Columbia University has been at the center of the growing conversation about campus life and sexual assault in the past year, and now is the target of a new lawsuit by a student accused of misconduct.  The case spotlights the collision between free expression and disparagement and the often uneasy balance between them.  It also raises some questions about the level of intimate detail included in the documents in a case that is not actually about that conduct, but rather about an educational atmosphere.  Nothing in the following article  should be read as an adoption of any particular version of events.

In 2013, a Columbia student named Emma Sulkowicz accused a fellow student of sexual assault in 2012.  The matter was reported to the university disciplinary board, and was resolved in in favor of the accused (who vehemently denied any wrongdoing and characterized the encounter as consensual) insofar as he was found “not responsible.”  Sulkowicz then made her accusations public to the extent they had not been.  In addition, Sulkowicz began in 2014 what she called Mattress Performance/Carry That Weight—stating her intention to carry a twin-sized mattress around the Columbia campus her senior year until the accused was expelled (which he was not).  Sulkowicz and several other students also filed a Title IX complaint with the U.S. Department of Education’s Office of Civil Rights, alleging that the school botched the disciplinary process in violation of its Title IX obligations.

In an interview,  Sulkowicz described Mattress Performance as follows:

The idea of carrying a mattress got stuck in my head the way a song gets stuck in your head, and I unpacked why carrying a mattress is an important visual for me. . . .  Also the mattress as a burden, because of what has happened there, that has turned my own relationship with my bed into something fraught.

Recently, Paul Nungesser (the man whom Sulkowicz accused) filed a lawsuit arising out of Mattress Performance.  In overview, Nungesser alleges that the performance was a defamatory stunt because, he says, he did nothing wrong.  Most surprisingly, however, he did not sue Sulkowicz—he sued Columbia, its president, and one of its professors, alleging his own Title IX violations.

There are a few noteworthy legal aspects that immediately come to mind in the realm of art law (in addition to consideration of campus disciplinary processes, and the growing trend of lawsuits filed by those accused of sexual assault against the universities that disciplined them, extremely fraught topics that we won’t unpack here).  For our purposes, the topics relate to the nature of free speech, art, and defamation law.

The First Amendment, despite what it says, has never been held to immunize all speech.  False statements of fact that create certain reputational injuries are actionable, and few more so than statements alleging the commission of a horrific crime.  So, if Mr. X says, “Mr. Z is a pedophile” and it’s not true, Mr. Z can sue—even if otherwise contained in work of art or literature.  On the other hand, the First Amendment protects very broadly creative expression.  So any kind of creative work of fiction about gender dynamics, sexual assault, or campus social life in a more abstract way will enjoy almost limitless protection.  If the defamation plaintiff is what is called a “public figure,” the plaintiff must prove that the defendant acted with “actual malice”—actual knowledge that the statements are untrue and intent to harm the defendant’s reputation—if not, merely that he or she was negligent as to the truth of her statements.

Important protections also exist for statements made in the course of litigation, which are absolutely privileged and cannot be the basis for a claim, or for fair reporting of judicial proceedings, which are conditionally privileged.  Murkier are comments made about allegations that form the basis of a judicial proceeding but which are made outside the process—like statements on campus or to a university adjudicatory body.  The Mattress Performance itself, by all descriptions, makes no actual statements of fact or statements about Nungesser specifically, it is simply the act of carrying a mattress.  Certainly, however, Sulkowicz’s accusations of rape, if untrue, would border on being per se defamatory, of which the accused would have to convince a court by the preponderance of the evidence. As noted above, however, Nungesser did not sue Sulkowicz.  The crux of the new lawsuit is that Columbia violated the law by allowing Mattress Performance to continue to his educational detriment.  He also sued art professor Jon Kessler for encouraging the project.  That raises very series free speech problems particularly with respect to Kessler, who is himself an artist.

Another noteworthy aspect of this lawsuit concerns the intersection of that defamation law and the boundaries of the Federal Rules of Civil Procedure with regard to the allegations necessary to sustain a lawsuit.  Distilled to its essence, Nungesser alleges that his life on campus became intolerable because the school allowed and encouraged Mattress Performance.  If he is telling the truth, that theory is easy enough to understand.  Yet the Complaint devotes considerable attention to detailing Sulkowicz’s supposed sexual history with both Nungesser and with other men, and suggestions about her contracting venereal disease.  As noted above, nothing written in the Complaint can be defamatory, since it is part of the legal proceedings.  But just like the accusations against him, if Nungesser republished the contents of the Complaint in a way that asserts its allegations as fact (as distinct from reporting that fact that the allegations were made), they would not enjoy that privilege.  As bar exam takers will recall, statements that a person has what is euphemistically referred to as a “loathsome disease” are generally per se defamatory in their own right.  Thus, he could open himself up to a claim from Sulkowicz (who as far as we know has not brought any civil claims to date against him) regardless of whether he prevails against the university defendants.

Even assuming Nungesser had done nothing wrong, however, or even assuming that his allegations about Sulkowicz were true, what do those prurient details have to do with the atmosphere of hostility he alleges the university created?  The Rules of Civil Procedure have something to say about this.  On the one hand, requirements have tightened in recent years to require more specific pleadings of fact to sustain a lawsuit.  On the other hand, Fed. R. Civ. P. 12(f) states: “The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”  Details of sexual conduct are frequent targets of this rule and courts frequently strike intimate allegations of this sort—among the relatively few motions to strike that tend to be allowed, particularly if the court thinks that the evidence would never be admissible for the trial on the claim as they are.  In an unrelated case in the same court where this case is now pending, one judge confirmed the striking of extraneous sexual details by saying that the order to strike reflects “the Court’s views as to the inappropriateness of the irrelevant and personally intrusive comments in plaintiff’s submissions. These observations and rulings have now put plaintiff squarely on notice, and the Court trusts that he will conduct himself properly in this case going forward.”

So would text messages of a non-party about sexual encounters with other non-parties be admissible in a case about the subsequent educational climate?  It seems unlikely, and could draw the ire of the court.

This story is most assuredly not going to be over any time soon.