The NY Court of Appeals won't hear my case—and so my libel suit at NYU is over

We fought this good fight long and hard, which is itself a victory against the canons of authoritarian compliance (and, no doubt, my colleagues will think twice before they slander others)

If you don’t know the story of my long ordeal at NYU, you may read the update that I posted back in early June (scroll down). Or you might just watch one or other of the many podcasts (linked in the post below) that I’ve done to tell the story—with Tom Woods, Del Bigtree, Matt Taibbi and Katie Halpern, Anna Khachiyan and Dasha Nekrasova, Tessa Lena, Dr. Joseph Mercola, Bretigne Shaffer, Jason Bosch, Meghan Murphy, Catherine Austin Fitts, Naomi Wolf, James Delingpole, Greg Hunter and (most recently) Jimmy Dore, among others. (Those interested enough to study all the pertinent documents—an archive that will, one day, fascinate historians of persecution, if there are any left—that trove is at https://markcrispinmiller.com, linked under “Libel Lawsuit.”)

And now, my friends, the story’s over. This is how it went: The first judge took a year to grant my colleagues’ motion to dismiss, ruling (weirdly) that there was no “actual malice” driving them, or that we’d failed to show there was. (That rationale was his, not theirs.) Since my colleagues’ malice was (to put it mildly) obvious, we appealed, urging the intermediate appellate court to let the case proceed; and they too refused, arguing—not just weirdly, but with dire implications for free speech in this darkening country—that my colleagues’ crackpot brief against me, represented urgently as “factual” throughout, was only their “opinion,” and so not defamatory in the least. Thus they had every right to charge me, in a formal letter to the dean, with “routine hate speech,” “attacks on students and others in our community,” “intimidation” in the classroom, putting lives at risk by “telling my students not to wear masks” (which I never did), forcing “non-evidence-based theories” on my classes, and “aggressions and micro-aggresions”—among other (imaginary) crimes, or sins, so serious that they should obviate my academic freedom, thereby enabling NYU to fire me, tenured though I am.

This, in fact, is classic defamation—which, moreover, was soon re-asserted in the Chronicle of Higher Education, and still resounds today on Wikipedia (of course), and in a dismal academic book proposing faculty tribunals to police the speech of tenured heretics.* By whitewashing that patent libel as an innocent expression of “opinion,” the court has not just wronged one dissident professor, but has dealt a body-blow to free speech overall, since they have set a precedent that may, and surely will, be used henceforth to blow off any libel lawsuit brought against some well-fixed punisher(s) of truth. Meanwhile, the character assassins hired, or otherwise induced, to slander those who tell unwelcome truths will, when they are (justly) criticized, have no trouble suing for libel, and winning, even though the speech thus punished be, demonstrably, not libel, but—indeed—opinion.

It was in hopes that they would take our case, and thereby overturn that deadly precedent, that we petitioned the Court of Appeals—which wasn’t interested (or was, but not in favor of free speech). It may be telling, somehow, that they also ruled against my colleagues’ bid to have my case against them deemed a SLAPP suit, so that I’d have to pay their legal fees; so now at least they have to pay them, which (of course) is only right—and a smidgen of the justice they (and I, and all of us) deserve.

So the court’s decision is a major disappointment, whose consequences will, no doubt, come clear in days to come; but it was not a shock, at least to me. While Mike Sussman, my lawyer, was unpleasantly surprised (see his email below), I’ve always figured that the courts would ultimately find against us, since NYU was on my colleagues’ side; and NYU—what with its big, rich law school, and almighty board of trustees—largely owns the bench in New York State. I know this from having led the faculty resistance to “NYU 2031,” a monstrous real estate expansion plan for Greenwich Village—a years-long battle that entailed our suing New York City for approving that horrendous, needless, student-debt-based boondoggle. Although we did not sue NYU, their interest was decisive; so we ultimately “lost” in court, for no clear legal reason. (We did succeed, extra-judicially, in limiting the damage that the project would have done, had it sailed through.) And, soon thereafter, NYU’s judicial sway came clear to me again, when I served as a named plaintiff in an ERISA class-action suit against the university for mismanaging the faculty retirement plans. Despite the poor performance of NYU’s side in court—the judge commented on it, witheringly—she too ruled arbitrarily against us; whereupon she quit the bench, and moved on to a law firm headed by an NYU trustee. (Five years later, our appeal drags on.)

Judge Saved NYU $350 Million While Employed by University

The plaintiffs alleging NYU mismanaged employees’ retirement funds want the case retried after discovering the judge’s conflict of interest.

October 15, 2018

Mark Miller, a professor in the Steinhardt College of Culture, Education and Human Development, is one of six plaintiffs who lost a suit regarding NYU retirement fund management. They are trying to get the suit reopened, alleging that the judge who made the ruling had a conflict of interest. (Photo by Sam Klein)

And then, of course, on top of all that (what we might call) local history of faculty resistance to NYU’s practices, since COVID we have also seen NYU—with it big, rich medical school, and vast network of hospitals and clinics—variously flex its bulging muscles in promotion of all “COVID measures,” including mandatory “vaccination” of the whole “community” (except for those who were allowed exemptions). Such activism has (of course) been driven by NYU’s tight relations with Big Pharma and the government (at every level); so it’s not shocking that the courts have done their best to make this whole case go away, despite its strength, and the self-incriminating “evidence” whereby my colleagues tried to prove the truthfulness of their mad fantasies about my teaching, views and character. (Those exhibits too are on my website.)

