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Divided appeals court won't review libel suit decision

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NEWS MEDIA UPDATE   ·   FOURTH CIRCUIT   ·   Libel   ·   Oct. 19, 2005

NEWS MEDIA UPDATE   ·   FOURTH CIRCUIT   ·   Libel   ·   Oct. 19, 2005


Divided appeals court won’t review libel suit decision

  • A three-judge panel’s ruling to reinstate the libel suit filed by Steven Hatfill against The New York Times will not be reviewed by the full court, prompting a stinging dissent from one of the judges.

Oct. 19, 2005  ·   The full U.S. Court of Appeals in Richmond (4th Cir.) narrowly voted to allow a libel suit over The New York Times reports on the 2001 anthrax attacks to go forward. A 6-6 tie, with one judge not participating, meant that a three-judge panel’s July decision to reinstate the case after it had been dismissed by a trial judge will not be reviewed.

But the decision to uphold the reinstatement of the libel claim by Steven Hatfill, a former U.S. Army bioweapons scientist identified as a “person of interest” in the attacks but never named as a suspect, led to a 14-page dissent by Judge J. Harvie Wilkinson, which was joined by two other judges. A written dissenting opinion in a denial of review is fairly rare.

Wilkinson, a former Virginia newspaper editorial page editor, said that the panel’s decision to overturn the dismissal of the suit “will restrict speech on a matter of vital public concern. The columns at issue urged government action on a question of grave national import and life-or-death consequence. . . . [T]he panel pushes state law in a direction that not only portends liability for valuable public commentary but aggravates, rather than alleviates, the constitutional tensions inherent in the defamation field.”

Wilkinson found that the panel had not given enough consideration to the First Amendment in deciding that a case can go forward if the plaintiff “adequately pled” the necessary elements of libel under state law. Noting that a libel claim seeks to punish speech and may inhibit future speech, the judge said that the U.S. Supreme Court “infused the state common law of defamation with a constitutional dimension” to afford greater protection to speech on matters of public importance. Wilkinson added that libel cases, unlike many other civil actions, can often be dismissed before trial because the most relevant facts — here, the writings of Times columnist Nicholas Kristof — are readily available to the court when the case is filed.

“The consequences of this decision for the First Amendment run deep,” Wilkinson added. “If one purpose of public commentary is to assess the functioning of government, these columns were surely in that vein. In fact, the anthrax mailings and the government’s response to them lie at the heart of legitimate public inquiry.”

Wilkinson concluded with a warning of the chilling effects this decision can have on the news media.

“The bioterrorism presaged by these anthrax mailings was no small matter, and it may one day pose a threat on a very large scale,” he wrote. “Let us hope that on that day, reluctance to take issue with authority has not become our norm.”

(Hatfill v. The New York Times Co.; Media Counsel: David A. Schulz, Levine Sullivan Koch & Schulz LLP, New York, N.Y.)GL

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