OPINION AND ORDER Plaintiff Liang Wang was the principal oboist for the New York Philharmonic. See Dkt. 1 1. He sued freelance reporter Sammy Sussman; Sussman’s publisher, New York Media; and New York Media’s parent company, Vox Media, for defamation. Wang’s suit is about an article (and a podcast discussing the article) that he says wrongly depicts him as committing and being fired for a specific incident of sexual misconduct. He is seeking $100 million in damages. Defendants moved to dismiss. For the reasons stated below, the motion to dismiss is GRANTED. BACKGROUND The article that prompted this suit was published by Vulture, a platform of New York magazine, on April 12, 2024. Its headline reads: “A Hidden Sexual-Assault Scandal at the New York Philharmonic: Two musicians were fired for sexual misconduct. Why are they back with the orchestra?” Immediately above the headline is a photograph of the New York Philharmonic in concert. Three musicians’ faces are enlarged and circled in red. One of the faces is Wang’s; the others are Cara Kizer’s and Matthew Muckey’s. The article centers on a 2010 incident involving Wang, Muckey, and Kizer, all of whom were members of the orchestra at the time. The incident took place while the orchestra was in Vail, Colorado for a one-week residency. Dkt. 26-1 at 3. On the night in question, Wang, Muckey, and Kizer left a party thrown by one of their colleagues to go to Muckey’s condo. Id. Here’s how the article describes what happened next: When they got to Muckey’s condo, he and Wang got in the hot tub and tried to persuade Kizer to join them, but she declined. Kizer alleged that Wang brought her a glass of red wine. Wang later told the police that Kizer got her own wine. What was not disputed is that Kizer has no memories of what happened after she drank from that glass. Id. at 4. The article goes on to relay Kizer’s account of what happened that night. She says she passed out after drinking the wine, which she believes had been drugged. See id. at 5, 8. When she woke up the next morning, she was naked and in Muckey’s bed. Id. at 5. After Kizer arrived at her own hotel room, “she realized that a tampon that she had put in the previous day had been pushed so far into her vagina she had trouble removing it.” Id. Kizer claims Muckey raped her while she was passed out. Id. at 6. Kizer reported what happened to the orchestra’s personnel manager and then to the police. Id. at 5. The article’s description of the police investigation notes: [Rusty] Jacobs[, the detective investigating Kizer's case,] spoke with six Philharmonic musicians and staff about Kizer, Muckey, and Wang. Several spoke highly of Kizer’s credibility but raised questions about Muckey and Wang, with one male colleague stating that Muckey and Wang “think everything in the world is theirs for the taking.” Jacobs asked whether they would be capable of drugging someone to commit a crime. “Yes,” the man replied, “I could see that.” By the time the residency ended, though, no charges had been filed and Muckey and Wang left town with the rest of the orchestra. Id. at 6. The article follows this up with an interlude about the orchestra’s gender dynamics and the politics of its tenure system. See id. at 7-8. When the piece turns back to the Vail police, its focus is on their attempts to corroborate Kizer’s claim that the wine she drank was drugged. The article says: In Vail, Jacobs got the results of the tests he had ordered, and there was a match: Muckey’s DNA was found on Kizer’s tampon. There was no evidence, however, that Kizer had been drugged. Wang denied that he had given Kizer anything, and Muckey continued to insist that the sex was consensual. Jacobs worried that his investigation had reached a dead end. Kizer began researching date-rape drugs. The ten-panel test she’d taken in Colorado didn’t include a test for GHB, which produced symptoms similar to those she’d experienced the night of July 24, so Kizer sent a sample of her hair to a private lab. On February 9, 2011, she got the results. A six-centimeter hair sample was “positive for the presence of GHB.” Later testing suggested the exposure occurred around the month of the alleged assault. “For me, it was like, ‘Oh my God, this is it,’” Kizer said. She was more convinced than ever that she had been drugged. Jacobs sent the case file to the Fifth Judicial District Attorney’s Office with a memo recommending that charges be filed, but the DA declined to prosecute Muckey. Jacobs was told that the hair-follicle test “did not meet the standards for litigation.” (One forensic toxicologist called the practice of testing for date-rape