Defamation Claim Against Academic from Stalking Allegations Against Another Academic, with a Trans Angle

From Judge Kelley Hodge (E.D. Pa.) Friday in Duncan v. Lett (see also this February post that discusses a related New York case stemming from the same incident):

Both Plaintiff [Dustin Duncan] and Defendant [Elle Lett] work in academia on transgender health issues. Specifically, during the events leading up to this lawsuit and at the time this action was filed, Plaintiff was an Associate Professor of Epidemiology at Columbia University who conducted “predominantly … intersectional and health equity-based research focusing on Black gay, bisexual and other sexual minority men and transgender women of color using a social and spatial epidemiologic lens.” [Plaintiff is now a full professor at Columbia. -EV]

Defendant is a Black transgender woman, medical student, doctoral recipient, researcher at the University of Pennsylvania, and Clinical Assistant Professor at the University of Washington whose research “applies the theory and principles of Black feminism to understanding the health impacts of systemic racism, transphobia, and other forms of discrimination on oppressed populations in the United States.” Both Plaintiff and Defendant were participants in a professional organization called the Interdisciplinary Association for Population Health Science (“IAPHS”)….

In April 2023, Plaintiff met Sawyer Allen …, a transgender man, at the Blick Art Store in Harlem …. Plaintiff and Allen exchanged several messages after they met. Thereafter, Allen began falsely accusing Plaintiff of serious crimes and directed these accusations at Plaintiff’s employer, Columbia University. [Lett has, in this lawsuit, agreed that Allen’s statements had turned out to be false. -EV]

For example, in an Instagram post created on June 23, 2023, Allen posted a screenshot of Plaintiff’s Columbia University photo and stated “[t]his man has been stalking & harassing me for nearly three weeks.” Allen also included in his social media posts messages of a threatening nature that were purportedly from Plaintiff, such as one that stated “I hope now you’re really scared because once I find you. Trust me, you would have wanted to pick just talking to me.” Multiple people tagged @columbia and @columbiapublichealth on Allen’s posts to bring the matter to the University’s attention. Allen also posted a GoFundMe page requesting financial help because Plaintiff’s actions had made him feel “unsafe to leave [his] house” and had “taken a huge toll on [him] finically [sic].”

This led to a massive controversy (see the opinion for more), in which Lett publicly took Allen’s side. Duncan sued, and the court allowed the case to go forward based on public statements that Lett posted on X together with a link to Allen’s GoFundMe page, including:

Found out that a trusted colleague who studies trans people has done horrible things and victimized a vulnerable trans person and I’m really struggling on what Justice and courage looks like here. Like amplifying would put me at risk but not feels dirty. I know it to be true ….

I’m rarely pulled to post for mutual aid people I am not directly linked to. I am two trans people removed from this person. I will not share details for other reasons but if you believe in mutual aid and want to support someone who has been harmed by the power assembled in our wheelhouse of a [sic] academic privilege, please donate to this gofundme by [Allen]….

First, the court found plaintiff isn’t a private figure:

Based on the record, this Court finds that Plaintiff is not a general public figure. Although the record demonstrates that Plaintiff’s work has been widely circulated and publicized, there is no evidence that his recognition has risen to a level whereby he has become a “household name on a national scale.” … Defendant’s proffered evidence leads the Court to believe that Plaintiff engages in work typical of a professor—i.e., publishing his research, receiving funding for that research, writing books, and receiving awards. Defendant’s characterization of Plaintiff as a general public figure would dilute the term such that virtually every successful professor and academic would be deemed a general public figure.

Defendant’s argument that Plaintiff is a limited purpose public figure also fails. For purposes of the limited purpose public figure analysis, “the ‘controversy’ into which a plaintiff has allegedly entered is defined as the event that the defamatory statements describe.” Defendant’s purportedly defamatory statements describe Plaintiff’s alleged harassment of Allen. They do not, as Defendant argues, describe the amorphous “treatment” of transgender people by society at large…. Instead, the relevant public controversy for purposes of the limited purpose public figure analysis is particular to Plaintiff’s alleged stalking, harassment, and mistreatment of Allen.

Defendant must not only show a public controversy that is the subject of the litigation, but that Plaintiff “voluntarily injected himself into [that] public controversy.” … Defendant provides no evidence that Plaintiff came forward publicly to describe his version of the events that transpired with Allen besides filing his lawsuits, and such action does not constitute his voluntary injection into the public controversy.

Even if the relevant public controversy related to this litigation could be expanded to Plaintiff’s relationships with or treatment of transgender individuals at large, as Defendant argues, Defendant could not show that Plaintiff “voluntarily injected himself” into that controversy. Defendant has not introduced any evidence that Plaintiff sought public attention for his personal relationships with transgender individuals, at his workplace or otherwise. While the record does reflect that Plaintiff sought public attention for his public health research of LGBTQ populations, the subject matter of that research is not the controversy at the heart of this litigation….

The court also rejected defendant’s argument “that her allegedly defamatory statements are protected by a public interest privilege because they concerned ‘questions of LGBTQ rights and the national ‘Me Too’ movement,'” concluding that New York law doesn’t generally recognize such a privilege (at least in cases not involving media defendants).

