From today's report and recommendation in Koppel v. Moses by Chief Magistrate Judge Donald Cabell (D. Mass.):
This case arises from an incident involving two former students at the Massachusetts Institute of Technology …. [The parties], both graduate students at the time, belonged to a student organization known as the Student Information Processing Board ("SIPB"). SIPB leadership decided following certain events to request that Koppel refrain from participating any further in the group and Moses, acting as the organization's chair, sent two emails to other SIPB members communicating the organization's decision. Contending that the emails were false and defamatory, Koppel brought this action which, following prior litigation, asserts a single claim for defamation…. [I recommend that Moses's motion for summary judgment be denied.] …
[Koppel] focuses principally on two purportedly false statements that were present in both emails. In the first, Moses cites "the severity, consistency, and widespread nature of his interactions" in the context of "sexual harassment" …. Regarding the second, Moses writes that Koppel had "been given several opportunities to change his behavior and failed to do so" …. [E]ach statement conveys the same meaning: first, that Koppel engaged in the severe, consistent, and widespread sexual harassment or sexual misconduct; … and second, that he was asked to stop, or given opportunities to change, the behavior but failed to do so.
It is well established that "[w]hen a statement is substantially true, a minor inaccuracy will not support a defamation claim." Here, the court finds based on the record that a jury could find that the first statement, which characterized Koppel's sexual harassment or sexual misconduct related interactions as "sever[e], consisten[t], and widespread," was false when made.
To begin, a jury could find that "severe" interactions would as a matter of common sense exclude interactions between Koppel and another person that merely made that person uncomfortable. Under this ordinary construction, a jury could find further that only three published statements reflected severe interactions:
(1) Zeng's report that Koppel slapped her arm, which took place in late January 2020; (2) Samaratunga's report of an incident of sexual assault, which took place in 2016 and which Koppel described as involving his former girlfriend, Voss; and (3) Zeng's report of her best friend, i.e., Kim, no longer coming to the SIPB Office because of Koppel and "another creepy dude."
Even construing the record in Koppel's favor, the remaining reports at most concerned people being made to feel merely uncomfortable as opposed to deeply uncomfortable and subjected to sexual misconduct or sexual harassment. For instance, Moses testified that keyholders or SIPB members on February 10 may have mentioned conversations with Koppel that made them "uncomfortable for a variety of reasons," such as belittling. Chen, Dehnert, and an anonymous keyholder reported about one person or several persons being made to feel uncomfortable. Moses testified that Koppel made him uncomfortable by hugging him and, at times, rubbing Moses' head. During a 2018 SIPB dinner, Koppel told a story about a mathematical theory based on "a pun on COC," whereupon he felt some displeasure from Skeggs, and, perhaps, indicated the incident might have made Skeggs uncomfortable. { The testimony as to whether the incident might have made Skeggs uncomfortable is not clearcut. Specifically, after describing the incident and others, Koppel was asked "[w]hat other incidents might have made [Skeggs] uncomfortable." Koppel answered that he could not "recall any others at this time."} As none of these other anecdotal reports involved instances of sexual harassment or misconduct, they fall short of reflecting "severe" interactions with Koppel involving sexual harassment or misconduct.
In sum, only three of the interactions involving Koppel that Moses knew of involved sexual harassment or sexual misconduct (Zeng in late January 2020; Kim in 2019; and, as reported by Samaratunga, Voss in or around 2016). Consequently, a reasonable factfinder could conclude from this small number that Moses' characterization of the reports he received as reflecting severe, consistent, and widespread interactions implicating sexual harassment or sexual misconduct was false.20
The second statement likewise allows a jury to conclude it was false as opposed to substantially true. The relevant portion of the February 27 email states that Koppel was given "several opportunities to change his behavior and failed to do so." The March 2 email similarly refers to "requests to stop" the behavior. But, based on the record, there is little indication that Koppel was given opportunities to change or received requests to stop the sexual harassment or sexual misconduct.
Rather, the replies to Moses in response to the February 26 email described the alleged sexual harassment or sexual misconduct, but they did not mention a request to stop or an opportunity to change the behavior. There were also few, if any, communications posted on Mattermost regarding Koppel being given opportunities to change or requests to stop the behavior….
[Moreover], in this court's view, a factfinder could conclude based on the record that Moses published the second statement knowing it was false, and published the first and the second statements with reckless disregard. Turning to the first statement, Moses knew of three interactions indicative of sexual harassment or stories from SIPB members about Koppel making them deeply uncomfortable: Zeng in late January 2020, Kim in 2019, and, as reported by Samaratunga, Voss in or around 2016. Moses also knew about the additionally reported interactions concerning Koppel that made SIPB members feel merely uncomfortable (the "uncomfortable interactions").
A jury could find that Moses did not subjectively believe that the uncomfortable interactions were so extreme as to be severe. For example, the hugs Koppel gave Moses made him feel uncomfortable, but he did not consider them sexual in nature. Although Moses testified that he asked Koppel to stop the hugs, he continued his friendship with Koppel, and the two discussed becoming roommates. As such, a jury could infer that Moses did not actually believe the interactions were extremely bad because, if they were, Moses would have distanced himself from Koppel rather than continue their friendship unchanged. Similarly, Moses described comments at the February 10 gathering by SIPB members recounting that Koppel made them uncomfortable. The comment Moses recalled concerned belittling. Here again, a jury could infer that belittling, by definition, is not necessarily severe and, further, that Moses did not believe it was severe. Similar reasoning discredits an actual belief, if any, by Moses that Koppel's repeated use of degrading language to SIPB members was severe.
{The February 26 email cites the degrading language as one of four examples of incidents that generated reports from SIPB members of uncomfortable interactions. Two of the other examples (arguing that a female keyholder was overreacting by complaining about street harassment as well as arguing that it was sexist to treat the Epstein scandal as a gendered cultural problem) allow a jury to reasonably infer that Moses did not believe these relatively innocuous incidents were extremely bad or serious. The summary judgment record is sparse regarding Moses' beliefs and thus does not preclude the jury from drawing this reasonable inference. Construing the record in Koppel's favor, the final example (initiating physical contact with someone who told Koppel to stop) allows the jury to draw a similar conclusion.}
With the vastly reduced number of uncomfortable interactions that Moses believed or had reasonable grounds to believe were severe, Moses nonetheless proceeded to characterize the interactions as widespread. Whereas Moses had a basis to believe the three incidents involving sexual harassment or sexual misconduct in 2016, 2019 and 2020 were severe, it is debatable whether he also had reasonable grounds to believe they were widespread, i.e., among many people. Bolstering this inference is the large length of time encompassed by the reported incidents—in or around 2016 to February 2020. It stands to reason that such a long time-period would have generated more reported incidents had they occurred. As such, a jury could find that Moses published the first statement with reckless disregard for its truth or falsity….
[Likewise], a jury could conclude that Moses did not believe (or have reasonable grounds to believe) that Koppel had been given several opportunities or asked to stop the behavior on more than one occasion….
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