Skidmore v. Gilbert

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
PartiesALLISON SKIDMORE, Plaintiff, v. GREGORY S GILBERT, et al., Defendants.
Docket Number20-cv-06415-BLF
Decision Date15 February 2022


GREGORY S GILBERT, et al., Defendants.

No. 20-cv-06415-BLF

United States District Court, N.D. California, San Jose Division

February 15, 2022


BETH LABSON FREEMAN, United States District Judge.

This case concerns the fallout from an offensive post made by Plaintiff Allison Skidmore, an animal rights activist and then-Ph.D. candidate at the University of California, Santa Cruz, on her personal Facebook page. An Asian-American online news company picked up the post, which then attracted viral attention and was brought to the attention of university officials. Several faculty members and the Environmental Studies Department issued three statements condemning Skidmore's comments, which Skidmore alleges resulted in “de facto discipline” and shunning by her fellow students and the Department. Skidmore brings claims under 28 U.S.C. § 1983 for violations of her First and Fourteenth Amendment rights and under California law for false light invasion of privacy.

Defendants-all faculty members at the time of these events-move to dismiss all the claims under Federal Rule of Civil Procedure 12(b)(6) and strike the California state law claim under California's anti-SLAPP law, Cal. Civ. Proc. Code § 425.16. ECF No. 60 (“Mot.”); see also ECF No. 63 (“Reply”). Skidmore opposes the motions and asks for leave to file a Second


Amended Complaint. ECF Nos. 61 (“Opp.”), 74 (“MLTA”), 74 Ex. A (“SAC”)[1]. Defendants oppose Skidmore's motion for leave to amend. See ECF No. 79. For the reasons discussed on the record at the December 2, 2021, hearing and explained below, Defendants' motions to dismiss and strike are GRANTED WITHOUT LEAVE TO AMEND and Skidmore's motion for leave to amend is DENIED.


The Court takes the following facts, assumed to be true, from the operative First Amended Complaint, except as noted below. ECF No. 59 (“FAC”).

A. Skidmore's Facebook Post

Plaintiff Allison Skidmore was a Ph.D. candidate at the University of California, Santa Cruz (“UCSC”). FAC ¶ 13. Following her passion as an animal rights activist, Skidmore's Ph.D. focus was on the wildlife trafficking of endangered animals, specifically Amur tigers, in the Far East. Id. As part of her Ph.D. research, Skidmore traveled to Russia in early 2020 to investigate the poaching of Amur tigers and their trafficking to China. Id. There she conducted interviews of individuals directly involved in poaching and smuggling of tigers and other animals. Id. ¶ 15. At the time of the events underlying this lawsuit, Skidmore was on track to finish her thesis and receive her Ph.D. by June 2021. Id. ¶¶ 13, 15.

On March 29 or 30, 2020, Skidmore saw a post on Instagram by “P.H.” depicting endangered Asiatic black bears. FAC ¶ 18. The caption of the post stated that “[a]ccording to China's state run Xinhua News Agency, ” China was “recommending bear bile injections as a treatment for COVID-19.” Id. Bear bile, the post said, “is a digestive fluid produced by the liver and stored in the gallbladder” and “harvested” through “invasive surgery” from endangered Asiatic bears. Id. China's existing ban on consuming “most terrestrial wild animals as food in the


wake of coronavirus, ” the post said, did not cover “use of wildlife products in traditional Chinese medicine.” Id. “P.H.” alleged that she had witnessed bile harvesting from “bears in crusher cages year after year, ” and that the news made her “so f… angry right now.” Id.

The Instagram post made Skidmore “incensed, outraged and sickened.” FAC ¶ 19. On her private Facebook page, Skidmore reposted P.H.'s Instagram post, adding the following:

If you thought things would change in China due to the outbreak, think again. There is a special place in hell reserved for the f*ing Chinese and their archaic culture Chian's [sic] state run news agency is now recommending bear bile (one of the cruelest forms of animal torture) as a treatment for Covid-19. I knew the ‘wildlife ban' in China was just a facade. Traditional medicines containing threatened wildlife parts such as pangolin scales, tiger bones, saiga horn, rhino horn and the bile of captive-bred bears will continue to be sold in China. I hate Trump with every fiber of my being but his description of Covid-19 as the Chinese Virus is the most accurate thing he's ever said- I wish it had wiped the whole country off the planet

FAC ¶ 34; see Gilbert Decl., ECF No. 60-4, Ex. 1 (screenshot of Skidmore's post).

