Kinsey v. New York Times Co.

20-1304-cv
Kinsey v. New York Times Co.
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2020
No. 20-1304-cv
GWYNN X. KINSEY, JR.,
Plaintiff-Appellant,
v.
THE NEW YORK TIMES COMPANY,
Defendant-Appellee.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: OCTOBER 30, 2020
DECIDED: MARCH 15, 2021
Before: LIVINGSTON, Chief Judge, CABRANES and LYNCH, Circuit Judges.
This case presents two questions: (1) whether the District Court
was correct to apply New York law to the instant dispute, and (2)
whether Kinsey’s Complaint was properly dismissed under the fair
report privilege. We answer both in the affirmative and AFFIRM the
judgment of the District Court dismissing the Complaint.
BARRY COBURN, Coburn & Greenbaum,
PLLC, Washington, D.C., for Plaintiff-
Appellant.
DANA R. GREEN (David E. McCraw and
Alexandra Perloff-Giles, on the brief), The
New York Times Company, New York, NY,
for Defendant-Appellee.
JOSÉ A. CABRANES, Circuit Judge:
This case presents two questions: first, whether the choice of
New York law by the United States District Court for the Southern
District of New York (Vernon S. Broderick, Judge) was proper, and
2
second, whether the District Court properly dismissed the Complaint
under New York’s fair report privilege. On the record before us, we
answer both in the affirmative. The District Court performed the
proper choice-of-law analysis, applying New York law to the conflict.
It correctly reasoned that New York was the state with the most
significant interests in the litigation and applied New York’s fair
report privilege. The District Court then properly dismissed Kinsey’s
Complaint as barred by the fair report privilege because the alleged
defamatory statement was attributed to an official proceeding.
Accordingly, we AFFIRM the judgment of the District Court.
I. BACKGROUND
In reviewing a district court’s grant of a motion to dismiss, we
must “accept[] as true the factual allegations in the complaint and
draw[] all inferences in the plaintiff’s favor.” 1 For motion to dismiss
1 Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015).
3
purposes, the complaint is deemed “to include any written instrument
attached to it as an exhibit or any statements or documents
incorporated in it by reference.” 2 We construe the following facts in
the light most favorable to Kinsey.
As set forth in the Complaint, Plaintiff-Appellant Gwynn X.
Kinsey, Jr. worked at the U.S. Department of Justice’s Capital Case
Section (“CCS”) from September 1998 to October 2017. In 2016, he was
promoted to Principal Deputy Chief of CCS. One year later, on May
24, 2017, Kinsey attended a happy hour with his CCS colleagues at
Proper 21, a bar located in the District of Columbia. There, he had
sexual contact with Alyssa tenBroek, a female CCS intern who had
joined CCS in November 2015 and reported to Kinsey until she was
reassigned to another deputy chief of the CCS in July 2016. Following
2 Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000).
4
the happy hour incident, the Justice Department reassigned Kinsey to
its Office of Enforcement Operations.
The following year, on March 31, 2018, The New York Times
(the “Times”) published an article in print and online, “At the Justice
Dept.’s Death Penalty Unit, Accusations of Favoritism, Gender Bias
and Unwanted Groping” (online), and “Justice Dept. Is Facing Claims
of Gender Bias, Favoritism and Groping,” (print), authored by Katie
Benner. The article details a Times investigation into a series of
complaints about the former Chief of the CCS, Kevin Carwile,
“including complaints that he promoted gender bias and a sexualized
environment,” and it refers to “court records, internal documents and
interviews with more than a half-dozen current and former
employees.” 3 Many of these records are derived from an E.E.O.C.
