Notre Dame Pro-Abortion-Rights Professor Loses Libel Lawsuit Against Student Newspaper

An excerpt from the long opinion in Kay v. Irish Rover Inc., decided yesterday by Indiana Court of Appeals Judge Paul Mathias, joined by Judges Elaine Brown and Dana Kenworthy:

Dr. Tamara Kay appeals the St. Joseph Superior Court's order granting The Irish Rover, Inc.'s, motion to dismiss her defamation claim…. On the dates the alleged defamation occurred, Dr. Kay was a tenured professor in the Keough School of Global Affairs and the Sociology Department at the University of Notre Dame. Her "academic research and teaching is focused on trade, labor, social movements, globalization, organizations, and global health which includes reproductive health and rights." Many of Dr. Kay's extensive writings in journals, newspapers, and on Twitter focus on advocating for abortion legalization.

The Irish Rover is an independent, student newspaper at the University. {[O]ne of its missions is to articulate and defend the Catholic character of the University.} …

After the United States Supreme Court decided Dobbs v. Jackson Woman's Health Organization on June 24, 2022, Dr. Kay "became more outspoken on the issue of abortion access," including more frequent posts on Twitter. On September 15, 2022, the Indiana General Assembly's legislation limiting abortion in Indiana took effect, although it was enjoined shortly thereafter….

Kay sued over two articles published by the Irish Rover that concerned Dr. Kay's speech. To oversimplify matters somewhat, under Indiana libel law, a libel claim based on speech on matters of public concern can only prevail based on a showing of knowing or reckless falsehood—mere negligence isn't enough, even if plaintiff is a private figure. (In this respect, Indiana libel law is more speaker-protective than the constitutional minimum set forth by First Amendment law.) And here, the court concluded that the Rover's statements were either true or at least reasonable interpretations of the facts that the Rover had, and certainly weren't knowingly or recklessly false:

Here, we agree with the trial court that the undisputed facts established that The Irish Rover's two articles were written in good faith and that the alleged defamatory statements were not false. The October 12, 2022, article is titled "Keough School Professor Offers Abortion Access to Students." The article discusses a panel Dr. Kay participated in and her opinions on the ineffectiveness and immorality of abortion bans. The newspaper quoted Dr. Kay as stating that her "view runs afoul of Church teaching, but in other areas, [her] positions are perfectly aligned [with the Church.]"

The article included a photograph of the sign on Dr. Kay's office door, which stated, "This is a SAFE SPACE to get help and information on ALL Healthcare issues and access – confidentially with care and compassion[.]" The sign also included the letter "J" in a circle, which the article recognized to "denote Notre Dame professors who are willing to help students access abortion." In support of that statement, the article cited to a social media post where Dr. Kay stated, "'[w]e are here (as private citizens, not representatives of ND) to help you access healthcare when you need it, and we are prepared in every way. Look for the 'J'[,] Spread the word to students!'"

The article also discussed the legality and availability of Plan B and Plan C abortion pills. In particular, the article stated that, "in reference to these pills," Dr. Kay had tweeted, "'Will help as a private citizen if you have issues w access or cost. DM me [sic].'" The article described Dr. Kay's retweets of posts from groups concerning reimbursement of costs of obtaining an abortion out of state or getting Plan C pills by mail. The article stated that the sign on her office door was later removed and her tweets referencing abortions for students were later deleted. The article reported that, during the panel event, Dr. Kay was asked if her statements promoting abortion were aligned with "Church teaching and Notre Dame policy," and Dr. Kay responded that she was not actively promoting abortion, but then later clarified, "[o]h, I am doing that as a private citizen …."

{In her complaint, Dr. Kay did not specifically allege that any of the statements in the October article were untrue or defamatory…. As most of the article contains quotes from Dr. Kay's social media or the sign on her office door, she could not reasonably question the veracity of the statements in the article. It appears that her claim of defamation regarding the October article is based solely on the title of the article.}

The Irish Rover published its second article on March 22, 2023, which was titled, "Tamara Kay Explains Herself to Notre Dame Democrats." The College Democrats had invited Dr. Kay to speak about her career and research and how her work has impacted "'her activism around abortion rights post-Dobbs[.]'" In her complaint, Dr. Kay challenged the following specific statements from the article as false and defamatory: 1) that Dr. Kay was "posting offers to procure abortion pills on her office door"; 2) that Dr. Kay said to the audience, "if you have that academic freedom, you should use it"; and 3) that Dr. Kay acknowledged that the students in the crowd could not be as forward in their pro-abortion activities as she is and stated, "I can't impose that on you … but I'm doing me, and you should do you."

