Lecturing About Lawsuit Was Hardly Defamatory

MANHATTAN (CN) - A businessman who was sued for allegedly calling a staffer a "homo" for not eating meat cannot sue the scholar who later wrote and lectured about that litigation, a federal judge ruled.

The underlying lawsuit here was filed by Ryan Pacifico, who had been a junior foreign exchange trader at Credit Agricole, against his former boss, Robert Catalanello, in January 2009.

Pacifico claimed that, when a co-worker contemplated what a vegetarian like Pacifico could eat if they went out to eat at a Brazilian steakhouse, Catalanello replied, "Who the fuck cares? It's his fault for being a vegetarian homo."

The complaint in New York State Supreme Court also alleged that Catalanello had seen a picture of Pacifico in bike shorts and said, "those are some pretty gay tights."

Pacifico dropped his suit in August 2012, but not before Zachary Kramer, an associate dean and law professor at the Sandra Day O'Connor College of Law at Arizona State University, had submitted his write-up of the case, titled "Of Meat and Manhood," to law reviews.

Kramer accepted an offer from the Washington University Law Review to publish in March 2011, and posted the piece to the Social Science Research Network that same month. The Washington University Law Review published a revamped version in print and online the next year.

The article advocated for a more "holistic" approach to sex-discrimination claims, recognizing "that sometimes sex discrimination manifests as other forms of bias."

Kramer called Pacifico's lawsuit a "case study" in how vegetarianism is not a trait protected by federal employment-discrimination laws, and sought to bring light to "the messiness of modern sex discrimination" regarding perceived notions of sexuality based on unrelated characteristics.

In April 2012, Kramer gave a lecture titled, "Of Meathood and Manhood/The New Sex Discrimination," at the Western New England University School of Law in Massachusetts.

Catalanello sued the professor in January 2013, claiming that the article and lecture presented Pacifico's lawsuit as fact.

But U.S. District Judge Paul Engelmayer found Wednesday that Catalanello's lawsuit failed to state a claim because the statements were either "protected by the fair-report privilege or non-actionable opinion."

Kramer's report "made clear that the information presented from the Pacifico lawsuit consisted of mere allegations and that the lawsuit remained pending," Engelmayer wrote. "In this vein, the article introduces the Pacifico complaint, with citations to the publicly filed document in footnotes, as 'an ongoing lawsuit which an employee has brought a discrimination claim against his former, alleging that the employer discriminated against him because he is vegetarian.'" (Emphases added in original.)

Although the article does not repeat the words "claim" or "allegation" throughout the story, Engelmayer was also unmoved by Kramer's argument that the accusations were presented as fact and therefore libelous.

"Were these sentences viewed in isolation, Catalanello would have a point," the 22-page opinion states. "But the sentences cannot be stripped from their context."

"Taken as a whole, Kramer's account gives a substantially correct account of the allegations in the Pacifico complaint, and does not give the reader the erroneous impression that these allegations are proven 'facts,'" Engelmayer added.

As to whatever Kramer might have injected into his article and lecture - for example, alluding to the idea that real men eat meat and those who don't are subject to ridicule - those statements are also protected as opinion, the court found.

"These statements ... are non-actionable statements of opinion," Engelmayer wrote.

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