The Volokh Conspiracy
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Court Declines to Dismiss One of the Libel Suits by Anthropologist Accused of Mishandling Human Remains from Project MOVE Bombing
From Judge Mia Roberts Perez's opinion Monday in Monge v. Univ. of Penn.:
Dr. Janet Monge, an anthropologist and former curator of Penn Museum, brings this action against several individuals and news outlets following statements they made concerning her work with human bone fragments recovered from the 1985 MOVE bombing in Philadelphia….
Hyperallergic Media ("Hyperallergic") is a New York corporation that operates an online arts and current events magazine. On October 31, 2021, Hyperallergic published an article titled "How the Possession of Human Remains Led to a Public Reckoning at the Penn Museum." …. Dr. Monge contends that the article "falsely blames [her] for a racially motivated investigation of the bone fragments" by stating that "Consuella [sic] did not consent to Monge's continued use of her daughter's remains for research. Even after those objections, Monge used Tree Africa's remains for teaching." …
"[C]ourts applying Pennsylvania law have found that even where the complained-of statements are literally true, if, when viewed in toto, the accurate statements create a false implication, the speaker may be liable for creating a defamatory implication." As such, "the literal accuracy of separate statements will not render a communication true where the implication of the communication as a whole was false." …
Dr. Monge alleges that she "sought to contact the MOVE family"—specifically, Katricia (Tree) Africa's mother, Consuewella Africa—for a DNA sample to assist in identifying the remains. "Despite multiple efforts to communicate with Consuella [sic] … Dr. Monge failed to retrieve a DNA sample from any of Katricia's relatives." Without a DNA sample, "Dr. Monge was forced to label the case 'cold' …."
Dr. Monge further alleges that, after attempting to contact the MOVE family, she used the bone fragment remains in her Coursera course to "compar[e] those fragments to other similar bone fragments and models for comparison and explain[] how forensic techniques could be used to determine the age of the remains." Thus, it is literally true that Dr. Monge did not obtain Consuewella Africa's consent to use the bone fragment remains for research, and Dr. Monge then used the bone fragment remains when teaching her Coursera course.
However, "[a] publisher is … liable for the implications of what he has said or written, not merely the specific, literal statements made." "The legal test to be applied is whether the challenged language could 'fairly and reasonably be construed' to imply the defamatory meaning alleged by a plaintiff." …
Dr. Monge alleges that she attempted to contact Consuewella Africa through a conduit, local writer Malcolm Burnley. She further alleges that Mr. Burnley did not have a meaningful conversation with Consuewella Africa. Thus, taking the allegations as true and drawing all reasonable inferences in Dr. Monge's favor, neither Dr. Monge nor Mr. Burnley discussed the bone fragment remains with Consuewella Africa. Notwithstanding this, the article can be read to imply that Dr. Monge did contact Consuewella Africa, and Ms. Africa affirmatively told Dr. Monge not to use the bone fragment remains in her research. See [Complaint] ("Even after those objections, Dr. Monge used Tree Africa's remains for teaching." (emphasis added)).
"[E]ven where a plausible innocent interpretation of the communication exists, if there is an alternative defamatory interpretation, it is for the jury to determine if the defamatory meaning was understood by the recipient." Because the Hyperallergic article can be reasonably construed to imply that Dr. Monge acted unprofessionally and potentially with a racist impetus, the fact that the challenged statements are largely true does not mandate dismissal of the defamation by implication claims against the Hyperallergic Media Defendants….
[T]he challenged statements imply the undisclosed fact that Consuewella Africa told Dr. Monge not to use the bone fragment remains for research when, according to the Second Amended Complaint, Dr. Monge did not discuss the bone fragment remains with Ms. Africa. Because the Hyperallergic article's opinions imply undisclosed facts that are untrue, the article is capable of a defamatory meaning….
My quick reaction: The result is likely right, but I don't think it fits well with a "defamation by implication" theory.
Rather, the alleged libel consists of two claims—that (1) the mother "did not consent to Monge's continued use of her daughter's remains for research" and that (2) the mother made "objections" and Monge proceeded despite those objections. Claim 1 is true (there was no consent), but claim 2, according to Monge, is not (there were no objections).
There's thus no need here for a discussion of whether "accurate statements create a false implication." Rather, it looks like the implication stems from the allegedly inaccurate statement about there being "objections," not from the accurate statement that Consuella did not consent.
Note that, in separate short opinions, the court also rejected Monge's claims against other defendants who only discussed the use of the remains (and expressed opinions based on that), and didn't make the "after those objections" statement.
