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A closer look at the “Bag Men” defamation lawsuit

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  1. Libel and Privacy
    According to two amateur runners from Massachusetts, it took only a picture and two words published on the…



The April 18 Post cover photo showed two friends carrying bags and standing at the finish line of the 2013 Boston Marathon with the words “BAG MEN” above their heads. But police said there was no connection between the men and the two bombs that killed three and injured more than 260 people on April 15.

The Post’s cover and inside story prompted immediate public backlash that pushed a top editor to publicly declare that the paper had published facts, nothing more. Two months later, the runners sued the paper for defamation.

But media lawyers say that if the Post can show it didn’t make any provably false statements, then the paper could leave the courthouse unscathed.

Unnecessary victims

AP Photo by Rodrique Ngowi

Salah Eddin Barhoum is seen with a sports trophy and the bag he used while watching the Boston Marathon. Barhoum, one of two men whose photograph appeared on the front page of the New York Post in connection with the bombings, filed a libel lawsuit against the newspaper.

In the breaking news cycle that followed the two explosions at the finish line of the Boston Marathon, many initial reports were inaccurate. News outlets reported errors like the existence of other undetonated devices near the site of the twin explosions, police apprehension of suspects and a high probability of a related attack. Users of Internet sites like Reddit and 4Chan pulled out their magnifying glass, sifted through hundreds of online photos and snagged innocent people in their dragnets.

The string of erroneous accounts prompted the FBI to issue a statement two days after the bombs exploded warning media organizations to “exercise caution” and verify information with appropriate official channels before publishing.

On the same day, widespread reporting revealed that police had verified the suspects used backpacks to carry two pressure cooker bombs containing nails and shrapnel.

The developing information and an FBI e-mail message obtained by the New York Post prompted the newspaper to emblazon “BAG MEN” in bold block-letters over an enlarged picture of the two young men on its April 18 cover. “Feds seek this duo pictured at Boston Marathon,” a lower subhead wrote. In the photo, Salaheddin Barhoum, 16, and Yassine Zaimi, 24, stand near the finish line, each shouldering a backpack.

In a small box on the bottom left-hand corner, the only clarification provided, the Post wrote that FBI officials were circulating photos of the two men in e-mail messages.

“There is no direct evidence linking them to the crime, but authorities want to identify them,” the Post wrote in smaller type.

The day before, local police officers had exonerated Zaimi and Barhoum after both voluntarily entered local police stations when they separately found their faces floating on crowd sourcing Internet sites.

On June 5, Zaimi and Barhoum filed a complaint in Massachusetts Suffolk Superior Court, suing the Post for defamation, infliction of emotional distress and invasion of privacy.

Proving libel: a plaintiff’s burden

The Post’s actions brought on a torrent of backlash. The “Bag Men” cover and story were called a “new low” and “appalling” by media critics. Washington Post media critic Erik Wemple appealed to Zaimi and Barhoum in his April 22 blog post: “Young men, please sue the New York Post.

Many media lawyers and law professors who have represented plaintiffs and publications have said that the Post’s work was undoubtedly “poor journalism.” But the jump from scandalous to libelous is not always close.

“There’s a big difference between using information to entertain and libeling,” said Alan Behr, an intellectual-property lawyer. “You’ve got to show that what was said was untrue and that there was damage.”

After Zaimi and Barhoum’s submission to the court in early June, the Post has yet to respond. The two sued on three counts of libel per se, one count each for the Post’s cover, print article and online counterpart. Each component contained false information and held the men up to “scorn, hatred, ridicule, or contempt in the minds of a considerable and respectable segment of their communities,” the complaint said.

Generally, libel per se occurs when a newspaper wrongly connects an identifiable person with something so egregious, reputational injury is presumed. A falsehood like saying a person has a loathsome disease, committed fraud, or committed a heinous crime allows plaintiffs to bypass proof of harm in the fight for monetary damages.

The uphill climb begins in a case like this, experts say, when the plaintiffs have to prove that while the facts individually are true, the statements were defamatory by implication. In other words, the paper juxtaposed a series of facts that, when combined, imply a libelous and false connection between them.

“Imagine a case where a newspaper reports ‘John Smith was seen last night walking into a hotel with Jane Doe, a woman who is not his wife. The hotel is in a district known for prostitution,” said Jeffrey Pyle, a partner at Boston-based law firm Prince Lobel Tye LLP. “All those statements could be true, yet together they are defamatory.”

Responding to requests for an interview, the New York Post forwarded the same statement made by Post editor-in-chief Col Allan in April in response to intense backlash for its reporting: “The image was e-mailed to law enforcement agencies yesterday afternoon seeking information about these men, as our story reported. We did not identify them as suspects.”

Allan said that all the factual statements were obtained from FBI e-mail messages, and therefore true and protected by the First Amendment.

“[The Post] never said that [Zaimi and Barhoum] were suspects, arrested, indicted, convicted, or sentenced. Certainly they didn’t say they were guilty,” said Behr. “The statements themselves are a lot more mild than what they implied.”

But Clay Calvert, a media law professor at the University of Florida, said the courts have shown that accuracy isn’t an absolute defense. Judges will look at how a “reasonable reader actually reads” in order to assess falsity and defamation by implication. To Calvert, the cover is the Post’s greatest liability.

