Doe v. Harpercollins Publishers, LLC et al

Filing 42

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 3/6/2018. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JANE DOE,
Plaintiff,

Case No. 17-cv-3688

v.

Judge John Robert Blakey

HARPERCOLLINS PUBLISHERS,
LLC, and LAURA KIPNIS,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff, proceeding anonymously, sued the author and publisher of a book
entitled “Unwanted Advances: Sexual Paranoia Comes to Campus” (sometimes
referred to as the Book). In her complaint, Plaintiff alleges public disclosure of
private facts (count one); false light invasion of privacy (count two); defamation
(count three); and intentional infliction of emotional distress (count four).
Defendants Laura Kipnis and HarperCollins Publishers moved to dismiss all claims
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim [24]. For
the reasons explained below, this Court denies Defendants’ motion.
I.

Factual Background
In early 2014, Plaintiff, a Ph.D. candidate in Northwestern University’s

Department of Philosophy, filed a Title IX complaint against one of the professors in
the department, Peter Ludlow. Complaint [1] ¶¶ 46–47.

Northwestern hired an

outside investigator who ultimately concluded that Ludlow had engaged in sexual
harassment.

Id. ¶¶ 48–49.

Northwestern commenced a termination hearing

against Ludlow, who resigned amidst the hearing. Id. ¶ 50. Ludlow later sued
Northwestern and several other individuals, including Plaintiff, and the court
dismissed both his complaint and his amended complaint.

See Ludlow v.

Northwestern Univ., et al., 79 F.Supp.3d 824 (N.D .Ill. 2015) (“Ludlow I”); Ludlow v.
Nw. Univ., 125 F.Supp.3d 783, 787 (N.D. Ill. 2015) (“Ludlow II”).
In February 2015, Northwestern University professor Laura Kipnis, Ludlow’s
friend and colleague, wrote and published an article entitled “Sexual Paranoia
Strikes Academe” in The Chronicle of Higher Education. [1] ¶ 51. Plaintiff alleges
that this article made false claims about her and misrepresented certain facts about
Plaintiff’s Title IX complaint. Id. ¶ 52; Plaintiff’s Memorandum in Opposition to
Defendants’ Motion to Dismiss [31] at 5. Plaintiff responded by filing a Title IX
retaliation complaint against Kipnis based upon those alleged misrepresentations.
[1] ¶ 51. Kipnis in turn published a second article in The Chronicle of Higher
Education titled “My Title IX Inquisition,” and she later expanded on these two
articles in the book at issue in this lawsuit, “Unwanted Advances: Sexual Paranoia
Comes to Campus.” Complaint [1] ¶¶ 1, 53.

The Book “critiques the Title IX

processes under which colleges investigate sexual discrimination complaints” and
“gives significant prominence to sexual assault and sexual harassment allegations”
made by Plaintiff against Ludlow. Id. ¶ 2. Unwanted Advances was published by
HarperCollins Publishers LLC in April 2017. Id. ¶ 54. 1

Though not attached to the Complaint, the Book is referenced throughout. As a result, the Court
may properly consider it at this stage. E.g., Amin Ijbara Equity Corp. v. Vill. of Oak Lawn, 860 F.3d
489, 493 (7th Cir. 2017) (When ruling on a motion to dismiss, the court may consider documents
1

2

According to Plaintiff, the Book defends Ludlow and attempts to recast him
as the victim by disclosing private text messages and information about Plaintiff
that Kipnis obtained from Ludlow and from otherwise confidential Northwestern
University records. Id. Plaintiff alleges that the Book discloses “private details
about the Plaintiff’s personal life” while making “false and damaging statements
about Plaintiff and present[s] her in a false light as lying, manipulative, and
litigious, despite having reason to know that this portrayal was false.” Id. ¶ 3. In
the Book, Kipnis discusses Plaintiff using a thinly-veiled pseudonym; yet, Plaintiff
alleges, because Kipnis used Ludlow’s real name and published “many details about
Plaintiff’s life, including her physical description,” the Book made Plaintiff’s true
identify “obvious to many”−particularly members of the small world of academic
philosophy. Id. ¶¶ 60, 69.
In the Book, Kipnis discusses Plaintiff at length, devoting one of the Book’s
five chapters to Plaintiff. Id. ¶ 56. Plaintiff alleges that the Book contains far more
detail about Plaintiff’s personal life regarding her relationship with Ludlow than
the “bits and pieces” that had previously “trickled out through Ludlow’s lawsuit”
against Northwestern University, and it included “embarrassing and sensitive facts
never previously in the public domain.

Id. ¶ 57.

