Steven J. Hatfill v. The New York Times Company, and Nicholas Kristof

Citations: 416 F.3d 320; 22 A.L.R. 6th 839; 33 Media L. Rep. (BNA) 2057; 2005 U.S. App. LEXIS 15471; 2005 WL 1774219Docket: 04-2561

Court: Court of Appeals for the Fourth Circuit; July 28, 2005; Federal Appellate Court

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Dr. Steven J. Hatfill filed a lawsuit against The New York Times Company and columnist Nicholas Kristof for defamation and intentional infliction of emotional distress under Virginia law. The claims stem from a series of Kristof's columns published in 2002 that criticized the FBI's investigation into anthrax-laced letters sent after the September 11 attacks. Kristof suggested that a man he referred to as "Mr. Z," later identified as Hatfill, was a suspect in the case, highlighting circumstantial evidence and questioning the FBI's investigative efforts.

The district court dismissed Hatfill's complaint under Federal Rule of Civil Procedure 12(b)(6), but the Court of Appeals reversed this decision, determining that Hatfill sufficiently pled the necessary elements of his claims. The opinion emphasized Kristof's assertions in a May 24, 2002 column, which implied that the FBI was slow to act against individuals, including Hatfill, with the capability to produce anthrax and motives for the attacks. The appellate court's ruling reinstates the case, allowing Hatfill's claims to proceed. Judge Shedd wrote the majority opinion with Chief Judge Wilkins concurring, while Judge Niemeyer dissented.

Kristof criticized the FBI's investigation into the anthrax killer, highlighting their inadequate pursuit of a suspect identified as "Mr. Z." Despite polygraph tests, home searches, and multiple interviews, the FBI had not placed Mr. Z under surveillance or compared his handwriting to the anthrax letters. Friends of Mr. Z defend his character, although some polygraphs indicate evasion, potentially linked to his temperament. Kristof suggested that if Mr. Z were an Arab national, he likely would have faced imprisonment, pointing out his connections to U.S. defense agencies and a past incident involving biohazards at Fort Detrick.

Kristof called for the FBI to either intensify its investigation into Mr. Z or clear him of suspicion. He posed several rhetorical questions regarding Mr. Z's identities, travel monitoring, the suspension of his security clearance shortly before the anthrax attacks, and the extent of cooperation from intelligence agencies. Kristof also urged the FBI to investigate Mr. Z's potential connections to a significant anthrax outbreak in Zimbabwe and his claims of participation in a white Rhodesian army unit.

In a subsequent column, Kristof speculated that Mr. Z might have been involved in a previous incident from 1997, where a package resembling anthrax was sent to B'nai B'rith but contained a non-toxic substance. He asserted that the FBI's sluggish investigation warranted a re-examination of this earlier case.

The text addresses the investigation into anthrax attacks, primarily focusing on an individual referred to as "Mr. Z," later identified as Dr. Steven J. Hatfill, a former U.S. Army scientist and germ warfare specialist. The narrative suggests that the misspelling of "penicillin" in anthrax letters and the targeting of B'nai B'rith may indicate an attempt to frame Arab terrorists, with implications that an American scientist could be behind the attacks to shift blame. Mr. Z expressed frustration over his exclusion from a terrorism seminar coinciding with the B'nai B'rith incident and subsequently highlighted its relevance to national security to bolster his professional standing. 

Despite the FBI being informed about the B'nai B'rith incident, there is mention that the organization had not been consulted by the FBI. The text also connects Mr. Z to previous anthrax hoaxes in 1999, indicating a shift in his expertise from wet to dry anthrax powders, noted in his updated resume. Kristof's reporting revealed that Mr. Z had been interviewed by the FBI multiple times, and his home had been searched, raising questions about his involvement. 

On August 13, 2002, Mr. Z publicly identified himself as Dr. Hatfill, who claimed to be a loyal American victimized by media and authorities. The text emphasizes the importance of maintaining the presumption of innocence for Hatfill, stating that no physical evidence links him to the attacks, contrasting the public perception shaped by post-9/11 attitudes towards foreign Muslims.

Dr. Hatfill's involvement in the anthrax investigation is attributed to several factors: his expertise in biological warfare agents, access to Fort Detrick where anthrax spores were stored, and controversial sentiments expressed in his writings. He has also failed three polygraph tests and canceled plans for another. Specially trained bloodhounds identified his scent at multiple locations associated with him, while not responding to others. 