So we went up against Goliath, and we lost. So what? I’d do it all again (and, in this ever-darker world, I may well have to). I’d do it all again, because, as far as I’m concerned, we won. The lawsuit was itself a victory, as it made clear to all the world that we will fight to tell the truth, and fight together in defense of it and one another. That tens of thousands all around the world supported me, and thousands helped me cover the expenses of this effort, is a victory as well. And even though all my “woke” colleagues, for all their quasi-"leftist" belly-aching against NYU-the-corporation, were ultimately favored by the vast judicial influence of that behemoth (which they only served by trying to drive me out), they surely learned their lesson anyway, and will think twice before they slander anyone as they so wildly slandered me.

On the other hand, there’s no denying that NYU’s students have been cheated, since I’m still not allowed to teach my propaganda course, despite its popularity throughout the years, and the especial urgency of studying that subject at this moment. (Actually, I’m not allowed to teach the course because it’s so important at this moment; for—let’s face it—while we can, and even must, teach CRT and “gender theory” and whatever “woke” precepts may appear to re-affirm such dogma, we are not allowed to teach the slaves to read.) Though I’m on sick leave this semester, so that the issue is (as it were) academic, once I am back on campus I will ask to teach that course again.

Let me end with my sincerest thanks to Mike Sussman, for the lucidity and force with which he fought on my behalf, and, as well, to all those who donated to this effort, and those who either reached out to encourage me, or spoke out publicly on my behalf.

*Michael Bérubé and Jennifer Ruth, It's Not Free Speech: Race, Democracy, and the Future of Academic Freedom, published in April, 2022 by the Johns Hopkins University Press. Once a first-rate academic house, JHUP is now a steady fount of bio-fascist propaganda, including The Doctor Who Fooled the World, Brian Deer’s assault on Andrew Wakefield, and The Deadly Rise of Anti-Science, by the unspeakable (and undebatable) Peter Hotez.

From Michael Sussman:

The court of appeals has declined to hear your case, either on my application or the "counter-application" by our adversary which wanted the court to say this was an anti-SLAPP suit and you should be ordered to pay the defendants' attorney fees, etc.  I am attaching that court order.  

There is no further judicial review available.  New York Courts have determined that the statement made about you is either a matter of opinion or otherwise privileged as communication between persons with a common interest.  I find both chains of argument baseless and unsupported in the law.  I believe those who wrote/signed the letter we challenged were stating "factual" propositions about you and that these were largely or substantially false, deprecated your professional standing and were so maliciously intended with reckless disregard for their falsity.  

I believe that, as in the defamation trial I won yesterday [press release also attached] had I been given the chance, I could have demonstrated this.  I also believe that actual malice defeats the common interest doctrine, making it moot or at best for defendants arguable in this instance.  But I made my arguments and lost.  I regret that, but here we are.  

Michael Sussman’s press release about that other (winning) libel case:

Late this afternoon, a six-member jury unanimously decided that Sullivan County Board of Legislators' Chair Robert Doherty had defamed his predecessor, County Legislator Luis Alvarez, when he publicly claimed that Mr. Alvarez had called a female county commissioner a "cunt" and when he further claimed that this allegation was "founded."  Comprised of four women and two men, the jury returned its verdict after about two hours of deliberation following a three-day trial in Monticello at which ten witnesses testified.

Mr. Alvarez initiated his lawsuit in the spring 2021, claiming that Mr. Doherty acted with actual malice and recklessly made these allegations knowing they were false.  The jury agreed.  Mr. Alvarez testified at trial that he never called the Commissioner this vile term, and that Mr. Doherty issued a press release on January 22, 2021 after behaving dismissively and hostilely toward him during their first year together in the County Legislature. 

Fellow county legislator Nadia Rajsz was the trial's last witness and testified that she had worked closely with Mr. Alvarez in the legislature, had never heard him speak in this manner and found him honest. Mr. Doherty's testimony was marked by numerous contradictions, changing accounts of events and answers inconsistent with those he provided at his deposition eight months ago and with that of other witnesses. 

In his testimony, Mr. Alvarez told the jury that clearing his name and restoring his reputation motivated his lawsuit, not money.  He specifically explained that he was not suing for money.  The jury awarded neither compensatory not punitive damages to Mr. Alvarez who commented, "All the money in this world is not as meaningful as a jury of our peers finding that Mr. Doherty defamed me in two ways.  He recklessly accused me of a despicable act, damaging my well-earned reputation. He then had the gall to claim that this baseless allegation was "founded" when he knew full well that my accuser had failed to ever even raise any such claim when speaking about my conduct to either the Director of Human Resources or the Ethics Board.  The claim was never founded by anyone.  I feel vindicated and appreciate the hard work of this jury and of presiding Judge Bryant."  

Both Mr. Alvarez and Mr. Doherty are both seeking re-election as legislators this November.  Mr. Alvarez remarked, "We cannot continue to elect leaders who have a profound disregard for the truth and a disrespect for the processes our County has established to investigate serious claims of harassment and discrimination. If Mr. Doherty truly believed that I engaged in this despicable behavior, he should have respected the privacy of the woman who came forward and referred her to the proper authorities in our county for a proper investigation. Instead, he wanted to embarrass me and politically assassinate me and issued a scurrilous press release and then engaged in facebook posts which compounded the damage. But he has failed and I look forward to continuing my service to Sullivan County and its resident."  Mr. Alvarez retired in 2015 from the Sheriff's Department where he honorably served for thirty years.

For further comment, please reach Michael Sussman, Mr. Alvarez's lawyer at 845-294-3991.

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