Virginia Judge Dismisses Hatfill Suit Against The New York Times
March 22, 2007
Leo Rydzewski - Washington
A federal court in Northern Virginia has dismissed the libel lawsuit filed against The New York Times by Steven Hatfill, a former Army bioweapons scientist who the Justice Department described as a “person of interest” in the anthrax investigation it launched in the fall of 2001.
In October 2001, not long after the terrorist attacks of September 11, anthrax-laced letters were sent through the mail to several private and public parties, including two United States senators. As a result of the mailing and distribution of these letters, at least five people died, the nation’s postal service was severely disrupted, massive dislocations occurred within the federal government and throughout the country, and the population was terrorized.
Hatfill, a physician and bio-terrorism expert, sued the Times for defamation, contending that a series of articles, all authored by Nicholas Kristof, harmed Hatfill’s reputation by implicating him in the anthrax attacks. Kristof’s columns criticized the FBI for what the columnist considered to be an insufficient investigation. In all but his last column, Kristof had referred to Hatfill by the pseudonym “Mr. Z.” To date, no one has been charged in the anthrax case, and Hatfill denies any involvement in the attacks.
Since receiving the “person of interest” designation, Hatfill’s apartment was searched three times and he was fired from a position at Louisiana State University after a Justice Department official sent an e-mail to the program director directing him not to use Hatfill on any Justice Department-funded programs. Kristof’s confidential sources indicated that Hatfill had the ability to make anthrax, had access to an isolated residence and had failed polygraph tests. After Kristof had refused to reveal the names of three of these sources, including two FBI employees and one of Hatfill’s colleagues, the court ordered the Times to reveal them.
Recently, however, the U.S. District Court for the Eastern District of Virginia granted the newspaper’s motion for summary judgment. The court held Hatfill to the “actual malice” standard that applies to public officials and figures. It concluded that Hatfill’s responsibilities and close connection with the federal government – performance of governmental functions as a contractor with the government, including sharing his expertise in the field of biological warfare, acting as a participant at LSU in a government-funded program dealing with biological weaponry and training of other government officials and special forces, and receiving federal funds to work on national defense programs – rendered him a public official.
The court further concluded that Hatfill qualified as a limited purpose public figure – a person who has pursued a course of conduct that “invites attention and comment” and has “access to the channels of effective communication.” The U.S. Court of Appeals for the Fourth Circuit has adopted a five-factor test, binding on the federal courts in Virginia, for determining whether a plaintiff is a public figure: (1) whether the plaintiff had access to the channels of effective communication; (2) whether the plaintiff voluntarily assumed a role of special prominence in a public controversy by attempting to influence its outcome; (3) whether the plaintiff did in fact seek to influence the outcome; (4) whether the controversy existed prior to publication of the allegedly defamatory statements; and (5) whether the plaintiff retained public figure status at the time of the alleged defamation.
The district court found that Hatfill had access to numerous channels of communication, including some of the most well-known media outlets. Hatfill had appeared on television, granted newspaper interviews about the investigation of the anthrax mailings and wrote articles on the threat of bioterrorism. Hatfill also was a vocal critic of the government’s level of preparedness for a bioterrorism attack, and thus voluntarily assumed a role of special prominence in the public debate over the nation’s preparedness for a biological attack; indeed, he sought to influence government policy. Moreover, the controversy over the nation’s preparedness for a bioterrorist attack existed years before the Times published Kristof’s articles. Also, at the time the columns were published, Hatfill had spoken with a reporter for ABC News.
Even if Hatfill had not voluntarily injected himself into the public controversy, the court found that Hatfill qualified for public figure status as an involuntary participant because he chose a course of conduct that invited public attention. Having provided interviews, delivered lectures and published articles on the subject of the bioterrorism threat, Hatfill engaged in a course of conduct that was likely to invite attention and scrutiny, and cannot claim that he was a private figure who was dragged into the controversy unwillingly, the court said.
After ruling that Hatfill is a public official and a public figure, the court concluded that he had failed to forecast evidence sufficient to prove that the Times acted with actual malice in publishing the columns. Hatfill failed to show that Kristof knew of the falsity of his statements, or that he harbored a “high degree of awareness” of the probable falsity of his statements. Indeed, Kristof did not believe that any of his statements were false. Kristof knew that Hatfill had been identified as a person of interest in the investigation, and as a result of document reviews and witness interviews, the journalist believed that Hatfill was able to make anthrax and had potential access to the type of anthrax used in the attacks. Based upon all the information he had gathered, Kristof had no reason to seriously doubt that Hatfill could have been the anthrax mailer.
The court further rejected Hatfill’s claim that the Times committed defamation as a result of 11 “discrete false and reckless allegations” made in the columns because they tend to incriminate Hatfill in the anthrax mailings. The court held that a plaintiff’s inability to carry his burden of proving defamation with respect to the implications of the publication as a whole precludes him from sustaining a claim with respect to the specific statements when they imply the same defamatory meaning. Therefore, because Hatfill was unable to sustain a claim based upon the allegedly defamatory impact of the columns in the aggregate, he would not sustain a defamation claim based upon the individual statements made within them. Moreover, the court ruled, Hatfill had not met his burden of demonstrating that the statements were materially false.
For more information, e-mail Leo G. Rydzewski at leo.rydzewski@hklaw.com or call toll free, 1-888-688-8500.