Plaintiff alleges that before

publishing Unwanted Advances, Defendants did not “reach out to Plaintiff to
determine the accuracy of the information contained about her in the book.” Id. ¶

attached to the complaint, documents, central to the complaint and to which the complaint refers,
and information properly subject to judicial notice).

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66. Nor did Defendants “seek Plaintiff’s permission to publish” the information
about her. Id.
II.

The Allegations of Plaintiff’s Complaint
Plaintiff concedes, as she must, that Defendants have a constitutional right

to write and publish on the topic of how modern college campuses implement Title
IX and to criticize the procedures colleges employ in investigating Title IX
complaints. She alleges that they do not, however, have the right to disclose and
publish “wholly gratuitous private facts about Plaintiff’s personal life–facts never
before publicized and facts that Plaintiff did not want publicized.” [1] ¶ 56. In
particular, Plaintiff alleges that Kipnis wrote and HarperCollins published the
following:
•

Facts concerning an alleged sexual relationship between Plaintiff and
a married man who teaches at another academic institution, someone
Kipnis refers to in the book as “Professor X”;

•

Personal details about Plaintiff’s relationship with Ludlow never
before made public;

•

Private text messages between Plaintiff and Ludlow, many of which
were printed out of context and written about in a misleading manner;
and

•

Excerpts from Northwestern University Title IX investigation records
that the University must treat as confidential pursuant to federal law.

Id. ¶ 56. Plaintiff alleges that these personal facts “are not matters of legitimate
public concern.” Id. ¶ 58.

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Plaintiff further alleges that Kipnis wrote “false statements about Plaintiff,
including misleading misrepresentations that placed her in a negative light.” Id. ¶
59. In particular, Plaintiff alleges that Kipnis wrote and HarperCollins published:
•

False statements about the nature of Plaintiff’s personal and
professional relationship with Ludlow, suggesting that it was a
consensual dating relationship and that Ludlow was not in a position
of evaluative authority with respect to Plaintiff;

•

False statements that Plaintiff initiated six Title IX complaints,
including that she initiated a Title IX complaint against ‘a fellow grad
student;

•

False statements that Plaintiff initiated two Title IX complaints
against Kipnis, as well as a Title IX complaint against Kipnis’ support
person;

•

False statements about the contents of Plaintiff’s single Title IX
complaint against Kipnis; and

•

False statements throughout Unwanted Advances insinuating that
Plaintiff is a liar who fabricated a false claim of rape against Ludlow to
seek revenge against him.

Id. ¶ 59.
Plaintiff alleges that Kipnis wrote the Book in retaliation for Plaintiff filing
Title IX complaints against Kipnis and Ludlow. Id. ¶¶ 51–52, 62. Kipnis allegedly
“knew she was violating Plaintiff’s privacy, but she did not care.” Id. ¶ 63. Plaintiff
alleges that Defendants failed to adequately investigate the truthfulness of Kipnis’
statements and also deliberately omitted publication of other information in Kipnis’
possession that “contradicted Ludlow’s version of events.” Id. ¶¶ 64–66. Plaintiff
alleges that Defendants made no effort to determine whether the information
Ludlow supplied to Kipnis, including private text messages, was “authentic,

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complete, or presented in context”; nor did they “seek Plaintiff’s permission to
publish her private text messages.” Id. ¶ 67.
Plaintiff alleges that, in the Book, Kipnis also details and describes otherwise
confidential Northwestern Title IX investigative records, not caring that her
publication of such matters violated confidentiality provisions. Id. ¶ 63. Indeed,
Plaintiff notes, in the Book’s introduction, Kipnis cavalierly admits as much:
Still, as you’ve probably gathered, going through a Title
IX investigation . . . has made me a little mad and
possibly a little dangerous: transformed from a harmless
ironist into an aspiring whistleblower . . . . It’s just these
sorts of unintended consequences that a more
psychologically shrewd band of zealots could have
predicted. I mean, having been hauled up on complaints
once, what do I have to lose? “Confidentiality”? “Conduct
befitting a professor”? Kiss my ass.
Book at 34.

Plaintiff alleges that HarperCollins “had reason to know” about

Plaintiff’s complaint against Kipnis and, therefore, knew or should have known that
Kipnis had a motive to retaliate against Plaintiff. [1] ¶ 65.
Plaintiff says that Unwanted Advances achieved widespread attention in
respected publications, newspapers, journals, social media, professional blogs, and,
importantly, garnered close scrutiny from “the relatively small world of academic
philosophy.” Id. ¶¶ 68–70. Plaintiff requested retractions from Defendants, who
made none. Id. ¶ 72. Instead, Plaintiff alleges, Kipnis has continued to make false
statements about Plaintiff in press interviews about the Book despite the retraction
request.

