Science librarian Joe Murphy has filed a defamation suit in Toronto against two other librarians— nina de jesus of Canada and Lisa Rabey of America. Murphy asserts that the defendants have defamed him by labeling him a "sexual predator" who is "continually sexually harassing women" at librarian conferences.
Fair disclosure: Murphy is represented in Canada by Antonin Pribetic, who is a friend, though I've been adverse to him in a defamation case before. In America Murphy is represented by Marc Randazza, who is a good friend, colleague, and occasional co-counsel. I have not assisted anyone in the case.
Rabey and de jesus have styled themselves as #teamharpy and have solicited money for legal defense, and enjoy widespread support on Twitter and elsewhere.
The case presents many issues I've written about before. First, there's Murphy's choice of forum. As we've often complained here, Canada is significantly less protective of speech than the United States. For instance, in America, Murphy would have to prove that the statements about him were false to prevail on a defamation claim; in Canada, it's the defendant's burden to show their statements were true. This is a silly and censorious allocation of the burden. Murphy's choice of Canada has some basis — one of the defendants wrote from there — but it's clearly an effort to select a more plaintiff-friendly forum. That may present a challenge if Murphy gets a judgment in Canada and tries to enforce it in America against Rabey; the SPEECH Act will be a significant impediment.
Next, if Murphy had sued in a U.S. court, we'd have to assess what part of #teamharpy's comments were potentially defamatory statements of fact and what parts were absolutely privileged statements of opinion. I won't pretend to know where Canadian law draws the line (though I'm not optimistic). In America, the analysis is fairly straightforward. Were the statements hyperbole and rhetoric that could not be reasonably taken as assertions of actual fact? Were they opinions based on specific disclosed facts? Or were they statements of fact, or statements of opinion implying undisclosed facts? If the statements attributed to #teamharpy in Murphy's statement of claim are set forth accurately, they appear to contain several statements of (potentially defamatory) fact rather than pure opinion. Saying that Murphy is a "sexual predator" based on undisclosed facts is a statement of fact. It would be different had #teamharpy said something like "This video makes Murphy seem like a predator," which would be a statement of opinion based on disclosed facts.
It's a good thing that #teamharpy can raise money to defend the case on the merits, rather than be crushed by a broken legal system. Free speech issues are always best resolved with competent counsel on both sides. I hope that the Canadian court fairly and justly evaluates whether #teamharpy can prove that its statements were true, a burden unjustly imposed on it by retrograde law. If Murphy wins in Canada, I hope that Rabey uses the SPEECH Act to prevent Murphy from enforcing the judgment in America unless he can show that Canada's procedure was adequately speech-protective (which he can't do).
But some of the commentary on the case is unsettling.
I've helped people before who have been threatened with litigation for reporting about sexual harassment, and I expect I will do so again. But I do so because of general principles of free speech, not because I think that talking about sexual harassment should be utterly immune to defamation analysis. Some of #teamharpy's supporters seem to disagree, and to believe that there is something inherently wrong in suing over accusations of sexual harassment.
Take this blogger, who opines that "librarians are supposed to support free speech" and that "Mr. Murphy should stand down for the good of the profession and in the name of providing a safer environment for people to report harassment." Or consider this petition that demands that Mr. Murphy drop his lawsuit:
As librarians, educators, library users, and supporters, we value open dialogue and believe the proper response to accusations of harassment is understanding and engagement. Instead, you have chosen to use legal action to silence future discussions about a critical issue in our profession and furthermore will likely prevent other victims of harassment from speaking out against their abusers.
The petition goes on to demand that Murphy drop the suit, apologize, pay fees, and "make a meaningful, symbolic gesture of solidarity, healing, and reform."
