In September, the Foundation for Individual Rights and Expression (FIRE) filed a motion to dismiss on behalf of Oklahoma historian James P. Gregory Jr. after he was sued on May 31 by Doug Mastriano following Gregory’s criticism of Mastriano’s book and Ph.D. dissertation.
In 2014, Mastriano, an Army veteran who has served in the Pennsylvania State Senate since 2019, published a biography of Sergeant Alvin York — a decorated Army soldier who served in World War I — based on his Ph.D. dissertation at the University of New Brunswick (UNB) in Canada. In 2018, Gregory, currently a museum director and Ph.D. candidate, came across Mastriano’s book, and in an attempt to verify its claims, Gregory found some inaccuracies and raised concerns about possible fabrications. When Mastriano’s dissertation was released from a nine-year academic embargo in 2022, Gregory reviewed it and reported more than 200 issues with Mastriano’s research to UNB, and then published his own book about Sgt. York, which according to FIRE, countered many of Mastriano’s claims.
Gregory’s criticism of Mastriano’s scholarship amassed major media coverage in 2022 when Mastriano became the Republican nominee for Pennsylvania governor. Mastriano filed his lawsuit against Gregory, UNB and more than a dozen of its faculty members, accusing Gregory of defamation and violations of the RICO and Sherman Antitrust acts. Mastriano’s lawsuit argues that he “is the victim of a multi-year racketeering and antitrust enterprise seeking to derivatively steal, use and thereupon debunk his work,” impacting its value, according to the lawsuit filed in the United States District Court in the Western District of Oklahoma.
The defamation claim centers on an April 2023 statement issued by 16 UNB Department of History faculty members, who are also listed as defendants in Mastriano’s lawsuit. The statement was initially filed under seal at the request of Mastriano’s attorneys, but was ordered to be unsealed in late August.
“Faculty within the Department of History have watched the political career of its former graduate student, Doug Mastriano, with deep concern and dismay,” the statement read. “Mastriano’s public statements reflect an anti-2SLGBTQQIA+, Islamophobic, antisemitic, sexist, racist, anti-science, violently authoritarian ideology antithetical to our values.”
FIRE argues that Gregory had no involvement in the release of this statement as his name was not among the signatures and states that Mastriano’s defamation claim is “a textbook example of a Strategic Lawsuit Against Public Participation,” or SLAPP.
In 2014, Oklahoma passed the Oklahoma Citizens Participation Act to deter SLAPP suits. The aim of the legislation, according to FIRE, is to allow defendants to file motions “to quickly dismiss a lawsuit targeting First Amendment-protected speech and make the plaintiff responsible for paying the defendant’s legal fees.” Thirty-four states and the District of Columbia have passed similar legislation to dissuade similar lawsuits and to preserve the First Amendment rights of speakers and publishers to criticize those in power.
In an interview with First Amendment Watch, FIRE attorneys Greg Greubel and Sara Berinhout outline the First Amendment issues in the dispute, question Mastriano’s lawyers’ RICO and Sherman Antitrust Act claims, and highlight the importance of anti-SLAPP legislation in deterrence of frivolous lawsuits.
Editor’s note: FIRE has donated to First Amendment Watch projects. This interview has been edited and condensed for length and clarity.
FAW: What are the main First Amendment issues in this case?
Headshot of FIRE attorney Greg Greubel. Photo courtesy of FIRE.
Greubel: From FIRE’s perspective, the First Amendment demands that historians settle debates in the marketplace of ideas and not the courtroom. And this lawsuit is essentially Mastriano’s attempt to settle what is a historical dispute about a World War I veteran that used to be probably one of the most famous veterans in America. From our perspective, the First Amendment protects folks that want to criticize public officials, certainly, and this is a state senator who is also someone who published a book, so Gregory was just engaged in his protected activity when he was speaking, criticizing Mastriano’s scholarship. And now we’re actually in this lawsuit of RICO and Sherman Act and defamation, which there isn’t a true First Amendment defense to, as in, you can assert that my First Amendment right to ‘x’ has been violated by this lawsuit. That’s where SLAPP comes in. And that’s why it is so important for states to have anti-SLAPP legislation to allow individuals that have been sued for nothing other than participating in public debate, to have some kind of recourse here. So it’s First Amendment principles that are safeguarded by these anti-SLAPP statutes.
FAW: In Mastriano’s lawsuit, he claims Gregory, aside from defamation accusations, violated the RICO Act and the Sherman Antitrust Act. How are those claims applicable here? Are these RICO claims unusual in speech cases? What dangers do they pose to discussions on matters of public interest and concern such as this one?
