Litigation Update April 5Th, 2018 Doe V. Harpercollins and Laura Kipnis

Litigation Update April 5th, 2018

Authored by Anna Oppenheim, Esq., ATIXA Advisory Board Member & Associate Attorney, The NCHERM Group

Doe v. HarperCollins and Laura Kipnis

On March 6, 2018, U.S. District Judge John Blakely of the Northern District Court of Illinois denied the defendants’ motion to dismiss all counts of a lawsuit filed by an anonymous plaintiff (Jane Doe). In her complaint, Doe alleged that Laura Kipnis (Kipnis) and HarperCollins Publishers, in their respective writing and publication of the book, “Unwanted Advances: Sexual Paranoia Comes to Campus,” engaged in public disclosure of private facts, false light invasion of privacy, defamation, and intentional infliction of emotional distress.

Background Facts

In early 2014, Doe, a Ph.D. candidate at Northwestern University (Northwestern), filed a Title IX complaint against Peter Ludlow, a Northwestern professor of philosophy. An outside investigator hired by Northwestern concluded that Ludlow had engaged in sexual harassment. In the midst of a termination hearing, Ludlow resigned and although he later sued Northwestern and Doe, his complaint was dismissed.

In February 2015, Kipnis, a fellow Northwestern professor and friend of Ludlow, wrote and published an article entitled “Sexual Paranoia Strikes Academe” in The Chronicle of Higher Education (The Chronicle), which, according to Doe, included false claims about Doe and misrepresented certain facts about Doe’s Title IX complaint. In response to the article, Doe filed a Title IX retaliation complaint against Kipnis. Kipnis, in turn, published a second article in The Chronicle. She later expanded these articles for the book at issue in this lawsuit, “Unwanted Advances: Sexual Paranoia Comes to Campus,” published by HarperCollins Publishers, LLC (HarperCollins) in April 2017 (Book).

Doe alleged that the defendants: disclosed “wholly gratuitous private facts” about Doe’s personal life that “are not matters of legitimate public concern”; made false statements about Doe; and presented Doe as lying, manipulative, and litigious, while making Doe’s identity obvious to many due to the details included. Doe further alleged that defendants didn’t adequately investigate the truthfulness of Kipnis’ statements, Kipnis wrote the Book in retaliation for Doe’s filing Title IX complaints against Kipnis and Ludlow, and Kipnis included confidential details in the book about Northwestern’s Title IX investigative records.

Court’s Discussion

In denying the defendants motion to dismiss all four counts of the complaint; the court addressed each count as follows:

Count 1: Unlawful Public Disclosure of Private Facts

To prevail on this claim in Illinois, a plaintiff must prove: (1) that defendant gave publicity; (2) to the plaintiff’s private, not public, life; (3) that the matter publicized was highly offensive to a reasonable person; and (4) that the matter published was not of legitimate public concern. This cause of action is limited, however - the publication of private facts must relate to facts that would “make a reasonable person deeply offended by their publicity” and for which “the public has no legitimate interest.” The defendants asserted that the facts disclosed in the Book, while extremely private, are newsworthy, public facts, and the Book deals with a matter of public concern. The court acknowledged that colleges’ investigations of sexual assaults are matters of legitimate public concern but determined it was for the jury to decide whether everything defendants published was necessarily germane to the issues of public concern or whether there were extraneous details. Additionally, while the defendants argued that the allegedly private information pertaining to the plaintiff was actually publicly available, the plaintiff maintained there were details that had not previously been revealed; the court determined that this question must be left to the jury as well.

Count 2: False Light Invasion of Privacy

Plaintiff alleged that the false light in which the defendants cast her would be highly offensive to a reasonable person and that the defendants “acted with actual malice; that is, they acted with knowledge that their statements were false or with reckless disregard for whether the statements were true or false.” Doe included specifics to support her allegation, including the fact that Kipnis deliberately omitted details in the Book which contradicted the narrative she wished to portray and the fact that the defendants failed to confirm Kipnis’ sources for the Book, despite knowing that Doe had complained about Kipnis’ friend and colleague. Defendants asserted that this claim fails because Doe’s defamation claim fails. The court rejected the defendants’ defamation argument and similarly rejected the defendants’ argument for this count as well.

Count 3: Defamation

In Illinois, a defamatory statement is one that “tends to cause such harm to the reputation of another that it lowers that person in the eyes of the community or deters third persons from associating with him.” The plaintiff asserted defamation per se – where the statements at issue are so harmful that damages are apparent. Doe claimed inter alia, that Kipnis’ published statements implied that Doe “manufactured a rape allegation”; was a “serial Title IX filer” who “makes up lies to harm professors,” and engaged in illegal conduct. Doe also asserted that the defendants’ actions have damaged her reputation in the “overall community” as well as the “small community of philosophy academia” and that she has experienced both economic and non-economic harm. Defendants posited that the statements are either not defamatory or are expressions of opinion protected by law. The court noted that the “nature of the Book is such that it provides numerous factual statements intended to paint a broad picture of Plaintiff as a liar….” The court considered whether the statements at issue were matters of fact or expressions of opinion and determined that the statements were plainly factual. In addition to Kipnis’ characterization of the statements as facts in the Book, the statements are precise and verifiable, including dates, times, and locations of events. Unconvinced by the defendant’s assertions given the contradictory evidence, the court allowed this claim to proceed.

Count 4: Intentional Infliction of Emotional Distress (IIED)

An IIED claim must allege that: (1) the defendants’ conduct was “extreme and outrageous;” (2) defendants either intended that their conduct inflict severe emotional distress or knew that there was at least a high probability that their conduct would cause severe emotional distress; and (3) defendants’ conduct in fact caused severe emotional distress. The court focused on the third element and determined that the conduct of the defendants as asserted by the plaintiff –publishing a false and misleading account of the plaintiff’s experiences, taking facts out of context, and presenting the plaintiff as a liar about highly charged content - could be viewed by a jury as extreme and outrageous. As a result, this claim was allowed to proceed.

Significance

This is a significant victory for the plaintiff here and it is clear that the judge was convinced Jane Doe may have been considerably aggrieved by the defendants’ actions. The court’s decision regarding the publication of private facts serves as a worthwhile reminder of the limitations on free speech, a topic discussed and debated at institutions across the country. While the handling of sexual assault is a matter of public concern, specific details regarding investigations are not necessarily so, and publication of those details is a matter to be considered carefully before proceeding. If you have faculty or staff members on your campus that tend to be vocal about your investigation proceedings, keep a close eye on how this case progresses.

About the Litigation Update: As cases are filed, decided, or preliminary rulings of importance are reached, ATIXA will summarize them for you in digest form.