B. UCSC Becomes Aware of the Post and Launches an Investigation

On March 31, 2020, faculty members in the Environmental Studies Department (“ENVS”) at UCSC received an email from an anonymous sender that included a screenshot of Skidmore's Facebook post. FAC ¶ 22. The post had apparently been shared with NextShark-an online publication focusing on issues confronting Asian-Americans-which had then published an article condemning the post. Id. There is no allegation that Defendants accessed Skidmore's private Facebook post. That same day, Skidmore's Ph.D. advisor Professor Daniel Press confronted Skidmore about her post during a discussion with her about her research. Id. Professor Press informed Skidmore that the ENVS faculty had met and would issue a response. Id. ¶ 23. Skidmore, allegedly “acting under duress, ” emailed an apology to Professor Press and the ENVS faculty prior to the statement issuing. Id.

Part of the response to Skidmore's post allegedly involved an investigation by UCSC for the purpose of determining whether it should formally discipline her. FAC ¶ 25. The investigator's “preliminary thought” on April 1, 2020-communicated at that time to Defendants-was that Skidmore's post was “protected speech under the First Amendment.” Id. By April 7, 2020, the internal investigation had concluded that Skidmore should not be disciplined


under UCSC policy because her speech was protected by the First Amendment and was not a “credible threat of violence” or “harassment . . . directed to specific students, staff or faculty.” Id. ¶ 40. In accordance with these findings, UCSC did not formally discipline Skidmore for her post.

C. Faculty Members Respond to Skidmore's Post

Although UCSC did not formally discipline her, Skidmore alleges that she suffered “de facto discipline” through the Defendants' responses to her post. FAC ¶¶ 4, 47, 48. Between April 2 and 7, 2020, Defendants Gregory S. Gilbert, Madeleine Fairbairn, Flora Lu, and S. Ravi Rajan- all faculty members at UCSC during these events-along with other individual faculty members sent three responses to Skidmore's post.

i. April 2, 2020 Statement

The first statement, sent to the ENVS graduate student community on April 2, 2020 by Gilbert, Lu, Fairbairn, and other faculty, condemned Skidmore's post as “appalling, hateful, and violent, ” “disturbingly xenophobic, ” and “deeply hurtful.” Id. ¶ 26; see also Gilbert Decl. Ex. 2 at 1-2.[2] The statement “denounce[d] the views expressed in this student's comment in the strongest possible terms” and said the views were “an antithesis to our core values as a department, and to the UCSC Principles of Community.” FAC ¶ 26. The statement recognized that the “views were expressed on a private social media account, without any formal UCSC affiliation, ” so UCSC's “disciplinary options are circumscribed.” Gilbert Decl. Ex. 2 at 1. Nevertheless, the statement said that “the freedom of expression is not just a right” and argued that “[w]ith it comes a responsibility to nurture and care for all in our community, and to use that freedom in the service


of social justice in our practices, research, and teaching.” Id. The statement said that the “hate speech has no place in our community” and promised that the response was “merely the beginning of a much longer-term conversation about how we can grapple with issues of systemic and institutional racism.” Id. at 1-2. The statement was signed by nineteen ENVS faculty members. Id. at 2. The statement did not mention Skidmore by name. Id. at 1-2.

Skidmore alleges that, in addition to sending the statement to the ENVS graduate community, Defendants also sent the statement to NextShark. FAC ¶ 28. The next day, Gilbert allegedly sent an additional email to the ENVS community labeled “Xenophobia Forum” in which he labeled Skidmore's post as “blatant racism, xenophobia, and a call for genocide.” Id. ¶ 29. Skidmore claims that she suffered from online ridicule and received negative comments and death threats, which she reported to faculty members (who allegedly took no action). Id. ¶ 30.

ii. April 3, 2020 Statement

On April 3, 2020, Fairbairn, Lu, and Rajan-each a member of the ENVS Diversity Committee-released an additional statement regarding the Facebook post. FAC ¶ 31; see also Lu Decl., ECF No. 60-6, Ex. 2. The statement was labeled “ENVS DIVERSITY COMMITTEE FACULTY RESPONSE” and marked “For Internal Circulation amongst the UCSC Campus Community only.” Lu Decl. Ex. 2. The statement first quoted part of Skidmore's Facebook post. FAC ¶ 31. The statement said the committee “welcome[d] the fact that the ENVS department met immediately to discuss this incident and wrote a public statement in condemnation.” Id. The statement called for three “concrete follow-up steps.” Id. First, it called for a “full and thorough investigation of this individual who posted this virulently racist and hateful message, ” including whether she was working with others, had “access to guns or other means of causing bodily harm, ” and whether there were “supporters of her viewpoints amongst the graduate student community and perhaps even the faculty.” Id. Second, the statement called for an investigation of how a Ph.D. student “who has passed the core curriculum” of ENVS could make those...

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