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Jim and Pam live next door to Dwight.  They all work together at the local paper company in Goldbergia.  Dwight also has his own small beet farm in his backyard, which attracts some stray animals to the area.  As a result, Jim and Pam don’t like to sit outside in their backyard with their baby because stray dogs and cats are constantly barking and hissing at them; Dwight knows this but is unmoved.  To get back at Dwight, Jim decided to play a prank on Dwight.  He lies and tells a local newspaper that Dwight eats beets for every meal and is starting to turn red.

Dwight is not amused.  He sues Jim for defamation.  Jim then brings a counterclaim for nuisance.  Assume the laws in Goldbergia approach these torts the same way other states would analyze these claims. 

1. Discuss the three state-law elements of Dwight’s defamation claim.  You do not need to include the constitutional dimension – just the three elements (assume Dwight is a private figure and negligence applies to falsity).  Which element do you think will be hardest for Dwight to prove – use a case analogy to explore that element?  What will a court do with each of these three elements?

• How will a court analyze Jim’s nuisance claim?

Answer Rubric:

1. The three state-law elements of Dwight’s claim are publication, falsity, and defamatory. 

Publication is met. Jim purposely (at least negligently) spread the information to a third party, the newspaper. 

Falsity is met at least to get to a jury if a reasonable person would believe that Dwight was eating beets for every meal and is turning red.   This is not a pure opinion or even a mixed question of fact and opinion, like in Boeheim (where falsity could still even get to a jury); whether someone eats beets for every meal and whether someone is turning red is entirely falsifiable.  It is not the kind of vague or opinion-type language that cannot be proven true or false.   Indeed, not only are Jim’s statements falsifiable, meaning they can get to a jury and are actionable, but a jury would likely conclude they are actually false (because they are).   The only issue would be whether a reasonable reader would see the statements as humorous or merely hyperbole, in which case falsity would not be met.

Defamatory will be the hardest element for Dwight to prove.  Although turning red from eating beets might be an embarrassing false fact about someone, it does not cause contempt or ill repute.  Just as in Romaine, where stating that someone was seeing people addicted to drugs, the idea that someone is simply eating a lot of beets doesn’t imply anything badly about Dwight’s moral character that would cause people to feel ill will towards him.   This case is also similar to  Cantrell, where a false light claim was brought instead of a defamation claim because depicting someone as being poor is likely embarrassing but not defamatory.

Jim’s nuisance claim will be analyzed as a private nuisance.  Jim and Pam are experiencing diminution in the use and enjoyment of their private land – the right at issue is not a common, indivisible one to the public.

The nuisance will be analyzed as an intentional nuisance because Jim and Pam told Dwight about their inability to use their backyard (Dwight is unmoved).  

An intentional nuisance has to be unreasonable to be actionable. There are two ways for a nuisance to be unreasonable:  (1) the gravity of the harm to Jim and Pam outweighs the utility of Dwight’s conduct, or (2) the harm is serious and the financial burden of compensating Jim and Pam would not make the continuation of the conduct not feasible. 

Under 1, the harm is somewhat grave because Jim and Pam can’t really use their backyard, although a jury would want to know if the animals are just making noise or if the are actually threatening to determine the extent of the harm.  The character of the harm is not super serious because it won’t make Jim and Pam sick, although society does place a high social value of people being able to use their backyards.  A jury would also want to know the character of the neighborhood; if it is generally just residential, then Jim and Pam have a better claim, although Jim and Pam can potentially just erect a fence to block out the animals without a severe burden on them.

A jury would also want to know the utility of Dwight’s conduct.  Factors to consider would be the social value – does the beet farm provide much needed produce or help tourism to the area or employ people.   A jury would also want to know if Dwight can take measures to stop the nuisance, like setting traps.   Further, if the neighborhood is residential, then Dwight’s behavior has less utility because it is not suitable for the area.

If the harm does not outweigh the utility, then Dwight will likely win because nuisance type two will be tough to meet in this case.  Having to pay Jim – or especially getting an injunction – may prevent Dwight from operating his farm because it will be a significant financial burden on a small family beet farm owner.  (If you said this would be feasible and justified it, that is fine too.)  So, unless Jim can convince a jury that this is an unreasonable nuisance because the harm outweighs the utility, Dwight is likely to win this claim, but a jury could go either way balancing the gravity of the harm and the utility (this will at least get to a jury).

To the Editor:

I am a former Climenko Fellow who loved teaching at Harvard Law School. I still have great fondness for the school, its students, and your newspaper. I now teach First Amendment Law at Dayton Law School.  I write to refute your editorial in support of the BDS movement, and specifically to refute the editorial’s analysis of the Israel-Palestine conflict, of America’s “first amendment blindspot,” and of the power imbalances at play.

The editorial, like most campus activism against Israel, is selectively critical of Israel. The editorial ignores Israel’s repeated desire to compromise with a two-state solution (including at Israel’s inception) and the Palestinian government’s continuous, fervent desire to abolish a country built by Holocaust survivors that remains a haven for a tiny minority of people still persecuted around the world.  The editorial also ignores the many ethno-states that are uncontroversial and the countries surrounding Israel where it is illegal to even be Jewish.  Sadly, the editorial sends a message to your Jewish writers (and readers) that they do not deserve to have a homeland.  You have chosen the anti-intellectual path of solidarity in ideology over the intellectual spirit of fairness and nuance that Harvard should represent. 

Your analysis of the “first amendment blindspot” with regards to Israel is also telling of the actual power dynamics at play.  As a scholar who believes in strong, robust First Amendment protections, I fully support all rights to criticize Israel. I do not believe this criticism is necessarily anti-Semitic, although a lot more of these criticisms are rooted in anti-Semitism than you acknowledge.  That said, the First Amendment rights that attach to boycotting are complex because boycotting is a coercive economic measure, not pure speech.  Further, the anti-Semitism that has increased in intensity on college campuses – often connected to anti-Zionist activism but certainly targeting all Jews – is often not treated the same way as incidents that trigger the speech-suppressive policies that administrators marshal to protect other targeted minority groups.  Your editorial ignores the chilling effects of these policies on classroom conversations on many important issues, although criticism of Israel is often a favorite topic of professors and students.  Jews are often uniquely tolerant of criticism on issues deeply connected with our identity and have also committed to the civil rights of other groups while being abandoned and often explicitly derided by many civil rights movements.    

Harvard’s past includes institutional discrimination against Jews who, despite not being wealthy, were scoring quite high on standardized tests. To limit the number of Jews so that wealthy Protestant families were not dissuaded from sending their children to Harvard, Harvard’s admissions process began to include more “holistic” factors unrelated to academic success. In the present day, the increasing ideological power of equity initiatives means that Jews, who belong to a tiny minority, will have decreasing representation no matter how much we devote ourselves to excelling at academic and intellectual pursuits. The number of Jews at Ivy League institutions has fallen. These equity movements, because they are ideological in nature, have begun to lead academic institutions down a path that is anti-intellectual, favoring some visions of justice over rigorous, fair-minded scrutiny of evidence. What has changed the mind of the editors of the Harvard Crimson does not seem to be careful study, befitting members of one of the country’s most elite academic institutions, but watching an art installation and listening to one-sided discussions. Your analysis demonstrates that what happened with this editorial was far more an act of power than it was one of reason, or even justice.