[1.] The First Amendment generally protects remarks on a wide range of matters, not just on politics, science, or other big subjects. As the Court held in U.S. v. Stevens (2010), "[m]ost of what we say to one another lacks 'religious, political, scientific, educational, journalistic, historical, or artistic value' …, but it is still sheltered from Government regulation." Or, to quote another case, Connick v. Myers (1983),
[T]he First Amendment does not protect speech and assembly only to the extent it can be characterized as political… We in no sense suggest that speech on private matters falls into one of the narrow and well-defined classes of expression which carries so little social value, such as obscenity, that the State can prohibit and punish such expression by all persons in its jurisdiction.
[2.] Nonetheless, the Court has at times held that speech on matters of purely private concern is less protected by the First Amendment, in certain contexts, than speech on matters of public concern. The Court so held in Connick (despite the quote above) as to government employee speech cases: Government employees have some First Amendment protection from being fired for speech on matters of public concern, but "when a public employee speaks … upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior."
Then, in Dun & Bradstreet v. Greenmoss Builders (1985), the Court held that false statements on matters of private concern may lead to defamation liability without the various First Amendment protections available for public-concern statements (such as the requirement that presumed and punitive damages, even in suits brought by private figures, could be recovered only with a showing of knowing or reckless falsehood). In Bartnicki v. Vopper (2001), the Court held that recipients of an illegally recorded conversation on "a matter of public concern" could broadcast it without being punished under a law that forbade such use of illegal conversations; but the opinion suggested that if the conversation was on just on private matters, no such immunity would be present. In Snyder v. Phelps (2011), the Court held that the First Amendment blocks the application of the "intentional infliction of emotional distress" tort to speech on matters of public concern, but suggested that this might not be so as to speech on matters of "private concern." Likewise, the disclosure of private facts tort (which the Court has never either validated or rejected) would allow tort liability for accurate factual disclosures on highly private matters that are "not newsworthy," which is to say are seen as being on a matter of merely private concern.
Some lower courts have taken this still further, in allowing "harassment" or "stalking" injunctions against otherwise protected speech about people—such as harsh opinions—when the defendant's speech appears to be on matters of "private concern." To be sure, some other courts have rejected that approach, I think correctly; consider, for instance, Bey v. Rasawehr (Ohio 2020) (disclosure: I argued before the court on behalf of amici in support of the speaker):
[O]ur role here is not to pass judgment on the … First Amendment value of Rasawehr's allegations. To the extent his statements involve matters of both private and public concern, we cannot discount the First Amendment protection afforded to that expression [referring to the expression on private concern -EV]. We most assuredly have no license to recognize some new category of unprotected speech based on its supposed value. Rejecting such a "free–floating test for First Amendment coverage," the United States Supreme Court declared in Stevens that the First Amendment's guarantee of free speech "does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits." "Our decisions … cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment."
I have generally criticized attempts to draw this public concern/private concern distinction, especially when it's applied to criminal or civil liability for accurate statements or opinions. But courts have indeed drawn it, in at least some areas.
[3.] There is, however, one other area in which this distinction has become especially important, and that is anti-SLAPP statutes. Those statutes provide additional protection for speech beyond what the First Amendment requires, generally by letting defendants in speech tort cases (such as libel or invasion of privacy cases) get legally insufficient cases dismissed promptly; by letting them immediately appeal trial court decisions that refuse to dismiss a case; and by letting prevailing defendants get their attorney fees paid by plaintiffs. But, generally speaking (to oversimplify slightly), those special benefits are expressly limited to speech on a "public issue" or in connection with a "public matter," which are generally seen as alternative ways of saying "a matter of public concern."
Courts are thus required, by the terms of those statutes, to decide what is speech on matters of "public concern" and what is speech on matters of purely "private concern." And, since law operates by analogy, such statutory "public concern" decisions about whether speakers are entitled to a statutory extra remedy may end up affecting constitutional "public concern" decisions about whether speakers have First Amendment protection in the first place (in the situations discussed in item 2 above). Of course, the constitutional "public concern" decisions from those item 2 situations will affect the statutory decisions as well.
