The District of Columbia Court of Appeals upheld a lower court’s decision to dismiss a defamation lawsuit filed by a former employee of the American Israel Public Affairs Committee (AIPAC) over comments a spokesman made to The New York Times.
In the opinion, the three-judge panel agreed with the D.C. Superior Court’s finding that the statements an AIPAC spokesman made to the Times and other organizations that the former employee did not follow the “standards” expected of AIPAC employees were not based on facts that could be verified and could not be proven false, which is required under defamation law.
In 2004, the U.S. Department of Justice began investigating Steve Rosen, then-director of foreign policy for AIPAC, and another employee for allegedly receiving classified information from a Department of Defense employee. The Times reported that Rosen and his colleague revealed classified information to Washington Post reporter Glenn Kessler, according to the opinion. Rosen was fired by AIPAC in March 2005, and indicted on espionage charges that August. The charges were later dismissed.
An AIPAC spokesman told the Times in 2005 and 2008 that Rosen was fired because his conduct went against what was expected of employees. Rosen filed a defamation lawsuit in 2009, but was limited to the 2008 statement, which said his behavior “did not comport with the standards that AIPAC expects of its employees,” according to the opinion. No action was taken regarding the 2005 statement made by the spokesman because the statute of limitations had run out, according to the court.
Rosen claimed the statement was false and defamatory because AIPAC had no written standards for employee behavior, particularly regarding handling of classified information. However, the court found that it was not clear that the “standards” referred to meant written standards.
“Rosen is correct about the absence of written standards,” the opinion read. “According to AIPAC’s Deputy Executive Director, Richard Lee Fishman, on deposition, AIPAC concedes there were no written standards for employee behavior at the time of the 2005 statement that AIPAC’s 2008 statement incorporates. According to Fishman, however, there was an unwritten, ‘assumed standard that people would obey the law. . . [w]ith regard to classified information or any other illegal activity.’”
AIPAC officials also testified that unwritten standards included following the advice of its lawyers and speaking with “total candor” to the organization, both of which Rosen had failed to follow. Rosen failed to follow the advice of the organization’s general counsel after he learned he was being investigated, and did not reveal the extent of his relationship with his alleged confidential source, a U.S. Department of Defense employee, according to the court.
“Whatever collection of unwritten ‘standards’ AIPAC may have had in 2005, each was too subjective, too amorphous, too susceptible of multiple interpretations … to make any of them susceptible to proof of particular, articulable content,” the opinion read. “And thus AIPAC’s ‘standards’ – a word of aggregation expressing an even higher level of generality – could have meant many things, none self-evident, and certainly none specifically directed at ‘receiving or handling classified information,’ Rosen’s central focus in bringing this lawsuit.”