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Wednesday, May 29, 2024
The Observer

Kay legal team alleges personal attack, Rover maintains free speech argument ahead of December hearing

New legal documents filed by sociology and global affairs professor Tamara Kay purport that Irish Rover reporting was part of a “concerted effort” to get her fired. The Rover’s response says the argument is not relevant to its motion to dismiss the defamation lawsuit.

In a filing submitted to St. Joseph Superior Court 4 on Nov. 3, Kay made part of her argument against the Irish Rover, a Catholic and conservative student publication. 

Kay and her legal team argued the evidence demonstrates the two allegedly defamatory Rover articles published in October 2022 and March 2023 were aimed directly at Kay and designed to advance personal agendas rather than further the right to free speech.

The presented legal evidence — including text messages between the newspaper’s writers, faculty advisors and other students — attempts to demonstrate that the Rover was misleading in its reporting. The filing also argues that the “J” on Kay’s office door was intended to stand for “Jane Doe,” a reference to sexual assault victims. The document also stated that Kay’s husband was fired from Notre Dame in May 2023.

“The October 12, 2022, article was the result of a concerted effort of Notre Dame faculty, staff, students and even an alumni group, all with one agenda in mind — to get rid of Professor Kay,” the document said.

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An Irish Rover news stand in O’Shaughnessy Hall.

Kay’s response filing reveals details of Rover reporting tactics, Rover legal defense points to First Amendment

Rover reporters received tips from University faculty, encouraged a Holy Cross student to request Plan C pills from Kay and discussed “undercover” methods when reporting about Kay. The Irish Rover legal counsel says reporting practices detailed in the new documents are not relevant to its motion to dismiss the defamation lawsuit. The right to free speech is not conditioned on motives, said Jim Bopp, one of the Irish Rover attorneys.

Bopp said the issues are whether the Rover and its writers were engaged in First Amendment protected speech — which, he argues, they were — and if they had a reasonable basis for the statements made in the articles. Anything other than that, Bopp said, is irrelevant. The Rover’s legal counsel makes this argument in its reply to support its motion to dismiss, which was filed Nov. 20.

“She put a vast amount of irrelevant, immaterial things in her response that has nothing to do with the issues before the court,” Bopp said.

Kay first sued the Irish Rover in May 2023. The Rover’s legal counsel filed a motion to dismiss the suit in July under Indiana’s anti-SLAPP Law, which is designed to protect First Amendment rights. Kay’s filing sought to refute the grounds on which the Rover filed its motion to dismiss.

Both Kay and the Rover filed their responses ahead of the hearing on the motion to dismiss the case, which is scheduled for 11 a.m. on Dec. 20.

In September 2022, Kay posted a sign on her office door which read, “This is a SAFE SPACE to get help and information on ALL healthcare issues and access — confidentially and with care [and] compassion.” The note also included the capital letter “J” with a circle around it and Kay’s personal email address, which mentioned reproductive health.

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Photo included as part of Exhibit H in the Irish Rover’s Motion to Dismiss, filed in Tamara Kay v. The Irish Rover, St. Joseph Superior Court 4 Case No. 71D04-2305-CT-000264.

University faculty inform, advise Irish Rover reporters

Vincent Phillip Muñoz, a faculty advisor for the Rover, sent a photo of the sign to W. Joseph DeReuil, who was editor-in-chief of the Rover at the time. A fews days earlier, he suggested the Rover cover the post-Roe v. Wade panel Kay spoke on, according to the filing.

“It is true that the Irish Rover received information from various sources about Dr. Kay’s public speech and actions. But receiving information does not a conspiracy make,” the Rover’s Nov. 20 filing said. Muñoz did not respond to an interview request.

DeReuil authored the October article, reporting that the letter “J” on Kay’s door and in one of Kay’s now-deleted tweets denoted “Notre Dame professors who are willing to help students access abortion.”

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Prior to the release of this article, Kay’s document showed that a University business professor, Craig Iffland, texted DeReuil about Kay and the October article.

“There needs to be a coordinated assault on the Tamara Kay issue. Just flood Jenkins,” he said in the text. “Basic output: Keough has to hire someone based to placate the mob.”

In his deposition pertaining to the lawsuit, DeReuil said he believed Iffland was referring to two open positions within the Keough School of Global Affairs. DeReuil said he believed Iffland’s hope was that if people were upset with Kay, Notre Dame would be more likely to hire people who he viewed as in-line with the University’s mission.

Bopp said this text is irrelevant to the case because the statements in the articles about the signage on her door and what Kay said on the panels have nothing to do with alleged evidence that someone wants to fire her. Bopp said the text was not reflective of what the Irish Rover did, and Iffland “can have advice.”

Iffland and DeReuil did not respond to requests for interviews.

Rover reporters attempt ‘abortion pill acquisition project,’ other strategies

The document also stated there were multiple instances in which Rover writers either considered or engaged in misleading reporting tactics.