Headshot of FIRE attorney Sara Berinhout. Photo courtesy of FIRE.
Berinhout: The short answer is that they’re completely inapplicable. They really have no business in a case like this. What this comes down to is really a defamation claim. The problem, of course, is that, as Greg mentioned, that defamation claim runs headlong into the First Amendment, and it runs headlong into Oklahoma’s anti-SLAPP statute. And so the way that Mastriano has attempted to get around that is by pleading around the First Amendment and by bringing these RICO and these Sherman Antitrust claims, which are just completely inapplicable to the facts. And we argue in our motion to dismiss that we don’t think Mastriano has managed to support a single element of those claims.
FAW: FIRE claims Mastriano’s lawsuit threatens academic freedom. How? Is questioning the research of others (whether they are a private person or public official) always permitted? Are there any limitations to First Amendment law in which such questioning does cross the line into defamatory speech in some way?
Greubel: I think that this lawsuit threatens academic freedom because it is essentially an attempt to shut Gregory up, or shut up Gregory’s criticism, right? Mastriano has a bigger platform than most people. He has the ability to say, “Those things Gregory is saying about my book are not true, and here are the facts that show why my research is correct and his research is wrong.” But that’s not what he did. Gregory would welcome [the debate]. He is a true historian, he really does care about the right answer here. And one of the things that is so concerning about it is that he’s not been given an opportunity to engage with Mastriano in that kind of academic space because this lawsuit has now taken it into the defamation world. So you can imagine a world where, instead of scholars engaging with one another about, “Well, this is actually what this draft of the Constitution says, or how it should be interpreted,” that, instead of a panel debate on a conference stage, gets turned into a defamation lawsuit. And if there is a line, it is if there is actually someone who is criticizing scholarship, or any kind of clearly false accusation that is verifiably wrong about someone in order to hurt their standing in the community or in their academic community. If that were the kind of thing that we’re going on, or just a character assassination, or not even character assassination, but a fact about him, like “Mastriano did ‘x’ on ‘x’ day.” That would be the verifiable fact about him that they were saying. But it’s kind of hard to imagine for me, in what the exact scenario would be where an academic would be criticizing someone else in a way that could be defamatory, if you’re only talking about the record documents, right?
The picture on [Mastriano’s] book [cover] isn’t what he says it is. And that’s something that Gregory’s been saying for a while now, and it’s Gregory criticizing the citation to a historical document. He went to the Army records and found the original correct citation and sent that to the university. That’s what he did. It wasn’t anything about “Mastriano did ‘x’” or anything like that. This book says it’s “x” that is not what it is, and here’s the record to prove it. But he’s not attacking or saying anything about Mastriano himself, he’s criticizing the scholarship. That’s the thing that I think is why it’s so hard for me to even imagine what scenario an academic would — instead of engaging a critic in the marketplace of ideas with their own evidence — want to file a defamation lawsuit. That’s not generally how things work, and we’ve cited several cases in our motion to dismiss that says when these kinds of academic disputes do turn into defamation lawsuits, courts should be very wary of getting involved. It’s a highly specialized area here. The area is historiography. That is a science that people go and learn. Gregory’s getting his Ph.D. in it. It’s not something that you can roll out of bed and be like, “Alright, I’m going to be able to tell you what this historical document means, where it came from,” and that kind of stuff. It’s a real thing, and people need real training in it. And courts are generally reluctant to get into those things, because it’s not what defamation law is actually designed to prohibit. And thankfully, anti-SLAPP statutes are one way that we can say, “Look, this is clearly speech on a matter of public concern and therefore protected by the anti-SLAPP statute.” And another sort of corollary is that it’d be great to have a federal anti-SLAPP statute too, because the RICO and Sherman Act claims, like I said, there isn’t a true First Amendment defense to those, and I think Congress should again look at a federal anti-SLAPP statute, because I’m afraid that we’re going to see more things like this, as opposed to less in the future.
FAW: Is it important that Mastriano’s lawsuit was filed in Oklahoma? Pennsylvania recently strengthened its anti-SLAPP statute and Oklahoma’s is relatively strong, according to the Reporters Committee for Freedom of the Press. Does that matter in this case?
Berinhout: The fact that Oklahoma’s anti-SLAPP statute is so strong is something that we are relying heavily on here, and we hope it’s something that other states will follow suit on. The statute was designed to protect precisely this kind of speech. It’s targeting for protection of speech that is about the public interest, that includes speech that’s about public figures like Mastriano, and to ensure that when claims like this are brought, that they can be dismissed very quickly, and that there’s some sort of mechanism of deterrence, sanctions and granting attorneys fees to make sure that these aren’t brought again. And so that’s one of the things that FIRE is really interested in accomplishing here is getting those sanctions, adding to that deterrence, and showing states that don’t have these statutes, or statutes like Pennsylvania is that are less robust than what we’d like to see, showing them the importance of having these protections in place.
