Court Dismisses ASU Academic/Administrator's Libel Suit Against Journal That Had Retracted His Article, with Reference to Possible Plagiarism

From Rodriguez v. Taylor & Francis Group, LLC, decided Thursday by Chief Judge Murray Snow (D. Ariz.):

This action concerns Dr. Cristobal Rodriguez's allegations of defamation and trade libel against Taylor & Frances Group, LLC …. Dr. Rodriguez is the Associate Dean of Equity, Inclusion, and Community, as well as an Associate Professor of Educational Leadership and Policy studies, at the Mary Lou Fulton Teachers College at Arizona State University. He researches inclusion and equity in education for "dual language learners, Black, Latino, and Indigenous" families and students. On March 7, 2022, Dr. Rodriguez and two other authors published an article in Educational Studies entitled "Our Separate Struggles Are Really One: Building Coalitions and Solidarity for Social and Racial Justice in Education" …. Educational Studies is an education journal published by Defendant.

Within days of publication, Plaintiff became aware of a potential issue with the Rodriquez Article. Plaintiff and his co-authors researched other published works and discovered that the Rodriquez Article and an article published by Dr. Sonya Douglass Horsford shared references to a conversation between Dr. Martin Luther King, Jr. and Cesar Chavez and had similar titles. Dr. Horsford titled her article "Our Separate Struggles are Really One: Building Political Race Coalitions for Educational Justice ….

On March 12, 2022, Dr. Rodriguez contacted Defendant to inform them of the overlap due to an oversight to "check for title similarities with other publications," to offer a revised title, and to address certain references in the Rodriguez Article. Plaintiff and his co-authors submitted a revised draft of the Rodriguez Article that included different references and a new title. Defendant accepted the changes and updated the print and online publication. Defendant informed Plaintiff that the editorial board was reviewing the matter but ceased all further communications with Plaintiff.

On June 20, 2022, Defendant informed Plaintiff that it would remove the Rodriguez Article from the issue of Education Studies and issue a retraction on its website with the basis for the retraction. Defendant provided Plaintiff no specific basis for the removal or the specific content of the retraction statement. Defendant then retracted the Rodriguez Article and published a public notice of retraction on its website. The notice referenced both the Rodriguez Article and the Horsford Article and included a brief explanation of Defendant's reasoning:

Since publication, significant concerns have been raised about the fact that this article has substantial overlap with the following article, particularly in title, references, and ideas pertinent to the content … As plagiarism is a serious breach of publishing ethics, we are retracting the article from the journal. We have been informed in our decision-making by our policy on publishing ethics and integrity and the COPE guidelines on retractions.

Plaintiff alleges that "[t]he continued presence of the retraction statement on Defendant's website has the extreme potential to cause harm to Dr. Rodriguez and his professional reputation, including prohibiting and preventing him from opportunities for future professional advancement." Additionally, Plaintiff alleges that Arizona State University placed him on administrative leave and that he lost his administrative position because of Defendant's public notice. The loss of that position, Plaintiff alleges, included a substantial loss in income….

Plaintiff sued for defamation, but the court held on Mar. 29 that plaintiff didn't sufficiently allege "actual malice," which is to say the defendant's knowledge that its statement was false or likely false:

There is no apparent dispute that the Rodriguez and Horsford Articles share a title and some content. Plagiarism does not require a complete identity between articles. In other words, a claim that two works contain some differences does not necessarily absolve an author of plagiarism—even where those claims are accurate. Generalized allegations alone are too conclusory and thus insufficient to make the actual malice element plausible. The same is true of academic publishers.

And thus, Dr. Rodriguez's denial of plagiarism, even if true, does not give rise to an inference that Defendant made the retraction statement recklessly absent Plaintiff having provided Defendant some exonerating information in connection with his denials that would make plausible his claim that Defendant acted with malice when it proceeded with retraction statement without further consulting him….

The Mar. 29 decision allowed plaintiff to add further allegations to his Complaint, but onb Thursday the court concluded these extra allegations were insufficient:

Plaintiff has … added two allegations in connection with his defamation claim: (1) the specific explanation in his March 12, 2022, email to Defendant and (2) the "position of Dr. Horsford that [s]he did not want to or intend for Defendant to take any further action." Plaintiff claims that these two facts provided "sufficient exonerating information to put the Defendant on notice that the later publication of the allegations in the Retraction Statement alleging plagiarism were done with malice and/or with reckless disregard of whether the allegations in the Retraction Statement were false or not." …

Specific Explanation in the March 12, 2022, Email

Plaintiff's email informs Defendant that the Rodriguez Article had a similar title to the Horsford Article and states that the similarity was due to an "oversight…to check for title similarities with other publications." However, even if true, Plaintiff's email does not provide Defendant with information that would cause Defendant to "entertain[ ] serious doubts as to the truth of" the retraction statement.

The retraction statement points to "significant overlap" in not only title but also as to "references" and "ideas," neither of which were addressed in the March 12 email…. The text of the email is expressly limited to a conversation about "title similarities." Plaintiff's failure "to check for title similarities with other publications" does not reasonably suggest that what he did, or failed to do in this respect, prevented plagiarism. Moreover, a simple, uncorroborated denial by Plaintiff to Defendant that he committed plagiarism is not sufficient to make plausible his claim of actual malice on Defendant's part in concluding otherwise….

Dr. Horsford's Email to Plaintiff Regarding Further Action

Dr. Horsford, in an email response to Plaintiff's offer to make additional changes to the article, wrote that the decision was not hers to make and that she did not "expect any particular action to be taken." Although not explicitly stated, Plaintiff assumes that Defendant inferred, or should have inferred, from Dr. Horsford's email that Dr. Horsford would have responded differently had she believed her article had been plagiarized. Therefore, according to Plaintiff, Dr. Horsford did not believe Plaintiff plagiarized, and the email was sufficiently exonerating to put Defendant on notice, such that any later publication of alleged plagiarism was done with malice. This is not a "reasonable inference."

Plaintiff asserts that Dr. Horsford meant that she did not "want or intend" for Defendant to take action when she wrote that she did not "expect any particular action to be taken." No such presumption is merited. In fact, Dr. Horsford explicitly wrote in that same email that decisions about changes to the Rodriguez Article were not hers to make and that she was just bringing the similarities to Plaintiff's attention. Actual malice means Defendant "entertained serious doubts as to the truth of the accusation."

Dr. Horsford's email does not give rise to an inference that Defendant "entertained serious doubts as to the truth" of the plagiarism of Dr. Hosford's article, as any such inference from Dr. Horsford's email is unwarranted. For this reason, Plaintiff has not sufficiently alleged actual malice….

Note that the court applied the "actual malice" standard on the grounds that,

Because Plaintiff is a professor employed by a public institution, the parties agree that he is a public figure subject to a higher showing of "actual malice."