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Kay v. Irish Rover hearing slated for Wednesday

| Tuesday, September 26, 2023

This Wednesday, global affairs and sociology professor Tamara Kay will meet the Irish Rover in St. Joseph County Superior Court 4 in a hearing regarding the alleged defamation and punitive damages claims Kay is bringing against the student newspaper.

The hearing, though initially scheduled to hear the Rover’s motion to dismiss the case, will now determine if legal proceedings will pause to allow for discovery, which is the formal process of exchanging information between parties about the witnesses and evidence they will present at trial.

There is also a chance that the case could be dismissed, the Rover’s legal team said. In order for the case to be dismissed, the Rover needs to prove that Kay’s complaint fails to state a claim.

If the case is not dismissed and moves to trial, the burden of proof will fall to the prosecuting party. Kay will have to prove that the Rover’s reporting was defamatory, meaning it included a false statement made with a defamatory imputation, actual malice and that the alleged defamation caused damages. 

The civil suit comes in response to two articles published by the Rover in October 2022 and March 2023. The first article said Kay was offering abortion access to students, and the second article quoted Kay speaking on a Notre Dame College Democrats panel. Kay claims both articles contained defamatory information. 

The initial summons against the Rover was filed in May, and the Rover responded by filing a motion to dismiss the case in July. 

Kay’s claims of defamation

The first article mentioned in Kay’s complaint of defamation was a story from October 2022 called “Keough School Professor Offers Abortion Access to Students.” 

The article by W. Joseph DeReuil, editor-in-chief emeritus and current opinion editor of the Rover, reported on signage hanging outside Kay’s office door. The sign read that “this is a SAFE SPACE to get help and information on ALL healthcare issues and access — confidentially and with care [and] compassion.” The sign also contained a capital letter “J” with a circle around it, as well as a non-Notre Dame email related to the topic of reproductive health. 

The letter “J” on office doors “denotes Notre Dame professors who are willing to help students access abortion,” DeReuil wrote. 

In a statement released to her website over the summer, Kay claimed the “J” on her door was about sexual assault, not abortion.

The second article mentioned in Kay’s complaint was a March 2023 article titled “Tamara Kay Explains Herself to Notre Dame Democrats.” The article, referencing the October article, repeated the allegation that Kay was “posting offers to procure abortion pills on her office door.”

This statement, according to the complaint, is one of the multiple allegedly defamatory statements made in the article. 

The Rover reported that Kay answered an audience question about how she ended up at Notre Dame as someone who supports abortion. However, Kay’s complaint states the specific interaction described in the article never occurred and that an audio recording proves the exchange didn’t happen. 

Kay’s legal team said in the complaint she was falsely quoted as saying “if you have academic freedom, you should use it.” 

The Rover article also said “[Kay] acknowledges that not all the students in the crowd could be as forward in their pro-abortion activities as she is: ‘I can’t impose that on you … but I’m doing me, and you should do you.’” The complaint claims Kay never made this statement. 

As a result of this reporting, Kay’s legal team says she has been harassed, threatened, experienced damage to her residential property and suffered mentally and emotionally. 

In January, fellow global affairs professor Susan St. Ville began a GoFundMe page to raise funds for Kay’s legal expenses. As of Sept. 26, the page has raised just over $14,000. 

“We are seeking funds to offset the additional costs of Prof Kay’s lawsuit against the Irish Rover, and for costs to ensure her safety and security as she continues to try to ensure that academic freedom and safety are prioritized not only for herself but for all Notre Dame faculty, staff and students,” the page says. 

The page also states Kay is not suing the students of the Rover, but rather, the Notre Dame faculty who are the legal agents of the paper. 

According to an editorial written by the Rover in defense of their reporting, Kay wrote the Rover a letter of intent to sue and asked for both a redaction and an apology in April 2023. The Rover did not issue a redaction. 

Indiana’s anti-SLAPP and defamation laws

In response to Kay’s claims, the Rover filed for a motion to dismiss the case under Indiana’s anti-SLAPP (Strategic Lawsuits Against Public Participation) law, arguing its coverage of Kay’s public statements and actions about abortion are at least at least substantially true and qualify under the law’s public interest and free speech criteria.

