Strictly Legal: Report on sexual harassment allegations not defamatory
A New York-based federal trial court recently dismissed a defamation suit filed by the former managing partner of a hedge fund who sued over a report that he’d engaged in a pattern of sexual harassment for years at the company he founded. The court’s decision is a guide to reporting on allegations in the #metoo environment. It recognizes that a balanced report on disturbing allegations is not defamatory, no matter how many times the subject of those allegations denies them.
Sam Isaly is the founder and former Managing Partner of OrbiMed Advisors, LLC, a hedge fund that invests in healthcare and biotechnology companies. Isaly is quadriplegic due to an athletic injury he suffered as a teenager. He has been confined to a wheelchair since the injury, and the use of his extremities is limited. He requires the assistance of a personal aide to engage in many daily activities, including help with operating the telephone, the computer keyboard, and the computer mouse.
Boston Globe Media, the defendant, publishes STAT, an online news website that covers the fields of health, medicine, and biotechnology. A STAT reporter named Damian Garde wrote an article about Isaly in the December 5, 2017, issue of STAT, headlined “Biotech hedge fund titan Sam Isaly harassed, demeaned women for years, former employees say.”
The Article reported that five former OrbiMed employees stated that Isaly “has for years perpetuated a toxic culture of sexual harassment . . . routinely subjecting young female assistants to pornography in the workplace, lewd jokes, and pervasive sexist comments.” The five sources also stated that Isaly “wantonly demeaned and verbally abused female employees,” and that he kept a set of breast implants at his desk, “palpating them like stress balls during idle conversation.”
Garde interviewed Isaly and other OrbiMed employees who generally denied the allegations. But at no time in the interviews did Isaly or any other employee contend that Isaly was physically incapable of performing the deeds he’d been accused of. During the interview, Isaly ate with a fork and at other times directed his assistants to aid him in routine tasks when necessary.
Following publication of the article, Isaly filed his defamation suit. Under New York law, Isaly was required to prove that STAT “acted in a grossly irresponsible manner.” Isaly argued that STAT and Garde were grossly irresponsible because they ignored the fact that due to his quadriplegia, it would have been “physically impossible” for Isaly to take some of the actions attributed to him in the article.
This argument failed to persuade the court. The court pointed to the allegations themselves and what Garde observed and was told in the interview with Isaly. Allegations about Isaly displaying pornography on his computer did not require that Isaly personally manipulate the keyboard. He admitted that he had assistants who performed routine tasks at his direction. As to the allegations about demeaning comments, obviously his disability in no way prevented that. And Isaly admitted that he kept the breast implants on his desk. The fact that Garde witnessed Isaly using a knife and fork did not lead to the conclusion that Isaly was unable to touch the implants.
It was also significant that no one contended that Isaly was physically unable to perform the misdeeds at the time Garde interviewed Isaly about them. Isaly wasn’t allowed to claim Garde was “irresponsible” for failing to conclude he was unable to perform the deeds when Isaly himself never made that claim.
In the #metoo era, allegations of sexual harassment are newsworthy. And it is not up to journalists to act as judge and jury before publishing a balanced account of those allegations. This holding reinforces that vital truth.
Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.