Anthrax - a suspect case

Just a few weeks ago, in Hatfill v. N.Y. Times Co., 2008 U.S. App. LEXIS 14901 (4th Cir. 2008), the Fourth Circuit affirmed the dismissal of a long-litigated defamation case brought against the New York Times by Dr. Steven J. Hatfill, a biodefense research scientist that a Times reporter had suggested as a possible suspect in the 2001 anthrax mailings to the U.S. Congress and various news organizations. There is some irony that this opinion was handed down two weeks before the suicide of Dr. Bruce Edward Ivens, also a biodefense researcher, who the FBI has since identified as the lone party responsible for the mailings.

The court summarized the alleged defamation as follows:

In a series of five columns appearing in The New York Times from May 2002 to August 2002... Kristof used information provided by experts and other sources to profile a suspect in the attacks, ultimately focusing on Dr. Steven J. Hatfill, a biodefense research scientist. With each publication, Kristof identified new evidence suggesting Dr. Hatfill as a prime suspect. The columns noted that Dr. Hatfill had access to anthrax, had knowledge of how to make it, and had a motive. In the same columns, Kristof criticized the FBI for not investigating the facts against Dr. Hatfill. He characterized its investigation as "lackadaisical" and "unbelievably lethargic" and admonished that the FBI's investigatory attitude "continues to threaten America's national security." By August 13, 2002, however, when Kristof wrote his last column on this issue, he observed that the FBI had appreciably intensified its investigation, leading Kristof to conclude, "there is reason to hope that the bureau may soon be able to end this unseemly limbo by either exculpating Dr. Hatfill or arresting him."

The question that the appellate court focused on in determining whether the case was properly dismissed was whether Hatfill was a "public figure," which would give the newspaper additional protection under the First Amendment. If Hatfill was such a figure, he would be required to show "actual malice" on the part of the newspaper to recover for false claims. In this case, Hatfill was not an elected official or a person of particular celbrity or notoriety prior to the attacks, but the Court noted that Hatfill could still be considered a "limited purpose public figure" if he had taken steps to thrust himself to the forefront of the public controversy at issue in the defamation case. The Court found that the public controversy at issue went beyond the particular attacks in 2001, and related to bioterror attacks in general - a topic for which Hatfill had promoted himself as an expert through lectures and and in newspaper interviews before and the attacks, and in additional media appearances after the attacks but before the New York Times columns ran.

Once Hatfill was found to be a limited purpose public figure, the Court easily found that there was no "actual malice," which would have required the New York Times reporter to have actual knowledge that the claims were false. To the contrary, the Court found:

[T]he record contains substantial evidence to support The New York Times' contention that Kristof actually believed that Dr. Hatfill was the prime suspect. At the time that Kristof wrote his columns, he knew from several sources that Dr. Hatfill fit the profile that the FBI had developed and that he had been identified specifically by the FBI as a suspect who should be investigated carefully. In conducting research for his columns, Kristof had reviewed many previously published articles about Dr. Hatfill, which recounted that he had been questioned by the FBI more than once; that he had voluntarily vaccinated himself against anthrax shortly before the mailings; that he had access to labs where anthrax was stored; that he had knowledge about anthrax's use as a weapon; that he had strong views about the bioterrorism threat; that he had agreed that his "background naturally drew the FBI's attention"; that he had spoken frequently about possible bioterrorism; and that he lost his security clearance after he failed a polygraph test shortly before the mailings. In addition, Kristof reviewed numerous documents, including Dr. Hatfill's resume and various reports, papers, and letters written by him describing his knowledge of bioterrorism and biological weapons.

The protections that the First Amendment extends to defamation defendants are broad, and have been criticized for their breadth. There can be little doubt that Hatfill was injured by accusatory writings directed against him, and it is likely that the litigation was a great expense. Perhaps a countervailing concern that the courts should consider is the need for private citizens who happen to develop expertise in areas where controversy might arise to be restored to some level of public footing when a controversy does indeed arise. After all, every biodefense researcher is a potential suspect in a biological attack, and it would therefore be good policy to avoid discouraging people from entering this useful field by assuring them that incorrect suspicions against them would be recompensed to some degree.