{During the panel discussion [before the College Democrats], an audience member asked Dr. Kay how students should have conversations about abortion "during this time" and referenced the University's statement that the students have academic freedom. Dr. Kay responded, "you have to really be fully committed to activism to be able to stick your neck out like I am right? [B]ecause I can't impose that or say you should do it. You know, you have to do what you have to do. And I think what I've come to is I'm doing me, and other folks can do them." Dr. Kay also stated, "if you don't have academic freedom, you don't have a university. You can't call it a university."}

The article also included Dr. Kay's faculty photo, which she did not give the paper permission to use. [The court doesn't analyze this photograph point separately, but generally a photographed person doesn't need to give permission for a newspaper to use the photograph; and any copyright claim would have had to be asserted in federal court by the copyright owner, which was likely the University rather than the professor. -EV]

The Irish Rover's statements in their articles concerning Dr. Kay were quotes from Dr. Kay's social media, statements paraphrasing Dr. Kay's statements at the panel event, or statements discussing Dr. Kay's prior publications. Included in its designated evidence, The Irish Rover submitted copies of the tweets referenced or quoted in the October article and a transcript from the March panel event. The newspaper also submitted articles published in 2022 and 2023 by (or co-authored by) Dr. Kay addressing access to abortion, and the burdens and negative effects of abortion bans.

Dr. Kay never explicitly stated that she would assist a student by procuring abortion pills for that student. But The Irish Rover made a reasonable inference from Dr. Kay's own statements that she would do so. It was reasonable for The Irish Rover reporters to conclude that assistance or help would include providing information to a student on how abortion medication could be obtained…. [T]he articles were not fabricated and were not based on unverified anonymous sources or sources wholly lacking in credibility. Therefore, The Irish Rover presented a prima facie case that the articles had a "reasonable basis in fact."

Dr. Kay was therefore required to designate evidence to establish that the statements lacked a "reasonable basis in fact." In response to The Irish Rover's motion to dismiss, Dr. Kay designated her own affidavit and described her only interaction with a student staff member of The Irish Rover. In particular, she stated that Joseph DeReuil had spoken with her after the September 2022 panel event but did not ask to interview her or disclose the fact that he was recording their conversation. Dr. Kay stated that DeReuil did not ask her about the sign on her office door, what she meant by "healthcare" or what the "J" symbolized. Dr. Kay averred that the "J" stood for "'Jane Doe,' which is how victims of sexual assault are typically referred to" and that she had used the "J" to express that she is "an ally for victims of sexual assault."

Dr. Kay's affidavit also quoted an email she had received from DeReuil asking for a meeting to continue their discussion about Dr. Kay's abortion position and an email received within hours of DeReuil's email from a Holy Cross student asking for Dr. Kay's assistance in procuring Plan C. Dr. Kay did not respond to either email because she assumed that "the close proximity in time" of receipt "was not a coincidence …."

Dr. Kay averred that the sign on her office door "pertained to student sexual assaults" and "did not pertain to abortion." And she claimed that a statement in the October article that she used the "panel as a platform to explain why she thought abortion bans are ineffective and immoral, complementing her work to bring abortion to Notre Dame students" was false and defamatory. Likewise, Dr. Kay claimed that The Irish Rover's statements that she offered help to obtain abortion medications and abortion services were false and defamatory. {However, as we noted above, Dr. Kay did not specifically claim that any of these statements were false and defamatory in her complaint.}

None of Dr. Kay's public statements discussed in The Irish Rover's articles referenced her specific concerns for victims of sexual assault. She expressed those concerns in private emails between herself and other University faculty members. However, her public statements, her social media posts, and her writings concerned access to abortion services or reproductive healthcare.

We therefore conclude that Dr. Kay's designated evidence does not create a genuine issue of material fact concerning whether The Irish Rover had a reasonable basis in fact to publish the statements in the two articles. The Irish Rover's reporters reasonably concluded that Dr. Kay was generally addressing access to abortion and assistance to students who needed information about procuring an abortion.

Even if Dr. Kay would be able to prove that she intended only to assist sexual assault victims who wanted an abortion, Dr. Kay would also have to prove that The Irish Rover acted with actual malice at trial….

The Irish Rover designated evidence via deposition testimony from the authors of the articles that they believed that the inferences that they made from Dr. Kay's own statements, publications, and social media posts, which they published in the articles, were true. While it is true that DeReuil could have specifically asked Dr. Kay what the "J" on her office door stood for and what she specifically meant by her statements about helping individuals who needed access to healthcare, DeReuil's failure to do so is not evidence of actual malice, particularly in light of the undisputed fact that he asked to meet with Dr. Kay before the article was published but she did not respond to the request. {The Irish Rover designated evidence that the "J" could have been a reference to the Jane Collective, a pro-choice group that offered to assist women to obtain abortions by transporting them across state lines.} …

The designated evidence thus established that The Irish Rover reporters believed that the statements in their articles were true, and, therefore, Dr. Kay would not be able to prove her claim of defamation…. For the same reasons, The Irish Rover also presented a prima facie case that its publications were made in good faith….

Jim Bopp and Taylor C. Shetina (The Bopp Law Firm, PC) represent the Irish Rover.