Id. ¶ 73.

Plaintiff claims that she may be severely inhibited from

employment in academic philosophy—some of her peers threatened to blacklist her

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entirely—and that she put off her entry into the field’s job market by at least one
academic year. Id. ¶ 71.
I.

Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), a complaint must provide

a “short and plain statement of the claim” showing that the pleader merits relief,
Fed. R. Civ. P. 8(a)(2), so defendants have “fair notice” of the claim “and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conly v. Gibson, 355 U.S. 41, 47 (1957)). A complaint must also contain “sufficient
factual matter” to state a facially plausible claim to relief. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A facially plausible claim
“allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
This plausibility standard “asks for more than a sheer possibility” that a defendant
acted unlawfully. Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013). Thus,
“threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Limestone Dev. Corp. v. Vill. Of Lemont, 520
F.3d 797, 803 (7th Cir. 2008).
In evaluating a complaint, this Court accepts all well-pled allegations as true
and draws all reasonable inferences in the plaintiff’s favor. Iqbal, 556 U.S. at 678.
This Court does not, however, accept a complaint’s legal conclusions as true. Brooks
v. Ross, 578 F.3d 574, 581 (7th Cir. 2009).

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II.

Discussion & Analysis
Defendants have moved to dismiss all four of Plaintiff’s claims. The Court

discusses each claim in turn.
A.

Plaintiff’s Claim for Public Disclosure of Private Facts (Count One)

In count one, Plaintiff alleges that Defendants published and caused to be
published intensely private facts, including:
•

•

Personal details about Plaintiff’s relationship with Ludlow never
before made public;

•

Private text messages between Plaintiff and Ludlow, many of which
were printed out of context and written about in a misleading manner;
and

•
[1] ¶ 56.

Facts concerning an alleged sexual relationship between Plaintiff and
a married man who teaches at another academic institution, someone
Kipnis refers to in the book as “Professor X”;

Excerpts from Northwestern University Title IX investigation records
that the University must treat as confidential pursuant to federal law.
Plaintiff alleges that these previously private matters were not of

legitimate public concern, would be “highly offensive to a reasonable person,” and
caused an ongoing harm which continues to result in economic and non-economic
damages. Id. ¶¶ 76–78.
Under Illinois law, to prevail on a claim for unlawful public disclosure of
private facts, Plaintiffs must prove: “(1) that Defendant gave publicity; (2) to her
private, not public, life; (3) that the matter publicized was highly offensive to a
reasonable person; and (4) that the matter published was not of legitimate public
concern.” Doe v. TCF Bank Illinois, FSB, 707 N.E.2d 220, 221 (Ill. App. Ct. 1999).

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This type of claim must be based upon true facts, and the Supreme Court has been
careful not to prevent states from providing “a tort remedy to a person about whom
truthful, but intensely private, information of some interest to the public is
published.” Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1230, 1232 (7th Cir. 1993)
(citing Fla. Star v. B.J.F., 491 U.S. 524, 541 (1989)).
Haynes recognizes the legitimacy of a right of action for the public disclosure
of such private facts. Specifically, the “right of privacy” concept covers “several
distinct wrongs,” including publicizing “personal facts that while true and not
misleading are so intimate that their disclosure to the public is deeply embarrassing
to the person thus exposed and is perceived as gratuitous by the community”; and
casting a person “in a false light by publicizing details of the person’s life that while
true are so selected or highlighted as to convey a misleading impression of the
person’s character.” Haynes, 8 F.3d at 1229 (citations omitted).
Even though the law recognizes Plaintiff’s cause of action, the tort has limits.
To be actionable, the publication of private facts must relate to facts that would
“make a reasonable person deeply offended by their publicity” and for which “the
public has no legitimate interest.” Id. at 1232 (citations omitted). Stated another
way:
People who do not desire the limelight and do not
deliberately choose a way of life or course of conduct
calculated to thrust them into it nevertheless have no
legal right to extinguish it if the experiences that have
befallen them are newsworthy, even if they would prefer
that those experiences be kept private.

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Id. The “two criteria, offensiveness and newsworthiness, are related”; meaning, the
publication of intimate personal facts is most offensive when the public has no
legitimate interest in knowing them “beyond the voyeuristic thrill of penetrating
the wall of privacy that surrounds a stranger.” Id.
Here, Defendants argue that Plaintiff’s claim for public disclosure of private
facts fails because the facts disclosed, even if intensely private, are newsworthy,
public facts. Memorandum in Support of Defendant’s Motion to Dismiss [25] at 8.
Defendants concede that the Book shared private facts, which garnered significant
publicity, but argue that there is “no reasonable dispute that the Book is about a
matter of public concern.”

