Earlier details about the lawsuit are here, including a link to the complaint. In this post, I want to focus on the legal claims raised.
The plaintiff "Jane Doe" (who is, of course, suing for invasion of privacy, so is not using her name) has made four legal claims against Kipnis and her publisher: "Public Disclosure of Private Facts," "False Light Invasion of Privacy," "Defamation," and "Intentional Infliction of Emotional Distress." Although the lawsuit is in federal court (since the defendants reside in a different state than the plaintiff), Illinois law governs (all these claims, or their cousins, are matters of state law in the U.S.). The Digital Media Project generally gives pretty good summaries of the law in relevant jurisdictions; I am a retired member of the New York Bar, but I do take an interest in these issues, given how often I am defamed, though, fortunately, to date, lawyer letters have usually sufficed. In any case, here are the DMP accounts of the relevant parts of Illinois law: publication of private facts; false light; defamation; intentional infliction of emotional distress (the latter is from an Illinois law firm, since DMP does not cover it).
I won't say much about the claim for intentional infliction of emotional distress; par. 95 of the complaint makes the best case for it. It does not seem to me likely that writing a book about the problems with Title IX proceedings, including using case studies, will qualify as "extreme" or "outrageous" conduct, and I imagine it will be difficult to establish the requisite intent on the part of Prof. Kipnis (the complaint suggests repeatedly that Kipnis was motivated to retaliate against Doe because of the [wrongful] Title IX claim she had filed against Kipnis, but whether they can back that up with evidence remains to be seen--but that might be enough for it to survive the motion to dismiss).
The complaint alleges (par. 75) that several private facts, that had not been part of the public record prior to the book, were disclosed, including Doe's prior relationship with a married man, intimate details of Doe's conversations and relationship with Ludlow, and information contained in confidential Title IX records connected to Northwestern's investigation of the allegations. (The latter is likely to be the subject of an independent Northwestern investigation for possible FERPA violations by Prof. Kipnis.) The biggest obstacle to plaintiff succeeding on this claim, I suspect, is that a court may find that these facts were, in fact, of public interest and newsworthy (the complaint contains the necessary denials of that at paragraphs 58 and 77)--not intrinsically newsworthy, of course, but because of their bearing on the fairness and reliability of the process that led to Peter Ludlow's resignation. The latter has itself been the subject of prior lawsuits and has garnered considerable media attention. Defendants will argue that the fairness of that widely publicized event is what makes these private facts newsworthy.
The "false light" and "defamation" claims are closely connected, though the scope of the former is somewhat broader than the latter. (The particulars of the former are described in par. 80 of the complaint, of the latter in par. 59). These claims face three main obstacles, I believe.
First, plaintiff is not named anywhere in the book. (Readers may recall that the fact that Peter Ludlow was not named, but merely described, in an early newspaper report about the undergraduate's lawsuit that falsely stated he was accused of "rape" was, in fact, fatal to his defamation claim in state court here.) The complaint is plainly aware of this issue, noting that, "Even though the statements did not use Plaintiff's real name, others besides Plaintiff and Defendants reasonably understood that she was the person described as 'Nola Hartley'" (par. 85) and claiminig that, notwithstanding the pseudonym, "it was obvious to many who Kipnis was writing about," both because Ludlow was named and because Kipnis "published many details about Plaintiff's life, including her physical description, thus identifying her within her academic and professional communities" (par. 60). It's the latter point that is most significant: I have the impression that many in the relevant professional community do know Jane Doe's identity. But defendants will almost certainly move to dismiss on the grounds that the plaintiff is not named.
Second, it's not clear that some of the allegedly false statements would actually damage plaintiff's reputation (e.g., describing Doe, inaccurately, as having filed more Title IX complaints than she really had filed). Being described, falsely, as "litigious" is not obviously defamatory. Plaintiff's strongest claim is that, as the complaint puts it, "Defendants branded Plaintiff as a manipulative liar who mischaracterized her relationship with Professor Ludlow for revenge or other ulterior motives" (Par. 61). To the best of my recollection, the book never calls plaintiff a "liar," and as the complaint elsewhere notes, the book "insinuat[es] that Plaintiff is a liar." That may still be enough for these claims to proceed, though I imagine the defense will argue that this was simply Kipnis's opinion about plaintiff's possible motives given the facts reported in the book. Plaintiff's counsel clearly understands that a court may not find it plausible that some of the falsehoods (if they are falsehoods) actually damaged plaintiff, and even pleads (par. 87) that some of the statements "were defamatory per se," mentioning the insinuation about her lying about the allegation of nonconsensual sex with Ludlow (falsely calling someone a liar usually is defamatory per se). (If they are defamatory per se that relieves plaintiff of the burden of demonstrating how they damaged her.)
Third, although plaintiff is almost surely a private figure for purposes of Illinois defamation law, as the DML site notes, Illinois defamation law is a bit unusual in the following respect:
Illinois courts apply a unique "reasonable grounds" standard of negligence in defamation cases brought by private figures. This standard requires that the defendant either knew the publication was false or believed the publication was true but "lacked reasonable grounds for that belief." Troman v. Wood, 62 Ill.2d 1984, 299 (Ill. 1975). Thus, the Illinois negligence test resembles a slightly more lenient "actual malice" test.
The "actual malice" test, typical for defamation of a public figure, usually requires that the defendant knowingly published a false statement, or published it with reckless disregard for its truth or falsity: it is this test that makes it hard for public figures to prevail in defamation actions. The big question here is how Illinois courts view "reasonable grounds for belief." If it is not a very demanding standard, then plaintiff may have to show that the defendant knew the statements were false.
It is certainly possible that none of the claims will survive defendants' inevitable motion to dismiss: the publication of private facts claim is most vulnerable for dismissal on the "public interest" or "newsworthiness" grounds; the false light/defamation claims are most vulnerable because plaintiff is not named. If the court does not dismiss on those grounds, then there probably are enough factual issues that this will move to discovery.
I know I have many readers who are lawyers and law professors, so I'm opening comments, but only for their expert insight or opinion on any of the preceding. You may post anonymous, as long as you include a real e-mail address so I can verify that you are, indeed, a lawyer or law professor.