Two critical issues arise: the FBI's delayed investigation of the anthrax case, including the late use of bloodhounds and failure to review Hatfill's unpublished novel, which parallels the investigation, and the inadequacies in the U.S. biodefense program that allowed Hatfill, who made questionable claims about his credentials, to work in sensitive positions. 

Recently, the FBI has intensified its investigation, linking older hoax letters to the case and gathering cooperation from those close to Hatfill. This progress raises the possibility of either exonerating or arresting him soon. 

On June 18, 2003, Hatfill filed a defamation lawsuit against Kristof and The Times, claiming their public identification of him as a potential anthrax mailer harmed his reputation and caused emotional distress. He sought $1 million in compensatory and punitive damages but did not serve the complaint and voluntarily dismissed the case on March 9, 2004.

Hatfill filed a lawsuit on July 13, 2004, claiming defamation and intentional infliction of emotional distress against the defendants. Count One alleges that the defendants' public identification of Hatfill with the anthrax mailings, through his portrayal in the "Mr. Z" columns, constituted a false assertion of terrorist activity, damaging his reputation. Count Two claims that eleven specific statements in Kristof's columns amounted to defamation per se, suggesting that they would incriminate Hatfill in the anthrax mailings. Count Three asserts that Kristof's implication of Hatfill's responsibility for the attacks caused him emotional distress. Hatfill seeks unspecified compensatory and punitive damages.

Hatfill dismissed Kristof from the case due to lack of personal jurisdiction, and the district court subsequently dismissed his complaint against The Times under Rule 12(b)(6). The court ruled that Count One failed because Kristof's columns, when considered in full context, did not reasonably accuse Hatfill of guilt but reported on an investigation. Count Two was dismissed as time-barred and because the statements did not constitute defamation. Count Three was rejected on the grounds that the commentary did not constitute outrageous conduct and that Hatfill did not adequately allege severe emotional distress.

The appellate review of the district court's dismissal is de novo, adhering to the standard that a complaint should not be dismissed unless it is clear that no facts could support the claims. The court highlighted that a defamation complaint must adhere to the ordinary notice pleading standards under Rule 8(a)(2), and that applying a heightened standard in this case was an error. The usual pleading requirements for defamation cases apply, rejecting calls for more specific allegations.

The review focuses on the allegations in Hatfill's complaint to assess whether they present claims for relief under Virginia law. Count One asserts that The Times' publication of Kristof's columns defamed Hatfill by suggesting his involvement in the anthrax mailings. Virginia law requires that a defamation per se claim must involve a false publication that damages the plaintiff's reputation. The district court dismissed this count, concluding that the columns could not reasonably be interpreted as accusing Hatfill of being the anthrax mailer.

Determining whether a statement is capable of a defamatory meaning is a legal matter for the court. Virginia recognizes several types of statements as actionable for defamation per se, including those that imply criminal activity, contagious disease, unfitness for employment, or professional prejudice. Interpretation of allegedly defamatory words should adhere to their plain meaning, as understood by the general public, and may be inferred or implied.

Hatfill argues that Kristof's columns insinuated he committed morally reprehensible crimes, specifically the murders associated with the anthrax incidents. If the columns can be reasonably interpreted as making such accusations, they would be considered defamatory per se, similar to prior cases where charges of aiding narcotics possession or commercial bribery were deemed defamatory. However, any interpretation through innuendo must not extend beyond the ordinary meaning of the words used.

Words used in legal contexts must be interpreted in their plain and popular sense to determine if they imply a criminal offense. In the case of Kristof's columns, while they do not need to explicitly state a charge, they must be understood by readers as implying criminal conduct. The court referenced a case involving Carwile, an attorney who accused the Richmond police of graft. After a grand jury's refusal to indict, a newspaper reported that city officials were contemplating disciplinary action against Carwile without explicitly calling for it. The Supreme Court of Virginia concluded that the article, when read in full, suggested Carwile was guilty of unethical conduct, implying he could face disbarment despite not directly stating it. 