complaint and a sex discrimination and retaliation suit filed against
3 Joint App’x 22 (internal quotation marks omitted).
5
Carwile and the Justice Department by Jacabed Rodriguez-Coss, a
former attorney in the CCS. As the article notes, “[s]even men and
women from [the CCS] filed declarations” in support of her suit. 4
Benner quotes these declarations throughout the article, including the
declaration of another CCS intern, Luke Woolman (the “Woolman
declaration”), which describes the incident at the Proper 21 happy
hour. The article described the contents of the Woolman declaration as
follows: “‘Mr. Kinsey, who is a married man, began to take what
seemed very clearly to be unwelcome liberties of a physical, sexual
nature,’ Luke Woolman, an intern at the time, wrote in his
declaration.” 5 The online version of the article also included images
depicting several paragraphs of the Woolman declaration with the
4 Joint App’x 25.
5 Joint App’x 27.
6
caption, “A portion of the declaration by Luke Woolman, an intern at
the time in the death penalty division.” 6
While Kinsey does not deny that he had sexual contact with
tenBroek at the happy hour, he filed a Complaint against the Times on
January 2, 2019, alleging that the quoted language from the Woolman
declaration that the contact between Kinsey and tenBroek was
“unwelcome” was defamatory. Kinsey then filed an Amended
Complaint on February 28, 2019, alleging that the language from the
Woolman declaration was false and defamatory per se and that the fair
report privilege did not apply. On March 7, 2019, the Times moved to
dismiss Kinsey’s defamation claim pursuant to Federal Rule of Civil
Procedure 12(b)(6). On March 23, 2020, the District Court granted the
Times’ motion to dismiss, finding that the alleged defamatory
statement in the article was protected by New York’s fair report
6 Joint App’x 28, 42.
7
privilege. Judgment entered the following day and Kinsey timely
appealed.
II. DISCUSSION
We review de novo a district court’s grant of a motion to dismiss
under Rule 12(b)(6), accepting as true the factual allegations in the
complaint and drawing all inferences in the plaintiff’s favor. 7 “To
survive a motion to dismiss [under Rule 12(b)(6)], a complaint must
contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” 8 “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw
7 DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110-11 (2d Cir. 2010).
8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
8
the reasonable inference that the defendant is liable for the misconduct
alleged.” 9
A. Choice of Law
On appeal, Kinsey argues that the District Court erred in
applying New York’s fair report privilege to the instant dispute.
Instead, he argues that the District Court should have applied the law
of the District of Columbia because it “has a closer connection to the
underlying facts and to the Plaintiff than does New York.” 10 We
disagree.
“A federal court sitting in diversity applies the choice-of-law
rules of the forum state.” 11 Because our subject matter jurisdiction rests
on diversity of citizenship, and because we are reviewing an appeal
9 Id.10 Plaintiff’s Br. at 15.
11Md. Cas. Co. v. Cont’l Cas. Co., 332 F.3d 145, 151 (2d Cir. 2003) (citing Klaxon
Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)).
9
from a federal trial court in New York, we apply New York’s choice-
of-law rules to determine the body of substantive law that applies.
Under New York choice-of-law rules, “the first step in any
choice of law inquiry is to determine whether there is an ‘actual
conflict’” between the rules of the relevant jurisdictions. 12 New York
Civil Rights Law Section 74 creates a privilege “for the publication of
a fair and true report of any judicial proceeding.” 13 This “privilege is
absolute and is not defeated by allegations of malice or bad faith.” 14 By
contrast, the District of Columbia fair report privilege is qualified and
12 Booking v. Gen. Star Mgmt. Co., 254 F.3d 414, 419-20 (2d Cir. 2001) (citing
In re Allstate Ins. Co., 81 N.Y.2d 219, 223 (1993)).
13 N.Y. CIV. RIGHTS LAW § 74.
14 Fuji Photo Film U.S.A., Inc. v. McNulty, 669 F. Supp. 2d 405, 411 (S.D.N.Y.
2009) (citing Pelayo v. Celle, 705 N.Y.S.2d 282 (2d Dep’t 2000)). Notably, neither party
asks this Court to apply the law of Maryland, Kinsey’s domicile. In any event,
Maryland has also “adopted the modern view regarding the fair reporting
privilege, which discards the search for malice, and simply requires that the report
be fair and substantially correct.” Piscatelli v. Van Smith, 424 Md. 294, 309-10 & n.3
(2012) (internal quotation marks omitted).