[4.] And one thing that is becoming evident in both the statutory and the constitutional cases is just how radically uncertain the public/private concern line is, not just in unusual situations but in ones that arise all the time. Consider, for instance, accusations of sexual assault and domestic violence. The New Jersey Supreme Court held in W.J.A. v. D.A. (2012) that a person's online allegation that his uncle had molested him when the person was a child was a matter of purely "private concern" for libel law purposes. The New York intermediate appellate court held the same in Nelson v. Ardrey (N.Y. App. Div. 2024). The Indiana Court of Appeals held in Campbell v. Campbell (Ind. Ct. App. 2024) that a person's claim in a self-published book that his father had abused his mother when the person was a child was likewise a matter of purely "private concern."
On the other hand, the California Court of Appeal held in Carney v. Santa Cruz Women Against Rape (Ct. App. 1990), that the claim, in a leaflet posted around town listing alleged sexual attackers, that a particular man had attempted to rape a woman was a matter of "public concern." The Minnesota Supreme Court likewise held in Johnson v. Freborg—though just by a 4-3 vote—that a woman's social media allegation that her dance instructor had sexually assaulted or coerced her was on a matter of public concern. And even as to lesser crimes (there, tax fraud), courts have held (including as to speech by individual bloggers, with no media credentials) that "[p]ublic allegations that someone is involved in crime generally are speech on a matter of public concern." Obsidian Fin. Grp., LLC v. Cox (9th Cir. 2014) (and other cases citing it); see also Boule v. Hutton (2d Cir. 2003) (holding that allegations of "fraud in the art market" involve "a matter of public concern").
To be sure, each case is different, so it's not always clear whether courts just have different views about where the line should be drawn, or whether courts are reacting to particular facts in the case. For instance, W.J.A., Nelson, and Campbell all involved long past acts (though, as we'll see, a recent case finding accusations to be of "private concern" did not). Some of the cases appear to be sensitive to what the judges infer to be the speaker's motivation: Are the speakers just angry about what happened to them or interested in condemning sexual assault or misogyny writ large, or at least protecting future victims? But of course people's motivations are often contested and often mixed: People who say they have been victimized naturally often claim to both be angry at their alleged victimizer and be eager to protect others from being victimized the same way.
[5.] And this brings us to the latest example, M.V. v. J.T. (appeal pending), which was decided Oct. 8 by Nassau County (N.Y.) trial judge Sarika Kapoor, but which just popped up on a Westlaw query for me; the question is whether defendant (J.T.) is entitled to get the case evaluated promptly under the New York anti-SLAPP statute, and the court says no:
Since the enactment of the 2020 amendments to the anti-SLAPP statute, a number of courts have found that statements accusing an individual of sexual assault were subject to the anti-SLAPP statute (see e.g. LeMos v Uhlir [Sup Ct, Westchester County 2024] [holding that social media posts accusing the plaintiff of sexual assault and abuse were matters of public interest where the plaintiff was "a person who is heavily involved in the electronic music industry and nightlife community, who interacts with many other prominent people and organizations, performs in front of crowds, and has influence and connections"]; Coleman v. Grand [E.D.N.Y. 2021] [an email regarding the sexual impropriety of the plaintiff, "a prominent musician of interest to the jazz community," and the power dynamics in the music industry "amid the rising tide of public concern over workplace sexual harassment known as the #MeToo movement," were matters of public interest for purposes of New York's anti-SLAPP statute]).
