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.