The judge in former Penn State president Graham Spanier’s lawsuit against Louis Freeh sorted out what statements by Freeh could proceed in Spanier’s defamation claim.
Freeh led the special investigation of Penn State’s handling of allegations of child sexual abuse by former assistant football coach Jerry Sandusky. Spanier says that Freeh defamed him in a number of statements made at the press conference announcing the results of the investigative report and in a later statement.
But Freeh objected to the defamation charges saying his statements about Spanier were only opinions — which would not be actionable for defamation– about Spanier’s state of mind or conduct and the facts underlying those opinions are disclosed in his report.
Lebanon County Senior Judge Robert Eby, who is specially presiding in the case, ruled on 23 statements Spanier alleges were defamatory.
Eby wrote that seven of the statements were ‘factual in nature,’ meaning that they are capable of being proven true or false. Six of those statements would be actionable and can proceed. They included statements such as that Spanier ‘failed to protect against a child predator harming children for over a decade,’ ‘concealed Sandusky’s activities from the Board of Trustees, the university, and authorities,’ and other claims that Spanier and other senior officials knew about and did nothing to stop Sandusky from harming children.
The judge wrote that the other factual statement, which said Spanier ‘discouraged discussion and dissent,’ would not fracture ‘his standing in the community of respectable society,’ lower the community’s estimation of him or deter a third-party from dealing with him.
Four statements were found to be purely opinion, and Eby granted Freeh’s objections on those counts. Those included statements that Spanier and others exhibited a ‘total disregard for the safety and welfare of Sandusky’s child victims.’ Freeh’s statements that Spanier exhibited a ‘striking lack of empathy,’ and ‘failed to adequately report and respond to the actions of a serial sexual predator,’ were also found to be opinions.
Another statement was a mix of factual statement and opinion, but found to be non-actionable. Others were found to be a mix of actionable factual statements and non-actionable opinions.
Eby granted Freeh’s objection to a claim of tortious interference based on an April 2012 email from Freeh to then-Penn State trustee Ron Tomalis. Freeh replied to an email from Tomalis about a newspaper report of Spanier securing an unspecified job with the federal government. Freeh wrote in the reply that he had notified federal prosecutors ‘regarding the latest information,’ during his investigation.
Spanier argued that Freeh’s action caused a government agency to end its ‘current and prospective business relationship’ with him. But Eby wrote that Spanier’s claim was past the statute of limitations and that he had not adequately pleaded the charge.
Eby also denied Freeh’s objections that Spanier had not properly pleaded actual malice on the defamation charges.
Freeh’s report claimed that Spanier and others knew of a 1998 child sex abuse allegation against Sandusky and failed to report a subsequent allegation to authorities in 2001. Spanier was later indicted on charges of endangering welfare of a minor, failure to report suspected child abuse, perjury, obstruction of justice and conspiracy. The perjury, obstruction and conspiracy charges were thrown out earlier this year. Former Penn State vice president Gary Schultz and athletic director Tim Curley, who had been charged earlier with similar counts, also had the perjury, obstruction and conspiracy charges quashed.
State prosecutors continue to argue that a conspiracy charge should remain against Schultz and Curley.
The criminal cases for all three men are still winding their way through Dauphin County Court, with no trial date in sight. Sandusky was convicted in 2012 on 45 counts related to child sexual abuse. He is serving a 30-60 year sentence in state prison while appealing for a new trial under the Post Conviction Relief Act.