On August 7, 2024, the Second Department held in Nelson v. Ardrey (2d Dept. 2024) that social media posts accusing the plaintiff of sexual assault did not fall within the ambit of the anti-SLAPP statute. In Nelson, the defendants, Tyshawn Ardrey and Iriana Ardrey, posted a series of responses to a post on the personal Facebook page of the plaintiff, Glennis M. Nelson, alleging that the plaintiff had sexually abused Iriana Ardrey approximately 17 years prior when she was 4 years old. The Second Department held that the action, which was to recover damages for defamation per se, was "not subject to the anti-SLAPP statute because the defendants' statements published on the plaintiff's Facebook page concerned 'a purely private matter' and were 'directed only to a limited, private audience.'"
Like the defendants in Nelson, although J.T. "made generic reference to issues of broad public interest, [her] primary focus was not an issue of broad public interest." Moreover, like the situation in Nelson, the social media posts at issue here are "private allegations of the plaintiff's alleged crimes." Under these circumstances, and guided by Nelson, it is this Court's determination that J.T.'s social media posts are "not within the sphere of public interest." …
And here is the fact pattern as alleged by plaintiff; it's long, but I think you can get a flavor from the first few paragraphs:
The plaintiff, M.V., commenced this action against the defendant, J.T., alleging that this action arises out of a personal vendetta and jealous revenge plot by J.T. to destroy his life and reputation. M.V. asserts that, intent on causing him maximum damage after he finally ended their casual, on-and-off sexual relationship that spanned years including through their time together in college, J.T. knowingly published numerous false and defamatory statements to the social media application YikYak, falsely accusing M.V. of rape and being a pathological liar. M.V. alleges that J.T. also verbally shared these same false accusations with numerous individuals.
According to the complaint, J.T.'s emotional attachment to M.V. became clear through her relentless posts to the social media application TikTok, which displayed her state of mind and how she viewed M.V., including that she sought revenge and embraced her manipulator. M.V. asserts that, in response to J.T.'s defamatory statements, he felt threatened and sought protective measures from Binghamton University (hereinafter the University), which they both attended. M.V. alleges that J.T. went so far as to file a formal complaint against him with the University and, after hearing with live testimony and cross examination, the University exonerated M.V. by finding him not responsible of all allegations. M.V. further alleges that J.T. continues to perpetuate her vendetta against him via social media posts.
M.V. alleges that, as a result of J.T.'s false allegations and defamatory statements, he has suffered, and continues to suffer, severe emotional distress, including loss of appetite, insomnia, and lack of concentration in his daily life, as well as damage to his reputation despite full exoneration, a delayed entry into the work force in his chosen field, and delayed receipt of his degree. M.V. alleges that J.T.'s actions will continue to impact him if they are not stopped.
The complaint and M.V.'s affidavit allege that, in the spring of 2019, M.V., then a senior in high school, and J.T., a year behind him in school, began dating after meeting on Instagram. M.V. made it clear to J.T. that he was not interested in a serious relationship because he would be departing for the University in the fall. The two went their separate ways in July 2019. When M.V. went to college that fall, he and J.T. lost touch, but during Thanksgiving break, the two consensually kissed. M.V. learned that J.T. also planned to attend the University that upcoming fall. J.T. contacted a woman who M.V. was dating at that time, and told the woman that she would be attending the University the next fall and would "make [M.V.]" hers.
Upon return to the University for his sophomore year in the fall of 2020, M.V. knew that J.T. would be attending the same University, as a freshman. M.V. and J.T. reconnected and began to engage in a sexual dating relationship, seeing each other nearly every day, and engaging in sexual activity often. During this time, J.T. asked M.V. whether he would be willing to engage in a type of sexual role play that she saw popularized on social media. Before the parties ever engaged in this role play, they engaged in many discussions on the topic, and established boundaries, general ground rules, and a "safe word." The parties always established consent prior to engaging in the role play and it would often arise when the two were already engaged in sexual activity. J.T. often initiated role play sex, and even clearly indicated a desire to so in text message exchanges.