Election year trademark politics

I am again straying away from defamation matters to note that within the past week and a half, the United States Patent and Trademark Office has rejected applications for trademark registration incorporating part or all of the names of two of our current leading presidential candidates. BARAK? OH BUMMER! (Application #77420522) was rejected on July 28, 2008, while MORE OF THE SAME JOHN MCCAIN (Application #77437466) was rejected on August 1, 2008. In both instances the rejection was "refused under Section 2(c) of the Trademark Act, for the record does not include the written consent" of the person named.

The McCain mark was also rejected on the basis of "likelihood of confusion with the mark in U.S. Registration No. 3333658" - which happens to be the familiar "McCain" logo under a star which Senator John McCain has been using throughout this campaign (and for which McCain's "consent is of record").

Of interesting note, the application for BARAK? OH BUMMER! was filed on March 12, 2008, the application for MORE OF THE SAME JOHN MCCAIN was filed a few weeks later, on April 2, 2008, and by a completely unrelated party. Both rejections were authored by USPTO examiner Karen Bush, who has authored a number of other rejections for marks containing McCain and/or Obama, leading me to suspect that Ms. Bush has been designated as the go-to person for handling these election year issues.

As I said, this is not a defamation matter. The purpose of the restriction on unconsenting use of a person's name is not to prevent the registration of marks which defame that person (although there is a separate restriction under Section 2(a) for "matter which may disparage or falsely suggest a connection with persons, living or dead"). Rather, it is to prevent sellers from taking advantage of the reputation of the referenced indivual. Although this policy is not spelled out in the statute, surely no one would mistake the above marks as efforts to fool the public into thinking that products bearing them were made by or endorsed by the named individuals.

An interesting sidenote on the nature of trademarks is that John McCain's ownership of the "McCain" mark not only prevents uses such as the above, but would also prevent a person whose name was in fact McCain from obtaining a trademark registration in their own name in support of their own candidacy for public office. "McCain" is not a terribly uncommon surname, and in fact there are several Canadian politicians who share that name. Indeed, John McCain could conceivable sue such a person to prevent them from selling campaign materials under their own name!

Did John McCain invade Paris Hilton's rights?

While not quite a "defamation" issue, John McCain's campaign recently made news by using - and according to some, abusing - the image of Paris Hilton, purportedly as a means of painting rival candidate Barack Obama as "the biggest celebrity in the world." However, Hilton has the legal right to control the use of her image, especially when it is being used to market a product. And, as it turns out, the McCain camp did not check with Hilton before using her image to market their product. This has not passed unnoticed by Hilton, who "blasted the McCain camp for using her image without asking for permission," and whose representatives reported that "Miss Hilton was not asked, nor did she give permission for the use of her likeness in the ad."

In short, the ad may constitute a violation of the privacy or right of publicity laws of quite a few states (a quirk of the area of law is that the term "privacy" is often used to denote "publicity" rights). This opens the door for Hilton to potentially recover a financial penalty from the McCain Campaign. However controversial the basis of her publicity may be, there can be no doubt that, with the price Paris Hilton is typically paid for the use of her image, it is well-recognized as a valuable commodity.

The likely counter-argument is that McCain's use of Hilton's image was protected "political speech," for which a higher degree of leeway is generally permitted than for pure commercial speech. However, even the political speech doctrine is not without limits. If McCain's campaign staff decided to make a commercial showing bouncing basketballs in order to decry Obama's athleticism, they could not walk out of a sporting goods store with armloads of basketballs and refuse to pay for them because they were to be used as part of a political message. Nor could campaign workers use film on a privately-owned basketball court without first obtaining the permission of the owner (and likely paying the going rate to rent the space) - even if they left the edifice exactly as they found it. So it is with the image of Paris Hilton, an article of commerce of determinable value which could have been ascertained prior to its use, and for which permission should have been asked.

Were I advising McCain's campaign, I would tell them to immediately pull that ad (or at the very least remove the imagery of Paris Hilton, and of Britney Spears if it too is unauthorized). Even campaign donors unrelated to the victim are unlikely to be pleased with the prospect of some portion of their donations landing in Hilton's pockets, by a settlement or a judgment.


All images used in this blog are from the Wikimedia Commons.