10
may be “waived if the report was published with actual malice.” 15
Accordingly, we hold that there is indeed an actual conflict.
Having established that a conflict exists, we apply New York
choice-of-law rules to decide which jurisdiction’s substantive law
controls. In tort cases, New York “applies the law of the state with the
most significant interest in the litigation.” 16 In deciding how to weigh
interests, New York distinguishes between conduct-regulating rules
and loss-allocating rules. 17 As relevant here, a rule that governs
defamatory or libelous conduct can be considered conduct-
regulating. 18 When conduct-regulating rules conflict, New York law
15Harper v. Walters, 822 F. Supp. 817, 824 (D.D.C. 1993) (citing Johnson v.
Johnson Publishing Co., 271 A.2d 696, 698 (D.C. App. 1970)).
16 Lee v. Bankers Trust Co., 166 F.3d 540, 545 (2d Cir. 1999) (citing Padula v.
Lilarn Props. Corp., 84 N.Y.2d 519, 521 (1994)).
17See Sheldon v. PHH Corp., 135 F.3d 848, 853 (2d Cir. 1998) (citing Padula, 84
N.Y.2d at 522).
18See AroChem Intern., Inc. v. Buirkle, 968 F.2d 266, 270 (2d Cir. 1992)
(concluding that the judicial-proceeding privilege is a conduct-regulating rule for
purposes of choice-of-law analysis in a defamation action).
11
usually applies the traditional law of the place of the tort (“lex loci
delicti”). 19 Specifically, “[u]nder New York choice-of-law rules in
defamation cases the state of the plaintiff’s domicile will usually have
the most significant relationship to the case, and its law will therefore
govern.” 20 But not always.
“[I]n multistate defamation cases, the state with the most
significant relationship is not necessarily readily apparent. Thus, in
cases where an allegedly defamatory statement is published
nationally, there is only a presumptive rule that the law of [the]
plaintiff’s domicile applies, which does not hold true . . . if with respect
to the particular issue, some other state has a more significant
19 Lee, 166 F.3d at 545. These traditional rules were compiled in the original
Restatement of Conflict of Laws published in 1934 and embodied the “vested
rights” theory of its Reporter, Professor Joseph H. Beale of the Harvard Law School.
See generally 1-3 JOSEPH H. BEALE, A TREATISE ON THE CONFLICT OF LAWS (1935).
Beale’s formalist approach emphasized territorialism—the answer to any conflict-
of-law question was simply the locus of the “last act” needed to complete the cause
of action.
20 Lee, 166 F.3d at 545 (internal quotation marks omitted).
12
relationship to the issue or the parties.” 21 As the Times article was
published nationally, we thus proceed to examine whether another
state has a more significant relationship to the issue or the parties.
In considering whether another jurisdiction, such as the District
of Columbia, has a more significant relationship to the case, New York
courts will “weigh all the factors that might impact on the interests of
21 Catalanello v. Kramer, 18 F. Supp. 3d 504, 512 (S.D.N.Y. 2014) (Paul A.
Engelmayer, J.) (internal quotation marks and citation omitted). New York’s
approach to multistate defamation cases reflects what is sometimes described as a
more “modern” approach to conflict of laws that emphasizes “governmental
interest analysis” and is reflected in the Restatement (Second) of Conflict of Laws,
compiled in 1971. This “modern” approach was famously advanced by the legal
realist movement, including especially Professor Brainerd Currie of Duke
University Law School, who criticized the original Restatement’s “metaphysical
apparatus” which “operate[d] to nullify state interests.” Brainard Currie, Notes on
Methods and Objectives in the Conflict of Laws, 1959 DUKE L. J. 171, 174-75. In recent
years, as the American Law Institute continues to draft a Restatement (Third) of
Conflict of Laws, this “modern” approach has also faced criticism. See, e.g., Lea
Brilmayer & Charlie Seidell, Jurisdictional Realism: Where Modern Theories of Choice of
Law Went Wrong, and What Can Be Done to Fix Them, 86 U. CHI. L. REV. 2031 (2019);
see also Lea Brilmayer, Interest Analysis and the Myth of Legislative Intent, 78 MICH. L.
