Some breach of contract claims against Harvard survive, but the defamation claims, including against the "Data Colada" bloggers, were dismissed. (See earlier coverage.) Pages 22-23 articulate the relevant law of defamation, and pages 30 ff. give the reasons for dismissal. The key bit is at page 31:
As with the defamation claims against the Harvard Defendants, the Data Colada Defendants’ statements in both the December Report and the blog posts reflect “personal conclusions about the information presented,” Salmon, 57 F.4th at 323 (citation omitted), and they disclose the facts underlying their judgment that there was likely data fraud in the studies, see Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 731 n.13 (1st Cir. 1992) (“A number of courts, including Massachusetts, have immunized statements of opinion based on fully disclosed nondefamatory facts.”); Conformis, Inc. v. Aetna, Inc., 58 F.4th 517, 534 (1st Cir. 2023) (“[A]n opinion is not actionable if it merely draws a conclusion from disclosed non-defamatory facts”).
In other words, the bloggers reported facts that are not disputed, and then offered their "subjective opinion" based on these facts, the former (the opinion) not being actionable. This strikes me as a dubious distinction, but it is a common one that courts use to dispose of defamation claims. A stronger argument would have been that the bloggers claimed the facts about data irregularities supported the conclusion that fraud was committed, but left open who had committed the fraud.
In addition, because Professor Gino is a "public figure" for defamation law purposes, she would have to allege facts showing that the defendants acted with "actual malice,' a technical term meaning that they either knew what they were saying was false or they acted with reckless indifference as to the truth or falsity of the allegations they made. This is an almost impossibly high standard to satisfy, which basically makes "public figures" fair game for most defamation; in any case, Professor Gino did not allege facts sufficient to show "actual malice." (Recall that Dominion Voting prevailed against Fox News precisely because they had "smoking gun" evidence of "actual malice," i.e., emails from Fox personnel acknowledging that the allegations about the Dominion voting machines were preposterous.) (The "public figure" doctrine is an oddity of American defamation law: no other common law democracy [not the UK, Canada, Australia etc.] has such a doctrine.)
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