Id. at 8–10.

Indeed, as explained above, Plaintiff

concedes that the Title IX process and issues surrounding the occurrence and
investigation of sexual assaults on college campuses constitute issues of legitimate
public concern. See Plaintiff’s Memorandum in Opposition to Defendants’ Motion to
Dismiss [31] at 16. But finding that a particular topic constitutes a matter of public
concern does not end the inquiry; the newsworthiness of the details disclosed must
be weighed against their offensiveness.

Here, Plaintiff argues that Defendants

crossed the line and went far beyond what was necessary to provide context to such
legitimate issues.
Haynes is instructive. In that case, the defendants wrote and published a
book about the Great Migration that included, as part of a broader narrative, facts
and details about the lives of specific migrants, one of whom (Ruby Lee Daniels)
happened to be the ex-wife of the plaintiff. The book, which included “much about

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other migrants, about the travails of Ruby’s children, about discrimination against
blacks in both the North and the South, and about the politics of poverty programs
in Washington and Chicago,” included embarrassing and unflattering facts about
the plaintiff. 8 F.3d at 1224-26. Among other details, the book stated that the
plaintiff left his children alone at night when he was supposed to be watching them,
that he lost a job or jobs because of drinking, and that he spent money on a car
instead of buying shoes for his children. Id. at 1226.
Weighing the offensiveness of the actual published statements as a whole
against their newsworthiness, the court noted in Haynes that the reader of a book
about the black migration to the North would have “no legitimate interest in the
details of [the plaintiff’s] sex life; but no such details are disclosed. Such a reader
does have a legitimate interest in the aspects of [plaintiff’s] conduct that the book
reveals.” Id. at 1232. In short, “[n]o detail in the book claimed to invade [plaintiff’s]
privacy is not germane to the story that the author wanted to tell, a story not only
of legitimate but of transcendent public interest.” Id. at 1233.
Under Haynes, therefore, this Court must ask not only whether Title IX and
the investigation of sexual assaults on college campuses constitute matters of
legitimate public concern (they plainly do), but also whether everything Defendants
published was, for the purposes of a motion to dismiss, necessarily germane to that
issue as a matter of law. After the discovery process develops a full evidentiary
record, a reasonable jury might very well conclude that every factual statement
made in Kipnis’ book (including the facts about Plaintiff’s consensual sexual

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relationship with a different professor and the resulting fallout) is relevant and not
gratuitous. To be sure, even though the intimate details of a person’s sex life play
no role in telling the story of the Great Migration, such details might be germane to
the subjects of Title IX and the investigation of sexual assault complaints on college
campuses. Given the current state of the record, however, that question cannot be
answered now.
For present purposes, it is enough that Plaintiff has alleged that Defendants
crossed the line and publicized intensely private facts, the publication of which
purportedly served no legitimate public interest. Plaintiff alleges that the facts
Kipnis revealed were not necessary to make her point; she deliberately published
embarrassing details, without context, to fit the narrative she wanted to tell.
Plaintiff claims that Kipnis used “the most intimate details of Plaintiff’s life”–not
just to prove her point about the Title IX process, but “as fodder.” [31] at 16. On
the record before the Court, it is simply not possible to decide as a matter of law
whether Kipnis included gratuitous details to embarrass or undermine Plaintiff. See
Haynes, 8 F.3d at 1233-34 (ordinarily the evaluation and comparison of
offensiveness and newsworthiness would be, like other questions of the application
of a legal standard to the facts of a particular case, matters for a jury). Accordingly,
this Court cannot dismiss count one on this basis.
Defendants also argue that the “facts”−including Plaintiff’s affair with her
prior professor, her relationship with Ludlow (including their private text
exchanges and communications), and the materials from Northwestern’s Title IX

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investigation−were already public when the Book was published, because they were
“discussed in the Ludlow lawsuits.”

[25] at 12-13.

