South Bend, Indiana – On Wednesday, The Irish Rover, an independent, non-profit, student publication “devoted to preserving the Catholic identity of Notre Dame” filed a motion to dismiss a defamation lawsuit that was filed against it by Dr. Tamara Kay, a professor at Notre Dame and an outspoken abortion rights activist. The Irish Rover is represented by The Bopp Law Firm.
The Irish Rover published two articles about Dr. Kay—each of which accurately report on Dr. Kay's public statements and actions following the Dobbs decision, which overturned Roe v. Wade, and following the subsequent passage of Indiana's abortion law.
Dr. Kay posted a sign on her Notre Dame office door which stated, “This is a SAFE SPACE to get help and information on ALL Healthcare issues and access—confidentially with care and compassion.” The sign also contained Kay's non-Notre Dame email ([email protected]) and a capital letter “J” inside a circle. 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.
Dr. Kay's twitter account regularly shared information supporting her pro-abortion stance—including information about “Plan C Pills” (a common term for pills used to induce abortion, often at home).
Dr. Kay also spoke to a meeting of Notre Dame College Democrats in which she explained her scholarship and advocacy work on abortion rights while being a professor at Notre Dame. Recordings and transcripts of the meeting show The Irish Rover's reporting was accurate.
When someone exercises his right to free speech on a matter of public concern and then is sued for doing so, Indiana law offers special protections for the defendant. In recent years, “Strategic Lawsuits Against Public Participation” (“SLAPP”) suits, have become more common. SLAPP suits are frivolous lawsuits designed to intimidate the speaker from exercising his right to free speech. “Anti-SLAPP” laws provide a way for a person sued under such frivolous claims to get the suit dismissed early in the legal process, saving valuable time and resources along the way.
The Irish Rover motion asked the judge to dismiss the suit because the Irish Rover showed its published articles were related to its constitutional right to free speech in connection with a public issue; and were “lawful” under Indiana's defamation law. To show the articles were “lawful,” the Irish Rover produced evidence showing that Dr. Kay will not be able to meet her burden to prove defamation because its articles were (1) true; (2) were not written with actual malice (i.e., the Rover didn't write them knowing they were false or with a reckless disregard to falsity); and (3) they did not contain defamatory imputations (because they accurately described Dr. Kay's pro-choice positions, which cannot be defamatory if she herself espouses them).
“Indiana's Anti-SLAPP law is designed to prevent needless expense and litigation that has no chance of success and is simply designed to shut up an organization like The Irish Rover,” stated James Bopp, Jr., lead counsel for The Irish Rover. “I am a member of the Uniform Law Commission, and we saw the rise in SLAPP suits and have worked to draft a model Anti-SLAPP law. Indiana adopted an early Anti-SLAPP law, but I encourage the Indiana legislature to consider adopting the ULC's model law, which offers even more protection to people and organizations facing these frivolous SLAPP suits.”