Court Rejects Lawsuit Over Firing of Georgetown Administrator for Old “Hate for Zio Bitches” Posts

From Judge Christopher Cooper’s opinion Tuesday in Johnson v. Georgetown Univ. (D.D.C.):

Plaintiff Aneesa Johnson, an African American and Muslim woman of Palestinian origin, alleges that Georgetown discriminated against her when it fired her [from her position as Assistant Director of Academic and Faculty Affairs at Georgetown’s Walsh School of Foreign Service] after discovering eight-year-old social media posts that described her “hat[red]” for Zionists.

{Three of Johnson’s posts are relevant here. The first read, “Ever since going to [Northwestern] I have a deep seeded [sic] hate for Zio bitches. They bring out the worst in me.” The second elaborated, “You know why I call them Zio bitches, because they’re dogs.” And the third post was a repost of another user’s Tweet, which included a photograph of a scowling Orthodox Jewish man with the caption, “When the whole world hates you bc you a thief and grow up looking like a shaytan #GrowingUpIsraeli.” (“Shaytan” means devil or demon in Arabic.)}

She also brings a bevy of related hostile work environment, retaliation, and tort claims against Georgetown and a constellation of other defendants, including Rachel Jessica Wolff and Ilya Shapiro, individuals who publicized Johnson’s old posts on Twitter; Canary Mission, a controversial organization that creates online profiles of students and professors on college campuses who have been critical of Israel; and a handful of Canary Mission’s donors….

Upon consideration of the voluminous set of briefs in this case, the Court concludes that Ms. Johnson’s claims against the movants must be dismissed with prejudice. Among myriad grounds for dismissal, the complaint does not make out any claim that Johnson was discriminated against based on her race, religion, or national origin, nor can she proceed in tort against Georgetown or other defendants due to procedural and substantive defects in her claims….

The opinion is over 20K words long, and I can’t do it justice here. But I thought I’d pass along this passage, which is relevant to some of the First Amendment / tort law discussions we’ve had on this blog in past years:

After Johnson was introduced to the SFS community by email, Rachel Wolff—a Jewish dual degree student at SFS and Georgetown’s law school—looked Johnson up online. The top search result was a profile of Johnson on the website of Canary Mission, which the complaint characterizes as an “anonymous cyberstalking and blacklisting” operation that “targets” individuals who advocate for Palestinian rights. [The profile contained Johnson’s three Twitter posts. -EV] …

Alarmed at what her Google search turned up, Wolff took to Twitter herself. Late in the evening on November 1, she posted screenshots of Johnson’s college-era Tweets, retrieved from Canary Mission, with some added commentary: “Not to be outdone by Harvard, Georgetown @georgetownsfs just hired this antisemite to be the ‘primary point of contact for all MSFS Students on everything academic.’ As an SFS student, I’d rather fail my master’s program than speak to someone who says this about my people.”

Wolff’s Tweet went viral, garnering over a million views. She followed up with additional posts, calling SFS and Georgetown “shameful” for their hiring decision. According to the complaint, Wolff’s Tweets were amplified by Canary Mission, the Israeli government, and other users. One of those users was Ilya Shapiro, a former Georgetown law school lecturer and administrator, who reposted Wolff’s initial Tweet, adding “Her name is Aneesa Johnson, @Georgetown School of Foreign Service’s new assistant director of academic affairs.” …

Johnson alleges that Wolff tortiously interfered with her contract with Georgetown by targeting her online, accusing her of being antisemitic, and thereby pressuring the university to terminate her…. “[U]nder D.C. law, a prima facie case of tortious interference with a contract or business relationship requires (1) existence of a valid contractual or other business relationship; (2) the defendant’s knowledge of the relationship; (3) intentional interference with that relationship by the defendant; and (4) resulting damages.” … The D.C. Court of Appeals has clarified that “D.C. law permits claims for tortious interference with an at-will employment relationship[,]” at least against “third parties.” … [T]he D.C. Circuit has suggested that a plaintiff need not allege interference “through egregious means”—for example, through libel, slander, coercion, fraud, misrepresentation, or disparagement—to survive a motion to dismiss….

[But e]ven if Wolff’s conduct qualifies as intentional interference with Johnson’s contract and proximately caused her termination, it was not improper or wrongful… [and was thus] “legally justified or privileged,” which renders [it] inactionable [citing D.C. precedents]…. {The propriety of a defendant’s interference is an affirmative defense, rather than a prima facie element of tortious interference…. [But] it is clear from the face of Johnson’s complaint that Wolff’s Tweets do not constitute improper interference in her contract with Georgetown and thus cannot sustain her tortious interference claim.}

D.C. law follows the Restatement (Second) of Torts in “determining whether interference with a contract is ‘improper[.]'” Courts must consider several factors, including “(a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference, and (g) the relations between the parties.” The list is not exhaustive, and courts are to evaluate impropriety based on a “judgment and choice of values in each situation.”