“The sensational use of ‘Bag Men’ in the headline, that is the danger. That creates the potential liability,” said Calvert. “It has a meaning that many people can associate with the mob. ‘Bag Men’ suggests involvement in criminal activity.”

Referring to the disclaimer on the cover, Calvert added: “And many readers wouldn’t look to the left-hand corner box with the very tiny font.”

In a similar case, Kaelin v. Globe, the U.S. Court of Appeals in San Francisco (9th Cir.) found that the headline “COPS THINK KATO DID IT” in the National Examiner tabloid was defamatory because it implied that Kaelin was the killer in the O.J. Simpson trial. The paper’s subhead and interior article 17 pages in clarified that the Globe meant police think Kaelin committed perjury, not murder.

“How would a reasonable reader consider that headline?” said Calvert. “The mere fact that the subhead and inside story clarified for the reader was not enough to protect the National Examiner.”

In the Post’s case, Calvert says a reader passing the paper on his way to the subway would only see headline and photo, but fail to read the article on the sixth page. Taken holistically, the cover unambiguously implied that Zaimi and Barhoum were suspects, he noted, especially after widespread reporting revealed that the suspects had carried bombs in backpacks.

Fault and a defense on “uncharted ground”

In determining fault, jurisdiction matters.

While the case was filed in a Massachusetts county court and the location of the bombings, marathon, and residence of the victims all fall in Massachusetts, the Post’s headquarters and primary area of circulation in New York could move the court to apply New York law over that of Massachusetts.

The burden of proof falls on Barhoum and Zaimi to show that a publication acted negligently. States like New York require a higher burden on private-figure litigants when the story concerns a matter of public importance.

In judging whether a newspaper acted negligently, the court looks at a reporter’s news gathering techniques and his sources to find whether a reporter failed to take reasonable steps to ascertain that its statements were false and defamatory.

While the plaintiff’s attorneys did not respond to requests for a comment, Howard Cooper of Boston’s Todd & Weld LLP said that the threshold is easier reached in Massachusetts.

“I think the Post should have a very hard time here,” said Cooper. “If the Post had done a little bit of homework before this screaming headline, they probably could have figured it out . . . It defies explanation why the Post didn’t try to contact them before they plastered their faces on the front page.”

But George Freeman, the former assistant general counsel at the New York Times, said the case is very different in New York, which generally upholds relatively robust freedoms for the media.

According to the U.S. Court of Appeals in New York City (2nd Cir.) in the 1975 case Chapadeau v. Utica, plaintiffs are required to prove a newspaper acted with “gross irresponsibility,” a higher bar than the more common “negligence” standard in Massachusetts that requires plaintiffs prove a reporter did not exercise “reasonable care” in verifying his facts.

Put another way, as long as the publisher accurately reported at least one authoritative source, he would not be deemed grossly irresponsible even if his ultimate reporting turned out to be incorrect. The Post’s silver bullet source is cited in its article as “an e-mail obtained by The Post” and “distributed among law-enforcement officials.”

If the newspaper can produce the e-mail message, said Freeman, New York precedents like Doe v. New York Daily News that have protected verbal interviews between reporters and police officers will offer the Post strong arguments for protection.

“The case might really hinge on whether New York law or Massachusetts law applies. Massachusetts is where the Post was sued and that’s where the plaintiffs live, but the reporting was done in New York,” Freeman said.

The case would break new ground in New York where courts will have to decide whether e-mail messages sent among law enforcement officers are in fact official reports, he added.

“It is the most uncharted and novel issue the case presents. And I think the Post would have a good chance of getting out of it,” Freeman said.

Defamation in an age of instantaneous news and resilient reputations

While the plaintiffs wait for a response from the Post and any new updates, some media law practitioners see a trend for defamation lawsuits in an environment of hyperspeed information transmission that has the potential to alleviate harm caused by erroneous publication, making it harder to win libel cases.

“Libel has been slowly leaving our jurisprudence since before the American Revolution with the Zenger trial of 1735,” said Behr. “The internet and other technologies just make so much information available to so many people that courts are stepping back, letting the marketplace sort itself out.”

To Behr, the time when people passionately struggled to prove their honor and integrity is quickly fading, and reputation is becoming more “malleable.”

“Consequentiality becomes limited, because what does reputation mean anymore?” asked Behr. “Look, Eliot Spitzer is running for office again. Martha Stewart (is back) too. These people recovered from much greater falls. To what extent can you show that there is lifelong or transitory damage?”

At the same time, Behr said the forward pressure on journalists to scoop the news has created a propensity for errors like the Post’s. Cooper agreed.

“The danger in the media, especially in the midst of a horrific event, is to seek out the sensational and be the first to publish it,” said Cooper. “In an age of instant global communication, what can a journalist do? We all support publication of the truth. But sensationalism isn’t the truth. Innuendo isn’t the truth. It’s more important to get it right than to get it first.

Zaimi and Barhoum’s case may seem consequential now, but in the end it’s the larger picture that matters.

“These two young men, I’m sure they’ll recover and go on and lead good lives and The Post will go on to do other things, and this will be rather transitory,” said Behr. “The more consequential issue is what does reputation mean today, and how should the legal system evolve to protect it? That’s a big question mark.”

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