Fired College Security Chief's Libel Claim (Over Allegations That He Mistreated Black Alumnus) Can Go Forward

The court concluded that the Director of Safety and Security at a small private college didn't qualify as a "public official or public figure" for purposes of the state's anti-SLAPP statute.

From McMurtrie v. Sarfo, decided Sept. 12 by the Tennessee Court of Appeals (Judge John W. McClarty, joined by Judges Thomas R. Frierson, II and Kristi M. Davis:

Plaintiff-Appellee John McMurtrie ("Plaintiff") was formerly employed as the Director of Safety and Security for Maryville College, a private liberal arts college. The parties agree that the college is not a part of any government or governmental agency. Plaintiff's job was to oversee campus security and supervise the college's five security guards who worked in rotating shifts. Plaintiff is a former Pennsylvania state trooper and former FBI agent, but he had retired from those jobs before accepting the position at Maryville College in 2018. Neither Plaintiff nor the other security guards who worked under him were sworn law enforcement officers. They were not deputized officers of any city or county. They did not carry weapons and had no authority to seize or arrest anyone. They would call the Maryville Police Department for issues needing law enforcement. The college's streets are generally open to the public.

On July 9, 2021, Defendant-Appellant Ransford Sarfo, a 2010 graduate of Maryville College who lives out-of-state, was visiting campus in a rented Toyota Prius. As Plaintiff approached a sharp turn in front of Carnegie Hall on Circle Drive, he observed the Prius stopped in the middle of the roadway with its four-way emergency flashers activated. It was steadily raining and dark due to storm clouds overhead, and Plaintiff believed the car posed a hazard due to its position in the roadway and the low visibility. Plaintiff then observed an arm emerge from the driver's side window as if to wave him to go around, at which point Plaintiff pulled his vehicle around and stopped beside Sarfo's Prius, on the driver's side. Sarfo glanced at Plaintiff. Plaintiff lowered his passenger side front window to speak with Sarfo, who did not engage with him. Plaintiff then tapped his horn. Sarfo then lowered his own driver's side window. Still seated in his vehicle, Plaintiff asked Sarfo "why are you parked in my driveway?" Plaintiff maintains that he meant this as a joke.

Sarfo replied that he had stopped for a photograph because he used to live in Carnegie Hall and that, as an alum, he had a right to be there. Sarfo also advised Plaintiff that he was having trouble shifting the rented Prius out of park. Plaintiff told Sarfo that he still needed to move his car out of the middle of the road and could continue taking photographs from one of the several open parking spaces in front of Carnegie Hall. Sarfo asked Plaintiff to identify himself, so Plaintiff told him his name and title of Director of Safety and Security. Sarfo, uncomfortable and offended, advised Plaintiff that this would not be the end of the matter. Plaintiff then drove away. He observed Sarfo drive away, too. The entire interaction between the two men lasted approximately one minute. There is no evidence in the record to suggest that Plaintiff knew Sarfo was a person of color when he first approached him about the improperly parked car.

The next day, Sarfo wrote an email about his interaction with Plaintiff to Maryville College's President, Bryan Coker, and six other college officials. The subject line was "MC Alumni harassed on campus." The email stated, in part:

I was deeply troubled that [Plaintiff] did not ask why my hazard lights were on, but assumed that I did not belong on the campus. In my years at the College, I never heard a staff member refer to any part of the campus as their property to justify their reasoning for another person to leave. It is very disheartening that I came back to a place I call home and was told by a staff member that I was on their property and asked to leave. I AM HURT! I will be reaching out to every alumni committee that I know to share my experience yesterday. Dr. Gerald Gibson would be deeply troubled to hear that we have staff members who do not understand the true meaning of community. I felt bullied, unwelcomed, and mistreated on the very college campus that I lived for 4 years. This is not the Maryville College that I knew in 2010.

