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OK gang, today in spurious defamation lawsuit twitter, we have the following, filed a by an NYU professor against his colleagues for signing an "open email" complaining about his behavior. The complaint, filed in New York State, is here.
https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=XZlmxwxDF/RPbQbZiBJH4Q==&system=prod
https://iapps.courts.state.ny.us/fbem/DocumentDisplayServlet?documentId=XZlmxwxDF/RPbQbZiBJH4Q==&system=prod
As always, the usual caveats apply -- I am not a NY licensed attorney and so my discussions will not be about NY-specific law, though careful readers might just catch a few of my NY-licensed friends chipping in to the comments. Where (if?) they disagree with me, BELIEVE THEM.
The actual meat of the complaint begins on pages 3 thru 5, where Plaintiff lists the factual statements he believes are false and damaging:
1. He is circulating a petition accusing the department of violating his academic freedom
1. He is circulating a petition accusing the department of violating his academic freedom
2. He is conducting an email campaign against the department
3. He has a web site
4. His website lists his title and tenure
5. He has taken controversial positions on this website
6. He has called gender reassignment surgery eugenics
7. He has mocked trans people
3. He has a web site
4. His website lists his title and tenure
5. He has taken controversial positions on this website
6. He has called gender reassignment surgery eugenics
7. He has mocked trans people
8. He denied that Sandy Hook shooting occurred
9. Students have complained about his in-class conduct
10. Students have complained about the manner of his pedagogy regarding controversial subjects
11. Students have complained about his arguments
9. Students have complained about his in-class conduct
10. Students have complained about the manner of his pedagogy regarding controversial subjects
11. Students have complained about his arguments
12. He has not improved in his behavior
13. He has attacked a student who objected to his classroom criticism of students who wear masks
14. He "repeatedly and publicly" identified the student who objected
15. The identified student has been bullied and threatened
13. He has attacked a student who objected to his classroom criticism of students who wear masks
14. He "repeatedly and publicly" identified the student who objected
15. The identified student has been bullied and threatened
16. He has used intimidation tactics
17. He has abused his authority
18. He has engaged in microaggressions and "hate speech"
17. He has abused his authority
18. He has engaged in microaggressions and "hate speech"
Of these statements, which of them are arguably provable statements of fact? MAYBE 3, 4, 6, and 8. Maybe. The rest are either unprovable statements or opinions, potentially even rhetorical hyperbole, e.g., 5. Statements 9, 10, and 11 aren't defamatory even if untrue.
12 is a classic opinion. 13, 14, 15, 16, 17, and 18 are either opinion or hyperbole, and in any case, probably subject to the doctrine of "substantial truth, " meaning as long as the letter writers got in the ballpark, the statements aren't "false" for defamation purposes.
So let's look at this letter: https://markcrispinmiller.com/wp-content/uploads/2020/12/Letter-from-MCC-Faculty.pdf
As you can see, it's an email to the dean and provost signed by a number of professors, clinical professors, and assistant professors in the Dept. of Media, Culture, & Communication. Absolutely nothing in here is unprotected by the First Amendment.
Back to the complaint. On page 6, the plaintiff acknowledges he has received complaints about his teaching ("some students complain about every professor") and says the majority of his students have been "highly praiseworthy."
Well bully for you! However, that admits (1) the statement that complaints were made is substantially true and (2) you haven't actually suffered any damages. It's a stupid thing to put in your petition.
I also find #20 perplexing; it's a damage claim, claiming that his reputation was injured and that no university or college would employ him. But plaintiff is a tenured professor. Unless he is actively engaged in job seeking, this is speculative. Speculative damages don't cut it.
The idea that "falsely accusing a tenured university professor of engaging in hate speech inherently discredits him/her" is also perplexing. First off, there is no definition of "hate speech," so turning this into a provable statement of fact will be difficult.
Second, if this were true, it would significantly infringe on the rights of professors to call out hate speech, while still protecting the hate speech itself. This is a bizarre paradox. The benefit of academic freedom and freedom of speech generally is that, yes, Virginia...
even university professors can engage in hate speech, and, insofar as they work for public universities, be mostly protected from job-based consequences. The only balm to those they demean and abuse with hate speech is that hate speech can be vociferously called out.
When we free speech advocates are forced to tell a hurting and discriminated-against person that their tormenter possesses (and deserves) the protection of the law for their hurtful and discriminatory rhetoric, our solution given is "more speech."
That is, if a racist professor says something awful and bigoted about, say, a grad student's ethnicity, it is equally as permissible for the grad student to stand up, call the professor a racist, and ask other faculty members to condemn that professor.
Under the plaintiff's interpretation, however, it ought to be a legally compensable tort for the grad student to do so unless it could be proven that the professor was in fact a racist. But how does one prove that someone "is" a racist?
You can't; calling someone a racist is a classic statement of opinion/rhetorical hyperbole, and that is why it is protected. In other words, university professors who have for years told their snowflake students, colleagues, and grad students to toughen up need their own medicine
Finally, look at the prayer for relief. $750K for sending an email complaining about the plaintiff to the dean and provost? YIKES. I would like to see how they plan to support those damage numbers with anything substantive, since none of the 28 factual allegations show HOW...
the plaintiff has actually been injured. He remains, as of the writing of this tweet, a tenured NYU professor. He has not lost his job. He has not lost any income. He has not even shown a loss of standing or professional reputation among academics.
At most, he can say he won't be on the Christmas card list of the signers of the email or the student he mocked and harassed on his website, none of which is a legally compensable injury. This is a classic SLAPP, filed by an aggrieved baby, who cannot fathom that when he offers
his shitty opinions the world, the world does not fall down and marvel at his genius. Sorry, professor Miller, but in the world of online whackadoodles, as in everything else, you are average and ordinary. The only truly remarkable thing you've done is file this SLAPP.
