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This is not the first time Elizabeth Bruenig has screwed up defamation and it's a real problem.
I know this isn't as sexy as "Bruenigs are sekrit soccons" but if you're going to get mad this is something worth getting mad about.
Uh, Buckle up?
The first problem with Bruenig's statement is that its incredibly nonspecific. I don't know who she thinks Alex Morse can sue and over what statement. So we'll have to both build and tear down the case for her. https://twitter.com/melbataj/status/1294357223863463941?s=20
The first problem with Bruenig's statement is that its incredibly nonspecific. I don't know who she thinks Alex Morse can sue and over what statement. So we'll have to both build and tear down the case for her. https://twitter.com/melbataj/status/1294357223863463941?s=20
Let's start with relevant facts. August 7, The Massachusetts Daily Collegian, a student operated nonprofit paper, published this story, reporting that College Democrats of Massachusetts had sent a letter to Alex Morse, disavowing him for sexual misconduct. https://dailycollegian.com/2020/08/college-democrats-allege-inappropriate-misconduct-between-holyoke-mayor-alex-morse-and-college-students/
The substantive allegations are as follows
In a statement to the paper, Morse admitted to "consensual adult relationships, including some with college students"
Generally speaking, when you admit to the truth of something, that's not a great sign for your defamation claim, but I'm skipping ahead.
Generally speaking, when you admit to the truth of something, that's not a great sign for your defamation claim, but I'm skipping ahead.
On Aug 12, the intercept published a piece, claiming that College Democrats UMass Amherst chapter group members engineered and leaked the scandal to sink Morse's campaign. https://theintercept.com/2020/08/12/alex-morse-college-democrats-chats/
There's a lot of innuendo and eyebrow-raising facts throughout the piece, but as far as I can tell it does not suggest that at any point an actual false statement was made, rather casts aspersions as to motive. Give it a read yourself and see if I missed something relevant.
At this point I'm going to simplify the parties to make this much easier. There are basically two sorts of parties Alex Morse could sue for defamation
1. The Daily Collegian for publishing the piece on the letter
2. Various collegiate Democrats for publishing the letter itself
1. The Daily Collegian for publishing the piece on the letter
2. Various collegiate Democrats for publishing the letter itself
Lets start with group 2. In order for statements to be defamatory they must be all of the following:
1 false
2 a statement of fact
3 published
4 actually harmed reputation and
5 done with requisite fault
1 false
2 a statement of fact
3 published
4 actually harmed reputation and
5 done with requisite fault
We don't have the actual letter, so we're going to rely on the newspaper's description and quotes. Here's my initial analysis on each element.
1 false
2 a statement of fact
3 published
4 actually harmed reputationand
5 done with requisite fault
1 false
2 a statement of fact
3 published
4 actually harmed reputation
and5 done with requisite fault
1. Falsehood. We don't know from public record whether Alex Morse matched with students some of whom are 18 on Tinder or Grindr, but he didn't deny it so I'm inclined to believe it's true. That can sink the defamation claim on its own if so.
2. Statement of fact. Whether Morse used Tinder or Grindr and matched with students at all, the statement also says he did so "regularly". If he did it only a few times a year, is that "regular"? That sounds like an opinion issue, not a fact issue. That can also kill the claim.
5. Requisite fault. Alex Morse is running for public office thus, at a minimum, a limited purpose public figure. Liability for publishing a false statement of fact that harmed reputation only occurs if done with "actual malice", which is a term of art that doesn't mean "malice"
5 cont'd "Actual malice" means that the statement was made knowing the statement to be false or with a reckless disregard for its truth, as proven by clear and convincing evidence.
It's a very high bar, and the Intercept piece doesn't clear it.
It's a very high bar, and the Intercept piece doesn't clear it.
5 cont'd cont'd. To reiterate, if we take the Intercept piece at its maximal interpretation, the letter writers wrote the piece for nefarious purposes. But you can tell the truth nefariously, and defamation law only care if it was true, and that if it was false, you knew that.
Being predisposed to believing something is true because you don't like someone or they're your political opponent or whatever? Not reckless disregard. That requires actual doubts.
She writes for the New York Times, has written for the Washington Post and newspapers for, what, her entire adult life?
She knows or should know something about defamation law. https://twitter.com/PropterMalone/status/1294364161301000197?s=20
She knows or should know something about defamation law. https://twitter.com/PropterMalone/status/1294364161301000197?s=20
Second accusation.
1 false
2 a statement of fact
3 published
4 actually harmed reputation
5 done with requisite fault
1 false
2 a statement of fact
3 published
4 actually harmed reputation
5 done with requisite fault
Whether Morse was "*Using* College Democrats events to meet college students" sounds fundamentally not falsifiable statement of fact to me. As to whether his behavior "made young college students uncomfortable" any non-zero amount would make the statement true.
Whoops, there was more
"countless stories" is hyperbole, not a statement of fact, so you can't prove it false but not having enough stories. If students felt pressured, they felt pressured. Hell, if you reasonably interpret students descriptions as pressured, its not false.
"countless stories" is hyperbole, not a statement of fact, so you can't prove it false but not having enough stories. If students felt pressured, they felt pressured. Hell, if you reasonably interpret students descriptions as pressured, its not false.
Here's the third accusation. The statement is true. It's not defamatory. End of discussion.
1 false
2 a statement of fact
3 published
4 actually harmed reputation
5 done with requisite fault
1 false
2 a statement of fact
3 published
4 actually harmed reputation
5 done with requisite fault
OK. Now lets look at the other possible party: the newspaper and individual writers, editors, fact checkers, etc.
First off, the defamation claims will fail with respect to the original authors, nevermind the people who reported on it.
First off, the defamation claims will fail with respect to the original authors, nevermind the people who reported on it.
Substantial truth is also an absolute defense. The report was that Massachusetts College Democrats accused Alex Morse of sexual impropriety by having sex with college students and the substantial truth is that Alex Morse had sex with college students. That's substantial truth.
One thing I'm not sure about and would have to do more research on is to what relevance the fact that the Daily Collegian was reporting on the news event of College Democrats disavowing Alex Morse and their statements. But the Daily Collegian is in the clear anyway.
I am far from an expert on this area of law however, so I invite any comments or corrections from those who are.
No Nick, no Ty. I don't mean you.
It hasn't been. But if you were predisposed to like Alex Morse but also strongly disapprove of creeper behavior and wanted a psychological offramp, this provides one. https://twitter.com/athie_gnome/status/1294374172156723201?s=20
Speaking substantively, I'm not sure how hard of a line I would draw at the first "student somewhere within the system where the other is an adjunct" incident, but a /pattern/ of incidents I would definitely find problematic.
Fucking the students is not a perk.
Fucking the students is not a perk.
Yeah, I'm not unbothered by what the College Democrats are alleged to have done, or for that matter unbothered by Alex Morse's behavior, but I'm interested in getting the law right and separately, rules for right behavior. https://twitter.com/KathrynTewson/status/1294375328794607616?s=20
An actual expert on defamation law: https://twitter.com/wolmanj/status/1294392523377565697?s=19