Sarfo's email signature included a work photo of himself. Then, Plaintiff received a letter from the college outlining Sarfo's complaints against him. On July 24, 2021, Sarfo contacted Maryville's local newspaper, The Daily Times, which is owned by Defendant-Appellant Adams Publishing Group, LLC ("the newspaper") about the encounter with Plaintiff. On July 26, 2021, Plaintiff met with the college's Human Resources Director. On July 29, 2021, Plaintiff, at the direction of Maryville College, had a Zoom meeting with the Human Resources Director and received a verbal warning for unprofessional conduct. At some point in the disciplinary process, Maryville College concluded that there was no racial animus between Plaintiff and Sarfo, but the college directed Plaintiff to attend two virtual training sessions: "Diversity and Inclusion in the Workplace – Unconscious Bias Awareness" and "Customer Service Excellence for Team Members." In the July 29 Zoom meeting, the college's officials told Plaintiff that President Coker was planning to respond to The Daily Times' request for comment.

On Sunday August 8, 2021, The Daily Times ran a front-page article with the headline, "'Must do better' Coker: MC needs to improve its inclusivity." The article began, "An incident last month in which a White security officer questioned a Black alumnus on the Maryville College campus has President Bryan Coker saying the school 'can – and must – do better, when it comes to creating and maintaining a welcoming, supportive, and inclusive environment for all.'" The article described the July 9, 2021 interaction between Sarfo and Plaintiff from Sarfo's point of view, which characterized it as an interrogation and "just horrible." The story also included Sarfo's accounts of racism he encountered on campus sixteen years earlier when he was a student there.

Two days later, on August 10, Maryville College terminated Plaintiff's employment. On August 11, local news station WBIR reported The Daily Times' story through a video posted on WBIR's website in which the news anchor related that Maryville College was "searching for a new director of campus safety and campus security. The school fired the former director, John McMurtrie, after an investigation into a discriminations [sic] case." On August 12, 2021, The Daily Times published another front-page article with a photo of Plaintiff and the headline, "Security director no longer with MC." In the second article, Sarfo was quoted saying that he was dissatisfied with how the college handled the situation and what he hoped the college would do going forward. The article stated that the college confirmed that Plaintiff was no longer employed there but declined to comment further. On August 13, WBIR posted on its website a more detailed article with the headline, "Maryville College leaders apologize after an alumnus says he was racially profiled."

Plaintiff sued the newspaper and Sarfo for defamation; both defendants sought to dismiss under the state anti-SLAPP statute, the Tennessee Public Participation Act:

The TPPA provides, in relevant part, that "[i]f a legal action is filed in response to a party's exercise of the right of free speech … that party may petition the court to dismiss the legal action."  The exercise of the right of free speech is defined as "a communication made in connection with a matter of public concern … that falls within the protection of the United States Constitution or the Tennessee Constitution." … If the petitioning party meets this initial burden, then "the court shall dismiss the legal action unless the responding party establishes a prima facie case for each essential element of the claim in the legal action."  Additionally, "Notwithstanding subsection (b), the court shall dismiss the legal action if the petitioning party establishes a valid defense to the claims in the legal action." …

"Matter of public concern" includes an issue related to:

(A) Health or safety;

(B) Environmental, economic, or community well-being;

(C) The government;

(D) A public official or public figure;

(E) A good, product, or service in the marketplace;

(F) A literary, musical, artistic, political, theatrical, or audiovisual work; or

(G) Any other matter deemed by a court to involve a matter of public concern[.]

The defendants apparently focused just on the "public official or public figure" prong, and didn't argue that Sarfo's allegations were otherwise on "a matter of public concern." But the court concluded that a small private university's Director of Safety and Security doesn't qualify:

The record contains no evidence that Plaintiff was a sworn law enforcement officer on July 9, 2021 or at any point during his employment with the college. Nothing in the record could suggest that Plaintiff controlled the conduct of governmental affairs at any time relevant to this case. In his role as a security guard, Plaintiff was not a deputized officer of any city or county, did not carry weapons, and had no authority to seize or arrest anyone. Under these circumstances, we hold that Plaintiff is not a public official. {We are unpersuaded by the newspaper's passing suggestion that Maryville College should be deemed the "functional equivalent of any state institution" because it is "a high-quality educational institution with significant rankings on a national scale."}

And the court concluded that McMurtrie wasn't a limited-purpose public figure, because that status requires that McMurtrie have voluntarily injected himself into some controversy; it's not enough that he became the subject of this one, or that he allegedly acted the way he did towards Sarfo.