And it held that the question whether defendant was negligent was a matter for the jury:

[B]ecause Plaintiff is not a public figure and no public interest privilege applies to Defendant’s statements, Plaintiff must show Defendant was negligent in making the remaining statements. “Under New York law negligence is defined as the ‘lack of ordinary care,’ or a ‘failure to use that degree of care that a reasonably prudent person would have used under the same circumstances.'” “[S]ummary judgment is highly unusual in a negligence action where the assessment of reasonableness generally is a factual question to be addressed by the jury.”

This Court finds that both parties have raised a genuine issue of material fact as to whether Defendant was or was not negligent in issuing the remaining statements. For example, Defendant wrote in Public Statement One that “a trusted colleague who studies trans people has done horrible things and victimized a vulnerable trans person … I know it to be true.” The record shows that Defendant’s basis for making this statement was the social media publications from Allen that Dolotina {who worked for Plaintiff at his lab} had shared with her…. [A] reasonable jury could … find that Defendant writing that she “kn[e]w [the allegations] to be true” based entirely on secondhand information from Dolotina, with whom she had no close connection, and Allen, a man she had never met, exhibited a lack of ordinary care. Furthermore, Defendant’s failure to verify Allen’s allegations when she did communicate with him could also be construed by a reasonable jury as negligent….

(Note that the court had earlier held that New York’s anti-SLAPP statute, which provides for an “actual malice” standard in all defamation cases on matters of public concern, including ones brought by private figures, didn’t apply.)

On the other hand, the court held that two other public statements were nonactionable statements of opinion; the statements were:

There seems to be some confusion about where I stand on a recent incident involving a professor and a community member. To be unambiguous I donated to their fundraiser because I support them as a victim of harm. I deleted some tweets to reduce my exposure for a lawsuit but my support hasn’t waned. I also note that their [sic] are questions about the voracity [sic] of claims. I’ll share that being a perfect historian about dates of traumatic events is hard when in distress and that huge power imbalances facilitate doubt in victims …. I don’t want to jump to conclusions nor change my convictions easily. We all have the capacity to be wrong but I haven’t been convinced of that just yet….

A couple people have asked me about IAPHS so I’m going to address it again here. There was an alleged harm committed by a senior person involved. I say alleged, not because I doubt the victim, but for legal reasons, I avoid naming that person for similar reasons.

The court reasoned:

[One statement] uses multiple phrases signaling an opinion, such as “where I stand,” “I support,” “I don’t want to jump to conclusions,” and “I haven’t been convinced.” While [the statement] shares some facts (i.e., “I donated to their fundraiser” and “I deleted some tweets”), those facts are true and therefore not subject to liability for defamation. [The other statement] also contains “substantially true” facts. It is true that Allen “alleged harm” committed by Plaintiff, a “senior person involved” in the IAPHS….

Although Defendant refers to Allen as a “victim of harm” …, … she acknowledges that there “are questions about the voracity [sic] of [Allen’s] claims.” This phrase acknowledges there was public debate regarding the truth of the allegations and supports that Defendant was providing her opinion on a public forum as to what she believed to be true with respect to that debate. Defendant’s statement … that she does “not … doubt the victim” also reflects her opinion in the public controversy…. [A] reasonable reader would view the statements as part of the online public debate surrounding the veracity of Allen’s allegations, and as Defendant giving her viewpoint on that debate….

And the court held that certain other statements, communicated in private to certain other people involved in various professional relationships with defendant, were covered by the “common interest privilege”:

“New York law grants a qualified ‘common interest’ privilege to ‘defamatory communications made by one person to another upon a subject in which both have an interest.'” This privilege is “‘broadly applied’ such that ‘[t]he parties need only have such a relation to each other as would support a reasonable ground for supposing an innocent motive for imparting the information.'” …

Defendant has failed to show that common interest can be shown through vague assertions of friendship or mentorship, or that common membership in the transgender community at large is sufficient to invoke the common interest privilege…. [But] extending the common interest privilege to members of a professional organization is appropriate….

Defendant’s common membership in professional organizations—the Health Equity Journal and the Center for Applied Gender Studies—with [the recipients] supports that these communications should receive protection under the common interest privilege. Defendant shared a common interest with [two recipients] in the authorship of the articles published in the Health Equity Journal, and in protecting the reputation of the Journal. Defendant also has a common interest with [three recipients] as a fellow member of the Center for Applied Transgender Studies in their concern regarding accusations that a fellow academic abused a transgender man.

Though the common interest privilege may be overcome by a showing of knowing or reckless falsehood, or by a showing that the statement was motivated solely by “spite or ill will,” the court concluded that plaintiff hadn’t introduced enough evidence of either sort of malice.

But the court allowed plaintiff to go forward based on a private message to one other public health scientist, because it wasn’t clear that at the time of the communication the two were members of the same professional organization.

David D. Lin (Lewis & Lin, LLC) and Alexis Roth (Wolf Baldwin & Associates PC) represent plaintiff.