STEVEN J. HATFILL, PLAINTIFFAPPELLANT v. THE NEW YORK TIMES COMPANY, DEFENDANTAPPELLEE, AND NICHOLAS KRISTOF

Citations: 427 F.3d 253; 33 Media L. Rep. (BNA) 2530; 2005 U.S. App. LEXIS 22397; 2005 WL 2651160Docket: 04-2561

Court: Court of Appeals for the Fourth Circuit; October 18, 2005; Federal Appellate Court

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The Court of Appeals for the Fourth Circuit ruled on October 18, 2005, regarding a defamation case involving Steven J. Hatfill, who alleged that columns published by Nicholas Kristof in The New York Times wrongfully implicated him in anthrax-related crimes. The court denied a petition for rehearing en banc after a poll showed insufficient support among active judges. Chief Judge Wilkins and several other judges voted against rehearing, while Judges Wilkinson, Niemeyer, Michael, Motz, King, and Gregory supported it, with Judge Williams not participating.

Judge Wilkinson dissented from the denial, arguing that the panel's decision could hinder vital public discourse on a crucial issue, namely the anthrax attacks following September 11. He emphasized that the columns, published between May and August 2002, urged government action during a national crisis and suggested that Virginia law may not classify the columns as defamatory. The original district court had dismissed Hatfill's claims, but a divided appellate panel reversed that decision, concluding that the articles could be interpreted as accusing Hatfill of murder, thereby exposing the newspaper to potential state tort liability. Judge Niemeyer dissented from this interpretation, arguing that the columns did not make such accusations.

The panel's opinion minimized First Amendment concerns by framing the case as strictly a state law issue and addressing it under a motion to dismiss for failure to state a claim. This approach overlooks the essential constitutional implications inherent in defamation cases, which inherently seek to penalize past speech and can chill future speech. The Supreme Court has historically emphasized the need to balance defamation law with First Amendment protections, establishing that defamation actions cannot be considered purely state matters once the potential for constitutional issues arises. 

The Constitution allows states to protect reputations but constrains this power to prevent infringement on free speech rights. The panel's expansive interpretation of Virginia defamation law risks imposing significant liabilities that could inhibit First Amendment freedoms for media organizations, especially smaller ones that lack the resources for prolonged litigation. Such a legal environment could deter robust public discourse and undermine local democracy. The federal court's approach raises constitutional concerns by extending state law in ways not clearly supported by state court precedents or legislative intent.

The excerpt addresses constitutional tensions arising from judicial restraint and critiques a panel's decision allowing defamation per se and intentional infliction of emotional distress claims to proceed, which the author believes extends liability beyond established state court boundaries. The plaintiff's complaint alleges defamation based on columns by Kristof that purportedly identify him as the anthrax mailer. The panel found these statements defamatory per se under Virginia law, asserting they imputed a crime of moral turpitude to the plaintiff. However, the author contends that this conclusion is factually and legally incorrect, arguing that the statements do not accuse the plaintiff of a crime as defined by Virginia law. The author cites the Supreme Court of Virginia's standard that a statement must clearly charge a crime to be defamatory per se, asserting that the columns merely present circumstantial evidence and do not directly accuse the plaintiff of being the anthrax murderer. The columns criticize the FBI's investigation rather than targeting the plaintiff as the sole suspect, suggesting a broader commentary on government inaction rather than a direct allegation of guilt against him.

The columns in question emphasize the importance of not prematurely accusing the plaintiff, highlighting that the burden of identifying the true culprit lies with both the public and the plaintiff. The author, Kristof, argues that the presumption of innocence has been compromised for foreign Muslims since 9/11, and this should not extend to the plaintiff, whom he portrays as an innocent man facing undue suspicion, especially given the absence of physical evidence against him. The columns stress that the investigation should aim to either charge the plaintiff if warranted or exculpate him to alleviate the suspicion against him.

Legally, the panel majority's extension of defamation per se liability goes beyond precedent set in two Virginia cases, Carwile and Schnupp, which involved more explicit accusations. In Carwile, the implication of disbarment proceedings was made, while the columns at issue do not suggest any such potential indictment against the plaintiff. Instead, they highlight the lack of sufficient evidence to either charge or clear him. Similarly, Schnupp involved direct allegations of criminal activity, which are not present in the columns.

The columns also contain explicit disclaimers against prejudgment, which further differentiate them from the defamatory language in Carwile and Schnupp. As a result, they do not meet the established criteria for defamation per se in Virginia, nor do they provide clear support for imposing liability under challenging constitutional circumstances.

Regarding the plaintiff's third count for intentional infliction of emotional distress, he claims that the public association with the anthrax murders was malicious and intended to cause severe emotional harm. The panel's conclusion that the defendant published false accusations against the plaintiff is factually incorrect, as the columns do not accuse him of being the anthrax killer or make murder charges. Legally, the panel's determination that the defendant's actions satisfy the stringent requirements for intentional infliction of emotional distress is also flawed.

The tort of intentional infliction of emotional distress is disfavored in Virginia law, applicable only in extreme circumstances where a defendant's conduct is deemed utterly intolerable and atrocious, as established in Ruth v. Fletcher and Russo v. White. The publication of columns related to matters of significant public interest, particularly regarding urgent national security issues, does not meet this threshold. Even if the columns contained errors, their release was not intolerable or atrocious. The panel did not provide precedent supporting the claim that reporting on such topics constitutes intentional infliction of emotional distress. 

The decision has significant implications for First Amendment rights, particularly the necessity of public commentary on governmental function. The columns addressed critical public concerns, such as the anthrax mailings and the government's response, highlighting the press's role in urging accountability from authorities. The commentary, while forceful, aligns with the media's duty to scrutinize law enforcement's effectiveness without presuming guilt. 

The criminal justice system warrants continuous public oversight, and the press has a responsibility to report meaningfully, balancing the need for information with the presumption of innocence. The dissent emphasizes the importance of protecting the press's role in fostering accountability and warns against undermining First Amendment freedoms through fear of retribution for criticism. The dissenting judges express concern that discouraging public discourse could lead to greater dangers, particularly in matters that involve national security and public safety.