In a separate case involving Schnupp, the plaintiff claimed defamation based on a police officer's statements to his employer, suggesting the plaintiff's involvement in drug-related activities. The officer described observing the plaintiff's actions without directly accusing him of a crime. The Supreme Court of Virginia ruled that the officer's language, while not explicitly charging a crime, reasonably implied that the plaintiff was involved in criminal conduct, specifically aiding and abetting in narcotics possession. The court determined that the allegations, when interpreted with reasonable inferences, were sufficient to support a claim of defamation.

A former secretary at the Democratic National Committee, Maxine Wells, sued G. Gordon Liddy for defamation after he claimed in public speeches that she facilitated prostitution for party visitors. Liddy implied that incriminating materials, including a manila envelope containing photographs of prostitutes, were kept in Wells' desk, suggesting her complicity in a call-girl operation. The court found Liddy’s statements capable of defamatory meaning, even without explicit accusations of Wells' involvement. 

In a similar analysis, the complaint against journalist Nicholas Kristof was deemed adequate to allege defamation concerning Dr. Hatfill. Kristof's columns focused solely on Hatfill, suggesting he had the motive, means, and opportunity to send anthrax letters in 2001. The details included Hatfill's expertise with anthrax, his current vaccinations, and his status as a prime suspect among investigators, leading readers to reasonably conclude his responsibility for the mailings. Despite Kristof's acknowledgment of Hatfill's presumption of innocence and his calls for the FBI to resolve the investigation, the overall impression from the articles indicated that Kristof believed Hatfill was guilty. The court noted that a defendant cannot evade liability for defamatory statements by framing them as opinions or presuming innocence, as established in relevant case law.

Under Rule 12(b)(6), Kristof's columns were found to be capable of defamatory meaning under Virginia law, as they suggested Hatfill was involved in a crime of moral turpitude, which was a stronger implication than previous cases cited. The district court's dismissal of Count One was therefore incorrect. Count Two, which alleged that eleven specific statements in Kristof's columns separately defamed Hatfill regarding his involvement in anthrax mailings, was dismissed by the district court on two grounds: the statute of limitations and the independent defamatory capability of the statements.

Virginia law imposes a one-year statute of limitations on defamation claims, beginning when the columns were published between May and August 2002, giving Hatfill until August 2003 to file his claims. However, Hatfill filed a state lawsuit on June 18, 2003, and took a nonsuit in March 2004, before commencing the federal action in July 2004. Virginia law permits tolling of the statute of limitations if a plaintiff voluntarily withdraws a state action and re-files in federal court within six months. The district court incorrectly ruled that tolling applied only to the overarching defamation claim and not to the discrete statements.

The court's interpretation of the tolling provision was flawed, as it applied to all rights of action arising from the set of operative facts related to the publication of Kristof's columns. Thus, Count Two should not have been barred by the statute of limitations. Additionally, the district court's conclusion that none of the eleven statements was independently capable of defamatory meaning was erroneous. Hatfill contested five specific assertions from Kristof’s columns, which included allegations about his ability to produce anthrax, access to a residence for administering Cipro, his anthrax vaccinations, failing polygraph tests, and inappropriate conduct in a biohazard facility.

Multiple statements made in columns by Kristof are capable of implicating Hatfill in the anthrax mailings, except for one that involves him being with a girlfriend in a biohazard suite, which does not connect him to the anthrax case and is therefore not actionable. Count Three of the complaint alleges intentional infliction of emotional distress, which the district court dismissed on two grounds: the publication of defamatory statements was not sufficiently outrageous, and Hatfill did not claim severe emotional distress.

Under Virginia law, to succeed in a claim for intentional infliction of emotional distress, a plaintiff must establish that the defendant's conduct was intentional and reckless, outrageous and intolerable, caused the plaintiff's emotional distress, and that the distress was severe. Although Hatfill asserted that The Times engaged in intentional and reckless conduct causing his emotional distress, the court found his allegations did not meet the threshold of "outrageous" conduct required under Virginia law.

Virginia's standards dictate that liability arises only from conduct that is extreme and goes beyond all possible bounds of decency, not merely from tortious intent or minor grievances. The court held that it is a legal question whether the defendant's actions were sufficiently extreme and outrageous.

The district court’s assertion that publishing news on public matters can never be deemed extreme or outrageous was deemed overly broad. Based on Hatfill's allegations, The Times intentionally published false claims implicating him in serious crimes without consideration for the truth or allowing a response, which could be seen as extreme or outrageous under Virginia law. The court referenced a previous case where the dismissal of an emotional distress claim was reversed due to the extreme nature of the conduct. The Times also contended that Hatfill should not use this claim to circumvent constitutional limits on defamation lawsuits.

