September/October 2008
Fourth Circuit Throws Out Hatfill Libel Claim Against The New York Times
Holland & Knight Newsletter
In a much anticipated decision, the U.S. Court of Appeals for the Fourth Circuit affirmed summary judgment in favor of The New York Times and its columnist in Hatfill v. The New York Times Company, throwing out claims for defamation and intentional infliction of emotional distress, in an opinion issued July 14, 2008.
Dr. Steven Hatfill sued The Times over five columns published in 2002, in which columnist Nicholas Kristof wrote about the anthrax mailings that followed the September 11, 2001 attacks, and which resulted in the deaths of five people. The columns were critical of the FBI’s investigation, referring to them as “lethargic” and “lackadaisical.” Kristof called for the FBI to either exculpate or arrest Hatfill, whom the FBI had identified as a potential person who fit the profile for the anthrax mailer. Hatfill sued the newspaper under Virginia law for defamation, defamation per se and intentional infliction of emotional distress.
In its opinion for The Times and Kristof, the Court of Appeals first found that Hatfill was a “limited purpose public figure” for the national debate and controversy regarding the threat of bioterrorism and the country’s preparedness for a bioterrorist attack. The Court undertook a fairly lengthy review of Hatfill’s education and employment history, as well as his professional activities. Hatfill had become a specialist in bioterrorism and had been described “as ‘a national subject matter expert, whose opinions and technical advice [were] widely sought’ in the area of bioterrorism.” In addition to his reputation as an expert, the Court noted, Hatfill had access to numerous media outlets and had been published on several occasions regarding the debate on the country’s preparedness for a bioterrorism attack. He had been interviewed many times by media outlets on the subject, and, following the anthrax attacks, continued to appear publicly and have access to media outlets.
Having determined that Hatfill was a limited purpose public figure, the Court then considered whether he had met his burden to show actual malice. In order to prove actual malice, Hatfill would be required to show by clear and convincing evidence that Kristof and The Times knew that the suggestion that he could be the person responsible for the anthrax mailings was false, or had a “high degree of awareness” that such a suggestion was probably false. The Court found ample evidence that Kristof actually believed that Hatfill was the prime suspect based on his research and interviews of numerous sources. The Court ruled that even though some people had expressed disagreement with regard to the opinion of one of Kristof’s sources, this was insufficient under the rigorous standard, which requires “publication of a completely fabricated story” or “obvious reasons to doubt the veracity of the informant.” The Court ruled there was simply no evidence to establish actual malice, and therefore Hatfill’s claims for defamation could not survive.
The Court also decided that Hatfill’s claim for intentional infliction of emotional distress should be dismissed. As the Court had already held that there was no actual malice when the columns were published, it concluded that Hatfill could not show that The Times and Kristof had “either ‘intentionally or recklessly caused him severe emotional distress’ or that [their] conduct was otherwise ‘sufficiently outrageous’ to support liability” for such a claim.
Finally, the Court addressed Hatfill’s contention that The Times’ refusal to reveal two confidential sources for the columns made summary judgment inappropriate. The trial court had ordered The Times to reveal those sources, but the newspaper refused. The Court of Appeals rejected Hatfill’s position, ruling that the summary judgment was proper, and that this issue was not truly related to the issue of actual malice.
Hatfill’s loss in the Fourth Circuit came just two weeks after he successfully concluded litigation, in the District of Columbia federal court, against the U.S. Department of Justice. DOJ agreed to pay Hatfill a settlement valued at $5.85 million, $2.825 million in a lump sum, and $150,000 a year over 20 years through an annuity, for allegedly violating the Privacy Act by leaking information about him during the anthrax investigation.
Dr. Steven Hatfill sued The Times over five columns published in 2002, in which columnist Nicholas Kristof wrote about the anthrax mailings that followed the September 11, 2001 attacks, and which resulted in the deaths of five people. The columns were critical of the FBI’s investigation, referring to them as “lethargic” and “lackadaisical.” Kristof called for the FBI to either exculpate or arrest Hatfill, whom the FBI had identified as a potential person who fit the profile for the anthrax mailer. Hatfill sued the newspaper under Virginia law for defamation, defamation per se and intentional infliction of emotional distress.
In its opinion for The Times and Kristof, the Court of Appeals first found that Hatfill was a “limited purpose public figure” for the national debate and controversy regarding the threat of bioterrorism and the country’s preparedness for a bioterrorist attack. The Court undertook a fairly lengthy review of Hatfill’s education and employment history, as well as his professional activities. Hatfill had become a specialist in bioterrorism and had been described “as ‘a national subject matter expert, whose opinions and technical advice [were] widely sought’ in the area of bioterrorism.” In addition to his reputation as an expert, the Court noted, Hatfill had access to numerous media outlets and had been published on several occasions regarding the debate on the country’s preparedness for a bioterrorism attack. He had been interviewed many times by media outlets on the subject, and, following the anthrax attacks, continued to appear publicly and have access to media outlets.
Having determined that Hatfill was a limited purpose public figure, the Court then considered whether he had met his burden to show actual malice. In order to prove actual malice, Hatfill would be required to show by clear and convincing evidence that Kristof and The Times knew that the suggestion that he could be the person responsible for the anthrax mailings was false, or had a “high degree of awareness” that such a suggestion was probably false. The Court found ample evidence that Kristof actually believed that Hatfill was the prime suspect based on his research and interviews of numerous sources. The Court ruled that even though some people had expressed disagreement with regard to the opinion of one of Kristof’s sources, this was insufficient under the rigorous standard, which requires “publication of a completely fabricated story” or “obvious reasons to doubt the veracity of the informant.” The Court ruled there was simply no evidence to establish actual malice, and therefore Hatfill’s claims for defamation could not survive.
The Court also decided that Hatfill’s claim for intentional infliction of emotional distress should be dismissed. As the Court had already held that there was no actual malice when the columns were published, it concluded that Hatfill could not show that The Times and Kristof had “either ‘intentionally or recklessly caused him severe emotional distress’ or that [their] conduct was otherwise ‘sufficiently outrageous’ to support liability” for such a claim.
Finally, the Court addressed Hatfill’s contention that The Times’ refusal to reveal two confidential sources for the columns made summary judgment inappropriate. The trial court had ordered The Times to reveal those sources, but the newspaper refused. The Court of Appeals rejected Hatfill’s position, ruling that the summary judgment was proper, and that this issue was not truly related to the issue of actual malice.
Hatfill’s loss in the Fourth Circuit came just two weeks after he successfully concluded litigation, in the District of Columbia federal court, against the U.S. Department of Justice. DOJ agreed to pay Hatfill a settlement valued at $5.85 million, $2.825 million in a lump sum, and $150,000 a year over 20 years through an annuity, for allegedly violating the Privacy Act by leaking information about him during the anthrax investigation.