Upon return to the University for the spring 2021 semester, M.V. found himself spending less time with J.T. and began meeting with a therapist to aid with his mental health. J.T. ended the relationship with M.V. in late January or early February 2021. M.V. wished her well when they parted. Sometime in or around May 2021, J.T. reached out to M.V., and the two engaged in a casual dating relationship, and resumed their sexual relationship, which continued until July 2021. During this time, J.T. did not express that their role play agreement only applied to when they were in a formal relationship but did express that she thought she was M.V.'s future wife.
The parties resumed their consensual sexual relationship in the fall and winter of 2021, but only after M.V. first declined J.T.'s request to engage in sexual activity. Throughout November and early December 2021, the parties engaged in consensual sexual activity, including role play sex. Each time, they consensually engaged with each other, in both regular sexual activity and role play sexual activity.
In his affirmation, M.V. asserts that, by way of example and not limitation, the sexual encounters between M.V. and J.T. during this time included: (a) on or around November 4, 2021, M.V. asked whether he could complete inside of J.T. that day, and she responded with a clear "yes"—indicating full consent, and then spent the night with M.V.; (b) on November 21, 2021, J.T. asked M.V. to have sex and stated that she would look elsewhere to "get[ ] laid" if it was not with him; however, M.V. and J.T. ultimately did engage in sexual intercourse that evening, with J.T. sleeping over M.V.'s apartment; (c) after J.T. contacted M.V. on November 28, 2021, to engage in sex, they did so; and, (d) both regular sex and role play sex on or around November or December 2021.
On or around December 11, 2021, M.V. stopped contacting J.T. because he wanted something more meaningful. A few days later, he noticed his car was vandalized when he went to take a final exam.
M.V. returned home for his winter break of 2021-2022, but that did not stop J.T. from attempting contact, as she penned an anonymous letter to M.V., which M.V. recognized as her handwriting, sharing that he was loved and if he ever needed anything he could reach out. J.T. also sent a series of text messages to M.V., stating that she wished they were engaged in role play sex and wishing him a happy new year.
M.V. and J.T. briefly again reconnected in the spring of 2022. They began talking to each other through text message and then moved their conversation in person. Eventually, they engaged in a casual dating relationship, with regular sexual encounters. It was during this time that M.V. gave J.T. the code to his apartment. The two went their separate ways once again and M.V. began dating another woman.
In the fall of 2022, M.V.'s apartment was broken into by a person in a red hoodie, which M.V. thought was an old sweatshirt of his that J.T. had in her possession. Additionally, although M.V.'s apartment had multiple bedrooms, and only his bedroom had items missing. All items missing from M.V.'s bedroom were of a sentimental nature, except for some cash; the sentimental items included his cat's first collar and a coin from the Smithsonian that he obtained during a trip with his father.
The parties once again reconnected in November 2022, when J.T. shared that she was dissatisfied with her boyfriend at that time. At that same time, M.V., along with the person whom he was dating, mutually decided to go on a break. On December 5, 2022, however, the person whom M.V. had been dating experienced roommate problems, so M.V. offered her a safe place to stay that evening. On the night of December 5, 2022, M.V. and this person did not engage in sexual intercourse. The next day, M.V. and J.T. engaged in consensual sex for the last time. Later that same day, December 6, 2022, the person who needed a safe space to stay while experiencing roommate issues again went to M.V.'s apartment to spend the night, where nothing sexual occurred. J.T. reached out to express her discontent over this via text message and expressly stated that she did not want M.V. spending any time with the other person, at all.
On or around January 8, 2023, J.T. posted a video to TikTok that shared the text "embrace the male manipulator in you."
On or around February 11, 2023, M.V. claims that J.T. defamed him while he was out of the country attending a family funeral. M.V. claims, "upon information and belief," that J.T. publicly stated to numerous individuals—including his fraternity brothers and friends—that M.V. allegedly raped her. M.V. adds that, "upon further information and belief," that J.T. posted to YikYak, a social media application, that M.V. allegedly raped her with the words "[M.V.] is a r*pist" among other posts and follow up posts, which J.T. later admitted in her own affirmation.