Considering the facts in the light most favorable to Johnson—without crediting her legal conclusions and speculative or threadbare assertions—Wolff’s behavior is a far cry from wrongful or improper. The nature of her conduct was not unusual: She complained to other social media users about an issue that upset her, though her posts did go viral along the way. Wolff’s motive was clear from the face of the complaint: She perceived Johnson’s online activity as an affront to her Jewish identity, especially in the immediate aftermath of the October 7 attack, and publicly vented her objection to Georgetown placing Johnson in a position of responsibility vis-à-vis Jewish (and other) students. Though there may have been less provocative means of voicing her opinion, she was entitled to do so the way she did.

Relatedly, Wolff’s individual interest in speaking out had a constitutional valence, which dovetails with the societal interest in protecting her freedom of speech, especially on a matter of public concern like an elite university’s hiring decisions. After all, “in public debate [we] must tolerate insulting … speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.'” These factors strongly outweigh Johnson’s interest in bringing an affirmative tortious interference claim against Wolff, who, at best, played only an indirect role in her firing. {The Court will not fulsomely address Wolff’s First Amendment defense, other than to note that it packs a strong punch.}

Imagine the road we would travel if any exasperated social media complaint about a university personnel controversy could give rise to a tortious interference claim. The risk of such suits would undoubtedly chill campus speech, contravening the well-established principle that the “college classroom,” along with “its surrounding environs,” is “peculiarly the ‘marketplace of ideas[.]’ ” To put an even finer point on it, imagine if student activists for the Palestinian cause could be sued in tort if they condemned their university’s decision to hire a vocal supporter of Israel.

This cannot be the result Johnson truly seeks, especially given her own history of campus organizing. Indeed, her opposition stresses that she “does not challenge Defendants’ right to speak” and acknowledges that defendants “may express their views about Palestinian advocacy, about [ ] Johnson’s political positions, about Israel-Palestine dynamics.” If Johnson instead aims to curb the “use” of “employment authority to retaliate against protected-class membership[,]”an iffy tortious interference claim against Wolff—who Johnson concedes had no employment authority whatsoever—widely misses the mark.

And from the Conclusion to the opinion:

The Court [earlier noted] Shakespeare’s admonition in Henry VIII to refrain from letting the heat of passion cloud the pursuit of our adversaries, lest we go too far and bring harm upon ourselves. That advice rings true no matter how righteous we believe our cause to be. Litigation can right many wrongs. But not every wrong can be righted by a lawsuit….

There are still other lessons to be drawn from this case.

We should all cherish free speech yet recognize that speech is not free. It has consequences. It reflects who we are. And especially if conveyed over the Internet, it can follow us forever. If our words are caustic and hurtful, they may not only injure others, but also sully our own reputations and cost us valuable opportunities and benefits, including in employment. As elementary as it may seem, we should think twice about what we say and how we say it.

Choosing words wisely is especially important for those entrusted with the education of our students and future leaders. Members of the academy—and, yes, judges and other public figures whose words reach impressionable ears—should model respectful discourse for those next up the rungs. But that is sometimes lacking in this age when hot takes on social media pass for analysis of fraught and complex issues. While most of us appreciate a turn of phrase and even a zinger or two, pith alone is usually a poor substitute for reasoned commentary.

We might remember as well that free speech is for me and for thee. There is a tendency for those whose words are censured to seek refuge in the First Amendment. Yet some seem unwilling to extend like protections to those whose speech they find objectionable. The “cancelled” become the censors. That double standard pops up on both sides of this suit.

This case also illuminates the plight of university administrators these days, who must navigate fractured student bodies and faculties, demanding donors, ever-increasing intrusions by the federal government, and more. They deserve a measure of grace. They will occasionally falter, of course, and when they do in ways that violate the law, they should appropriately be held to account. But hasty social media posts and grasping lawsuits are perhaps not the best ways of confronting their missteps.

As the Court presaged at the outset, this case has become a proxy war of sorts for the conflict that continues to play out on college campuses over events in Israel and Gaza. That conflict has embroiled students, faculty, and staff with deeply held but diametrically opposed views on a seemingly intractable dispute halfway around the globe.

The nation’s great colleges and universities are uniquely situated to offer the competing constituencies a shared environment to learn about and debate the underlying struggle and its historical origins, which of course long predate October 7, 2023. They can also provide space for time-honored expressions of protest within bounds of reason and respect.

Fashioning such an environment has proven difficult on some (though not all) campuses. But where school and student leaders can together strive to create conducive settings to achieve these goals, there may be no better place than the university to temper the “fire of passion” with the “sap of reason,” in the words of the Bard. At the very least, a college campus is almost always a more appropriate venue for venting ardent political opinions than a court of law.