Court Rejects Online Activist Eugene Gu’s #TheyLied Libel Suit Over Abuse Allegations in The Verge

From New York trial choose Shlomo Hagler’s opinion launched right this moment in Gu v. The Verge: (you can too learn Gu’s argument on the contrary, and the underlying article):

Plaintiff Dr. Eugene Gu, showing professional se on this media defamation case, is a web-based activist concerned in a collection of controversies, starting from a Congressional investigation into analysis use of human fetal tissue, to on-line debates about racial discrimination and white supremacy, to a federal lawsuit difficult former President Trump’s use of Twitter to dam critics. Dr. Gu claims, on Twitter and elsewhere, to be the sufferer of retaliation, harassment, and on-line bullying for his activism, whereas his critics, on Twitter and elsewhere, declare that he’s the bully and harasser.

On this motion, Dr. Gu challenges a information profile about him which was printed on March 5, 2019 … by defendants Vox Media, LLC, and its reporter, Laura Yan …. The Article chronicles Dr. Gu’s rise to fame and the controversies wherein he has been embroiled, together with interviews with Dr. Gu and plenty of his critics. Dr. Gu contends that seven discrete statements throughout the Article are defamatory, and asserts claims for defamation and intentional infliction of emotional misery….

Dr. Gu is a physician and an outspoken social justice advocate on Twitter. On his Twitter account, @eugenegu, he has greater than 443,000 followers. He posts frequently about his experiences as an Asian American within the medical discipline, his activism on Twitter, and retaliation and on-line harassment he has acquired in response.

Dr. Gu has additionally printed opinion items, appeared on digital camera for interviews, and been the topic of quite a few press reviews on these matters (see e.g. Democracy Now interview transcript [NYSCEF Doc No. 11], at 8 [“I took the knee to fight against the very racism that I was the victim of …. And I was punished for it”]; Unbiased article [NYSCEF Doc No. 12], at 3 [discussing “Republican war on medical research involving fetal tissue” and Congressional subpoena]; Buzzfeed article [NYSCEF Doc No. 12] [discussing viral Tweet in support of Colin Kaepernick]).

Dr. Gu has additionally appeared as a named plaintiff in a broadly publicized lawsuit difficult former President Trump’s observe of blocking critics on Twitter as a violation of his and different Twitter customers’ First Modification rights….

On February 20, 2018, Yan contacted Dr. Gu, figuring out herself as a contract author from Brooklyn who needed to do a profile or story on him. Dr. Gu agreed to an interview, and spoke with Yan through Skype on February 22, 2018, after which once more on April 2, 2018. Dr. Gu alleges that many of the dialogue was about activism for Asian American points that he was concerned in on social media.

Dr. Gu additional alleges that, in Could 2018, he found that Yan was publicly speaking on Twitter with an nameless person claiming to be a doctor known as #MedTwitter. This nameless person glided by varied Twitter handles together with @nefariousMD, @nefariousBFT, and @thephoenixMD1. Dr. Gu alleges that, on a number of events, this nameless account harassed him with racial epithets about his Asian American heritage, false accusations of home violence, and ganged up with different physicians on #MedTwitter to publicly ask him to commit suicide, and donate his organs to those physicians for additional research. On June 7, 2018, Gu emailed Yan, explaining that, due to her tweets to nameless person @nefariousMD, @thephoenixMD1, and @ñcfariousBFT who’re believed to be the identical particular person, he would terminate communication with Yan, and pursue a defamation lawsuit if any malicious article resulted from baseless accusations with out proof.

The following Article was printed on the Vox Media web site The Verge on March 5, 2019, and is entitled, “The Unusual Case of Eugene Gu,” with the subheading, “Behind one in all Twitter’s most outspoken social justice personalities is a historical past of abuse.” The Article begins with an outline of Dr. Gu’s rise to fame on Twitter, together with his rising variety of followers, a viral tweet exhibiting Dr. Gu taking a knee to protest white supremacy, and his participation within the First Modification problem to the President’s Twitter practices. Subsequent, the Article states that “Gu had discovered simply how highly effective the platform [Twitter] may very well be …. Finally, the identical platform that constructed him up would threaten to be his undoing.”

The courtroom concludes that among the allegations have been considerably true and a few have been opinions, and thus weren’t actionable as defamation or as intentional infliction of emotional misery; this is an excerpt (although you can too learn the entire opinion):

Dr. Gu challenges the Article’s subheading, which reads, “Behind one in all Twitter’s most outspoken social justice personalities is a historical past of abuse.” … Right here, the subheading is a good abstract of the content material within the Article, which reviews on the assorted allegations of verbal, home, and sexual abuse which were levied in opposition to Dr. Gu. As such, it’s not actionable…. “If the headline is a good index of an correct article, it’s not actionable” ….

Furthermore, this assertion is considerably true, as a result of Dr. Gu doesn’t dispute key factual statements that the subheading merely summarizes. The Article describes allegations of home violence, claims of sexual misconduct, and reviews of on-line harassment surrounding Gu, in addition to his response to those allegations….