Thus, Defendants argue,

Plaintiff’s claim for public disclosure of private facts fails because “the allegedly
‘private’ information Plaintiff identifies in this lawsuit was, in fact, not private at
all: it has been public for years.” Id. at 13. Plaintiff concedes that some of the facts
published in the Book were within the public domain as a result of Ludlow’s prior
lawsuit. She argues, however, that much of what Kipnis wrote in the Book had not
been previously revealed. Indeed, as Plaintiff points out, Kipnis admits as much in
the Book’s introduction:
Ludlow’s parting wave—he had nothing to lose by
that point—was bestowing on me the files from his
investigation: the Title IX reports and thousands of pages
of background material . . . . It’s an unprecedented
behind-the-scenes view of just how haphazard and,
frankly, incompetent the Title IX process can be. Reading
it was incredibly eye-opening—in fact, a lot of what I read
was shocking, and I’m not exactly unjaded when it comes
to institutional power.
The reason I’m relating Ludlow’s story in the pages
to come isn’t because it happened on my campus, or
because my campus is worse than others when it comes to
sanctioning witch hunts. It’s because a trove of documents
landed in my lap, and the story they tell should see the
light of day exactly because this isn’t just Ludlow’s story.
From what I’ve learned in the last year and a half, these
sorts of arbitrary and often outlandish tribunals are being
conducted at colleges and universities all over the
country, with accused faculty and students being stripped
of their rights and, in many instances, simply hung out to
dry to give the appearance that higher ed is mobilized
against sexual assault.

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Book at 32-33. In light of these statements, the Court cannot find that the Book
revealed only publicly-available information.
B.

Plaintiff’s False Light Invasion of Privacy Claim (Count Two)

In count two of her complaint, Plaintiff alleges that “Defendants’ actions in
falsely portraying Plaintiff as having lied about a sexual assault allegation, as
having given and then retracted consent to sex with Ludlow, and as having filed
multiple Title IX complaints, including a prior complaint against a fellow student,
placed Plaintiff in a false light before the public.” [1] ¶ 80. Plaintiff alleges that the
false light in which Defendants’ conduct placed Plaintiff “would be highly offensive
to a reasonable person” and that, in placing Plaintiff in such false light, Defendants
“acted with actual malice; that is, they acted with knowledge that their statements
were false or with reckless disregard for whether the statements were true of false.”
Id. ¶¶ 81-82. Plaintiff alleges that Defendants failed to “fact-check their sources”
and that Kipnis knowingly omitted contrary evidence, presenting only the
information that “fit her pre-determined narrative.” Id. ¶ 82. Finally, Plaintiff
alleges that she has been harmed and continues to be harmed by Defendants’
actions: she alleges that she has experienced “economic and non-economic damages,
including emotional distress and mental anguish, harm to reputation, harm to
career, and harm to her education.” Id. ¶ 83.
As explained above, the law permits a cause of action for “[c]asting a person
in a false light by publicizing details of the person’s life that while true are so
selected or highlighted as to convey a misleading impression of the person’s

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character.” Haynes, 8 F.3d at 1229. Plaintiff does not appear to allege such a claim.
Instead, count two appears to be based upon the publication of false statements.
Indeed, Defendants argue that Plaintiff’s false light claim fails because her
defamation claim fails. See [25] at 19. As discussed below, however, the Court
rejects the latter premise, and thus, declines to dismiss Plaintiff’s false light claim
on that basis.
Defendants also argue that Plaintiff’s false light claim fails because she
cannot plausibly allege actual malice. Malice, for this purpose, means “knowledge
of falsehood or reckless disregard for whether the statements were true or false.”
Boese v. Paramount Pictures Corp., 952 F. Supp. 550, 557 (N.D. Ill. 1996).
Defendants’ argument ignores the allegations of the complaint. Plaintiff alleges
that Defendants “acted with actual malice; that is, they acted with knowledge that
their statements were false or with reckless disregard for whether the statements
were true or false.” [1] ¶ 82. Beyond reciting the element of malice, Plaintiff also
alleges supporting details regarding specific false statements made by Kipnis and
the fact that Kipnis deliberately omitted evidence that contradicted the narrative
Kipnis wanted to tell–namely, that the Title IX investigation process was a joke and
that Plaintiff’s Title IX complaint against Ludlow was based on a lie concerning her
lack of consent to engage in a sexual relationship. Id. Plaintiff further alleges that
HarperCollins failed to check Kipnis’ sources, despite knowing that Kipnis may
have had an axe to grind with respect to Plaintiff, who had not only complained
about Kipnis’ friend, but had also already complained about Kipnis. Id. Of course,

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it remains to be seen whether the evidence will prove the truth of such allegations.
But at this stage of the proceedings, this Court must accept Plaintiff’s allegations as
true. With the benefit of that presumption, Plaintiff’s claim survives.
C.

Plaintiff’s Defamation Claim (Count Three)

In count three of her complaint, Plaintiff alleges a claim of defamation. In
Illinois, a defamatory statement is one that “tends to cause such harm to the
reputation of another that it lowers that person in the eyes of the community or
deters third persons from associating with him.” Muzikowski v. Paramount Pictures
Corp., 322 F.3d 918, 924 (7th Cir. 2003); Kolegas v. Heftel Broad. Corp., 607 N.E.2d
201, 206 (Ill. 1992). Here, Plaintiff alleges defamation per se. In such a claim, the
alleged defamatory statements are so harmful to reputation that damages are
presumed. Muzikowski, 322 F.3d at 924 (citing Bryson v. News Am. Publ'ns, Inc.,
672 N.E.2d 1207, 1214 (Ill. 1996). Illinois considers a limited number of categories
of statements to be actionable per se, including those implying (1) commission of a
crime, (2) infection with a venereal disease, (3) inability to perform or want of
integrity in the discharge of public duties, or (4) fornication or adultery, and (5)
words that prejudice a party in her trade, profession, or business.

