Gu v. The Verge, Vox Media, Inc.
| Docket Number | Index No. 152394/2020,Motion Seq. No. 001 |
| Decision Date | 18 July 2023 |
| Citation | 2023 NY Slip Op 32418 (U) |
| Parties | EUGENE GU, Plaintiff, v. THE VERGE, VOX MEDIA, INC., VOX MEDIA, LLC, LAURA YAN, Defendant. |
| Court | New York Supreme Court |
MOTION DATE 05/08/2020.
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7,8,9,10,11, 12, 13, 14, 15, 16, 17, 18 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32 were read on this motion to/for DISMISSAL
Plaintiff Dr. Eugene Gu, appearing pro se in this media defamation case, is an online activist involved in a series of controversies, ranging from a Congressional investigation into research use of human fetal tissue, to online debates about racial discrimination and white supremacy, to a federal lawsuit challenging former President Trump's use of Twitter to block critics. Dr. Gu claims, on Twitter and elsewhere, to be the victim of retaliation, harassment, and online bullying for his activism, while his critics, on Twitter and elsewhere, claim that he is the bully and harasser.
In this action, Dr. Gu challenges a news profile about him which was published on March 5,2019 (the Article [NYSCEF Doc No. 9]) by defendants Vox Media, LLC, and its reporter, Laura Yan (defendants). Although the complaint names The Verge and Vox Media, Inc. as defendants, defendants contend that Vox Media LLC is the correct entity name. The Article chronicles Dr Gu's rise to fame and the controversies in which he has been embroiled, including interviews with Dr. Gu and a number of his critics. Dr. Gu contends that seven discrete statements within the Article are defamatory, and asserts claims for defamation and intentional infliction of emotional distress.
Defendants now move, pursuant to CPLR 3211 (a) (1) and (a) (7), for dismissal of the amended complaint (NYSCEF Doc No. 3) on the ground that it fails to state a claim against defendants upon which relief can be granted.
For the reasons set forth below, defendants' motion is granted, and the amended complaint is dismissed.
Dr. Gu is a doctor and an outspoken social justice advocate on Twitter (amended complaint, ¶¶ 8 []; 28 [referencing Dr. Gu's '"taking the knee' as a symbolic gesture to fight racism as an Asian American doctor"]; see Dr. Gu's Twitter feed [NYSCEF Doc No. 10]). On his Twitter account, @eugenegu, he has more than 443,000 followers (amended complaint, ¶¶ 8-9; see Twitter feed). He posts regularly about his experiences as an Asian American in the medical field, his activism on Twitter and retaliation and online harassment he has received in response (id.).
Dr. Gu has also published opinion pieces, appeared on camera for interviews, and been the subject of numerous press reports on these topics (see e.g. Democracy Now interview transcript [NYSCEF Doc No. 11], at 8 [ ]; Independent article [NYSCEF Doc No. 12], at 3 []; Buzzfeed article [NYSCEF Doc No. 12] []).
Dr. Gu has also appeared as a named plaintiff in a widely publicized lawsuit challenging former President Trump's practice of blocking critics on Twitter as a violation of his and other Twitter users' First Amendment rights (see Knight First Amendment Inst, at Columbia Univ, v Trump, 928 F.3d 226, 239 [2d Cir 2019], cert granted and judgment vacated sub nom Biden v Knight First Amendment Inst, at Columbia Univ., US, 141 S.Ct. 1220 [2021]).
On February 20,2018, Yan contacted Dr. Gu, identifying herself as a freelance writer from Brooklyn who wanted to do a profile or story on him. Dr. Gu agreed to an interview, and spoke with Yan via Skype on February 22, 2018, and then again on April 2, 2018 (amended complaint, ¶ 8). Dr. Gu alleges that most of the discussion was about activism for Asian American issues that he was involved in on social media (id.).