drugs in hair follicles “controversial.”) “I finally have this information, and now all these other people are screwing it up,” Kizer said. “It felt like I was meeting such resistance, like this system didn’t care that a crime happened to me, to my body.” Kizer added that whether or not she’d been given GHB, her clear incapacitation — she was blacked out and moments away from vomiting — left her unable to consent to sex. Id. at 8. That’s pretty much the end of the article’s discussion of what happened in 2010. What comes next is Kizer’s description of how the deputy district attorney communicated the non-prosecution decision to her and a comment from an attorney uninvolved with Kizer’s case on the DA’s decision not to prosecute. See id. at 8-9. Skipping forward eight years, the article continues: In early 2018, a few months after reporting about Harvey Weinstein’s pattern of predation ignited the Me Too movement, the Philharmonic returned to the allegations Kizer made against Muckey. The organization hired Barbara S. Jones, a former federal judge, to conduct an independent investigation. In addition to Kizer’s claims, the orchestra learned about [an] earlier rape allegation against Muckey and unrelated allegations of sexual misconduct against Wang. (Muckey and Wang denied the allegations.) Over a six-month, $336,573 investigation, Jones interviewed 22 individuals and reviewed “extensive documentary evidence.” The Philharmonic concluded that the two men had “engaged in misconduct warranting their termination.” Muckey and Wang were fired in September 2018. Nearly all the details of the investigation were withheld from the public. A New York Times article on the subject was headlined “New York Philharmonic Dismisses 2 Players for Unspecified Misconduct.” Id. at 9. Both Wang and Muckey appealed their terminations, enlisting the help of their union to do so. Id. Their cases were turned over to a neutral arbitrator, Richard I. Bloch, whom the article describes as “a high-profile attorney, arbitrator, and part-time professional magician.” Id. Bloch reinstated Wang and Muckey. Id. at 10. The article notes that Jones’s investigation had used a “preponderance of the evidence” standard to determine if Wang and Muckey were guilty of misconduct, while Bloch had relied on a higher “clear and convincing evidence” standard. Id. In describing the bases for Bloch’s decision, the article quotes his arbitration opinion directly: [Bloch cited] the fact that the “events at issue occurred some 8, 10 and 12 years prior” and the “potential degradation of corroborative evidence over time.” Because “sex acts are normally performed privately,” he wrote, “the task of demonstrating assault charges, including those resulting from the refusal to take ‘no’ for an answer, can be difficult to prove.” Id. at 10. As it draws to a close, the article presents statements from Wang’s lawyer and Muckey’s. Id. The piece also notes that a new collective-bargaining agreement between the Philharmonic and the musicians’ union “forc[es] a ‘preponderance of evidence’ standard in all future arbitrations.” Id. at 11. It then ends by looking to the orchestra’s future. On this it says, in part, “When he takes over, Gustavo Dudamel[, the orchestra's incoming music director,] will have a lot of work to do to repair the Philharmonic’s culture. But even his best efforts likely won’t change the reality that Muckey and Wang remain active in the ensemble.” Id. A little more than two weeks after the article was published, Sussman appeared on the “Inline G Flute” podcast hosted by Gareth Houston. Dkt. 1 65. His interview primarily retraces the ground covered by the article, though he also supplies additional personal commentary. On the orchestra’s 2018 investigation, the interview unfolds as follows: 00:22:10 Sammy Sussman Yeah, sure. Um, so 2018, well, really October 2017, there’s the reporting about Harvey Weinstein. 00:22:16 Gareth Houston Yeah. 00:22:17 Sammy Sussman Within a couple of months the New York Philharmonic commissions this outside invest — we don’t know why they did that, to be clear. We don’t know that it’s tied to the Me Too movement, maybe it’s a coincidence. 