A number of readers and friends have expressed puzzlement about how Ludlow can sue a colleague and a student for defamation regarding statements they made reporting alleged sexual harassment and related wrongdoing by Ludlow. In cyberspace, I've seen a number of people assert that such statements are "privileged," and so the makers of those statements can't be sued. Alas, the matter is somewhat more complicated than that. Several correspondents asked that I explain on the blog what I have told them individually. So here goes (with the caveat that I am not an expert on these matters, but am reasonably confident I understand the legal issues. This, by the way, is a pretty solid overview of Illinois defamation law for those who are interested. And none of what follows constitutes legal advice!)
There are two kinds of "privileges" that can attach with respect to false statements that are defamatory. The "absolute privilege" attaches to statements made in judicial proceedings (e.g., any statements made by a witness, whether in court or in a deposition or in an affidavit) and "quasi-judicial" proceedings (e.g., in Illinois, a complaint filed with the disciplinary commission of the State Bar alleging misconduct by an attorney enjoys an "absolute privilege"). In these cases, the maker of the statement can not be sued for defamation, even if the maker of the statement acted maliciously or recklessly (e.g., made the statements knowing they were false).
One important threshold issue in the Ludlow case is whether the proceedings of a university's sexual harassment office constitute a "quasi-judicial proceeding" under Illinois law. My guess is they do not (if I'm mistaken, please e-mail me any relevant case law). So, for example, in the course of finding that an arbitration proceeding was a quasi-judicial proceeding, an Illinois court said:
Under Illinois law, a tribunal is quasi-judicial when its possesses powers and duties to (1) exercise judgment and discretion; (2) hear and determine or ascertain facts and decide; (3) make binding orders and judgments; (4) affect the personal or property rights of private persons; (5) examine witnesses, compel the attendance of witnesses, and hear the litigation of issues on a hearing; and (6) enforce decisions or impose penalties [citations omitted]. A quasi-judicial body need not possess all six powers; however, the more powers it possesses, the more likely the body is acting in a quasi-judicial manner.
University sexual harassment offices lack #5, and have quite attenuated versions of #2, #3, #4 and #6 (attenuated because, among other things, their decisions are not binding on actual judicial proceedings).
Even if that is correct, statements made to a university's sexual harassment officer clearly enjoy what is called a "qualified privilege," since there is a strong public interest in preventing and punishing sexual harassment as reflected, for example, in the fact that faculty who learn of sexual harassment have a legal obligation to report it to appropriate university officials. The crucial difference with a "qualified privilege" is that if it is abused, it does not apply. So if Jane Doe reports what she sincerely believed to be conduct by Prof. John Smith constituting sexual harassment to an appropriate Dean, she can not be sued by Prof. Smith even if it turns our her report of the conduct is inaccurate. But if Jane Doe acts recklessly or maliciously, then she can be sued: for example, if Jane Doe reports Prof. Smith to the Dean, even though she knows full well that Prof. Smith did not act as she claims, she can be sued for defamation.
Even if Jane Doe enjoys the qualified privilege if she non-maliciously reports the alleged misconduct to the appropriate university official, she does not enjoy even the qualified privilege if she makes those statements to others who have no connection to enforcing the university's sexual harasssment policies. So, for example, if she tells fellow students or friends at other universities that Prof. Smith sexually harassed her, and that is false, she can be sued for defamation for those statements.
The crucial allegations in Ludlow's complaint in this regard are paragraphs 58-60.
Paragraph 58 alleges that the "false statements during the 2014 investigation impute to Plaintiff a want of integrity in the discharge of his duties, criminal conduct and prejudice Plaintiff and impute a lack of ability in his trade." Translation: the statements, if false, are defamatory per se, that is, damage is presumed. (It is hard to prevail in any defamation action, but if you also have to prove how the false statements harmed you, the plaintiff's burden can be impossibly high.)
Paragraph 59 alleges that the defendants "publicized these statements without privilege." Translation: they made these false statements to others not involved with the process (so no qualified privilege) or they made these statements maliciously or recklessly, so lost the qualified privilege.
Paragraph 60 alleges that the defendants "made these statements knowing they were false." Translation: they acted maliciously, so enjoy no qualified privilege.
I assume that, among other things, some of the defendants will move to dismiss the complaint on grounds that the statements were, in fact, privileged. Whether they are privileged will be a question for the court. If these allegations survive a motion to dismiss, then the plaintiff, Ludlow, will be entitled to discovery to determine, e.g., to whom the allegedly false statements were made and what the makers of the statements knew at the time they made them.
Another issue lurking in the background here is also whether Ludlow is a "public figure" or "limited purpose public figure" for purposes of defamation. My guess is that with respect to the allegations of sexual harassment and related misconduct, he is not. If, by contrast, he were suing defendants who made allegedly false statements regarding his cyber-activism, then he would almost certainly count as a public figure. The significance of this in American law is very substantial, since the burdens on a public figure plaintiff to recover for defamation are much higher (see this earlier discussion).
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