Libel lawsuit over 1983 Chronicle news item is dismissed

A federal judge has dismissed a Cornell graduate's $1 million lawsuit over a 1983 Cornell Chronicle report that he had been charged with burglary in the third degree, a felony, in the spring of 1983, when he was a student. The plaintiff, now a practicing California lawyer, had sought damages for libel and public disclosure of private facts in an alleged "republication" of the Chronicle article.

Judge Barry Ted Moskowitz of the U.S. District Court for the Southern District of California granted the university's motion to dismiss the suit based on California law barring "strategic lawsuits against public participation," commonly known as the "anti-SLAPP" statute. The law is designed to protect the exercise of free speech and freedom of the press from punitive lawsuits.

"I feel that this is a real victory for the library in terms of being able to make documentary material accessible," said Anne Kenney, university librarian. "I do share concerns that individuals might have about potentially embarrassing material being made accessible via the Internet, but I don't think you can go back and distort the public record."

Nelson E. Roth, deputy university counsel, welcomed the outcome. "If a suit appears to be designed to discourage participation in constitutionally protected activity, the burden shifts to the plaintiff to show that there's a likelihood he's going to prevail on the merits," he explained. "The judge's detailed recounting of [the facts of the 1983 case] leaves no doubt that there was no merit to the claim." Because the judge's ruling came at the beginning of the case, he noted, the university was able to avoid pretrial discovery and costly protracted litigation. The statute also requires the plaintiff to pay Cornell's legal expenses, he said.

The case arises out of a paragraph in a Cornell police reports column in the March 17, 1983, issue of the Chronicle stating that Kevin G. Vanginderen, then a senior, had been charged with third-degree burglary in connection with several campus thefts. Last year, Cornell Library digitized several years of the Cornell Chronicle and made them available online. Vanginderen found the item in September 2007 while doing a Google search on his own name. He asked the university to remove the story, but the university, Roth said, declined to rewrite history. He then filed a lawsuit claiming that the report was false and that its distribution on the Internet caused "loss of reputation" and "mental anguish."

Both California and New York laws impose a one-year statute of limitations on claims of libel, but Vanginderen asserted that posting the story on the Internet constituted republication and brought his libel claim within a year of his Google search discovering the story.

After having the case moved to federal court, a common procedure in such cases, Cornell petitioned for dismissal under the anti-SLAPP statute. This requires a plaintiff either to demonstrate that the statute does not apply or to present evidence that if the action proceeds the plaintiff has a substantial likelihood of winning.

The judge found that the case clearly fell under the statute, noting that "the article ... concerns a matter of public interest," and "the truthful reporting of information in public official records regarding criminal proceedings against an individual [is] protected by the First Amendment regardless of whether the reporting is concurrent with the criminal proceedings or years later."

As to whether Vanginderen would prevail if the lawsuit went to court, Moskowitz reviewed all the facts in the 1983 burglary charge and concluded that the Chronicle story was substantially true. "Truth is an absolute defense to any libel action," he noted.

Records produced on Cornell's motion reveal that Vanginderen was charged with third-degree burglary in Ithaca City Court on March 8, 1983. He later pleaded guilty to a lesser charge of petit larceny in satisfaction of the burglary charge. The records included a Cornell Police investigation report saying that stolen property was found in his room and that he had admitted to several thefts.

Moskowitz also dismissed the claim of public disclosure of private facts, again because the facts were a matter of public interest.

The judge did not address the question of whether distribution of old information on the Internet constitutes "republication." It would be disastrous if every time we scan something, we had to take the same editorial responsibility as the initial publisher," said Cornell Library archivist Peter Hirtle, a leader in Cornell's extensive digitization programs. Nevertheless, he said the decision is a step forward: "It reaffirms the important role libraries can play in promoting free speech and providing ready public access to information on the activities of government."

Vanginderen has filed another suit, for $10 million, claiming that by submitting the original report to the court as evidence in the case, Cornell has again republished the information. "I think it's a frivolous case," Roth said. "Established doctrine recognizes immunity from liability for any document you introduce in court to defend against a claim brought against you. The evidence introduced by Cornell in the first case that the plaintiff is suing over in the second case was in fact the basis for the judge's determination that 'truth is an absolute defense to any libel action.' Plaintiff's second case is preposterous."

Cornell is represented in both cases by Roth, associate university counsel Valerie Cross Dorn, and Bert H. Deixler and Clifford S. Davidson from the Los Angeles office of the law firm Proskauer Rose.

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Simeon Moss