STEVEN J. HATFILL, PLAINTIFF-APPELLANT v. THE NEW YORK TIMES COMPANY, DEFENDANT-APPELLEE, AND NICHOLAS KRISTOF, 427 F.3d 253, 4th Cir. (2005)
STEVEN J. HATFILL, PLAINTIFF-APPELLANT v. THE NEW YORK TIMES COMPANY, DEFENDANT-APPELLEE, AND NICHOLAS KRISTOF, 427 F.3d 253, 4th Cir. (2005)
STEVEN J. HATFILL, PLAINTIFF-APPELLANT v. THE NEW YORK TIMES COMPANY, DEFENDANT-APPELLEE, AND NICHOLAS KRISTOF, 427 F.3d 253, 4th Cir. (2005)
3d 253
Appellee filed a petition for rehearing and/or rehearing en banc. Appellant filed
a response to the petition.
A member of the Court requested a poll on the petition for rehearing en banc.
The poll failed to produce a majority of judges in active service in favor of
rehearing en banc. Chief Judge Wilkins and Judges Widener, Luttig, Traxler,
Shedd, and Duncan voted to deny the petition. Judges Wilkinson, Niemeyer,
Michael, Motz, King, and Gregory voted to grant the petition. Judge Williams
did not participate in this case.
The panel's decision in this case 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. It is unclear, to say the least,
that Virginia law would ever find these columns to be defamatory, and the
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.
In the spring and summer of 2002, Nicholas Kristof, a columnist for the New
York Times, published a series of pieces urging the federal government to step
up its investigative and preventive efforts and take control of the situation. The
columns appeared in the Times on five different dates: May 24, July 2, July 12,
July 19, and August 13. They included descriptions first of a "Mr. Z," later
identified in one column as Dr. Steven Hatfill, whom circumstantial evidence
suggested was a person of interest in the anthrax investigations. In plaintiff's
view, these discussions contained serious factual errors and unfairly implicated
him as the perpetrator. In defendant's view, the columns repeatedly disavowed
any such conclusion and urged that the government conduct a thorough inquiry
that would either inculpate plaintiff or exonerate him.
10
As a result of these events, this action for defamation and intentional infliction
of emotional distress ensued. The district court dismissed it because, inter alia,
it found that the columns were not actionable under state law. A divided panel
of this court reversed. Hatfill v. New York Times, 416 F.3d 320 (2005). The
majority found that the columns were fairly read as accusing plaintiff of the
anthrax murders, and therefore held that defendant could face state tort liability
for publishing them. Id. at 337. Judge Niemeyer dissented, "find[ing] nothing in
the letter or spirit of the columns that amount[ed] to such an accusation." Id.
11
I.
12
The panel viewed its inquiry as limited to consideration of whether plaintiff had
"adequately pled the elements of his claims under Virginia law." 416 F.3d at
324. This, I think, is much too simple. The procedural posture of this case a
motion to dismiss for failure to state a claim under state law should not
obscure its constitutional importance.
13
A defamation case does not putter along as a state law case in its earliest stages,
only to suddenly acquire First Amendment implications upon the tender of an
affirmative defense. Defamation actions by their very nature seek to punish past
speech and raise the specter of chilling future speech. For this reason, the
Supreme Court has waged a lengthy "struggle to define the proper
accommodation between the law of defamation and the freedoms of speech and
press." Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 768, 106 S.Ct. 1558, 89
L.Ed.2d 783 (1986) (internal quotation marks and alterations omitted). In New
York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964),
and its progeny, the Court infused the state common law of defamation with a
constitutional dimension, creating not only procedural protections but also
limiting "the type of speech which may be the subject of state defamation
actions." Milkovich v. Lorain Journal Co., 497 U.S. 1, 16, 110 S.Ct. 2695, 111
L.Ed.2d 1 (1990) (emphasis omitted).
14
The Constitution provides states some latitude to protect a citizen's good name
and reputation, but that leeway is limited by the Founders' injunction that law
shall not "abridg[e] the freedom of speech, or of the press." U.S. Const. amend.
I. It makes little sense to acknowledge the special sensitivity of speech to
defamation actions and then to say that speech interests matter little or not at all
The panel majority in this case has read Virginia law aggressively to permit a
wide array of defamation suits against news organizations. A court that reads
state law so expansively when deciding a motion to dismiss creates a "threat . . .
of pecuniary liability" that "may impair the unfettered exercise of . . . First
Amendment freedoms." Greenbelt Coop. Publishing Ass'n v. Bresler, 398 U.S.
6, 12, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970).
16
Even if liability is defeated down the road, the damage has been done. The
defendant in this case may well possess the resources necessary for protracted
litigation, but smaller dailies and weeklies in our circuit most assuredly do not.
The prospect of legal bills, court appearances, and settlement conferences
means that all but the most fearless will pull their punches even where robust
comment might check the worst impulses of government and serve the
community well. To allow litigation to impose large costs will dull democracy
at the local level, because the monetary impacts of litigation for all but the
largest media organizations will prove unacceptably high. Federal courts must
maintain fidelity to state law, but here a federal court sitting in diversity has
created constitutional problems by pushing state defamation law in new
directions without unambiguous direction from the state courts or legislature.
This has compounded the sort of constitutional tensions which the exercise of
judicial restraint has long sought to avoid. See Ashwander v. Tenn. Valley Auth.,
297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J.,
concurring).
II.
17
A.
18
The first two counts of plaintiff's complaint state claims for common law
defamation. In the first, plaintiff alleges that Kristof's columns were defamatory
because they amounted to "identification of [plaintiff] with the anthrax mailer."
