A lot of readers have been asking if Paul Nungesser, who was called a “rapist” by Kirsten Gillibrand, can sue the New York senator for libel. He could sue, in theory, given that anyone could try to sue for any reason these days, but he wouldn’t have much of a case.
UCLA law professor Eugene Volokh, in an e-mail to the Washington Examiner, outlined the complications for Nungesser should he consider a case against Gillibrand.
First, a refresher: A campus court found Paul Nungesser “not responsible” for sexually assaulting fellow Columbia University student Emma Sulkowicz. Since then, Sulkowicz has used the experience as her art project for the university, carrying around a mattress on campus, and she gained national attention for doing so. Despite the campus court finding Nungesser not responsible (under the lowest standard of proof, no less) and police not actively pursuing the case, Gillibrand labeled Nungesser (without using his name) a “rapist” in a Huffington Post column while writing about her decision to invite Sulkowicz to the State of the Union address Tuesday night.
Volokh laid out the complications arising from Gillibrand not specifically naming Nungesser:
Volokh added that a “reasonable reader” would recognize that Gillibrand “isn’t claiming to have special inside evidence that Nungesser is guilty; rather she is of the opinion that, in the Sulkowicz-Nungesser debate, Sulkowicz’s side of the story is accurate.”
“And that would generally be treated just as nonactionable opinion,” Volokh said.
Volokh then provided an analogy using President Bill Clinton:
Example one: Someone says “Bill Clinton raped Juanita Broadrick, and I’ve seen a video that proves it.” This would be libel, because the person is claiming to have evidence showing Clinton is guilty (should the video not actually exist).
Example two: Someone says “Juanita Broadrick’s story is true, and I’ve seen a video that proves it.” This, according to Volokh, would also be libel, because the person is claiming to have unseen evidence and people would be able to figure out they are referring to Clinton.
Example three: Someone says “Juanita Broadrick’s story is true; the man she accused is a rapist.” Volokh said this would not be libel because it would be recognized as an opinion.
That’s not to say Gillibrand didn’t do anything morally wrong. She’s a sitting U.S. senator who called a man who’s innocent under the law a “rapist.” And no, her office did not respond to an Examiner request for comment.
