Cancellation, Defamation, Bankruptcy, Discharge
From Judge Paula Xinis (D. Md.) yesterday in Shuma v. Whibley:
Appellant Shane Shuma ("Shuma") and Appellee-Debtor Erin Whibley ("Whibley") were students at Dickinson College during the 2020–21 school year. Shuma made an ill-advised YouTube video satirically opining on the "reasons why the Holocaust was a good thing." The video spread through campus, and an uproar followed. School administrators publicly condemned it, the matter was widely reported in the student newspaper, and students spoke out against Shuma.
In one of Whibley's classes, a lively discussion ensued about Shuma. One student disclosed that she overheard Shuma at a club event saying things that were "absolutely unacceptable to, to say to anyone" and that "there were some threats involved," and she expressed her frustration that his behavior continued "after reporting on Shuma and knowing people who have reported on him in terms of Title IX behavior or just Title IX in general." Another student echoed that she had heard from multiple people that Shuma had written articles in the student newspaper that expressed "racist sentiment." A third student described that Shuma had written an article arguing that "white privilege is not real … is not a thing."
After this conversation, Whibley initiated an online petition to advocate for Shuma's expulsion. The petition described Shuma as the subject of "multiple Title IX issues," and that he had written "racially charged [newspaper] articles." She also described Shuma as a "serial offender." The petition garnered 811 signatures in the first few days, and ultimately over half the Dickenson student body signed it.
Shortly after the posting, Whibley learned that Shuma had no such Title IX complaints filed against him. Within days, Whibley corrected the online petition to eliminate to the claim about Title IX. She further explained in the modified petition that "Shuma has not been in violation of any Title IX statutes," and that she did "not wish to slander [Shuma]," but simply share what she heard from other students.
Shuma sued Whibley for defamation in Pennsylvania state court. After settlement negotiations broke down, Whibley declined to defend the case, and default judgment was entered against her. The state court next concluded that Shuma was entitled to no damages, but upon Shuma's urging, scheduled a damages trial for October 31, 2023.
Days before the trial was set to begin, however, Whibley filed for bankruptcy in the District of Maryland, which triggered an automatic stay of the Pennsylvania case. Shuma next initiated an adversarial proceeding in the bankruptcy case in which he averred that any debt Whibley incurs as part of the Pennsylvania defamation action was not dischargeable in bankruptcy [i.e., couldn't be cancelled the way bankruptcy cancelled most other debts -EV] because her conduct had been willful and malicious. The adversarial proceeding advanced to trial solely on whether Whibley defamed Shuma with the intent to injure him, thus rendering the debt nondischargeable….
Bankruptcy Judge Lori Simpson ruled in Whibley's favor, and the district court affirmed:
Section 523(a) of the Bankruptcy Act enumerates certain exceptions to the dischargeability of debts in bankruptcy. Relevant here, subsection 523(a)(6) states that any debt arising from "willful and malicious injury by the debtor to another entity" is not dischargeable. Importantly, a debt stemming from "a deliberate or intentional injury" is not dischargeable; but a debt can be discharged when arising from "a deliberate or intentional act that leads to injury." …
[T]he Court discerns no error, let alone clear error, in the Bankruptcy Court's factual finding that Whibley did not possess the requisite intent to injure Shuma. The Bankruptcy Court credited Whibley's testimony explaining why she relied on her classmates' reports about Shuma, and next when she learned of their inaccuracy, corrected the public record. The Bankruptcy Court likewise was permitted to credit Whibley's explanation that her prior experiences with sexual assault made her more disposed to believing the reports of Shuma's misconduct, even though such belief ultimately was misplaced.
Last, the Court discerns no error in the Bankruptcy Court's conclusion that Whibley's timely correction of the petition further corroborates a lack of intent to injure Shuma by defaming him. Shuma may feel that Whibley's corrective statement did not go far enough, but mere disagreement with the Bankruptcy Court does not render clearly erroneous the Bankruptcy Court's factual findings regarding Whibley's lack of intent….
The weight of the evidence demonstrates that Whibley posted the petition not to harm Shuma but to protect the student body from Shuma's opprobrium. Whibley plausibly pointed to legitimate reasons why she believed her statements to be true at the time and promptly corrected the petition when she learned she was wrong. Shuma otherwise adduced no meaningful evidence to suggest that Whibley possessed the requisite intent sufficient to meet his burden. All of which supports the Bankruptcy Court's conclusion that the debt remains dischargeable in bankruptcy.
It's not clear to me exactly what "protect the student body from Shuma's opprobrium" means, but here are the passages of the bankruptcy judge's opinion that the court cites there:
In the parlance of Dickinson students, Title IX is a euphemism for sexual assault. All evidence before the Court establishes, and Defendant does not dispute, that the classmate's statements were not true. Perhaps because of Defendant's naiveté, biases and prejudices or because the classroom context lent the discussion an air of credibility, the Defendant did not dismiss her classmate's comments as idle gossip or seek to investigate further. She simply believed them.
The following day Defendant drafted and published an online position on change.org seeking to pressure the Dickinson administration into expelling Plaintiff from the college. In addition to rebuking Plaintiff for his statements in the video, Defendant stated in the petition that Plaintiff has also been reported multiple times for Title IX issues and had written racially charged articles in the Dickinstonian, the college newspaper.
The phrase racially charged in one sense appears to be a code word for racist. That said, it is nebulous to the point of meaningless and appears to reflect the sensitivities and suspicions of the speaker more than the content described.
However, Defendant's statement that Plaintiff had been reported multiple times for sexual assault was an objectively false statement of fact. After calling for Plaintiff's expulsion, the Defendant concluded her statements with a call to action saying, "We can longer accept a slap on the wrist as an acceptable punishment for this serial offender."
On February 24, 2021, the local ABC affiliate, WHTM, published an article about the video and the response by the Dickinson community. The article does not mention Defendant's petition, but includes an anonymous statement by a group of students rebuking Plaintiff for the video. The anonymous statement also stated that Plaintiff authored numerous inflammatory columns in the college newspaper.
The anonymous statement further alleges that the video was not the first time Plaintiff had made such statements, but it was merely the first time such comments were caught on film. Neither the ABC article nor the anonymous statement contained therein make any mention of any sexual assault allegations against Plaintiff….
Instead, reviewing the petition and amended petition in their entirety together with the evidence of the general climate at Dickinson in reaction to the video, it appears that Defendant and others held the opinion that Plaintiff was someone who repeatedly stoked racial tensions and that the video was merely the most egregious and inexcusable in a series of such offenses. The bulk of the original petition conveys that Defendant believed that Plaintiff repeatedly expressed thoughts and opinions that should not be allowed to be expressed at Dickinson.
The statement in the original petition regarding Title IX reads as an unrelated aside. The upshot of the original petition is that Defendant wants Plaintiff removed from Dickinson because she believes that he is a bigot and that she does not feel safe with Plaintiff on campus. Nowhere else in the original petition does Defendant label Plaintiff a racist, misogynist or the like. In fact, Defendant states that the reason she does not feel safe with Plaintiff on campus is not because she is a female, but because she is a Jewish student….
The Bankruptcy Judge's opinion is labeled "Virtual Judge's Ruling," but I take it that means a judge who is present remotely, not actually a virtual judge.
Justin Philip Fasano (McNamee Hosea, P.A.) represents Whibley.