Id. (citing

Bryson, 672 N.E.2d at 1214-15).
Plaintiff alleges that Kipnis’ Book makes false statements about Plaintiff,
including misleading misrepresentations that placed Plaintiff in a negative light.
[1] ¶ 59. For example, Plaintiff says Kipnis wrote and caused to be published and
HarperCollins published:

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•

False statements about the nature of Plaintiff’s personal and
professional relationship with Ludlow, suggesting that it was a
consensual dating relationship and that Ludlow was not in a position
of evaluative authority with respect to Plaintiff;

•

The false assertion that Plaintiff initiated six Title IX complaints,
including that she initiated a Title IX complaint against ‘a fellow grad
student;

•

False statements that Plaintiff initiated two Title IX complaints
against Kipnis, as well as a Title IX complaint against Kipnis’ support
person;

•

False statements about the contents of Plaintiff’s single Title IX
complaint against Kipnis; and

•

False statements throughout Unwanted Advances insinuating that
Plaintiff is a liar who fabricated a false claim of rape against Ludlow to
seek revenge against him.

Id. Plaintiff alleges that Kipnis’ statements “were defamatory because they harmed
Plaintiff’s reputation by lowering her in the eyes of the community and deterring
the community from associating with her.” Id. ¶ 86. She further alleges that the
statements were defamatory per se because the harm to Plaintiff “is obvious and
apparent on its face”; Kipnis’ statements insinuate that Plaintiff engaged in illegal
conduct when she “manufactured a rape allegation against Ludlow.”

Id. ¶ 87.

Additionally, Plaintiff alleges, the accusations that Plaintiff filed multiple Title IX
complaints, including against a fellow student, and made up lies to harm professors,
seek to undermine Plaintiff’s reputation “in the overall community,” as well as in
the “small community of philosophy academia.” Id. Plaintiff alleges that she was
harmed and continues to be harmed as a result of these false statements in that she
has experienced economic and non-economic damages, including emotional distress

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and mental anguish and harm to her reputation, her career, and her education. Id.
¶ 89.
These allegations state a viable claim of defamation per se. Taking Plaintiffs
allegations as true, as the Court must here, Plaintiff challenges statements
suggesting she has committed a crime and statements that prejudice her in her
profession. Indeed, the opening salvo of Kipnis’ chapter on Plaintiff, entitled “FlipFlopping on Consent: A ‘Yes’ Becomes a ‘No’ Years After the Fact,” states:
Sexual consent can now be retroactively withdrawn (with
official sanction) years later, based on changing feelings
or residual ambivalence, or new circumstances. Please
note that this makes anyone who’s ever had sex a
potential rapist.
Book at 91. Kipnis effectively accuses Plaintiff of fabricating a rape charge against
Ludlow. Plaintiff also claims that Kipnis has accused her of being a “serial title IX
filer” who “makes up lies to harm professors,” which is the “kiss of death” in the
small community of philosophy academia. See [31] at 8.
Defendants argue that Plaintiff’s defamation claim should be dismissed
because Plaintiff failed to plead it with the requisite specificity and because the
challenged statements are either not defamatory, as a matter of law, or are
protected expressions of opinion. Initially, the Court rejects Defendants’ specificity
argument. Plaintiff alleges defamation per se; such a claim is not covered “under
the special pleading regime of Rule 9,” but is subject to “the usual rules for notice
pleading established by Rule 8.” Muzikowski, 322 F.3d at 926. Additionally, the
nature of the Book is such that it provides numerous factual statements seemingly

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intended to paint a broad picture of Plaintiff as a liar, who falsely accused a
professor of taking advantage of her and subjecting her to unwanted sexual
advances, ultimately forcing her to engage in nonconsensual sex.