In order to have the case dismissed under Indiana anti-SLAPP law, the court must determine if the action was in furtherance of the defendant’s right to free speech or petition and if the action relates to a public issue. If these two criteria are met, the court must then determine if the action was taken in good faith and with a reasonable basis in law and fact. 

If Kay’s complaint does not meet the anti-SLAPP criteria for defamation, the Rover’s statements will be considered lawful.

The Rover’s Defense

The Irish Rover and their legal team believe the reporting within the two articles meet all three criteria needed to be dismissed under Indiana’s anti-SLAPP laws. 

“She can’t prove any damages. I mean, did she get fired? No. I mean, she’s proud of her abortion advocacy, and Irish Rover was reporting on her abortion advocacy,” Jim Bopp, attorney for the Irish Rover said. “And so, she’s not trying to win this case. She’s trying to punish students.” 

The Rover’s legal defense said the case is an example of the furtherance of free speech rights and meets the criteria to be dismissed.

“A university-focused newspaper’s publication of articles about the public statements and actions of a professor at that university, when those statements and actions are about the highly political, public concern of abortion, is a classic example of an action in furtherance of free speech rights afforded [by] these strong constitutional protections,” the memorandum stated, arguing the Rover meets the first criteria of anti-SLAPP laws.

Additionally, Kay’s claims were made in reference to the abortion rights debate which is a highly public issue, the document said, thus meeting the second criteria of anti-SLAPP law. 

The Rover also argues their reporting was lawful under Indiana’s defamatory laws despite Kay’s claims that she was falsely quoted and her actions were misrepresented.

The Rover claims that both their reporting and their headline in October were true. The memorandum states DeReuil’s reporting should be interpreted in the context of some of Kay’s tweets from the day that Indiana’s abortion ban went into place. Some tweets directly reference abortion, such as how to acquire “Plan C” pills and getting stickers that reference becoming “un-pregnant.” 

“Dr. Kay’s twitter account indicated the ‘J’ symbolized those people willing ‘to help [women] access healthcare’ — healthcare in this context clearly referenced abortion-related services, not strep tests,” according to a statement released by The Bopp Law Firm. 

Kay has argued that there was no direct mention of abortion when she told her students to “look for the J.” According to The Cut, Kay does not remember “[DeReuil] asking [her] about the sign on her door, either.”

The memorandum also argues the headline is not defamatory because a rational reader would assume that “offering help — not directly offering abortions — is implicit in any common sense reading of the headline.” The Rover defense argues that even if the headline is not literally true, it is at least substantially true. 

Because both the headline and the story are at least substantially true, according to the memorandum, Kay cannot produce evidence that the claims were written with actual malice, it said. They also claim they made no defamatory imputations. 

Although Kay argues specific claims and interactions made in the March article as false or did not occur, the Rover also argues that the March article contains no defamatory information. The paper argues all of the quotes attributed to Kay were at least substantially true. Bopp said there is nothing false or defamatory about using a statement as “long as it conveys the same meaning.”

The Rover claims both articles are true or at least substantially true, that they did not report with malice, nor did they publish any defamatory imputations. 

Kay’s legal team did not respond to requests for a comment.

The most recent filing

On Sept. 21, Judge Cristal C. Brisco filed an order so that the Sept. 27 hearing will now focus on Kay’s motion to stay and the Rover’s opposition to their request. The hearing will be held at 10 a.m. Wednesday in the St. Joseph Superior Court 4.

Editor’s Note: A previous version of this article stated that Kay’s legal team would have to prove the requirements of defamation to prevent a dismissal. This is true if the case is not dismissed and moves to trial. The Observer regrets this error.

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About Gabrielle Beechert

Gabrielle is currently a senior at Notre Dame majoring in neuroscience and behavior with a minor in Journalism, Ethics and Democracy. She currently serves as Assistant Managing Editor at The Observer.

Contact Gabrielle