Compl. 42. In the second, he alleges that various individual statements
contained within the columns are independently defamatory, because even in
isolation they "would tend to incriminate [plaintiff]." Id. 43. The panel agreed
with plaintiff's theory, finding that the columns and most of the statements
"imputed to [plaintiff] the commission of a crime involving moral turpitude,"
416 F.3d at 334, 335, and were therefore defamation per se under Virginia law,
see Food Lion, Inc. v. Melton, 250 Va. 144, 458 S.E.2d 580, 584 (1995).
19
20
21
Viewed as a whole, the columns do not pin guilt on plaintiff, but instead urge
the investigation of an undeniable public threat. The columns involve pointed
criticism of the Executive branch, primarily targeting the FBI for its purported
23
From a legal standpoint, the panel majority extends liability for defamation per
se beyond the two Virginia cases on which it relies. The statements that the
Virginia Supreme Court found to be defamatory in Carwile v. Richmond
Newspapers, Inc., 196 Va. 1, 82 S.E.2d 588 (1954), and Schnupp v. Smith, 249
Va. 353, 457 S.E.2d 42 (1995), were far more accusatory than those at issue
here.
24
The defendant in Carwile published an article stating that public officials had
the discretion to seek the plaintiff's disbarment, necessarily implying that the
plaintiff "could and should be subjected to disbarment proceedings." 82 S.E.2d
at 592; see also id. at 589-90. In contrast, the columns here did not suggest that
the FBI "could and should" indict plaintiff. Indeed, the problem they identify is
the lack of sufficient information with which to either charge or exonerate him.
25
the alleged criminal offense itself, stating that he acted as the driver for
someone engaged in what could reasonably be inferred as a drug purchase. 457
S.E.2d at 45; see also id. at 46. The columns here, however, do not describe
plaintiff taking direct actions e.g., placing mysterious powder into envelopes
that might reasonably be inferred as criminal in and of themselves. In fact,
their central thrust is the government's failure to uncover any such evidence.
26
B.
27
The third count of plaintiff's complaint states a cause of action for intentional
infliction of emotional distress. He alleges that the "intentional public
identification of [plaintiff] with the anthrax murders . . . was unconscionable,
malicious, intentional, and calculated to inflict grievous emotional distress."
Compl. 44.
28
In permitting this claim to proceed, the panel again commits errors of both fact
and law. The panel errs factually when it concludes that "[a]ccepting
[plaintiff's] allegations as true, [defendant] intentionally published false charges
accusing him of being responsible for anthrax mailings that resulted in five
deaths." 416 F.3d at 336. As the above analysis of the columns demonstrates,
defendant did no such thing. The columns neither "accuse" plaintiff of being
the anthrax killer nor level "charges" of murder against him.
29
The panel errs legally when it concludes that defendant's actions meet the
narrow conditions under which an action for intentional infliction of emotional
distress may lie. That tort is "not favored" in Virginia law. See Ruth v. Fletcher,
237 Va. 366, 377 S.E.2d 412, 415 (1989) (internal quotation marks omitted). It
applies only in the most extreme of circumstances: where a defendant's conduct
is "so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community." Russo v. White, 241 Va. 23, 400 S.E.2d
160, 162 (1991) (internal quotation marks omitted).
30
I am quite at a loss to see how publication of these columns "go[es] beyond all
30
I am quite at a loss to see how publication of these columns "go[es] beyond all
possible bounds of decency." They report on a matter of unquestioned public
interest with urgent national security implications. The First Amendment
expressly specifies that the "civilized community" in which we live is one that
encourages public commentary of this type. Even assuming the columns
contain the asserted factual errors, their publication is neither "intolerable" nor
"atrocious." The panel offers no decision from Virginia or any other state that
holds a news report on a subject of unquestioned public interest to be an
intentional infliction of emotional distress. Its action is unprecedented.
III.
31
The consequences of this decision for the First Amendment run deep. 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. It is
true that Kristof's columns conveyed an unmistakable sense of urgency, but it is
often the job of a commentator to prod officials to take action. It is also true that
Kristof repeated his calls for an investigation, but multiple iterations are
sometimes necessary to get the attention of anyone in charge.
32
33
The perils of inaction and of overzealous action on the part of law enforcement
are alike proper subjects for a free press. In fact, if there is any area that merits
public scrutiny, it would seem to be the workings of our criminal justice
system. Both in its investigative and judicial aspects, that system is capable of
serious malfunction.
34
Our criminal justice system does not suddenly reveal itself the day a verdict is
announced. Rather, it undergoes public scrutiny as it unfolds. It is often
difficult, if not impossible, to cover the long continuum of justice in John Doe
fashion without the use of a suspect's identity or name, as daily media reports
on criminal activity make clear. It is the obligation of news media not to fasten
guilt upon those who have not been tried, but it is equally their obligation not to
deprive the public of a meaningful report. These columns were hard-hitting, to
be sure, but they did not forsake the essential balance that our law requires.
35
In short, I believe that defendant was simply doing its job. It is a job that the
Constitution protects, and I would not construe gray areas of Virginia law to
punish it and deter others from performing it. It is tempting, I recognize, to
view the press's assertions of its freedoms as something of a self-interested
wail. But before succumbing too fully to this impulse, we might ask who else
will do the job of calling bureaucratic judgments to account. The public's right
to know in this case was not a matter of voyeurism, titillation, or idle curiosity.
The bioterrorism presaged by these anthrax mailings was no small matter, and
it may one day pose a threat on a very large scale. Let us hope that on that day,
reluctance to take issue with authority has not become our norm. "[T]he pall of
fear and timidity imposed upon those who would give voice to public criticism
is an atmosphere in which the First Amendment freedoms cannot survive."
Sullivan, 376 U.S. at 278, 84 S.Ct. 710.
36