Law professors publish law review articles in which they may discuss cases pending in the courts. Such discussions may relate what the plaintiffs are alleging and then theorize about how the courts might treat such claims. When a professor includes the names of the parties in the lawsuit, and one of them feels that the professor’s discussion could be harmful to the party’s reputation and lead people to take an unfavorable view of them, should the professor be liable for damages in a civil court action?
U.S. District Judge Paul Engelmayer of the Southern District of New York gave a firm “no” to that question, at least in the factual context of a lawsuit by the defendant in a case that was pending at the time it was being written and spoken about, seeking to hold Professor Zachary A. Kramer liable for statements published in his article “Of Meat and Manhood” published in the Washington University Law Review as well as a lecture Kramer gave about the subject of his article at Western New England University Law School. Kramer’s article was devoted to some recent developments in employment discrimination law. He discussed the then-pending case of Pacifico v. Credit Agricole, in which a foreign exchange trader at the defendant company claimed to have been subjected to homophobic harassment by a supervisor who, he alleged, labeled him as gay because he is a vegetarian. (Weird, isn’t it? And strongly denied by the supervisor…) Kramer hypothesized that the supervisor equated vegetarianism with homosexuality because of his sex-stereotypical view that “real men” eat meat. The Pacifico case was voluntarily terminated with prejudice after Kramer had published his article and given his lecture, but was still pending when these events happened.
Kramer used the names of the parties in his article and the supervisor (defendant in the civil rights suit) sued him in U.S. District Court in New Jersey, as well as suing the law school whose law review published the article and the law school where the lecture was given (which made available an audio recording the school’s website). Kramer is a professor at Arizona State. The plaintiff lives in New Jersey, although he and the former Credit Agricole employee who sued him for discrimination under the New York State Human Rights Law worked in New York. When the two law schools were voluntarily dismissed from the case, the case was shifted to the federal district court in New York, as the New Jersey court did not have personal jurisdiction of Kramer, the sole remaining defendant. The plaintiff, Robert Catalanello, alleged that he had been defamed and that the statements made about him in the article and lecture had placed him in a false light. New Jersey recognizes the tort of false light invasion of privacy, but New York does not, so an important part of Judge Engelmayer’s decision is his choice of law analysis, concluding that New Jersey tort law would apply, although he found this a “close case.”
But he did not find that there was a close case as to whether Catalanello had stated valid tort claims under New Jersey law. The judge decided that a contextual reading was necessary, and that viewed in context Kramer’s discussion of the case in his article and the lecture were protected from liability under the “fair-report privilege,” which shields from liability “the publication of defamatory statements appearing in a report of an official action or proceeding.” Kramer was discussing the facts alleged in a legal complaint on file in the federal district court in New York, and he made clear in both his article and his lecture that he was taking facts from the complaint, that the facts were contested and that the case was pending. Thus he was not stating that these factual assertions were true, and he was merely using them to illustrate his own theory of shortcomings in employment discrimination doctrine under which it was questionable whether the factual allegations, if true, would state a valid legal claim. (Kramer’s article is very much worth reading on this point, for anybody interested in the way that employment discrimination law is developing in the area of “sex stereotyping” and sex discrimination.) Under New Jersey cases, as long as a publication of defamatory statements takes place in the context of a “full, fair, and accurate account of the official proceeding,” the author cannot be held liable for defamation. This is true as well for the false light claim.
In addition, Judge Engelmayer concluded that some of the statements challenged by Catalanello would be classified as statements of opinion rather than statements of fact, and statements of opinion are generally not actionable as defamation. These statements pertained to Kramer’s theorizing about the motivation of Catalanello for engaging in the conduct in which he was alleged to have engaged, conflating vegetarianism with sexual orientation based on stereotypes about the behaviors of men and women. That is, the court concluded that Kramer was not asserting as fact that Catalanello had these particular motivations, but rather was using the factual allegations of the lawsuit to illustrate his doctrinal critique, in the course of which he speculated as to the motivations of somebody who would engage in the conduct that was alleged in the court complaint.
Sigh of relief for Prof. Kramer that the judge “gets it” and understands the nature of the academic inquiry and the use of fact patterns derived from real cases to discuss doctrinal developments. Cautionary note to law professors who are writing about real cases and using the names of parties: unless a court has made factual findings, be clear that you are discussing allegations that have not been proven as fact!!