Dr. Gu further alleges that, in May 2018, he discovered that Yan was publicly communicating on Twitter with an anonymous user claiming to be a physician called #MedTwitter. This anonymous user went by various Twitter handles including @nefariousMD @nefariousBFT, and "thephoenixMD 1. Dr. Gu alleges that, on multiple occasions, this anonymous account harassed him with racial epithets about his Asian American heritage, false accusations of domestic violence, and ganged up with other physicians on #MedTwitter to publicly ask him to commit suicide, and donate his organs to these physicians for further study (id.). On June 7, 2018, Gu emailed Yan, explaining that, because of her tweets to anonymous user @nefariousMD, @thephoenixMD 1, and "ncfariousBFT who are believed to be the same individual, he would terminate communication with Yan, and pursue a defamation lawsuit if any malicious article resulted from baseless accusations without evidence (id., ¶ 9).
The ensuing Article was published on the Vox Media website The Verge on March 5,2019, and is entitled, "The Strange Case of Eugene Gu," with the subheading, "Behind one of Twitter's most outspoken social justice personalities is a history of abuse" (Article at 1). The Article starts with an overview of Dr. Gu's rise to fame on Twitter, including his growing number of followers, a viral tweet showing Dr. Gu taking a knee to protest white supremacy, and his participation in the First Amendment challenge to the President's Twitter practices (id. at 1 -2). Next, the Article states that (id. at 2).
By his own description, Dr. Gu's "story began" in April 2016, when a Congressional investigation into the use of human fetal tissue sought information about his research, which used fetal tissue (id.). The Article reports that Vanderbilt University Medical Center, where he worked at the time, "advised him to speak very little about his research," but that Dr. Gu "no longer wanted to stay silent," and instead appeared on NPR to discuss his research and the subpoena (id. at 2-4).
Several months later, Dr. Gu tweeted a photo of himself, dressed in scrubs and medical gear, taking a knee in support of National Football League (NFL) quarterback Colin Kaepemick and others who did so, to protest police brutality and racial inequality (id. at 2, 4-5; amended complaint, ¶¶ 8, 28). Dr. Gu explained that this photograph, which was retweeted more than 51,000 times, was motivated by a "very traumatic event" in which he claims he was "racially and physically attacked" in the parking lot outside of his workplace, and what he describes as the police's "preposterous" response (Article at 4-5).
The Article also describes how, shortly thereafter, Vanderbilt placed Dr. Gu on administrative leave, and subsequently decided not to renew his residency contract (id. at 5). Dr. Gu claimed that Vanderbilt was "trying to suppress me so hard and ruin my career," and posted that "[n]obody should be punished for taking a knee to fight white supremacy or speaking out against physical violence and bullying" (id. at 5-6). Nonetheless, Vanderbilt claimed that its decision arose due to Dr. Gu's performance issues (id.). The Article included a screen shot of Dr. Gu's tweet, links to Vanderbilt's publicly posted statement, and links to coverage of the dispute in the news outlets Buzzfeed and USA Today (id. at 6-7).
The Article also reports on the conflict between Dr. Gu's view of himself as a victim of racism and retaliation, and several other reports shared online by his critics, ranging from alleged online harassment, to questionable sexual encounters, to physical violence.
First, the Article describes Dr. Gu's relationship with Allison (a pseudonym), which began as an online discussion of his activism on Twitter, and progressed into a relationship and in-person visit in Nashville (id. at 7). Among other things, the Article describes two sexual encounters that Allison later publicly posted about on Twitter-a brief encounter that left Allison "a little upset," because she had not been sure she wanted to sleep with Dr. Gu, and a later incident that left her in tears:
"You're the only person in the world I can talk to," Gu told her. "If it wasn't for you, I might have killed myself tonight." Back at Gu's apartment, he started 'pawing' at her while she tried to refuse. She tried to push him away. He kept at it.
(id. at 8). The Article also includes a cautionary note at the beginning: "Warning: this piece contains descriptions of sexual assault" (id. at 1).
As the Article also reports, Dr. Gu does not deny an intimate relationship or the in-person visit but has claimed-again publicly, on Twitter-that Allison's allegations were "100 percent empathetically [sic] false" and that Allison had seduced and harassed him (id. at 14-15). The Article notes his claim that several suggestive text messages, "a sexually explicit voicemail and a drunk voicemail that he allegedly received from Allison" are "evidence of his innocence" (id. at 15; see also amended complaint, ¶¶ 11-12 [alleging same]). The Article includes both versions of the...
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