Legal Law

Notre Dame Professor Loses Defamation Case Over Pro-Abortion Advocacy – JONATHAN TURLEY

In July 2023, we discussed the lawsuit of Notre Dame Sociology Professor Tamara Kay against the student newspaper the Irish Rover. I was highly skeptical of not just the complaint but the facts alleged by Professor Kay. As stated at the time, Kay’s claims were challenged as false after the review of other journalists. According to Justice Steven David, I may have been understated. The case was dismissed this week by St. Joseph County, Indiana, Superior Court under Indiana’s Anti-SLAPP law.

Dr. Kay is listed as a Professor of Global Affairs and Sociology and her bio highlights “her multi-award winning article “Abortion, Race, and Gender in Nineteenth-Century America” That article argues that early abortion fights were about race and dominance rather than gender:

“While most histories of abortion argue that nineteenth-century abortion politics concerned gender relations, this article argues that what was at stake was Anglo- Saxon control of the state and dominance of society. Abortion politics contested the proper use of a valuable social resource, the reproductive capacity of Anglo-Saxon women.”

The case concerned an October 2022 article on her public promotion of abortion and a March 2023 article on a College Democrats lecture. The sociology professor denied facts that were clearly true in the articles as well as denying the objective meaning of statements that she made in the past. She alleged that the Rover, “has, and continues to intentionally act, with malice, wanton and willful misconduct and a reckless disregard for the truth all with the intent to damage and negatively impact the Plaintiff.”

The day after the first article was published, Dr. Kay tweeted about the more favorable coverage of her abortion advocacy in the student-run magazine Scholastic. Unlike the Rover, she  tweeted that Scholastic doesn’t “publish lies.” She added: “Oh, and very important — a fantastic journalist [ ] actually…wait for it… INTERVIEWED ME for the piece and quoted me accurately (unlike the other for which there was absolutely no interview).”

However, the Rover supplied proof that its student journalist did interview her, including a recording of a conversation in which its editor introduces himself as “Joe DeReuil, the editor of the Irish Rover.

Dr. Kay later again attacked the Rover and declared  “It’s not affiliated with ND, it’s not a ‘student publication,’ it has no journalistic standards, holds no ethics, is run by faculty advisors who promote bigotry & connect students to national orgs that promote hate (see who reposted).” She added “My colleagues gave me the Cliff Notes version [of the article about her advocacy] b/c I don’t read it [the Rover].”

However, it is Dr. Kay’s veracity that was put into question in the litigation by the Rover, which directly contradicted her claims in court filings.

For example, the complaint objected to the October 2022 article written by DeReuil titled “Keough School Professor Offers Abortion Access to Students.” However, the complaint was remarkably vague on the reason. The headline, however, seemed to be the problem.

The panel event itself was “Post-Roe America: Making Intersectional Feminist Sense of Abortion Bans,” the participants discussed how Indiana’s new pro-life law, S.B. 1, would be harmful to “marginalized groups.”

Kay is quoted as telling the Rover that “For me, abortion is a policy issue. And yes, my view runs afoul of Church teaching, but in other areas, my positions are perfectly aligned [with the Church].” However, Kay accused the students of lying and insisted there was “absolutely no interview” with the Rover. DeReuil then produced a recording in which he reportedly clearly identifies himself as the editor of the Rover before asking her several questions

Kay also advocated abortion services through her Twitter account on which she identified herself as “Dr. Tamara Kay — Notre Dame abortion rights expert.” She also offered to “help as a private citizen if you have issues w access or cost. DM me [sic].”

She also reportedly posted a sign on her office door on campus that said, “This is a SAFE SPACE to get help and information on ALL Healthcare issues and access — confidentially with care and compassion.” The National Review reported that Kay’s non-Notre Dame email included information on how to reach her and told students to look for “a letter ‘J’” as a signal for helping with abortions: “Look for the ‘J’, Spread the word to students!”

Notably, the National Review reported that, after the Rover article, Kay changed her Twitter display name and “removed the signs from her office door and deleted her tweets about helping students access abortion.”

The lawsuit also raised allegedly false statements made in a March 2023 article from the Rover written by student journalist Luke Thompson: “Tamara Kay Explains Herself to Notre Dame Democrats.”

Kay objected that she was falsely accused of “posting offers to procure abortion pills on her office door.” However, the National Review quotes a Notre Dame spokesman stating that in the case of the sign

“a reasonable person could understand Professor Kay to be giving medical advice (on becoming ‘unpregnant’ by taking abortion pills without knowing any details about an individual student’s health). This seemed unwise from both the perspective of faculty members and students.”

The recordings and media coverage also show that Kay made statements that seemed to track the views alleged by the student journalists even if there was some variation on the words.

Justice David rejected the factual claims of Dr. Kay and held that

“the alleged defamatory statements were true, within the meaning of the law, not made with actual malice, did not contain a defamatory inference, and there were no damages that were causally linked to The Irish Rover Articles, Dr. Kay’s defamation claim fails and the statements in the Articles were lawful.”

David found that “the allegedly defamatory statements were made in the furtherance of the defendant’s right to free speech, were made in connection with a public issue, were made with good faith and with a reasonable basis in law and fact.” The court also questioned how Kay could “voluntarily put herself into the national abortion issue either on the campus of Notre Dame or in a broader, national forum, by making multiple strong statements in favor of abortion rights and access to abortion and expect that it will not become newsworthy at Notre Dame and elsewhere.”

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