00:22:25 Gareth Houston Yes. 00:22:26 Sammy Sussman All we know is that by December of 2018 they had commissioned Barbara Jones. She’s a former federal judge in New York, really an expert on these sort of things. She comes in, they spend over $300,000, um, on her investigation. She spends six months, according to some documents that I obtained, she interviewed 22 people. She reviews extensive document — documentary evidence. Um, and she finds there’s enough evidence for the New York Philharmonic to rightfully terminate the employment of Matthew Muckey and Liang Wang. 00:22:54 Gareth Houston Yeah, due to the allegations of what happened in 2010, just to be clear, yeah. 00:22:59 Sammy Sussman And — Cara’s allegation and another allegation against Muckey as described, and we say — we don’t go into more specifics in the article and I, I, I won’t — I’m not quite ready to do that here but, um, we do write mult — uh, allegations, so not one but multiple allegations, separate allegations — 00:23:12 Gareth Houston OK. OK. 00:23:15 Sammy Sussman — of sexual misconduct against Liang Wang. So we know that he’s present for Cara’s allegation. She alleges that he poured her the glass of wine. We don’t otherwise know his involvement, but we know that besides being present for that, there are at least two allegations against him — 00:23:28 Gareth Houston OK. OK. 00:23:30 Sammy Sussman — if that makes sense. Yeah. I, I don’t want to say more than just multiple, but yes. 00:23:32 Gareth Houston No, no, of course. Yeah, yeah. Dkt. 26-3 at 22:10-23:32. The article was updated on April 16, 2024. Dkt. 1 1 n.1. The update stated, “This story was originally published on April 12, 2024. Following publication, the New York Philharmonic announced that Matthew Muckey and Liang Wang, the two musicians accused of misconduct, are no longer rehearsing or performing with the orchestra.” Dkt. 26-1 at 1.1 LEGAL STANDARDS To survive a motion to dismiss, a complaint must include “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In reviewing a motion to dismiss, the Court “accept[s] all factual allegations as true, and draw[s] all reasonable inferences in the plaintiff’s favor.” Austin v. Town of Farmington, 826 F.3d 622, 625 (2d Cir. 2016). A district court may also consider documents attached to the complaint, incorporated by reference into the complaint, or integral to the complaint, so long as there is no dispute as to the documents’ authenticity. See DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010). Under New York law, a defamation plaintiff needs to show five things: “(1) a…defamatory statement of fact concerning the plaintiff; (2) publication to a third party; (3) fault (either negligence or actual malice depending on the status of the [defamed] party); (4) falsity of the defamatory statement; and (5) special damages or per se actionability (defamatory on its face).” Biro v. Condé Nast, 883 F. Supp. 2d 441, 456 (S.D.N.Y. 2012) (quoting Celle v. Filipino Rep. Enters. Inc., 209 F.3d 163, 176 (2d Cir. 2000)). “Whether particular words are defamatory presents a legal question to be resolved by the court[s] in the first instance.” Celle, 209 F.3d at 177 (alteration in original) (quoting Aronson v. Wiersma, 483 N.E.2d 1138, 1139 (N.Y. 1985)); see also James v. Gannett Co., 353 N.E.2d 834, 837 (N.Y. 1976) (“[I]t is for the court to decide whether the words are susceptible of the meaning ascribed to them.”). Though “[i]t is the responsibility of the jury to determine whether the plaintiff has actually been defamed,…a threshold issue for resolution by the court is whether the statement alleged to have caused plaintiff an injury is reasonably susceptible to the defamatory meaning imputed to it.” Levin v. McPhee, 119 F.3d 189, 195 (2d Cir. 1997) (internal citations omitted). “[T]ruth is an absolute defense to a defamation claim.” Martin v. Hearst Corp., 777 F.3d 546, 552 (2d Cir. 2015). “But in certain circumstances even a technically true statement can be so constructed as to carry a false and defamatory meaning by implication or innuendo.” Id. DISCUSSION Wang claims that the article and podcast are defamatory in two ways. First, he says that they are defamatory because they contain false statements of fact. Second, he argues that they are defamatory by implication because they present “false suggestions, impressions and implications arising from otherwise truthful statements.” Armstrong v. Simon & Schuster, Inc., 649 N.E.2d 825, 829 (N.Y. 1995). The Court first examines whether Wang’s complaint plausibly alleges any false statements of fact in either the article or the podcast. Then it turns to whether there’s any substance to Wang’s defamation-by-implication allegations. Neither side in this case disputes that New York defamation law applies. I. Express Defamation Express-defamation claims — unlike defamation-by-implication claims — concern “direct statements.” Armstrong, 649 N.E.2d at 829. These claims are about “allegedly false statements of verifiable fact.” Id. To survive a motion to dismiss, an express-defamation plaintiff “must plead that the defendant