Three Students' Libel Lawsuit over Columbia "Doxing Truck" Can Go Forward

From Hafez v. Accuracy in Media, Inc., decided last Thursday by N.Y. trial court judge Phaedra F. Perry-Bond:

Defendant [AIM] is a not-for-profit corporation that allegedly uses investigative journalism to expose bias, corruption, and public policy failings. Defendant Adam Guillette (“Guillette”) is AIM’s president. On October 23, 2023, Guillette, through AIM, purchased internet domain names and created websites in each of the Plaintiffs’ names. Defendants used Plaintiffs’ names and photographs to engage in a campaign that falsely claimed Plaintiffs were leaders of student organizations that signed an October 11, 2023 letter (the “Letter”) which blamed Israeli policies for the October 7, 2023 attacks. The websites bearing Plaintiffs’ names contained their pictures and labelled them as “Columbia’s Leading Antisemite(s).”

As part of the campaign, Defendants created and funded mobile billboard trucks, which like the websites created by Defendants, displayed Plaintiffs’ images and names and labelled them Columbia’s Leading Antisemites. The billboards were driven around Columbia University, where Plaintiffs were enrolled. The mobile billboards were even allegedly sent to Plaintiffs’ homes…. However, none of the Plaintiffs were leaders of any student organization that signed the Letter.

Plaintiff Yusuf Hafez … was president of Turath, an Arab cultural group at Columbia, from September 2022 until May of 2023. Turath signed the Letter, but Hafez held no leadership or decision-making role in Turath at the time the Letter was signed. Despite Defendants acknowledging that non-party Yara Saabneh … was Turath’s president at the time the Letter was signed, and despite public information confirming Hafez had no role in Turath’s leadership in October of 2023, Defendants still embarked on a public campaign of labelling Hafez as “Columbia’s Leading Antisemite.”

{According to Guillete, Defendants identified Hafez as an antisemite based solely on an article from January 19, 2023, which identified Hafez as the president of Turath, a page from a Columbia networking site from October 20, 2023, which inaccurately listed Hafez as Turath’s “primary contact,” and a video from April 19, 2023 where Hafez claimed he was president of Turath.} {At the time the Letter was signed, Turath’s website identified the new leadership board, on which Hafez played no role.} …

Plaintiff Hana Memon … was a former Vice President of the Muslim Student Association (“MSA”) but held no leadership role in any student group at the time the Letter was signed. Memon was falsely accused by Defendants of being MSA’s “Social Media Coordinator” despite never holding this position. Nonetheless, Defendants embarked on a public campaign labelling Memon as “Columbia’s Leading Antisemite.” {Defendants relied on one article from January 26, 2023 about ChatGPT which purportedly identified Memon as MSA’s social media coordinator.} …

Plaintiff Michelle Cao … was never a member of any organization that signed the Letter. Nonetheless, Defendants labelled Michelle Cao as “Columbia’s Leading Antisemite” based on the false assumption that Cao was a leader of a group called the “Conflict Resolution Collective.” … Defendants relied on one website identifying an unpictured individual named Michelle Cao as in charge of communications at Conflict Resolution Collective. {Cao was a law student and the Conflict Resolution Collective was part of a wholly separate school that Cao allegedly has no affiliation with.}

Defendants claim after receiving Plaintiffs’ complaint and amended complaint, it voluntarily removed all statements and images related to Plaintiffs. Based on these facts and their belated retractions, Defendants claim that they did not act with actual malice….

Defendants[] take the irreconcilable positions that an accusation of antisemitism is a non-actionable opinion and then argue in the very same brief that the accusations of antisemitism are substantially true.

Putting that contradiction aside, and given the context of this case, labelling Plaintiffs “Columbia’s Leading Antisemites” is an actionable mixed opinion…. [S]tatements alleging cultural insensitivity and racism that “imply they are based upon facts which justify the opinion but are unknown to those reading it” can constitute actionable mixed opinions (see, e.g., Davis v Brown [N.Y. App. Div. 2022] [letter implying Plaintiff was responsible for culturally insensitive show, even though she took no part in managing, directing, or approving the show, was actionable]; Pezhman v City of New York [N.Y. App. Div. 2006] [letter falsely claiming teacher was mentally incompetent and racist was actionable]; see also Guerrero v Carva [N.Y. App. Div. 2004] [flyers falsely alleging plaintiffs engaged in racial discrimination against employees were actionable]). Considering Defendants hold themselves out to be investigative journalists, their statement that Plaintiffs were “Columbia’s Leading Antisemites” implies the statements were not mere opinion but were based on some facts showing Plaintiffs were actually leading antisemitic campaigns (see also Stega v New York Downtown Hospital [N.Y. 2018]; Sheridan v Carter [N.Y. App. Div. 2008] [published statements that plaintiffs were racists who abused and economically exploited domestic employee were defamatory per se]).

The argument that Plaintiffs do not deny being antisemitic or that the statements are “substantially true” are without merit as Plaintiffs were not leaders of any organization that signed the Letter, and Plaintiffs obviously deny being antisemitic by virtue of filing this lawsuit. Defendants’ argument that they were simply asserting Plaintiffs’ political association is likewise unavailing. The defamatory nature of the statements is not that Plaintiffs were associated with certain student groups—the defamatory statements arise from falsely accusing Plaintiffs of being “leading antisemite[s].” …

Finally, Plaintiffs have alleged actual malice in nonconclusory fashion. Plaintiffs have set forth sufficient facts that Defendants published their statements about Plaintiffs in a grossly irresponsible manner. It remains an issue of fact whether Defendants’ reliance on an undisclosed third-party vendor to investigate Plaintiffs, and the widespread publication of serious and inflammatory statements based on very limited, outdated, and/or inaccurate articles rises to the level of reckless disregard sufficient to meet the actual malice standard.

This is especially the case as Plaintiffs allege the information would have been easily verifiable through other available online sources, and implicitly the information could have been verified by seeking comment from the Plaintiffs themselves. Discovery may show that Defendants were so motivated by capitalizing off the events at Columbia that they did not care about the truth so long as they increased their donations and internet traffic.

Defendants’ reliance on Kipper v. NYP Holdings Co., Inc. (N.Y. 2009) only highlights why the issue of actual malice cannot be determined in this case at the pre-answer stage. The Kipper decision was issued on summary judgment, after an exchange of discovery and a more fully developed evidentiary record. Therefore, the defamation claim is sustained….

Luna Droubi (Beldock Levine & Hoffman LLP) represents plaintiffs.

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