From Thursday’s Tenth Circuit choice in Sun v. Xu, written by Decide John Lee and joined by Judges Diane Wooden and Doris Pryor:

Appellants Xingjian Solar and Xing Zhao accused their professor, Appellee Gary Gang Xu, of sexually and emotionally abusing them whereas the 2 had been college students on the College of Illinois at Urbana-Champaign (UIUC). Solar and Zhao introduced these allegations to UIUC directors, and Solar later publicized them throughout an interview on a nationally televised morning information present {CBS This Morning}. In the meantime, Appellant Ao Wang, a professor at Wesleyan College, realized of those allegations and posted on a web-based message board that Xu had a historical past of sexually assaulting college students ….

The jury discovered that Solar had defamed Xu (and awarded Xu $50Ok on that concept), that Solar had deliberately inflicted emotional misery on Xu (awarding Xu an additional $50Ok for that), and that Wang had deliberately inflicted emotional misery on Xu (awarding him $300Ok in compensatory damages and $400Ok in punitives). The jury additionally rejected Solar’s and Zhao’s claims of rape, compelled unpaid labor, and improper retaliation.

However the court docket threw out the intentional infliction of emotional misery declare towards Wang (Xu hadn’t sued Wang for defamation, which is likely to be as a result of he had sued for that in Chinese language court docket, and the Chinese court had rejected that claim):

Wang contends that no cheap jury may discover on this document that his conduct was excessive and outrageous underneath Illinois legislation. We agree.

The Illinois Supreme Court docket has recognized three non-exclusive components that inform whether or not conduct is excessive and outrageous. First, the intense and outrageous nature of the conduct could come up from defendant’s “abuse of some place that provides him authority over the plaintiff or the ability to have an effect on the plaintiff’s pursuits.” Second, courts contemplate the reasonableness of a defendant’s perception that his goal is authentic. Third, courts consider whether or not the defendant is conscious that the plaintiff is especially inclined to emotional misery….

No cheap jury may discover on this document that Wang’s conduct exhibited any of those components. Wang didn’t abuse a place of energy over Xu, as each events admit they barely knew one another. Neither is there any indication that Wang knew that Xu was notably inclined to emotional misery. The one debatable level is whether or not Wang moderately believed that his goal was authentic. On this regard, Illinois courts give better latitude to defendants who “pursu[e] an inexpensive goal even when that pursuit leads to some quantity of misery for a plaintiff.” Actors can not, nevertheless, pursue that authentic goal in an excessive or outrageous method.

Right here, Wang constantly claimed that his goal in posting the feedback was to stop different college students from being victims of Xu’s conduct. He wrote this in his on-line posts and repeated it at trial, stating his intention was to “do the proper factor, which is to guard ladies, particularly feminine college students.” Whereas Wang by no means raised these allegations with Xu, he testified that he believed the assertions and had heard of a number of situations of Xu’s sexual misconduct. In contrast, Xu introduced no proof at trial to contradict the veracity of Wang’s intentions. Wang’s posting of his genuinely held perception in Xu’s alleged misconduct for the aim of warning different college students doesn’t rise to the extent of utmost and outrageous conduct underneath Illinois legislation….

However the court docket preserved the intentional infliction of emotional misery declare towards Solar (the defamation declare towards Solar hadn’t been appealed):

As with Wang, the pivotal difficulty is whether or not Solar moderately believed that her goal in publicizing her allegations towards Xu was authentic. We tread fastidiously right here, as a result of we’re aware that overcorrection could chill good religion claims of sexual harassment and assault. In such circumstances, when a person actually believes that they had been the sufferer of sexual harassment or sexual assault and publicizes this perception as a way to acquire accountability and redress, a declare for intentional infliction of emotional misery can be baseless.

However the circumstances listed here are very totally different. As we will see, whether or not Solar really believed that Xu had sexually assaulted her on the time she made these accusations public was hotly contested at trial. And so, we take our analysis of Solar’s intent in two steps. We first contemplate whether or not Xu introduced ample proof at trial for an inexpensive juror to seek out that Solar was fabricating her claims. Second, if Xu did current such proof, we ask whether or not Solar’s knowingly false allegations of rape are sufficiently excessive and outrageous to assist an intentional infliction of emotional misery declare underneath Illinois legislation.

Primarily based on the trial document, we conclude {that a} cheap jury may discover that Solar was mendacity in regards to the nature of her relationship with Xu when she made her accusations towards him public. For instance, the jury heard the testimony of Kaamilyah Abdullah-Span, an administrator within the Workplace of Range, Fairness, and Entry at UIUC. She testified that although Solar initially had reported that she had had a sexual relationship with Xu, Solar “withdrew her allegations on a number of events.” The jury additionally learn Solar’s emails retracting her claims and her written assertion that she had “made up the tales about sexual abuse.” Moreover, the jury noticed Solar give her account at trial and watched Xu as he testified that he had by no means had intercourse with Solar and that he was the one who had rejected her advances.

However, there was proof at trial that will lend some assist to Solar’s statements, comparable to Solar’s video deposition testimony, her preliminary complaints to UIUC directors, and images of her and Xu collectively. However we jealously guard the jury’s province to weigh conflicting proof, consider witness credibility, and decide the information. For this reason, when reviewing a district court docket’s ruling on a movement for judgment as a matter of legislation, we “disregard all proof favorable to the transferring celebration that the jury was not required to consider.” Right here, the jury was greatest positioned to contemplate the totality of the proof at trial and decide whether or not it was Solar or Xu who was telling the reality.

