Israeli-American Doctor's Federal Conspiracy Claim Against CAIR and Other Critics Can Go Forward for Now

From today's decision by Judge Thomas Thrash (N.D. Ga.) in Winer v. Mohammad:

This action arises out of alleged defamatory statements that Defendant Umaymah Mohammad, a student at the Emory University School of Medicine ("SOM"), made about Plaintiff Joshua Winer, a physician and professor at Emory. Mohammad, who is Palestinian, sent an email to the entire SOM student and faculty body on January 17, 2024, in which the Plaintiff alleges she "praised terrorism against Israel, expressed her hatred towards Israel and the United States, and stated that Israel, the United States, and Emory are perpetrating a genocide against Palestinians in Gaza."

Nearly two months later, in March 2024, the Plaintiff published an op-ed piece in an Israeli news publication sharing his decision to travel to Israel to volunteer as a physician in the Israeli Defense Force ("IDF") following the October 7th Hamas attack on Israel. The Plaintiff identifies as Jewish and maintains dual American and Israeli citizenship. He is a surgical oncologist at Emory Winship Cancer Institute, a professor in the Department of Surgery, Division of Surgical Oncology at the SOM, and serves as the SOM Surgical Clerkship Director.

In April 2024, Mohammad participated in an interview for a news organization called Democracy Now!. In the interview, Mohammad was asked about the email she sent and was asked to explain the importance of the issue to her. As part of her response, Mohammad referenced Winer by stating that

one of the professors of medicine we have at Emory recently went to serve as a volunteer medic in the Israeli Offense Force [sic] and recently came back. This man participated in aiding and abetting a genocide, in aiding and abetting the destruction of the healthcare system in Gaza and the murder of over 400 healthcare workers, and is now back at Emory so-called teaching medical students and residents how to take care of patients.

Mohammad was ultimately suspended from the SOM for one year based on her comments in the Democracy Now! interview. In November 2024, Mohammad participated in a podcast hosted by the International Union of Scientists in which she made similar statements about the Plaintiff. In January 2025, she made more statements about the Plaintiff's IDF service in the online publication Mondoweiss. In the Mondoweiss piece, Mohammad alluded that the Plaintiff "believe[d] in the legitimacy of apartheid, and that some human lives are not as important as others."

At the end of the piece, she provided a link to a social media post by Defendants National Students for Justice in Palestine ("NSJP") and Doctors Against Genocide ("DAG"), which ultimately led to a campaign on the website of Action Network that "contained additional false statements about Plaintiff and identified [him] by name." NSJP and DAG also published posts on Instagram regarding the Action Network campaign, which directly quoted Mohammad's Democracy Now! interview. These Defendants made a second Instagram post a few weeks later. The Plaintiff alleges that Defendant WESPAC is NSJP's fiscal sponsor and, therefore, "knowingly funded and facilitated NSJP's coordinated efforts to vilify Plaintiff and pressure Emory to discipline [him]."

In February 2025, Defendant CAIR Georgia held a press conference on the subject of Mohammad's suspension, during which she made the following statement:

[Emory] disciplined me for exposing Emory's complicity in the destruction of Gaza in an interview where I mentioned an unnamed physician who served in the military, actively engaged in the genocidal campaign against the Palestinian people, my people … I cannot learn from a physician who might have fired one of the 355 bullets that landed in 6 year old Hind Rajab's body. Or who might have helped make the decision to bomb one of the hospitals in Gaza. Or who might have celebrated the murder of our communities on the rubble still wet with Palestinian blood. A doctor who cannot see Palestinians as human beings will return to Atlanta to offer the same disposability to black and brown patients at home.

CAIR Georgia, along with CAIR Foundation Inc., also issued a press release with a link to Mohammad's Democracy Now! interview and rebroadcasted this speech on its Instagram account. Mohammad's statements were later broadcasted and published by television stations and news outlets. Defendant Emory SJP shared NJSP and DAG's posts on its Instagram account, and also made similar posts sharing the Democracy Now! interview and identifying the Plaintiff. Defendant Rupa Marya works with Mohammad as a cofounder of DAG and, the Plaintiff alleges, she has "frequently identified Plaintiff by name and used her social media platforms to spread harmful and reputationally damaging statements about him," including blaming him for the termination of a Palestinian professor at Emory SOM and accusing him of participating in a genocide.

Plaintiff sued for defamation, false light invasion of privacy, civil conspiracy, and conspiracy to interfere with federally protected civil rights in violation of 42 U.S.C. § 1985(3). He then amended the complaint once (which he's entitled to do) and then moved to amend it a second time, to elaborate on his § 1985(3) argument. Such a second amendment requires the court's permission, and the court may deny permission in various circumstances, including if the legal theories are clearly unsound. And here the court allowed the amendment, though recognizing that the new claims may ultimately end up being dismissed:

Section 1985(3) provides a cause of action against "two or more persons [who] in any State or Territory conspire … for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." The statute has been interpreted to require a plaintiff to establish:

(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States….

The Plaintiff here has alleged in the proposed Second Amended Complaint that he suffered injury to his person [element (4)] in the form of reputational harm, emotional distress, fear for his safety, and economic injury…. [And the plaintiff alleges, as to the purpose element (2),] that the Defendants sought to:

interfere with Plaintiff's employment with Emory as a physician and educator by, inter alia, fostering distrust, disrespect, and doubt among his students through repeated defamatory statements falsely alleging that he had participated in war crimes in order to coerce Emory into terminating his employment in violation of [the federal antidiscrimination statutes] Title VI, Title VII, and 42 U.S.C. § 1981.

