing campaign sending similarly defamatory statements to members of sororities across Texas in an effort to destroy Plaintiff's reputation and turn private allegations into matters of public knowledge."
Schwartz has also, according to Luke, used social media to identify sorority girls who may come into contact with Luke at the University of Texas and has sent "these girls copies of the unverified civil complaint" (the "Utah complaint") from the Utah civil suit which has been sealed by the Utah court. Schwartz sent the Utah complaint with no return address and "no cover letter explaining who the letter was from or why they [were] receiving it." Emma, her mother, and Schwartz have also been engaging in legislative advocacy to change the criminal sexual assault laws in Utah so that taking off a condom during sex without verbal consent—also known as "stealthing"—is considered criminal sexual assault in the state.
The court allowed Luke's defamation claim (which it understood to be based only on "Schwartz's email to Orr") to go forward:
First, Schwartz claims that his email to Orr contained no false statement. Schwartz argues that Luke admits that "he decided to, and did, remove his condom during sex with Emma without her knowledge." However, the email to Orr, which is attached to Luke's amended complaint, does not include any such description of Luke's actions on December 18, 2021. Rather, the email only refers to Luke's actions as "the activities of sexual assault" or "sexual assault[]." Indeed, if Schwartz's email read: "Luke removed his condom during sex with my daughter without obtaining her verbal consent," then Schwartz would be correct that there is no false statement because Luke does not deny these facts in his complaint. However, that is not what Schwartz wrote in his email to Orr.
Second, Schwartz argues that the characterization of Luke's conduct as "sexual assault" in the email to Orr is nonactionable opinion. Specifically, Schwartz argues that "whether Luke's unilateral removal of his condom qualified as 'sexual assault' is a matter of legal opinion, not fact." For a statement to be actionable in a defamation claim, the statement must "assert an objectively verifiable fact, rather than an opinion[.]" … This legal question should be answered from the perspective of a "reasonable person's perception of the entirety of a publication and not merely on individual statements."
Schwartz argues that his use of the term "sexual assault" is a legal opinion rather than a verifiable falsity because he is asserting his opinion that legislatures should change criminal sexual assault laws such that stealthing is considered criminal sexual assault. Schwartz points to Lilith Fund for Reprod. Equity v. Dickson (Tex. 2023), where the Texas Supreme Court found that a defendant did not commit defamation by "making statements that equate abortion to murder and by characterizing those who provide or assist in providing abortion, including the plaintiffs, as 'criminal' based on that conduct." Schwartz equates his use of the term "sexual assault" in reference to Luke to the use of "murder" and "criminal" in reference to the plaintiffs in Lilith Fund.
The Court is unpersuaded by Schwartz's comparison to Lilith Fund. In Lilith Fund, the defendant posted statements on his Facebook page in which he encouraged others to support local laws that classify abortion as murder and called abortion-providers criminals. The court held that these statements were not false statements for the purposes of a defamation claim because "the collective impression" of the defendant's posts and the public's responses "is not that [the defendant] was disseminating facts about particular conduct, but rather advocacy and opinion responding to that conduct." The court stated that "a reasonable person … could not understand [the defendant] as conveying false information about the plaintiffs' underlying conduct, as opposed to his opinion about the legality and morality of that conduct." Here, Schwartz is not engaging in a debate about the legality or morality of Luke's conduct. He sent an email to a third party in which he stated plainly that Luke sexually assaulted Emma in high school.
Still, Schwartz argues that he "overtly couched his description of the conduct as opinion" in the email to Orr because he "explained that he and his daughter were working with the Utah legislature and their federal congressional representative to 'strengthen the laws and verbiage around the definition of sexual assault.'" This vague explanation of Schwartz's advocacy work does not give any context for a reasonable reader to assume that Schwartz's use of the term "sexual assault" is a legal opinion rather than a verifiable falsehood. Schwartz did not explain that Luke's conduct is not currently considered criminal sexual assault and that Schwartz is advocating to change that. It is extremely plausible that a reasonable person would believe that Luke committed a crime upon reading Schwartz's email to Orr. The Court therefore finds that Luke's amended complaint states a claim for the publication of a false statement from the "perspective of a reasonable person's perception of the entirety of the publication."
Schwartz further argues that even if the Court finds that his statement is not a legal opinion, Luke's defamation claim should still be dismissed because Schwartz's statement was true.
Even if stealthing is not a crime, Schwartz argues that it is a civil tort. Schwartz points to Texas and Utah laws that name "sexual assault" as a civil tort. After laying out the elements of a claim for civil sexual assault in both states, Schwartz argues that Luke's conduct on December 18, 2021 is civil sexual assault in both Texas and Utah. {The Court makes no finding as to Luke's liability for any of his alleged actions. Luke's conduct on December 18, 2021 is not before this Court.}
The Court is unpersuaded by this argument…. The Court again finds that it is extremely plausible that a reasonable person would not perceive this email to be about a civil tort but rather about a criminal accusation….
But the court rejected Luke's public disclosure of private facts claim, which had been based on the distribution of the Utah complaint:
The Utah complaint was a part of the public record for 15 months before the Utah court sealed the case. During those 15 months, Luke and his family filed under their legal names…. The Texas Supreme Court has held that public disclosure of private facts does not extend to "publication of facts, no matter how intimate, embarrassing, or otherwise private, which were a matter of open public record." Although the Utah complaint is no longer in the public record after being sealed, the Court finds that the Utah complaint is not private because it was a part of the public record for over a year….
And the court rejected Luke's intentional infliction of emotional distress claim, because "[w]hen the substance of the complaint is covered by another tort, 'a plaintiff cannot maintain an intentional infliction claim regardless of whether he or she succeeds on, or even makes, [an alternate] claim."
See also this earlier post about Judge Pitman's decision denying pseudonymity to Luke; for more on Emma Schwartz's public advocacy on the issue, see here. Derek Merman and Kane Kenney (Heard Merman Law Firm) and Dick DeGuerin (Deguerin and Dickson) represent Luke.