Hatfill's defamation claims against The Times hinge on constitutional limitations related to proving intentional or reckless misconduct. If Hatfill cannot meet these constitutional standards, he will struggle to establish the necessary elements for recovery. The court finds that Hatfill's allegations, when accepted as true, do indeed describe intentional and outrageous misconduct. 

The Times argues that Hatfill has not sufficiently alleged severe emotional distress as required by Virginia law, which necessitates that such distress be extreme and unbearable for a reasonable person. Previous case law indicates that vague claims of emotional distress, without specific details or supporting evidence, are inadequate to withstand dismissal. However, while Hatfill's specific allegations of emotional distress may not meet Virginia's standards, the court clarifies that the applicable federal Rule 8 does not impose such stringent requirements. Hatfill's complaint asserts that he has suffered significant reputational harm, employment loss, financial injury, and severe emotional distress due to The Times' defamatory publications. These allegations provide sufficient notice of his claims under Rule 8.

Consequently, the court concludes that Hatfill's complaint adequately states claims for defamation and intentional infliction of emotional distress, reversing the district court's dismissal and remanding the case for further proceedings.

Hatfill's claims are presumed to be governed by Virginia law, as both parties accepted this assumption and the district court applied it accordingly. Hatfill alleges that statements suggesting his involvement in the anthrax mailings are false, which the court must accept as true when considering a motion to dismiss. The publication's connection to Hatfill does not require him to be named explicitly; it suffices that the information leads those familiar with him to believe it refers to him. Previous case law supports that defamatory implications can arise from statements made before direct identification, provided they pertain to the same subject within a short time frame.

At this litigation stage, there is insufficient evidence regarding the accuracy of Kristof's columns as reports of an ongoing investigation. The court must evaluate the potentially defamatory statements based solely on the content and derived implications. Kristof's columns suggest a stronger focus on Hatfill as a suspect rather than simply reporting suspicions about him, thereby generating further suspicion through asserted facts. The Milkovich ruling clarifies that even opinion statements can be defamatory if they imply knowledge of false underlying facts. Therefore, even if framed as opinion, such statements can damage reputation similarly to direct accusations, and must be provable as false to establish liability under state defamation law, especially when a media defendant is involved. The core defamatory assertion in this case is that Hatfill was responsible for the anthrax mailings.

A defamation claim against Nicholas Kristof hinges on whether his columns imply that Dr. Steven Hatfill is responsible for anthrax mailings. The court must accept Hatfill's assertion that the factual basis for Kristof's implication is false, regardless of Kristof's intent to defame. The legal standard requires that any implication must not only stem from true facts but also suggest the author's endorsement of the false inference. Hatfill contends that Kristof's columns, published in the New York Times in mid-2002, convey that he is the prime suspect in the anthrax murders, despite lacking direct evidence against him. However, the dissenting opinion argues that the columns critique the FBI's investigation and suggest that while circumstantial evidence exists, they do not explicitly accuse Hatfill of murder. The columns are seen as a call for investigative action rather than a definitive accusation, aiming to resolve Hatfill's status as either a suspect or an innocent party caught in a difficult situation. Additionally, the excerpt discusses the legal concepts of right of action and the tolling of statutes of limitations regarding voluntary nonsuits, emphasizing that a cause of action must exist before a right of action can be enforced.

Allegations that Kristof's columns contained factual inaccuracies are accepted at this stage. However, the accuracy of Kristof's descriptions of circumstantial evidence is deemed irrelevant because: (1) inaccurately reporting suspicious circumstances does not constitute an actual accusation of crime, whether express or implied; and (2) the historical circumstances mentioned in the columns, which Dr. Hatfill did not dispute, sufficiently supported the suspicion expressed about him. Reporting suspicion of criminal conduct, even if elaborate and inaccurate, does not equate to an accusation necessary to support Dr. Hatfill's claim. Consequently, the district court's conclusion that the columns did not imply Dr. Hatfill committed a crime involving moral turpitude under Virginia law is upheld, as is the determination that the statements lacked the outrageousness required for a claim of intentional infliction of emotional distress. The district court's order to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) is affirmed.