Thus, under

Defendants’ theory, Plaintiff would have to reproduce the entirety of chapter two.
Plaintiff’s allegations suffice to place Defendants on notice of the bases of her
defamation claim. Plaintiff cited the specific publication at issue (the Book) and
provided specific categories of harmful statements; any additional particulars can
be fleshed out in discovery.
Defendants next argue that the challenged statements are nonactionable
statements of opinion. “Opinions that do not misstate actual facts are protected by
the First Amendment and thus non-actionable.” Huon v. Denton, 841 F.3d 733, 743
(7th Cir. 2016). Initially, Plaintiff alleges that Kipnis’ opinions do misstate actual
facts and present the facts in a misleading context. But putting that aside, the
challenged speech constitutes statements of fact, not opinion.
Illinois courts rely upon three factors to distinguish factual assertions from
opinions: “(1) whether the statement has a precise and readily understood meaning;
(2) whether the statement is verifiable; and (3) whether the statement’s literary or
social context signals that it has factual content.”

Id. at 743-44 (quoting Maki

Constr. Co. v. Chi. Reg’l Council of Carpenters, 882 N.E.2d 1173, 1183 (Ill. App. Ct.
2008)). Generally, “name calling,” “rhetorical hyperbole,” and words “employed only
in a loose, figurative sense” are nonactionable. Id. (quoting Pease v. Int’l Union of
Operating Eng’rs Local 150, 567 N.E.2d 614, 619 (Ill. App. Ct. 1991)).

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The challenged statements about Plaintiff’s Title IX complaints–including
statements that Plaintiff initiated six Title IX complaints, including one against a
fellow graduate student, two against Kipnis and one against Kipnis’ support
person–are plainly factual.

They are precise and verifiable.

Categories of

statements about the contents of Plaintiff’s Title IX complaints, statements about
Plaintiff’s relationship with Ludlow, and statements insinuating that Plaintiff is a
liar, could potentially include statements that could be characterized as opinion.
Had Kipnis simply published a statement that Plaintiff’s relationship with Ludlow
was consensual, or that Plaintiff is a liar, Defendants would have a better argument
for dismissal on this basis.
But Kipnis did not just publish her opinion that Plaintiff lied in her Title IX
complaint; she published all of the facts that she used to formulate that opinion.
Kipnis did not simply publish her opinion that the Title IX process remains flawed;
she published factual specifics about Plaintiff’s relationships, including among other
things, whom she dated, where she slept, what she wore at the time, and what she
said to her sexual partners. Those statements, alleged as false as outlined above,
are interwoven in the Book with true, private statements about Plaintiff (the
categories of statements upon which count one rests). See, e.g., Book at 123-24 (“To
date, she’s filed six Title IX complaints—or six that I know of . . . [t]wo of them were
against me, which probably colors my thinking about serial charge-bringers.”).
Kipnis’ statements can reasonably be seen as assertions of fact, not only for
their place within Kipnis’ narrative prose, but because Kipnis herself characterizes

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them as facts in the Book. Kipnis portrays herself in the Book as a crusader against
the injustice resulting from the Title IX process, with inside factual information
never before available, thereby signaling that her statements are not just opinions.
Unwanted Advances provides a lengthy juxtaposition of Kipnis’ opinions based upon
purported facts (some of which Plaintiff concedes are true but private, others which
Plaintiff alleges are false) from these confidential documents.

The test is “not

whether the story is or is not characterized as ‘fiction,’ or ‘humor,’ but whether the
charged portions, in context, could be reasonably understood as describing actual
facts about the plaintiff or actual events in which she participated.” Bryson, 672
N.E.2d at 1220; see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (1990)
(noting that Gertz v. Robert Welch, Inc. was not “intended to create a wholesale
defamation exemption for anything that might be labeled ‘opinion’”). That is the
case here.
Finally, Defendants argue that Plaintiff’s claim should fail as a matter of law
because “failure to investigate before publishing, even when a reasonably prudent
person would have done so, is not sufficient to establish” actual malice to warrant
defamation. [25] at 19 (citing Harte-Hanks Comm. Inc., v. Connaughton, 491 U.S.
657, 688 (1989)).

Taken in context, however, the case Defendants cite actually

undermines their request for dismissal prior to a development of a full evidentiary
record:
We have not gone so far, however, as to accord the press absolute
immunity in its coverage of public figures or elections. If a false and
defamatory statement is published with knowledge of falsity or a
reckless disregard for the truth, the public figure may prevail. A
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“reckless disregard” for the truth, however, requires more than a
departure from reasonably prudent conduct. “There must be sufficient
evidence to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his publication.” The
standard is a subjective one-there must be sufficient evidence to permit
the conclusion that the defendant actually had a “high degree of
awareness of ... probable falsity.” As a result, failure to investigate
before publishing, even when a reasonably prudent person would have
done so, is not sufficient to establish reckless disregard. In a case such
as this involving the reporting of a third party’s allegations,
“recklessness may be found where there are obvious reasons to doubt
the veracity of the informant or the accuracy of his reports.”
Harte-Hanks, 491 U.S. at 688.