As a result of there was ample proof at trial from which an inexpensive jury may discover that Solar had fabricated her statements about Xu, we now ask whether or not such actions represent excessive and outrageous conduct underneath Illinois legislation. We conclude that they do. Intentional dissemination of false allegations of rape on a nationally televised program is the kind of conduct that will lead an inexpensive particular person to “hear the information and be compelled to emotions of resentment and outrage.” …

The Illinois Supreme Court docket’s choice in Kolegas v. Heftel Broadcasting Group (Unwell. 1992) is instructive. There, an area disc jockey acknowledged on-air {that a} caller’s spouse and son—each of whom suffered from neurofibromatosis (generally often known as Elephant Man illness)—had deformed heads and that nobody would need to marry the spouse besides out of duress. Whereas such statements expressed privately may represent mere insults, the court docket famous, the disc jockey’s derogatory remarks had been excessive and outrageous “by advantage of its publication to the group at giant.” Compared, Solar’s conduct right here was extra excessive and outrageous. She broadcasted her allegations of rape (which the jury discovered to be false) to a nationwide viewers and made accusations that would—and did—jeopardize Xu’s profession and repute….

Subsequent, Solar argues that the document lacks any proof that her actions triggered Xu to undergo extreme emotional misery….

At trial, Xu testified that Solar’s feedback on CBS This Morning triggered him to lose “all the things.” The interview additionally was uploaded to YouTube and the general public web site of Solar’s counsel. Xu mentioned that this triggered “an unbelievable quantity of stress and nightmare [sic] and rationalization to, to my household.” Xu additional acknowledged that he felt sick because of the accusations and skilled super nervousness and anxiousness. He additionally testified that he had nightmares and was “waking up in the course of the night time, pondering of all of the accusations, pondering of what life may have been with out all this.” As he feared, Xu was fired from his job and was unable to seek out different employment in the USA or China.

An affordable juror may discover that this mix of signs constitutes extreme emotional misery as outlined by Illinois legislation. Xu claimed that he was each financially and reputationally ruined by Solar’s allegations. This hurt exceeds the misery the Illinois Supreme Court docket discovered ample in Kolegas, the place Kolegas claimed that the disc jockey’s offensive feedback triggered him to be “drastically injured in his repute and enterprise” and that “the attendance receipts earned from [a related charity festival] had been drastically diminished.” …

Lastly, Solar argues that Xu’s intentional infliction of emotional misery declare can not stand as a result of her feedback had been a matter of public concern and guarded by the First Modification. However this can be a new argument made for the primary time on attraction…. Whereas Solar just isn’t restricted to the “exact” arguments raised under, she made no point out of the First Modification or Snyder v. Phelps in her briefs earlier than the district court docket, and the argument is waived….

Listed below are extra factual particulars:

Whereas a graduate scholar at UIUC in 2013, Solar requested Xu, then a professor within the Division of East Asian Language and Tradition, to advise her challenge on Chinese language movie. Over time, Solar alleges, she and Xu engaged in a sexual relationship, a declare Xu has repeatedly denied. In keeping with Solar, the connection turned violent and non-consensual. Certainly, Solar claims Xu violently raped her, publicly chased her in a automobile, and tried to kill her. Solar advised the police and UIUC directors in regards to the relationship, and the College launched a number of investigations into Xu’s conduct. Solar would later write an e mail to UIUC recanting her allegations towards Xu and admitting she had fabricated the tales.

Zhao was a graduate scholar at UIUC and assisted Xu with a e book he was writing. Zhao alleged that Xu tried to kiss and seize her at an artwork exhibit. Zhao reported these allegations, together with issues about Xu’s relationship with Solar, to UIUC. Xu denies he ever assaulted Zhao.

Wang is a professor at Wesleyan College in Middletown, Connecticut. Wang and Xu had solely met as soon as, however Wang noticed social media posts accusing Xu of rape, sexual assault, and predatory conduct. On March 10, 2018, Wang wrote a put up on douban.com, a web-based message board, stating that Xu had dedicated “quite a few misdeeds.” Wang claimed that Xu had “sexually assaulted college students for practically 20 years, and at last needed to resign and work in one other college.” Wang additionally wrote,

The knowledge I’ve is that Gang Xu had improper relationships with many college students, in order that the college didn’t schedule courses for him, hoping that he would go away by himself. Frankly talking, such a infamous particular person needs to be excluded from the training sector. If he chooses to work in a college within the Chinese language mainland, college students who should not conscious of his misdeeds could develop into victims. So I give a warning right here.

In keeping with Wang, his “core goal” in making the put up was to “[g]ive a warning to stop individuals from changing into subsequent victims [sic] and exclude the misbehaving individuals like Gary Gang Xu from the training sector.” To that finish, Wang inspired college students to “inform one another” of Xu’s misdeeds, if universities didn’t punish Xu appropriately. Mere hours after Wang posted on douban.com, Xu responded to Wang through e mail, denying the claims and threatening authorized motion. Per week later, Wang republished his feedback on a special message board, zhihu.com. These posts apparently acquired over a million views….