Greubel: I think that’s exactly right. And Gregory was in Oklahoma when he was saying all this stuff. That is where the alleged international conspiracy to steal Doug Mastriano’s Ph.D. took place. Gregory is a lifelong Oklahoman. He is not somebody that was just hanging out there. He’s born and raised, almost has gotten through his entire doctorate and education through universities in Oklahoma. He’s very proud to be an Oklahoman. He’s not happy to be sued, but he’s in his home state. He’s getting the protection of a really important law that his legislators thankfully passed in 2014. It had to be Oklahoma, because that’s just where everything happened. But luckily, we do like that we’re in Oklahoma as well, and I think that that’s where the case belongs.
FAW: You’re also asking the court to dismiss this lawsuit based on the statute of limitations, arguing that Mastriano waited until the statute of limitations closed to refute Gregory’s academic misconduct claims. Why?
Berinhout: We raised the statute of limitations defense in our Motion to Dismiss. Mastriano now has the opportunity to respond, before we file a final reply. The District Court will then consider all arguments and rule on the Motion to Dismiss — including on our statute of limitations argument. Plaintiffs miss the statute of limitations for any number of reasons. But one thing to note too is that these SLAPPs, they’re not intended to win on the merits. That’s very rarely the goal. And frankly, if you’re reading through the complaint, there’s just so little there. It really just underscores the point. The purpose of these lawsuits is to intimidate critics into silence, and you do that by bringing a claim, meritorious or not. And in Mastriano’s case, latening it with all of these other claims that just have no business being there whatsoever. And you do that because you want the defense to fear this lengthy, protracted and incredibly expensive litigation, which would have been the outcome if FIRE wasn’t able to step in. We don’t know what the consideration was there. It may not have been done deliberately, for all we know. The lawsuit was brought when it was brought. We don’t see this lawsuit as having been brought because Mastriano believed he ought to, or even would, win on the merits. It was brought for other reasons.
Greubel: You usually have an alleged defamatory statement in a defamation lawsuit, but that’s also lacking here. So we did our best to be generous as we must at this stage of litigation, and give every factual inference in his favor. And even doing that, we didn’t find anything that our client said that was allegedly defamatory. And the one letter that he does identify in his defamation count, which is this letter from the people from the University of New Brunswick’s history department just basically saying, “We don’t like Mastriano’s politics.” Gregory didn’t have anything to do with that. He’s named as a defendant in that count, but he is so far geographically removed and overall removed from that and anything to do with that. But that’s the basis of the defamation claim. A statute of limitations is a great thing if you’re the defense attorney.
FAW: Did the University of New Brunswick have the legal right to release Mastriano’s embargoed thesis? How does this implicate Gregory?
Greubel: We don’t know Canadian privacy law very well in terms of educational records and such, but it’s normal for a thesis to be embargoed.
Berinhout: It’s a typical, standard practice for universities to initially put the Ph.D. dissertation under embargo. And the reason for that is so that the drafter, the new Ph.D. graduate, has the opportunity to flesh out that dissertation into a published work, and then benefit from that work and that research that’s taken years, which is exactly what Mastriano did here. But then ultimately the embargo is lifted, because it becomes part of the marketplace of ideas. It’s not going to be embargoed forever. So what we found is that the years of that embargo period can vary, but not by much, and it’s typically very, very short. And in this case, it was 9 years, and Mastriano had already published a book based on his dissertation, so there was simply no reason for the university to maintain it under embargo. So no, the only thing that was atypical about that was how long it was actually kept under embargo, not the fact that the embargo was lifted.
Greubel: Gregory didn’t release it himself. He didn’t threaten anyone to release it “or else.” He found the errors in the book, and knew of the dissertation, and said, “I’d like to see what those cites are, sources are.” And that’s when he looked at the dissertation and said, “OK, there’s more here, there’s more problems here.” And reported those. Again, he did not go there, drive there, pick it out of a file cabinet and put it on the internet. That was all done by the university. They’ve moved to dismiss this lawsuit as well, on different grounds, but the same basic idea in general. They have a lot more jurisdictional arguments because they’re Canadian and not Oklahomans like Gregory. But at the end of the day, all of us have said the same thing. This is not a legal dispute. This should be an academic dispute, and it certainly has no place in federal court, and that’s why all of us are asking the court to dismiss it now.