Judge Dismisses Alum's Libel Suit Against University

On June 3, a federal judge in California dismissed a former student’s $1-million libel suit against the University. By dismissing the case, the court avoided ruling on some of the first amendment issues that the lawsuit had raised.

Judge Barry Ted Moskowitz granted Cornell’s special motion to dismiss the lawsuit filed last October [1] by Kevin Vanginderen ’83, who alleged that a 1983 Cornell Chronicle article describing his involvement with a string of on-campus burglaries was libelous and constituted an illegal public disclosure of private facts.

The article was originally printed 25 years ago, but was digitized and made available online last year as part of a Cornell Library archival project, which is when Vanginderen said he first learned of the article’s existence by searching his name on Google.

The case was dismissed based on California’s “anti-SLAPP” statute, which prohibits “strategic lawsuits against public participation,” according to the project’s website. It aims to protect the first amendment by curbing frivolous lawsuits that often contain claims for libel and slander. In this case, the court found that Vanginderen failed to prove that his case was indeed meritorious and well-founded.

“Truth is an absolute defense to any libel action,” Moskowitz wrote in the court opinion, “Here, the Cornell Chronicle article was substantially true.”

In a statement, University librarian Anne Kenney described the ruling as a victory for the accessibility of documentary material. [2]Blast from the past: Kevin Vanginderen ’83 sued the Chronicle for libel when this article, first printed 25 years ago, was made available online last year. Courtesy Cornell Chronicle

“I do share concerns that individuals might have about potentially embarrassing material being made accessible via the Internet,” she said, “but I don’t think you can go back and distort the public record.”

Moskowitz also said that the vague wording of the article might have led some readers to believe that Vanginderen was charged with more crimes than the police actually charged him with.

“Although the article may have been poorly written, the ‘gist’ or ‘sting’ of the article was true,” he wrote.

The court further ruled against Vanginderen’s claim that the article constituted a public disclosure of private facts because it said that the reporting of a crime concerns an issue of public interest.

The court also stated in its ruling that all of the sealed and unsealed court and police records that Cornell submitted as part of its defense to the libel claim were properly obtained. Vanginderen had alleged in a subsequent lawsuit that Cornell improperly submitted sealed and privileged documents to the court in an attempt to smear his reputation and intimidate him to drop the case.

Under the “anti-SLAPP” statute, the University is able to recover attorney’s fees from Vanginderen. Cornell was represented by Deputy University Counsel Nelson Roth as well as attorneys Clifford Davidson and Bert Deixler from the prominent California law firm, Proskauer Rose LLP.

One issue that the court did not address was whether Cornell’s online digitization of the Chronicle article as part of an archival project constituted a “republication” of the original article. Since the statute of limitations for libel is usually one year following the publication of a work, a “republication” would essentially restart the period during which libel claims could be brought.

Although the University maintained that the Chronicle article was not libelous, it argued that even if the article were libelous, Vanginderen’s claim was more than two decades too late because the article was originally published in 1983.

The issue of “republication” brought forth several first amendment issues concerning universities and other organizations that create digital archives of previously published material online. The case has attracted attention from the Student Press Law Center, American Library Association and several media outlets.

Cornell’s legal battle with Vanginderen is not completely over, however. In April, Vanginderen filed a subsequent, $10-million lawsuit against the University. This case addresses several of the same issues of libel and public disclosure of private fact, but it also includes claims that the University and its counsel inappropriately submitted documents to the court that portrayed Vanginderen in a false light and intruded into his private affairs.

Because of the similarly of the two cases, Moskowitz will render a decision on that case as well.