REV. 392 (1980) (an effort to forestall jurisprudential evolution, warning that much
of modern choice of law jurisprudence is “a remedy every bit as distressing as the
disease it was designed to cure”); Lea Brilmayer, The Choice of Law Revolution in
Connecticut, 62 CONN. B.J. 373 (1988) (urging caution in abandoning lex loci in the
Connecticut state judicial system in particular). We need not enter into this debate
here and only apply the conflict of law rules prescribed by the State of New York.
13
various states in the litigation . . . includ[ing,] where [the] plaintiff
suffered the greatest injury; where the statements emanated and were
broadcast; where the activities to which the allegedly defamatory
statements refer took place; and the policy interests of the states whose
law might apply.” 22
Kinsey argues for the application of District of Columbia law
because the Woolman declaration refers to events that took place at a
bar in the District of Columbia and that adversely affected his
22 Condit v. Dunne, 317 F. Supp. 2d 344, 353-54 (S.D.N.Y. 2004) (Peter K.
Leisure, J.) (internal citations omitted). A slightly different formulation of this test
examines nine factors that are “particularly relevant to choice of law in multistate
actions for libel”: (1) the state of plaintiff’s domicile; (2) the state of the plaintiff’s
principal activity to which the alleged defamation relates; (3) the state where the
plaintiff suffered the greatest harm; (4) the state of the publisher’s domicile or
incorporation; (5) the state where the defendant’s main publishing office is located;
(6) the state of principal circulation; (7) the place of emanation; (8) the state where
the libel was first seen; and (9) the law of the forum. Davis v. Costa-Gavras, 580 F.
Supp. 1082, 1091 (S.D.N.Y. 1984) (citing Polmisano v. News Syndicate Co., 130 F. Supp.
17 (S.D.N.Y. 1955) (Irving R. Kaufman, J.)). But “this nine-factor test has not been
adopted explicitly by the Court of Appeals as reflecting New York law, and other
district courts have noted that it has not received favorable use among recent New
York decisions.” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Savino, No. 06-CV-868,
2007 WL 895767, at *7 (S.D.N.Y. Mar. 23, 2007) (Loretta A. Preska, J.).
14
employment in the District of Columbia. 23 We also note that Kinsey
was not domiciled in the District of Columbia—he lived in
Maryland—and, as New York law recognizes, a “plaintiff’s home state
is where a plaintiff’s reputation is most likely damaged.” 24 As this
analysis exemplifies, in multistate defamation cases such as this one,
“the tort essentially lacks a locus, but rather injures plaintiff
everywhere at once.” 25
Despite the fact that Kinsey lived in Maryland, and that the
incident took place in his city of employment, the District of Columbia,
our application of the above-listed four factors leads us to conclude
that the District Court correctly decided that New York is the
jurisdiction with the most significant interest in the litigation. As its
23Kinsey was reassigned to the Office of Enforcement Operations on
October 21, 2017—prior to the publication of the Times article several months later.
24La Luna Enterprises, Inc. v. CBS Corp., 74 F. Supp. 2d 384, 388 (S.D.N.Y.
1999) (Robert L. Carter, J.).
25 Condit, 317 F. Supp. 2d at 353.
15
name suggests, the Times is domiciled in New York and the alleged
defamatory statement emanated from New York. 26 Moreover, while
Maryland has an interest in protecting its citizens from defamatory
conduct, New York has strong policy interests in regulating the
conduct of its citizens and its media. 27 The above-listed factors
26 See, e.g., Test Masters Educ. Servs., Inc. v. NYP Holdings, Inc., No. 06-CV-
11407, 2007 WL 4820968, at *5 (S.D.N.Y. Sept. 18, 2007) (“[T]he allegedly defamatory
article emanated from New York via its publication in the Post.”).
