The US Court of Appeals for the Second Circuit on Monday dismissed an appeal from a Department of Justice (DOJ) employee seeking a defamation suit against the New York Times (NYT). Writing for the majority, Judge José Cabranes found that the district court properly dismissed the defamation suit as barred under New York state’s fair report privilege.
The matter originated when the NYT published an article in March 2018, titled “At the Justice Dept.’s Death Penalty Unit, Accusations of Favoritism, Gender Bias, and Unwanted Groping,” which detailed an investigation into complaints against the former head of DOJ’s Capital Case Section (CCS), the branch responsible for assisting federal prosecutors in the prosecution of death penalty cases. The complaints involved allegations of a sexualized environment, gender bias, and unwanted groping, and the NYT article detailed both suits and declarations filed in court by seven individuals from the CCS.
One such declaration detailed a 2017 happy hour at Proper 21, a bar in Washington, DC, where plaintiff-appellant and CCS Principal Deputy Chief Gwynn Kinsey had a sexual encounter with a CCS intern. While Kinsey did not dispute the fact of the encounter, both the declaration and the NYT story described the encounter as “unwelcome,” which Kinsey alleged was defamatory. He filed suit against the NYT in 2019, but the district court ruled that the defamatory statement at issue in the March 2018 article was protected under New York’s fair report privilege doctrine.
The doctrine, part of New York defamation law, provides special carveouts for protecting the publication of potentially defamatory information when the reporting focus is on a government official and is based on Section 74 of the New York Civil Rights Law, which holds that a civil action cannot be maintained when the defamatory publication is a “fair and true” report of any official government proceeding. Such carveouts are intended to allow for publication about public officials or proceedings where the public may have an interest in being informed of otherwise defamatory material.
Following the district court ruling, Kinsey appealed to the Second Circuit, which found that the language concerning the “unwelcome” nature of the sexual encounter was indeed attributed to an official proceeding, which was the declaration made in the course of the lawsuit against the CCS. As the NYT was simply quoting language stated in the declaration, the court ruled that the fair report doctrine protected its report as part of an official judicial proceeding, and that it would be clear to an ordinary reader that the “unwelcome” language was part of that proceeding. Finding the matter to be “unquestionably clear,” the Second Circuit found the NYT article to be protected and affirmed the district court’s ruling dismissing Kinsey’s defamation suit.
