Allegations by the dismissed lecturer citing the president and dean’s emails, and NJIT’s investigation and his resulting suspension, were sufficient to plead an “agreement” to take steps to end his employment in support of his conspiracy claim.
Granting and denying in part a philosophy lecturer’s motion to amend his complaint against the New Jersey Institute of Technology, which would not renew his contract after he made controversial statements referencing Hitler that appeared in the New York Times, a federal district court in New Jersey allowed him leave to add a First Amendment conspiracy claim. But because his tortious interference claims were grounded in the same statements made by the president, dean, and other faculty members that had formed the basis for his previously dismissed defamation claims, they were not cognizable under New Jersey law (Jorjani v. New Jersey Institute of Technology, June 26, 2019, Martini, W.).
“Alliance with the Alt Right.” After a contracted philosophy lecturer at NJIT “formed alliances with the Alt Right,” according to his complaint’s allegations, to promote his philosophy that European cultures are the “sources of the world’s greatest scientific, artistic and spiritual developments” and established the “Alt Right Corporation,” he was later surreptitiously recorded making controversial comments regarding the “future of European politics.” A heavily edited version of his comments made its way into a New York Times op-ed, quoting him as saying “Hitler will be seen like that: like Napoleon, like Alexander; not like some weird monster, who is unique in his own category. No, he’s just going to be seen as a great European leader.”
The president and dean of NJIT condemned his views in a faculty and staff-wide email; other department chairs made statements condemning his views as well. The article and NJIT’s response occurred in September 2017; in February 2018, the lecturer learned his contract would not be renewed.
He sued, alleging First Amendment retaliation and defamation, and his defamation claim was dismissed with prejudice. He sought leave to amend, dropping his defamation claim but adding a claim of conspiracy to violate his First Amendment rights and tortious interference with his contract and prospective economic advantage. The individual defendants and NJIT argued that amendment to the complaint should be denied as futile. Noting that the futility analysis is essentially the same as a Rule 12(b)(6) motion to dismiss, the court granted him leave to add the First Amendment conspiracy claim but denied his tortious interference claim.
First Amendment conspiracy. The former lecturer’s conspiracy count, if allowed, would allege that the NJIT president and one of its deans “conspired together and with others” and determined to deprive him of his rights to free speech and association. He cited their September 20 email, and the resulting investigation and his suspension. Although the defendants argued his allegations were merely conclusory, the court cited the language of the email, which called the lecturer’s statements “repugnant and antithetical to our institution’s core values” as well as his allegations that they “supported an intellectual witch hunt” against him and “resolved to subject Plaintiff to both institutional censorship and discipline.”
This was enough to allege a meeting of the minds to end the lecturer’s association with NJIT. Although the lecturer claimed this violated his constitutional rights, the court noted in a footnote that it was taking no view on whether the non-renewal of the contract was a deprivation of his First Amendment rights. Similarly, although the defendants only argued that his allegations weren’t sufficient to allege the existence of an agreement, the court explained that this did not mean defendants had “conceded” the existence of an underlying First Amendment violation. The court also found it reasonable to infer from the allegations that the president and dean agreed to take steps to end the lecturer’s employment, and thus it allowed this claim to go forward.
Tortious interference. But the same was not true for the tortious interference claim, which the court would not allow. The lecturer alleged that the statements and resulting investigation “intentionally and improperly” interfered with his contract, and “intentionally and maliciously” interfered with this prospective economic relationship. Arguing New Jersey law, the defendants contended these claims essentially duplicated his dismissed defamation claims because state law holds that if an intentional tort (like tortious interference) is predicated on the same conduct as a defamation count, the defamation count swallows up the intentional tort. In other words, if the defamation isn’t actionable, neither will its consequences be actionable.
In the court’s view, here the lecturer was merely alleging that the speech previously underlying his defamation claim resulted in tortious interference liability—and since the defamation allegations had already failed as a matter of law, he would not be allowed to add the tortious interference claims based on the same speech.
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