Here, as explained above, Plaintiff alleges that

HarperCollins knew Kipnis had a motive to retaliate against Plaintiff, but
nonetheless failed to verify her sources or test the veracity of her prose.

Even

though the ultimate issue of “whether the evidence in the record in a defamation
case is sufficient to support a finding of actual malice” remains a question of law,
the evidentiary record does not yet exist. Id. at 685. For now, taking the allegations
as true, Plaintiff’s claim survives at this stage of the case.
D.

Plaintiff’s IIED Claim (Count Four)

Finally, Defendants seek to dismiss Plaintiff’s claim for intentional infliction
of emotional distress (count four). To state an IIED claim, plaintiffs must allege
that: (1) the defendants’ conduct was “extreme and outrageous;” (2) defendants
either intended that their conduct inflict severe emotional distress or knew that
there was at least a high probability that their conduct would cause severe
emotional distress; and (3) defendants’ conduct in fact caused severe emotional
distress. E.g., Doe v. Univ. of Chi., No. 16 C 08296, 2017 WL 4163960, at *11 (N.D.
Ill. Sept. 20, 2017) (citing Schweihs v. Chase Home Fin., LLC, 77 N.E.3d 50, 59 (Ill.
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2016), reh’g denied (Mar. 27, 2017)). The bar for extreme and outrageous conduct is
high in that the conduct must “go beyond all possible bounds of decency, and [be]
regarded as intolerable in a civilized community.” Hukic v. Aurora Loan Servs., 588
F.3d 420, 438 (7th Cir. 2009). Emotional harm experienced by IIED plaintiffs must
be “so severe that no reasonable [person] could be expected to endure it.” Welsh v.
Commonwealth Edison Co., 713 N.E.2d. 679, 684 (Ill. App. Ct. 1999).
Plaintiff alleges that Defendants published “an entire book that—page after
page—exposes extremely private and painful parts of Plaintiff’s life, makes false
statements about her conduct, brands her a vengeful liar, and turns this promising
young graduate student’s life upside down for the entire world to see.” [1] ¶ 91.
Making matters worse, Plaintiff alleges, Defendants then promoted the Book
widely, compounding the harm to Plaintiff. Id. ¶ 93. Plaintiff alleges that Kipnis
was “blatant and unapologetic” about her “lack of regard for the legal requirements
of Title IX and whether breaching confidentiality and writing about Plaintiff was
legally allowed and would cause harm”; moreover, Defendants never bothered to
reach out to Plaintiff before proceeding with the Book “to check facts or to
determine whether proceeding would harm Plaintiff.” Id. ¶ 94. Finally, with regard
to the degree of harm, Plaintiff alleges that no reasonable person “could be expected
to endure being made the focal point of a campaign by a professor at her own
University not only to discredit the school’s Title IX policies and procedures, but
also to discredit the student herself in her own academic community and far
beyond.” Id. ¶ 95.

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Defendants argue that Plaintiff’s IIED claim fails because: (1) speech on a
matter of public concern cannot provide the basis for an IIED claim; (2) the First
Amendment bars any IIED claim based on speech about matters of public concern
where the plaintiff failed to plead the fault requirements for a defamation claim;
and (3) Plaintiff otherwise fails to plead the elements of an IIED claim. [25] at 19.
The Court’s analysis concerning Plaintiff’s defamation claims disposes of
Defendants’ first two arguments. The Court also rejects the third, as Plaintiff’s
allegations suffice at this point in the proceedings.
Defendants’ conduct, as described in the complaint, could be seen by a
reasonable jury as extreme and outrageous. Taking Plaintiff’s allegations as true,
Kipnis documented a false and misleading account of Plaintiff’s travails, taking
facts out of context and falsely characterizing confidential investigation materials,
to paint Plaintiff as a liar–and not just any liar, but a liar about matters of sexual
conduct, sexual consent and allegations of rape. Worse yet, Kipnis did so to get
revenge on Plaintiff, a graduate student at the same university, for complaining
about the alleged sexual predation of a professor and for complaining about Kipnis’
initial attack on Plaintiff. Allowing such content to be published, with knowledge of
the parties’ history and without any investigation (which is what Plaintiff alleges
HarperCollins did) could also satisfy the extreme and outrageous standard.

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III.

Conclusion
For the reasons explained above, the Court finds that Plaintiff’s allegations

suffice to state claims of publication of private facts, false light invasion of privacy,
defamation, and intentional infliction of emotion distress. As a result, the Court
denies Defendants’ motion to dismiss [24].

Dated: March 6, 2018
Entered:
____________________________________
John Robert Blakey
United States District Judge

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