The Defendants contend that the Plaintiff's reliance on Title VII makes his § 1985(3) claim futile because the Supreme Court foreclosed this basis for a § 1985(3) claim in Great Am. Fed. Sav. & Loan Ass'n v. Novotny (1979)…. In Novotny, the Supreme Court addressed a situation where the plaintiff, who had been terminated by his employer for a reason he believed to be discriminatory, brought a § 1985(3) claim against his employer on the grounds that his Title VII rights had been violated. The Supreme Court held that Title VII could not serve as the basis for a § 1985(3) claim because, otherwise, a plaintiff "could avoid most if not all" of the "detailed administrative and judicial process" for resolving Title VII claims. Put another way, the Supreme Court stated that "[u]nimpaired effectiveness can be given to the plan put together by Congress in Title VII only by holding that deprivation of a right created by Title VII cannot be the basis for a cause of action under § 1985(3)."

In Jimenez v. Wellstar Health System (11th Cir. 2010), which involved a plaintiff suing his former employer for what he believed was a racially motivated suspension of his hospital privileges, the Eleventh Circuit interpreted Novotny as a brightline rule that Title VII can never form the basis of a § 1985(3) claim … ("[T]he Supreme Court has declared … the rights protected under Title VII … insufficient to form the basis of § 1985(3) actions against private conspirators."). The Eleventh Circuit similarly applied Novotny to conclude that "conspiracies to violate rights protected under § 1981 are likewise insufficient to form the basis of a § 1985(3) claim."

The Court agrees with the Defendants that the Eleventh Circuit seems to have applied Novotny in a brightline fashion to bar § 1985(3) claims predicated on Title VII and § 1981. However, based on the Court's research, the Eleventh Circuit does not appear to have addressed a § 1985(3) claim predicated on either Title VII or § 1981 in circumstances similar to the present case. Here, the Plaintiff is suing a third-party who he alleges acted with the intent to induce his employer to violate his rights under these statutes. Indeed, both Novotny and Jimenez involved plaintiffs suing their former employers directly for wrongful termination. The Supreme Court's reasoning in Novotny underscores this backdrop—there, the court expressly shared its concern that allowing § 1985(3) claims predicated on Title VII would undermine the statutory regime designed by Congress for pursuing Title VII claims.

But in a case such as this, the Plaintiff has no standalone Title VII or § 1981 claims against the Defendants because they were not his employer. Thus, while the Court agrees that current Eleventh Circuit precedent may bar the Plaintiff's § 1985(3) claim as predicated on either Title VII or § 1981, there is a colorable argument that, under the circumstances presented in this case, the claim is not barred by precedent. Whether or not that is the case is not a question before the Court at the leave to amend stage, however, and the fact that it is arguably plausible means the amendment to add these statutes as bases for the Plaintiff's § 1985(3) claim is not clearly futile.

The Court also notes that, while the Defendants may ultimately be correct about the Plaintiff's chances of getting the Eleventh Circuit to agree with him on appeal, he cannot raise this argument on appeal at all if it is not first presented before this Court. Thus, under the totality of the circumstances, the Court concludes that justice requires allowing amendment here….

The Defendant similarly argues that Eleventh Circuit precedent also bars the Plaintiff's reliance on Title VI as a basis for his § 1985(3) claim, relying on cases in which the court stated that the Supreme Court has only expressly recognized the right to interstate travel and the right against involuntary servitude as cognizable predicate rights to underpin a § 1985(3) claim. This is an accurate statement of the law, but the fact that neither the Supreme Court nor the Eleventh Circuit appear to have expressly considered this issue with regard to Title VI means it is not barred by precedent. At the very least, the Defendants have not pointed to any such case, and it is their burden to establish futility….

Title VI prevents a person from being discriminated against by any program or activity receiving Federal financial assistance because of his race, color, or national origin. In the [Proposed Second Amended Complaint], the Plaintiff alleges that CAIR Foundation receives federal funding and that the Defendants who do not receive such funding conspired with CAIR Foundation to deprive him of rights protected by Title VI—by pressuring Emory, who the Plaintiff alleges also receives federal funding—to terminate him based on his national origin. He alleges that CAIR Foundation's discriminatory actions, as summarized in the fact section above, were taken as part of the administration of its "program or activities" as that phrase is used in [Title VI].

These allegations facially satisfy the elements of a § 1985(3) claim: the Plaintiff alleges a conspiracy among the Defendants for the purpose of depriving him of his employment by a University receiving financial assistance on the basis of his national origin, he alleges that one of the Defendants receives federal funding and acted discriminatorily in the course of administering its programs and activities, and he alleges that he suffered reputational, emotional, and economic harm as a result.

The bulk of the Defendants' opposition here raises arguments in the nature of Rule 12(b)(6) that go to the factual intricacies of the Plaintiff's claims to argue that the claim must fail on the merits. But again, the procedural posture of a motion for leave to amend is not the proper stage for the Court to address these arguments. Thus, futility does not bar this portion of the Plaintiff's proposed amendment to his § 1985(3) claim, either….