The court also concluded that the fair report privilege didn't immunize the newspaper's repetitions of Sarfo's allegations:

 "[T]he fair report privilege is an exception to the common law rule 'that a person who repeats the defamatory statements made by another is also liable for defamation.'" … [T]he fair report privilege is limited to only public proceedings or official actions of government that have been made public. The fair report privilege does not apply to the facts of this case because there was neither a public proceeding nor an official action of the government that had been made public….

Richard Everett Collins, II represents McMurtrie.

Comments

[ReaderY]

The defendants’ lawyers appear to have erred by not at least arguing that the alleged defamation involved a matter of public comcern. And if they did argue it, the court may have erred by not addressing the argument.

The opinion didn’t quote the specific allegedly defamatory statements, so I can’t tell how defamatory they were. But all of the statements they did quote seem to me to be matters of opinion. In the portions of Mr. Sarfo’s email that were quoted, Mr. Sarfo said he felt hurt by the reference to “my driveway” suggesting that Maryville College lacked any sense of inclusiveness or community. The quoted portions didn’t even allege racial discrimination, just lack of things like sensitiivity, inclusiveness, community. All these were matters of opinion, and not necessarily inreasonable opinion either. Nothing in the email, at least the portion quoted, came anywhere close to attack epithets or “fighting words.”

Firing Mr. McMurtrie over a minor incident like this seems like extreme overkill, and I’m not suggesting Maryville College acted reasonably or was in any way fair to Mr. McMurtrie by taking the action it did. Nonetheless, absent an wmployment contract saying otherwise, the college is legally entitled to fire him over a single minor incident after which somebody accuses him of insensitivity and lack of inclusiveness and community. And so far as the quoted portions of the communication suggest, such opinions about the incident are not legally defamatory.

Of course the newspaper might have said something totally different. If it had accused Mr. mcMutrie of discriminating against Mr. Sarfo because of his race, that may well have been defamatory.

[SimonP]

Lessons learned:

If you're racist, you can successfully pursue claims against people who call out your racism, provided that you focus on specific factual assertions about putatively racist acts (rather than their characterization or how people feel about them) and can avoid being characterized as a "public figure."

If you're a POC, any public accusations of racism should be carefully framed so that your statements of fact are strictly limited to things that are demonstrably true, and your valid perceptions of being treated in a racist fashion are stated as matters of opinion, personal feeling, and so on. Blurring the lines between facts and opinion will make it easier for judges to deny your motions to dismiss and anti-SLAPP motions.

Whether this development is a good thing for "free speech" in this country is a matter that we can't expect someone like Eugene to opine on.

[gormadoc]

It’s taken you years of posts to learn that defamation claims are best served by “specific factual assertions” and by not being a public figure, while defending against them (or avoiding them in the first place) is best served by sticking to the truth, as if it were some “absolute defense”?

[SimonP]

So you need spoonfeeding?

Here's an assertion: Eugene Volokh is a transphobe.

If I were to make that assertion, do you think Eugene could sue me for defamation? If he did, do you think his claim would survive a motion to dismiss or an anti-SLAPP motion by me?

[Rossami]

Based on the facts presented here, the only one not displaying overt racism was the security guard. What facts do you have that say otherwise?

[TwelveInchPianist]

"It’s taken you years of posts to learn that defamation claims are best served by “specific factual assertions” and by not being a public figure, while defending against them (or avoiding them in the first place) is best served by sticking to the truth, as if it were some “absolute defense”?"

From what I understand, not just posts, but law school classes. I suspect a refund is in order.

[SimonP]

Why would I need a refund, when the investment has had such a good return?

[David Nieporent]

If that's the lesson you learned, I guess it explains your generally disagreeable personality.

[SimonP]

What explains yours, Chip? Do you ever respond to me, other than to say something nasty?

[David Nieporent]

Aw, I guess someone's still sore that I called him out on his antisemitism. (I still don't get the nickname, though; do you think it somehow is insulting?)

[SimonP]

Aw, I guess someone’s still sore that I called him out on his antisemitism.

No, Chip, that was a juvenile and lazy retort when you didn't have any fact- or reason-based rebuttal to the point I was making. (To refresh: it is not antisemitic to accurately describe various of Israel's military actions in Gaza and Lebanon as "war crimes.") It was beneath you - or, at least, so I would have thought.