Lastly, even when the courtroom have been to construe the primary assertion as endorsing the veracity of those allegations, relatively than simply reporting on their existence, the assertion would nonetheless be protected as non-actionable opinion based mostly on disclosed info. New York courts acknowledge an essential distinction between a press release of opinion that suggests a foundation in info which aren’t disclosed to the reader or listener, and a press release of opinion that’s accompanied by a recitation of the info on which it’s based mostly, or one that doesn’t suggest the existence of undisclosed underlying reality. The Article right here fulfils these necessities, setting forth the info supporting the suggestion that there’s “a historical past of abuse,” and that “every reader could draw his personal conclusion.” …

The Second Assertion, “Warning: this piece incorporates descriptions of sexual assault,” can be non-actionable opinion…. [A] affordable reader would take into account this assertion in context, and perceive that it was an alert to readers who could also be delicate to sure topics, generally generally known as a set off warning…. At most, an affordable reader would perceive this to be defendants’ opinion that some readers may discover parts of the story a couple of disputed sexual encounter uncomfortable, not any assertion of reality about Dr. Gu that may very well be confirmed true or false….

The third, fifth and sixth statements recognized by Dr. Gu should not actionable as a result of they don’t seem to be able to a defamatory that means as a matter of regulation:

“‘Finally, the identical platform that constructed him up would threaten to be his undoing.’

‘Perhaps it was how simply Gu sounded indignant throughout our interviews, or the tense, charged phrases he used to explain the alleged discrimination he suffered, or how, in each narrative, he was all the time the sufferer.’

‘You are the one individual on this planet I can discuss to,’ Gu instructed her. ‘If it wasn’t for you, I may need killed myself tonight.'”

.Within the amended criticism, Dr. Gu doesn’t counsel any purpose why these statements would “expose the plaintiff to public contempt, ridicule, aversion or shame,” and no affordable reader would perceive them as such. There’s nothing inherently defamatory about being characterised as “indignant” or being a sufferer, neither is it defamatory to say that Dr. Gu was threatened by the very platform that made him well-known. Certainly, the third and fifth statements are additionally clear expressions of an opinion (that Twitter would threaten to undo Gu or that Gu performed the sufferer), supported by the info within the Article, and never actionable on that floor as nicely.

Likewise, with regard to the potential suicide reference, this assertion will not be defamatory as a matter of regulation, as thousands and thousands of individuals in the USA endure with psychological well being points every day, and thus “doesn’t arouse within the thoughts of the typical individual in the neighborhood an evil or unsavory opinion [] or expose plaintiff to public hatred, contempt, or aversion.” Slightly, such a press release would are likely to induce sympathy or empathy within the thoughts of the typical reader….

The assertion relating to @NefariousMD and his publication of allegations of home violence in opposition to Dr. Gu can be not actionable beneath New York’s honest report privilege for discussions of courtroom data:

“I tweeted at an particularly ardent critic, the (now deleted) @NefariousMD, asking for his perspective on Gu. @NefariousMD usually posted screenshots of an unsettling piece of Gu’s previous: a collection of arrest citations, together with filed restraining orders and allegations of home violence” …

Courtroom recordsdata from Dr. Gu’s divorce present that his ex-wife sought and obtained a Short-term Restraining Order for home violence prevention in opposition to Dr. Gu on February 9, 2015, and that the order remained in place till March 9, 2015, when she declined to pursue the matter additional….

The ultimate assertion upon which the amended criticism asserts a declare can be considerably true and/or protected as opinion:

“Again at Gu’s residence, he began ‘pawing’ at her whereas she tried to refuse. She tried to push him away. He saved at it. “It was identical to that till he handed out. That is once I acquired up, turned on the bathe, and was crying.”

Such a press release may doubtlessly be actionable as a press release of false reality if, for instance, a plaintiff denied that an incident occurred. However right here Dr. Gu doesn’t deny his relationship with Allison, the in-person go to, or that they’d a sexual relationship . The one dispute is how the 2 events to that encounter characterised the interplay. Dr. Gu has contended—as defendants reported—that “Allison was the seducer, and he the unwilling sufferer.” Dr. Gu solely takes subject solely with Allison’s characterization of their tryst—i.e., that he was “pawing” at her, that she tried to push him away—however that is opinion, based mostly on disclosed info, and isn’t actionable. The Article explains the idea for Allison’s opinion, offers Dr. Gu’s response, and discusses the contradiction within the two people’ opinions. Certainly, the writer even describes her personal battle over together with the “unresolved questions from [Dr. Gu’s] previous.” This assertion is due to this fact protected opinion, and thus can not correctly present the idea for his defamation declare….

The courtroom additionally concluded that, in any occasion, Gu was a restricted objective public determine and thus needed to present defendants made their statements realizing they have been false or at the least doubtless false, one thing that Gu hadn’t adequately alleged:

New York courts have discovered plaintiffs to be restricted objective public figures based mostly on their political actions, solicitation of press protection, and involvement in public controversies (see e.g. James, 40 NY2d at 423 [dancer became a limited purpose public figure by participating in interviews about and “welcome[ing] publicity relating to her performances”]; Blum v State of New York, 255 AD2d 878, 880 [4th Dept 1998] [former professor was a limited purpose public figure with regard to his public dispute with law school]; see additionally Perks v City of Huntington, 251 F Supp second 1143, 1168-69 [ED NY 2003] [plaintiff became limited purpose public figure by giving press conferences and availing himself of the media to report harassment claims]).

Right here, Dr. Gu has plainly “thrust [him] self into the general public highlight and sought a seamless public curiosity in [his] actions,” by writing; showing on digital camera; granting press interviews; and tweeting extensively about his social activism, racial discrimination in opposition to Asian Individuals, and the retaliation and harassment he claims to have endured in response. Accordingly, Dr. Gu has clearly sought the general public highlight, and is thus a restricted objective public determine because it pertains to his activism and the harassment and bullying surrounding it—exactly the problems explored by the Article….