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New York Times Wins Dismissal of Attorney’s “Groping” Libel Suit

By David McCraw

The New York Times has won dismissal of a libel suit brought by a Justice Department official who took issue with a story that reported he had groped a young administrative assistant. The official, Gwynn Kinsey, admitted he had "interactions of a sexual nature" with the young woman but said she welcomed being fondled at a DOJ-sponsored happy hour at a bar.

Judge Vernon Broderick of the Southern District of New York dismissed the case in March after finding that the fair report privilege applied because The Times had relied on an eyewitness's declaration, filed in a federal employment suit, to portray Kinsey's groping as unwelcome. The primary issue was whose law should govern for purposes of the fair report privilege – New York's (as the domicile of The Times), Maryland's (where Kinsey lived), or Washington's (the location of the groping). Judge Broderick opted for New York law after doing a choice-of-law "interest analysis."

The case was significant for The Times as the only libel suit the paper has faced from its award-winning coverage of the #metoo movement. Over a two-year period, The Times had extensive reporting on sexual misconduct in the workplace, beginning with the explosive stories about Hollywood mogul Harvey Weinstein and then shedding light on abusive behavior in the arts, at the television networks, on Capitol Hill, in academia, and on the floor of a Ford automobile plant.

The Kinsey case arose from a March 2018 article that focused on the mismanagement of DOJ's Capital Case Section, where Kinsey was a deputy supervisor. One part of the story recounted the groping incident in which Kinsey, a married man in his 50s, pawed the administrative assistant at a DOJ happy hour in front of their co-workers. The woman filed a complaint about the misconduct with DOJ management. In reporting that the groping was unwelcomed, The Times relied on a declaration of a DOJ legal intern who was an eyewitness. He had submitted the declaration in support of a DOJ attorney who was suing the department for what she claimed was mistreatment while working in the Capital Case Section.

Kinsey argued that under both Maryland and D.C. law the fair report privilege does not apply in cases where the publisher acted with actual malice. He alleged that actual malice was present because the reporter seemed hostile during an interview and should have seen that the intern's declaration contained minor factual errors casting doubts on his credibility. Actual malice is not an exception to the privilege in New York.

Judge Broderick, in his interest analysis, held that D.C. had virtually no interest in the case because it was neither Kinsey's home nor The Times's domicile. As between Maryland and New York, he found New York's interest predominated. His decision is likely to be useful in future cases involving New York news organizations. "[A]lthough both Maryland and New York have policy interests in this suit, I find that New York's policy interest is greater," he wrote. "While Maryland has an interest in protecting its citizens from defamation, New York has a strong interest in establishing defamation standards for media outlets domiciled in the state."

The judge also found it significant that the question before the court involved a privilege. "[W]hen a conflict of laws issue involves the application of a privilege that protects a publishing defendant from defamation liability, courts give particular weight to the policy interests of the state in which the defendant makes the alleged defamatory statement. Here, that state is New York," he wrote.

The suit was commenced in December 2018, nearly nine months after the story ran. The Times moved to dismiss in February 2019, and the court gave Kinsey a chance to amend. The Times again filed a dismissal motion in April 2019. The court's ruling came 11 months after briefing was completed.

David McCraw and Al-Amyn Sumar of The Times's Legal Department represented The New York Times. Gwynn Kinsey was represented by Barry Coburn of Washington, D.C. Kinsey has not indicated whether he plans to appeal.

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