In March 2023, J.T. filed a complaint against M.V. at the University alleging non-consensual sexual contact and "domestic violence or dating violence," which M.V. learned of for the first time in a meeting with the University. On May 23, 2023, M.V., along with his advisor, J.T., and J.T.'s advisor appeared for a University hearing (the "hearing") before a hearing panel.
At the hearing, M.V. set forth his innocence of the allegations, including but not limited to the following: (a) M.V. never once stated to J.T. that she allegedly liked being raped by me; (b) M.V. never once called her a bum; (c) M.V. never touched J.T. without her consent while she slept, ever; (d) M.V. never gave J.T. hickeys without her consent; (e) the occasion that J.T. mentioned wherein M.V. allegedly gave her a hickey due to her having a date with another guy never happened; and (f) J.T.'s allegations that M.V. pulled her pants down and covered her mouth were completely false. At the hearing, M.V. set forth instances of how J.T. gave consent, including but not limited to her frequently wrapping her legs around him and pulling him closer. At the hearing, M.V. acted respectfully and cordially towards all participants.
J.T., on the other hand, rolled her eyes, openly scoffed, laughed, and shook her head while M.V. spoke at multiple points in the proceeding including his opening and closing statements, and during important periods of question and answer. The hearing chairperson verbally asked J.T. to stop engaging in such behavior; however, she did not.
Additionally, M.V. maintains that, notably, J.T. displayed her lack of credibility at the hearing by contradicting herself several times. For instance: (a) J.T. asserted at the hearing and in her affirmation that role play sex only occurred while "dating." At the hearing, however, she admitted to asking for, and engaging in, role play sex after she and M.V. "dated," which prompted a discussion amongst the parties to establish the comfort and consensual nature of the role play sex; (b) J.T. also admitted that she did not tell her "witness" S.N. about the "specifics" of the role play sex or their sexual encounters in general; (c) J.T. admitted to utilizing sex in an attempt to manipulate M.V.; and, (d) J.T. stated that she would have "loved to be [in a relationship] with [him]."
Ultimately, the University found M.V. not responsible for any of the allegations against him. J.T.'s claims were determined not to rise to the level of a policy violation under the University policy, which utilizes a preponderance of the evidence standard. With this finding in hand, M.V. sought to move on with his life and ultimately, in October of 2023, through counsel, both parties agreed to vacate orders of protection. Since that time, the parties have not contacted each other….
M.V. alleges that J.T. libeled and defamed him in her YikYak post on or around February 11, 2023, where she, upon information and belief, wrote "[M.V.] is a r*pist." M.V. further alleges that J.T. libeled and defamed him in her YikYak posts on or around February 13, 2023, where she, upon information and belief, wrote "[M.V.] in asig is a r*pist"; "we used to have a complicated relationship and he manipulated me to the point where i didn't realize he was r*ping me regularly"; "not just talking coercion, he physically pinned me down, pushed my underwear to the side, & shoved his dick in me as fast as he could while i was pushing away & repeatedly saying no. this was often"; "he's also a pathological liar. people need to know about this." M.V. contends that, when J.T. admitted to making these posts, she stated, upon information and belief, that she wanted to alert others as to what happened and "make sure" they were "safe." M.V. contended that these statements were false and that J.T. knew they were false….
M.V. [also] alleges that J.T. slandered and defamed him by spreading false allegations of rape, sexual assault, and of him being a pathological liar to numerous individuals in February 2023 and throughout the investigation….
Andrew T. Miltenberg, Stuart Bernstein & Regina M. Federico of Nesenoff & Miltenberg LLP represent M.V.
The post Rape Allegations in #TheyLied Defamation Lawsuit Aren't on a Matter of "Public Interest," Says N.Y. Judge appeared first on Reason.com.
