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Some Allegations of Sexual Misconduct Constituted a SLAPP, C.A. Holds
Two Widely Disseminated Claims That Four Former Classmates Fabricated Accounts to Harm Plaintiff Are Held to Be Triable
By a MetNews Staff Writer
Allegations by four former students at Stanford that they were victims of rape and sexual assaults by a then-classmate constitute protected speech, for purposes of the anti-SLAPP statute, the Sixth District Court of Appeal has held.
However, Presiding Justice Mary J. Greenwood declared on Monday, plaintiff Thomas White, suing for defamation, may proceed as to two of eight communications of which he complains: those based on a posting on a student-run organization’s “Slack channel” (an instant messaging platform) and assertions made in a campus anonymous email-based publication, “Fountain Hopper.” Defenses that defeat other claims do not apply, Greenwood said in an unpublished opinion.
In finding the communications by the defendants—Ariana Gabriel, Julia Thompson, James Wall, and Maya Harris—to be protected speech, Greenwood relied on the California Supreme Court’s 2019 decision in FilmOn.com Inc. v. DoubleVerify Inc. There, the court dealt with subd. (e)(4) of the Double Verify anti-SLAPP statute, Code of Civil Procedure §425.16.
That “catchall” provision renders privileged “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”
In an opinion for a unanimous court, then-Justice Mariano-Florentino Cuéllar (now president of the Carnegie Endowment for International Peace) said in Film-On.com that “the catchall provision demands ‘some degree of closeness’ between the challenged statements and the asserted public interest.”
All Statements ‘Protected’
Identifying what public interest is in issue, Greenwood said in Monday’s opinion:
“The challenged statements in this case directly or implicitly concern White’s purported sexual assaults and violence. Sexual violence is a matter of concern to the larger public.”
The alleged misconduct—which White strenuously denies—is said to have taken place when the plaintiff and the alleged victims were undergraduates, all members of the Stanford Space Initiative (“SSI”), a group of students planning to enter the aerospace industry. The jurist commented:
“The concern here was pressing because White was a Stanford graduate student and a member of SSI at the time of the alleged statements. His alleged sexual violence could affect large numbers of students beyond defendants….Therefore, the eight statements implicate public issues.”
Turning to the issue of “closeness” of the defendants’ comments to the public interest she said:
“All eight statements by defendants contributed to the public discussion of sexual violence and safety on Stanford’s campus….These statements contributed to the existing community discussion concerning Stanford’s deficient response to sexual violence on campus.”
The presiding justice noted that the defendants “believing White had a history of sexual violence and access to weapons, reached out to Stanford” and to members of a particular community “with the expectation the shared information would protect others and further the Title IX investigation” that was in progress.
Greenwood determined that White failed to meet his burden under the second prong of the anti-SLAPP statute— showing “minimal merit”—as to four communications to individual students and two to members of a Stanford community. But, she announced, “[t]he defamation claim based on the two communications to the larger Stanford community may proceed,” saying that “[d]efendants’ privilege defenses fail.”
The jurist wrote:
“The SSI Slack post was made in a channel containing thousands of members, and the Fountain Hopper publication was available to almost tens of thousands of Stanford community members. Because common interest privilege does not apply to broad media statements, neither publication falls under the common interest privilege….Both communications are also not subject to the litigation privilege because defendants did not make the statements with the intent they would assist the Title IX investigation….Neither communication is subject to the fair and true reporting privilege because the communications do not reference a potential Title IX proceeding.”
Two Claims Survive
Greenwood said the statements in issue consist of non-conditional and inflammatory terminology that harms White’s reputation” and that “the totality of the circumstances supports” a conclusion that “a reasonable fact finder could conclude the two published statements declare provable, defamatory assertions of feet.”
In his opening brief on appeal, White makes note of Gabriel “claiming to have suddenly recovered repressed memories of being repeatedly raped on campus” by him two years earlier, remarking:
“The claims were so baseless that on at least one of the alleged dates both her own text messages and third-party witnesses prove she was in Canada.”
He asserts that the defendants, “decided, in their words, to ‘take down Thomas,’ adding:
“Despite acknowledging in private texts that none of them could ‘provide evidence that he poses a risk to anyone, has raped anyone...or has done anything wrong,’ they acknowledged that their defamation campaign could ‘ruin his life completely legally’ Ultimately, they baselessly claimed to thousands of unrelated bystanders—including, by their own design, ‘everyone who’s ever known him’—that Thomas White had raped three, four, eight, nine, twelve, and finally seventeen people.”
The case is White v. Gabriel, H051530.
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