NEWS MEDIA UPDATE · FOURTH CIRCUIT · Libel · Jan. 16, 2007
Judge dismisses New York Times libel lawsuit
Jan. 16, 2007 · For the second time, a federal judge has dismissed a libel lawsuit against The New York Times brought by a former Army scientist who claimed columnist Nicholas Kristof defamed him in columns about the deadly 2001 anthrax attacks.
U.S. District Judge Claude Hilton in Alexandria, Va., issued the order on Friday and is expected to provide a detailed written opinion.
The Times sought summary judgment last month, arguing Steven Hatfill should be considered a public figure because he inserted himself into the bioterrorism debate by giving interviews to the media before Kristof’s 2002 columns.
As a public figure, Kristof would have to meet a higher burden of proof than if he was considered a private citizen, as his attorneys argued he was.
Kristof’s columns cited anonymous sources who said Hatfill was likely culprit in the anthrax mailings. Kristof referred to Hatfill only as “Mr. Z” until Hatfill gave a press conference denying he was involved in the anthrax mailings, which killed five people. No one has been charged in the attacks.
The same judge had dismissed Hatfill’s libel lawsuit in 2004, but it was reinstated following a 2-1 decision by a panel of judges from the federal appeals court in Richmond (4th Cir.). The full appeals court split 6-6 on whether to review the case, letting the panel’s decision stand, and the U.S. Supreme Court refused to hear the case in March.
Attorney Lee Levine, who represents the Times, said the newspaper is pleased with the Hilton’s decision and optimistic that it will stand if there is an appeal.
“It’s entirely different issues, so I don’t think that what happened the last time is a predictor one way or the other of what would happen on appeal this time,” Levine said. “I think we made a pretty strong showing and obviously the district judge agreed with that, so we’re feeling optimistic about the appeal.”
In October, a federal magistrate judge ordered the Times to reveal Kristof’s confidential sources. When the newspaper refused, Judge Liam O’Grady said the Times could not use information from the sources in its defense.
Hilton did not rule on a motion the Times made in December to have the case dismissed under the state secrets privilege, which allows for the withholding of information that could endanger national security.
Defamation lawsuits have been dismissed because of the state secrets privilege, but such motions are typically filed by the government. In the Hatfill case, several government agencies refused to provide information to the Times, saying the investigation into the anthrax attacks is still open, Levine said.
The newspaper also tried to question Hatfill’s former employer, Science Applications International Corporation, but the company refused to provide information on classified government contracts, Levine said. When the Times tried to compel the contractor’s testimony, O’Grady denied the request, saying it would be futile because the information was clearly classified.
Levine said the Times argued that “as a practical matter, the magistrate had held state secrets privilege had been invoked, although it hadn’t been invoked in the normal way, by the government intervening and invoking it.”
However, Hilton’s decision to dismiss the case came before the state secrets issue had been fully discussed.
Hatfill has also filed a lawsuit against former Attorney General John Ashcroft and other government officials, claiming they violated the federal Privacy Act by revealing information about him to the press.
(Hatfill v. The New York Times, Media Counsel: Jay Ward Brown, Levine Sullivan Koch & Schulz LLP, Washington, D.C.) — RG