27 See, e.g., Machleder v. Diaz, 801 F.2d 46, 52 (2d Cir. 1986) (“CBS accurately
asserts that New York has a strong interest in this litigation, because WCBS–TV is
located there, the subject broadcast emanated in Manhattan, and the day-to-day
professional activities of CBS are conducted in New York.”); Test Masters Educ.
Servs., 2007 WL 4820968, at *5 (“New York has a policy interest in regulating the
conduct of the media, including the Post whose principal place of business is in
New York.” (internal citation omitted)); Condit, 317 F. Supp. 2d at 353 (“New York
. . . has an interest in regulating the conduct of its media. This interest remains even
when the target of the statement lives in another state.” (internal citation omitted)).
16
therefore weigh in favor of applying New York’s fair report privilege
to the instant dispute.
B. Fair Report Privilege
The Times argues that its publication of the alleged defamatory
statement in the Woolman declaration is privileged under New York’s
fair report privilege. We agree.
New York Consolidated Laws, Civil Rights Law Section 74
provides that “[a] civil action cannot be maintained against any
person, firm or corporation, for the publication of a fair and true report
of any judicial proceeding.” A statement comes within the privilege
and “is deemed a fair and true report if it is substantially accurate, that
is if, despite minor inaccuracies, it does not produce a different effect
on a reader than would a report containing the precise truth.” 28 A key
Friedman v. Bloomberg L.P., 884 F.3d 83, 93 (2d Cir. 2017) (internal citations
28
and quotation marks omitted).
17
test courts have adopted to resolve whether a report qualifies for the
fair report privilege is whether “the ordinary viewer or reader” can
“determine from the publication itself that the publication is reporting
on [a judicial] proceeding.” 29 In other words, “[i]f the context in which
the statement [is] made make[s] it impossible for the ordinary viewer
[or reader] to determine whether [the publication] was reporting on a
judicial proceeding, the absolute privilege does not apply.” 30 New
York courts “adopt a liberal interpretation of the fair and true report
standard of [Section] 74 so as to provide broad protection to news
accounts of judicial proceedings.” 31 In other words, New York courts
will not review “[t]he challenged language of the headline and article
29 Fine v. ESPN, Inc., 11 F. Supp. 3d 209, 216 (N.D.N.Y. 2014).
30 Cholowsky v. Civiletti, 887 N.Y.S.2d 592, 596 (2d Dep’t 2009) (internal
quotation marks and some alterations omitted); see also Wenz v. Becker, 948 F. Supp.
319, 323 (S.D.N.Y. 1996).
31 Friedman, 884 F.3d at 93 (internal punctuation omitted).
18
. . . with a lexicographer’s precision because a newspaper article and a
headline is a condensed report of events.” 32
Here, the parties agree that the Woolman declaration was filed
in a civil case in the District of Connecticut 33 and that the alleged
defamatory language that Kinsey’s conduct at the happy hour was
“unwelcome” was quoted directly from that declaration. Accordingly,
we are left to ask whether an “ordinary reader” would understand the
excerpt from the Woolman declaration to be a report of an official
proceeding. The answer is yes.
First, the Times article notes that it is reporting on a specific
court proceeding and that seven declarations were filed in that
proceeding. 34 Second, the article then quotes from those declarations
32Idema v. Wager, 120 F. Supp. 2d 361, 369 (S.D.N.Y. 2000) (quoting Becher v.
Troy Publ’g Co., 589 N.Y.S.2d 644, 646 (3d Dep’t 1992)).
33 Rodriguez-Coss v. Lynch, No. 16-CV-006333 (D. Conn. filed April 21, 2016).
34“Ms. Rodriguez-Coss filed a complaint to the E.E.O.C., which notified the
Justice Department. . . . She sued the department in 2016, accusing [Carwile] of
19
throughout and follows the alleged defamatory language from the
Woolman declaration with the phrase, “Luke Woolman, an intern at
the time, wrote in his declaration.” 35 The online version of the article
also includes an image of several paragraphs of the Woolman
declaration with the caption, “[a] portion of the declaration by Luke
Woolman, an intern at the time in the death penalty division.” 36
But Kinsey argues this was not clear enough because an
ordinary reader would not be able to “determine where, if anywhere,
the Woolman [d]eclaration was filed or otherwise utilized.” 37 In
gender discrimination and claiming that her permission to work in Connecticut
was taken away in retaliation for her complaints. Seven men and women from the
unit filed declarations in her support.” Joint App’x 25.
