Ekeh v. Hudson: A comparison of culpability

Some (we)blogists have been rejoicing of late over the so-called “outing” of Dr. Deal Hudson by the National Catholic Reporter. These people have attempted to say that the disclosure of some elements of Hudson’s past was morally equivalent to Hudson’s revelations regarding Ono Ekeh's involvement with the USCCB and “Catholics for Kerry”. I believe that this is like comparing a grape with a grapefruit: any such comparison exists in name only.

For those unfamiliar with the background, Mr. Ekeh was a low-level employee of USCCB, and was also the president of a political organization, “Catholics for Kerry”. Mr. Ekeh had published these facts, or they had been published, in the respective web pages for USCCB, “Catholics for Kerry”, and Ekeh’s own (we)blog. Dr. Hudson appears simply to have read the public Internet record, made the necessary connections, and reported the news. Apparently also, the USCCB reviewed the situation, found that Mr. Ekeh had been doing Kerry business on USCCB time, and had hosted a Kerry website via USCCB computers. If this in fact was the case, then Ekeh had also been guilty of embezzlement, both a crime and a civil wrong against Ekeh’s employer. USCCB seems to have published these actions as their reason for firing Ekeh.

In short, Dr. Hudson published facts which were generally available to the public, to show that Mr. Ekeh was at the least guilty of conflict of interest with his two employers, and one of his employers fired him as a result of that conflict.

On the other hand, it appears that the National Catholic Reporter, after the Ekeh incident, sought to “get even”, and had one of their reporter employees dig up past events and “dirt” against Dr. Hudson. That reporter, Joe Feuerherd, researched and wrote an article making public that “dirt”, in an article which may be found here . From my reading of that article, however, it also appears likely that Mr. Feuerherd, and others named in that article, violated Mr. Hudson’s right to privacy.

Disclaimer alert: I am not an attorney, having found long ago that I am tempermentally unsuited to the practice of law in the United States as it now stands. Basically, I prefer the style of a solicitor to that of a barrister. On the other hand, I have a law degree from a California accredited law school, and more than twenty years of experience in legal research and writing, including the drafting of appellate briefs and petitions before the California and United States Supreme Court.

Basically, in the early 1960s, the Supreme Court (with help from the late Professor William Prosser) determined that an implicit right of citizens was the right of privacy, and held that such right embraces at least four branches of protected interest, including protection from unreasonable publicity to one’s private life. As a result, in most states, individuals or organizations that unreasonably reveal private facts about individuals are subject to civil suit, and attendant actual and punitive damages.

It appears from the article that one individual, a Ms. Cara Poppas, revealed a number of private facts about Dr. Hudson’s alleged sexual harassment of her. Additionally, it appears that she had first filed a civil harassment suit against Dr. Hudson in New York, and later made a written settlement agreement with Dr. Hudson, dismissing the suit. On the one hand, if the civil case was one of public record, then Ms. Poppas has no liability for breach of the right of privacy. On the other hand, if the record was closed, or if the settlement agreement which Ms. Poppas signed had a valid confidentiality clause, then Ms. Poppas could be held liable for breach of Dr. Hudson’s privacy.

Additionally, however, the article includes the following quotation:

‘"Sexual harassment is not tolerated at Fordham University," the school's assistant vice president for public affairs, Elizabeth Schmalz, said in a July 2004 statement provided to NCR. "It subverts the mission of the University and threatens the well-being, educational experiences and careers of students, faculty and staff. It is especially disturbing in the context of a teacher-student relationship."

‘Continued Schmalz: "Fordham followed its policy rigorously in this case and initiated an investigation into the matter upon receipt of the student's complaint. The professor later surrendered his tenure at Fordham."’

Unfortunately for Ms. Schmalz, and for her employer, I have taken the liberty of reviewing Fordham University’s web page, and have found the following citation, which includes the following quote:

'Confidentiality

‘Sexual harassment is a matter of grave concern for both the complainant and the accused and therefore the procedures designed to deal with sexual harassment should be handled with the utmost sensitivity. To the extent practical and appropriate to the circumstances, investigatory and resolution procedures, as well as formal grievance procedures, shall be held in strict confidence to reasonably insure the privacy of the parties concerned (complainant, accused, and witnesses, if any) and to offer as much protection as reasonably possible to the careers and reputations of the parties involved.’ (Emphasis added).

It would therefore appear that Ms. Schmalz violated the privacy and confidentiality provisions of Fordham University as regards their resolution procedures, and in the process, violated Dr. Hudson’s right of privacy in this matter. Since Ms. Schmalz is an employee of Fordham University, Fordham could also be held liable for Ms. Schmalz’ dereliction, under the doctrine
of respondeat superior.

A question remains, however, as to whether Mr. Feuerherd, or his employer, National Catholic Reporter, would be liable for their breach of Mr. Hudson’s privacy. While previous Supreme Court decisions (e.g., Time, Inc. v. Hill, and Gertz v. Robert Welch, Inc.) have indicated that publications may have an immunity as regards breach of privacy where the plaintiff is a “public figure”, in the later case of Cox Broadcasting Corp. v. Cohn, the Court left open the possibility that the truthful reporting of matters that constitute invasions of privacy might nonetheless be actionable in such instances.

While I am not a scholar of constitutional law, and thus I would defer to the judgment of those who are, I would think that the showing of specific malice by the National Catholic Reporter in their reportage, the outrageous nature of the facts revealed, and that a number of those facts may have been far outside of the public record, would militate towards a finding of liability by the NCR. At least, one could hope so.

For my part, I hope that Dr. Hudson, after a reasonable time (say, after the presidential election), would have his counsel bring an appropriate action against those responsible for these grievous wrongs against him. I would urge him to do so, if only for the benefit of helping
to stop a self-appointed (and self-anointed) news medium from continuing to “out” anyone
who disagrees with their agenda, or does anything of which they disapprove.

Postscript:

Since my original posting of this essay, I note that NCR's Editor, has published a rationale or a justification for their publishing private facts about Dr. Hudson. It includes the following words:

"All of us, as Hudson put it, have done things in our lives that we regret.

"But not everyone is a public figure, seeking the spotlight and rubbing elbows regularly with the most powerful in the land. Most of us don’t regularly publicly denounce those whose personal behavior we think deficient; fewer still have the power to get someone fired for maintaining a political Web site because we disagree with its content; or to claim with some validity that we are responsible for getting Catholics appointed to positions of power at the highest levels of government.

"Rarer even are those among us who live lives important or interesting enough to pen confessional memoirs before reaching retirement age.

"Hudson was understandably proud of his achievements, and he wields his power with a bravado that rarely shuns the limelight. That’s one of the reasons we decided to do a profile. (Emphasis added)"

I am happy for Dr. Hudson that the editor of the NCR has chosen to make an admission of the malice which motivated that publication to initiate the investigation. It should make prevailing against them much easier.