It would be one thing if #teamharpy supporters were taking this position because there was public proof that the accusations against Murphy were true, or if #teamharpy's statements were clearly ones of opinion rather than fact. But that's not the case. Instead, #teamharpy's supporters seem to proceed from the premise that an accusation of sexual harassment ought to be absolutely privileged from suit, and that, for the good of the community, individuals must endure accusations without legal remedy, even if they are not true. That's a view that echoes the position of one of the blog posts at issue in the case:
We can and must take a stance of siding with victims. There needs to be a super clear message that whenever someone speaks up about abuse or harassment that they’ve experienced and encountered within a professional space (conference, work, whatever) that this person will be supported and believed.
What this looks like:
Don’t ask for ‘proof’.
Don’t treat ‘both sides of the story’ as if they hold equal weight.
Do not engage in any type of victim blaming behaviour.
Listen to the victim. Do it. And don’t judge.
To the extent they believe this, #teamharpy and its supporters are logically, legally, and morally incoherent. It's one thing to put a very difficult burden of proof on a defamation plaintiff, as the United States properly does. That gives broad elbow room for important speech. But saying that an individual should endure false and harmful accusations without complaint for the good of the collective is offensive. It's no more principled than saying that women should endure sexual harassment quietly for the good of the community and so as not to "rock the boat" — something that has too often said to women. American law offers some very broad privileges for reporting misconduct — take, for instance, California's absolute privilege for reports to the police. None of those privileges are broad enough to say that you can tweet or blog about sexual harassment with complete immunity because sexual harassment is an important subject. Nor should they be. American law protects many false statements (because the plaintiff can't prove falsity) or negligent and baseless statements (because of the burden of proof on the plaintiff). But our law doesn't do that because false or negligent accusations are admirable or desirable. We do it to give true statements, and genuine efforts at true statements, maximum protection.
There are excellent strategic reasons not to sue someone for defamation over internet content — the Streisand Effect will likely draw many, many more eyes to the statements that upset you. But that's not an ethical stricture, it's a practical one.
Nor is #teamharpy's approach to sexual harassment investigation coherent or principled. Look: you can run your private organization however you like. You can expel people immediate based on a defined set of accusations because you treat those accusations as presumptively true. But that's not a professional sexual harassment policy, it's an ideological policy. I train companies on sexual harassment prevention and the investigation of sexual harassment claims; you'll never find me — or any other professional in the field — suggesting a policy that presumes anyone is telling the truth. Outside the realm of purely private organizations that can eject people for any reason at all, that's begging for litigation — in addition to being a poor way of discovering the truth. Moreover, it may just be the defense attorney in me, but I don't have any respect for social norms that treat any accusation of misconduct as inherently true.
I remain a strong defender of free speech, including when people are threatened with suit for talking about harassment. I think such speech should be protected to the fullest extent of the law. I don't think men are special snowflakes more likely to be victims of false accusations, or that women or progressives or whatever Rush Limbaugh calls them this week are more likely than anyone else to make false accusations. I have no idea if Murphy has acted as a predator or harasser. If he has — or if #teamharpy has a basis for saying that he has — then they should prevail. But though #teamharpy is wrapping itself in the banner of free speech, at least some of its rhetoric smacks more of ideological conformity.
#Teamharpy's supporters seem to suggest that Murphy should rely on the goodwill of the librarian community, not the legal system, to vindicate him. If there's truth to the accusations against him, he should get legally curbstomped. But if there's not, why should he rely on the goodwill of a community that apparently wants to define him as guilty by dint of having been accused? Does this sound like a community that will judge him fairly?
On May 5, Rabey posted, “With added bonus: Rumour mill has reached me I’m apparently ruining Joe Murphy’s career. AHAHAHAHAHA…”
I don't think so.
Last 5 posts by Ken White
- The Dubious "Anthony Weiner's Accuser Was Actually Over 16" Story, And Why I'm Very Skeptical - May 22nd, 2017
- Lawsplainer: The Remarkable Anthony Weiner Guilty Plea - May 19th, 2017
- The Elaborate Pantomime of The Federal Guilty Plea - May 8th, 2017
- A Disturbing In-Flight Experience - May 1st, 2017
- No, Trump Didn't Argue That Protesters Have No Right To Protest or Violated His Rights - April 24th, 2017