35 Joint App’x 27.
36 Joint App’x 28, 42.
Plaintiff’s Br. at 22. In his briefing, Kinsey also offers us a series of tables
37
purporting to summarize the article’s “references to a litany of investigations and
proceedings” in an effort to demonstrate that the article is insufficiently clear about
where the Woolman declaration was filed. Plaintiff’s Br. at 8-10. But we do not need
to proceed with a “lexicographer’s precision.” Idema, 120 F. Supp. 2d at 369 (internal
quotation marks omitted). It is clear from the article itself that quoted language
from the Woolman declaration is drawn from an official proceeding.
20
support of his argument, he quotes a decision of a federal trial court in
New York, Adelson v. Harris, that “in order to enjoy the protection of
the [fair report] privilege, the publication in issue must clearly
attribute the statement in question to the official proceeding or
document on which it is reporting or from which it is quoting.” 38
First, we disagree that an “ordinary reader” would be unlikely
to understand that the Woolman declaration was one of the seven
declarations filed in the Rodriguez-Coss proceeding referenced earlier
in the article. It is clear from the context and structure of the article as
a whole, which (though it references other information developed by
the reporter) is organized around the declarations in that litigation that
the Woolman declaration was one of those declarations.
Moreover, even if the article failed to clearly identify the specific
proceeding at issue, Kinsey does not acknowledge the Adelson Court’s
38973 F. Supp. 2d 467, 482-83 (S.D.N.Y. 2013) (J. Paul Oetken, J.) (internal
quotation marks omitted).
21
explanation that it “must be apparent either from specific attribution or
from the overall context that the article is quoting, paraphrasing, or otherwise
drawing upon official documents or proceedings.” 39 Indeed, our case law
does not require that the court filing, the court, or the jurisdiction be
specifically identified in the article. 40 The key question is whether the
39 Id. at 482 (emphasis added) (quoting Dameron v. Wash. Magazine, Inc., 779
F.2d 736, 739 (D.C. Cir. 1985)). Notably, the Adelson Court applied the fair report
privilege of Nevada, which it characterized as “essentially the same” as that of the
District of Columbia. Id. at 482-83 & n.12. Although the District of Columbia fair
report privilege differs from the New York fair report privilege in key respects, as
highlighted in our choice-of-law analysis, this particular aspect of the District of
Columbia fair report privilege is consistent with the New York fair report
privilege’s requirement that an “ordinary . . . reader must be able to determine from
the publication itself that the publication is reporting on the proceeding.” Fine, 11
F. Supp. 3d at 216; see also Cholowsky, 887 N.Y.S.2d at 596.
40 Kinsey also cites Fine v. ESPN, Inc., 11 F. Supp. 3d at 214-17 and Wenz v.
Becker, 948 F. Supp. at 323, but, as noted above, both cases make clear that a party
that wishes to assert the fair report privilege must make clear to its audience that it
is reporting on a proceeding. “If the context in which the statements are made make
it impossible for the ordinary viewer to determine whether defendant was
reporting on a trial or simply from interviews and independent research, the
absolute statutory privilege does not attach.” Wenz, 948 F. Supp. at 323.
22
reader is able to determine that the report is of a proceeding. That much
is unquestionably clear from the article.
III. CONCLUSION
To summarize, we hold as follows:
(1) New York law controls in the instant dispute; and
(2) Kinsey’s Complaint was properly dismissed as barred by the
New York fair report privilege.
For the reasons stated above, we AFFIRM the District Court’s
judgment of March 24, 2020.
23