made specific false statements of fact.” Sorvillo v. St. Francis Preparatory Sch., 607 F. App’x 22, 24 (2d Cir. 2015). And “the court must decide whether the statements, considered in the context of the entire publication, are ‘reasonably susceptible of a defamatory connotation.’” Stepanov v. Dow Jones & Co., 987 N.Y.S.2d 37, 42 (1st Dep’t 2014) (quoting Silsdorf v. Levine, 449 N.E.2d 716, 719 (N.Y. 1983)). When determining whether a statement is defamatory, three standards apply. First, “[c]hallenged statements are not to be read in isolation, but must be perused as the average reader would against the ‘whole apparent scope and intent’ of the writing.” Celle, 209 F.3d at 177 (quoting November v. Time Inc., 194 N.E.2d 126, 128 (N.Y. 1963)). Second, “[a] fair reading controls.” Id. And third, “the words are to be construed not with the close precision expected from lawyers and judges but as they would be read and understood by the public to which they are addressed.” Id. (quoting November, 194 N.E.2d at 128). Applying these standards, Wang fails to plausibly allege a claim of express defamation. He says the article and podcast make four false statements of fact: 1) Wang drugged Kizer; 2) Kizer drank a significant amount of the wine she alleged Wang gave her; 3) Kizer’s drugging allegations were supported by evidence; and 4) Wang was fired by the orchestra in 2018 because of Kizer’s allegations. Dkt. 1
2-3, 43, 53. As to the first statement, neither the article nor Sussman in his podcast interview says that Wang drugged Kizer. (The Court will get to whether the article or podcast implies that below.) What the article says is what the Court quoted in the background section: that “Kizer alleged that Wang brought her a glass of red wine. Wang later told the police that Kizer got her own wine.” Dkt. 26-1 at 4. Sussman is even clearer in the interview. There he says, “[Kizer] and Wang dispute who poured a glass of wine.” Dkt. 26-3 at 8:56. Wang doesn’t deny that Kizer made this allegation. Nor could he, since the police report notes that Kizer told them that “Wang gave her a glass of red wine.” Dkt. 26-4 at 9. And nowhere in his complaint, briefing, or at oral argument did Wang point the Court to a place in either the article or the podcast that says that Wang in fact drugged Kizer. In his complaint, Wang points to what the article “implies” as the basis for this claim. See Dkt. 1 2 (“Specifically, the article implies that Wang put a date rape drug into Kizer’s wine, so that Muckey could sexually assault her”); id. 42 (“Specifically, [the article] strongly implies that Wang drugged Kizer so that Muckey could rape her, tying Wang to what purportedly happened to Kizer with the headline.”); id. 44 (“The article then strongly implies that Wang was the person who drugged Kizer.”). But impressions and innuendo aren’t enough for express defamation — what’s needed is a point-blank false statement. See Armstrong, 649 N.E.2d at 829-30. The same problem dogs the second statement with which Wang takes issue. The article never says that Kizer drank a significant amount of the wine that Wang purportedly gave her. Sussman doesn’t make that claim during the podcast interview either. The Court has already been over most of what the article says about what Kizer drank from the glass in question. See Dkt. 26-1 at 4 (“Kizer alleged that Wang brought her a glass of red wine. Wang later told the police that Kizer got her own wine.”). The other place where the article mentions that glass of wine is in recounting what Kizer told her husband. See id. at 5 (“After her shower, Kizer told her husband about the glass of wine and how she woke up in Muckey’s bed with no memory of the night before.”). None of these statements is about how much wine Kizer drank. Read in context, they say that she did drink from the glass of wine — which Wang doesn’t say is false. Sussman says substantially the same things on the podcast. See Dkt. 26-3 at 23:15, 8:56, 9:07. The only difference between what the article says and what Sussman says on the podcast is that at one point Sussman states, “[Kizer] drinks a glass of red wine and remembers nothing from the rest of the night.” Id. at 9:13. When understood in context, it’s hard to see this comment as one about the amount of wine that Kizer drank, rather than one saying in colloquial terms (and remember, this was a podcast interview) that Kizer drank some wine from the glass. See Celle, 209 F.3d at 177 (“[T]he words are to be construed not with the close precision expected from lawyers and judges….” (quoting November, 194 N.E.2d at 128)). Neither before nor after Sussman’s