On Oct. 3, a Holy Cross student, Abbi Lemons, reached out to Kay asking for Plan C pills, but Kay never responded. The filing revealed screenshots of a text conversation about the email sent between Lemons and Elizabeth Hale, a Notre Dame student and a current managing editor of the Irish Rover.

“You can just play the part of scared, lost, heard she was a friendly [sic],” Hale wrote to Lemons when they were considering approaching Kay at her office. “She’s super narcissistic so if you were to butter her up think it would be good [sic].” 

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DeReuil texted Hale about this interaction, referring to it as the “abortion pill acquisition project.”

Kay alleged this was an “apparent attempt to entrap” her. Bopp said it was “silly to talk about entrapping” because this was an attempt to “verify” Kay’s actions, referencing her now-deleted tweets that linked websites that offered Plan C pills.

The filing also revealed text conversations between Luke Thompson, the author of the March article, and Notre Dame student Merlot Fogarty that referenced sending people “undercover” to the College Democrats talk which Kay spoke at. The panel was the subject of the March 2023 article. Later messages reveal Thompson did not attend the lecture undercover.

“A standard type of investigative technique that reporters use is they just show up at something, don’t announce who they are, pretend they’re just one of the crowd and they report on it. That’s what good reporters do,” Bopp said.

Lemons, Hale and Thompson did not respond to interview requests. Fogarty declined to comment.

Rover’s response points to Kay’s emails about abortion rights, argues the ‘J’ stands for the Jane Collective

In the filing and in a statement posted to Kay’s website in July, Kay and her legal team have argued that the “J” on her office door was in reference to sexual assault. They also argue that in the sign posted on Kay’s door, the word “healthcare” referenced the lack of access to healthcare that Notre Dame was providing to students who are sexually assaulted. The report says Kay initially considered putting the sign on her door in late August — prior to when the abortion ban in Indiana went into effect — after she reported one of her students was sexually assaulted to the University’s Title IX office.

Filings from the Irish Rover purport that Kay was concerned about abortion access just before Roe v. Wade was overturned. In an email sent to history and global affairs professor Ted Beatty on May 26, 2022, Kay writes about the potential impact on faculty if Roe “goes away.” She writes that women faculty are “talking about the need to potentially provide housing and transportation for women from Indiana who will need to seek abortions in Illinois, or help them get Mifepristone and Misoprostol.” Kay also wrote about trying to “get some clarity” about what actions would be seen as violating the academic articles “if Roe (and other freedoms/civil rights) goes away and we have to engage in civil disobedience on this issue.”

In another email sent June 24, 2022, Kay addresses sociology graduate students after an article written by a Notre Dame graduate student was published in Ms. Magazine. The article mentions the Jane Collective, an underground network that provided secret abortion services. In her email, Kay wrote, ”the data and research on reproductive health access (including abortion access) and educational outcomes is incontrovertible. So if you ever need help to access healthcare, you can ALWAYS come to me for financial, logistical, emotional support, etc. etc. and I will give it to you confidentially and without questions, judgements, stigma or shame.”

Based on this personal communication, the Rover legal team argues the “J” on Kay’s door stands for the Jane Collective, not Jane Doe. Bopp said Kay’s argument that the “J” referenced sexual assault was a “fantasy.”

Rover legal defense calls new evidence a ‘smokescreen’ to ‘make herself the victim,’ but Kay says ‘this is not about me’

DeReuil said in his deposition that he never directly asked Kay for a statement about either the tweets or the sign on her door. Bopp said that in the context of a defamation case, DeReuil can make conclusions based on what he observed without asking for Kay’s comment as long as the statement is not false or recklessly disregarding the truth. There is no obligation to investigate, Bopp said. 

Kay has been vocal about the rape and death threats she had received since the publishing of the Rover’s articles, and the document included some of these email threats, as well as a photo of a physical letter received in the mail. Bopp claims there is no evidence these threats are linked to the articles.

Kay’s legal team noted that Notre Dame terminated her husband in May 2023. He was employed by Notre Dame since 2016, and he was not tenured. The Rover’s legal team said mentioning this in the filing was Kay’s attempt to play the victim.

The Rover’s legal team believes the new filed information is not relevant to refute its position, maintaining its belief that Kay filed this lawsuit to punish student journalists.

“She’s come up with all this irrelevant stuff as a smokescreen, and so I think she’s failed to refute any of the basic issues in the case and is just trying to create a smokescreen and make herself the victim while she was the oppressor,” Bopp said.

Kay did not respond to The Observer’s questions but provided a written statement.

“As a Catholic, I believe it is very important, given that the names of individuals have been included in recent court filings, that they be treated with respect and kindness, and not subjected to the threats, harassment and abuse that I have endured,” she wrote in an email. “I also want to emphasize that, as the legal process continues, this is not about me. It is about ensuring a campus that is safe and allows women, LGBTQIA+, Native American, and Students of Color to thrive. To that end, the parietal rules undermine the human dignity of women at Notre Dame, make them vulnerable to assault and abuse, and contribute to a rape culture on campus. We should end them immediately.”