statement does the conversation turn to how much wine Kizer drank — indeed, at no point in the hour-plus podcast does this happen.2 Wang claims that the statements are false because they omitted that Kizer told the police she drank “very little of the wine, probably a couple of sips.” See Dkt. 1 66 (quoting Dkt. 26-4 at 9). Again, that’s a question of whether the article and podcast interview are defamatory by implication, not expressly so. See Biro, 883 F. Supp. 2d at 463-64 (“[Plaintiff's] allegations are based not on a defamatory connotation from statements in the Article that are alleged to be expressly false, but rather on an alleged defamatory implication that can be derived from the juxtaposition of certain statements with the omission of other allegedly material facts.”). Now turn to the third statement in contention. Wang says the article and podcast falsely claim that Kizer’s allegations of drugging were backed up by evidence. This time, the article and Sussman’s podcast interview make these claims. But they’re not defamatory because they’re true. As the Court noted above, the article says, “A six-centimeter hair sample was ‘positive for the presence of GHB.’” Dkt. 26-1 at 8. The quoted portion of the sentence is from the police report, which describes a positive test result from a hair sample Kizer sent to a private laboratory. Dkt. 26-4 at 46. The article’s subsequent reference to “[l]ater testing [that] suggested the exposure occurred around the month of the alleged assault” is also taken from the police report. Dkt. 26-4 at 48 (noting expert opinion that lab reports “can only be interpreted as exposure to GHB in the presumed period”). Wang doesn’t address that the statements quote the police report, nor does he suggest that the statements are actionable even though they’re derived from the police report. Turning to the podcast, two statements are relevant. First, Sussman says: A year later, um, Cara pays for a, a private, uh, hair exam, hair follicle exam. They test, they find a spike in GHB, and they can date it, because of the rate at which hair grows, to around the time of when Cara was in Vail. It’s only to about the nearest month or two. So it’s not at all indicative. She’s told that that can’t really be used in the criminal process and hair follicle testing at the time is new. Dkt. 26-3 at 13:18. Then, midway through the interview, Sussman says: I, um, you know, Cara’s story obviously felt compelling and just, I have this police evidence. It’s one of those rare cases where there’s such substantive police evidence, and it’s such a specific crime, and you can point to the failures of the criminal process. Dkt. 26-3 at 36:55. Wang fails to allege that any of these statements are untrue. See Tannerite Sports, LLC v. NBCUniversal News Grp., 864 F.3d 236, 247 (2d Cir. 2017) (“Because falsity is an element of New York’s defamation tort, and ‘falsity’ refers to material not substantially true, the complaint in this case must plead facts that, if proven, would establish that the defendant’s statements were not substantially true.”). Wang says in his complaint that the “notion” that the test Kizer took was “indicative of the presence of GHB” is “dubious and far from scientifically reliable.” Dkt. 1 17. To support this claim, he refers to Sussman’s statement on the podcast that the drug test could not be used in the criminal process and that it was “not at all indicative” of GHB. Id. Wang further pleads that “the law enforcement records and the arbitration reveal instead that there was no credible scientific basis for the purely speculative notion that Kizer was drugged.” Id. 49. On this, he points out that during the arbitration the Philharmonic’s expert toxicologist wouldn’t testify as to the presence of date-rape drugs based on only a hair test, that Kizer’s positive drug test wasn’t of evidentiary value, and that another drug test Kizer took produced “unintelligible” results. Id. 50. To start, the article itself notes that the positive test “did not meet the standards for litigation.” Dkt 26-1 at 8. And, based on the context in which it was made, Sussman’s statement that the drug test was “not at all indicative” of GHB references that the drug test dated any GHB exposure only to the nearest month — a qualification that was also included in the article. More importantly, none of what Wang pleads would render the article’s statements about the drug test false. Wang’s claim seems to be that the article’s reporting of the drug test is false and therefore defamatory because it doesn’t include further information that would provide the appropriate context. See Dkt. 1
