Libel and slander cases are increasingly viewed as long-shot legal propositions that aren't worth the effort required to see the cases to completion only to suffer defeat. But three high-profile libel suits against media organizations are bucking that trend and making their way through the legal system. Two of them have already cleared steep judicial hurdles, opening the way for the discovery phase and possible jury trials. All involve well-know conservative media defendants: National Review, the New York Post and Glenn Beck's The Blaze.
As Media Matters has documented for years, newsroom standards for conservative journalists leave much to be desired and outlets routinely trample over established norms of responsible behavior. But has the recklessness reached such heights, and have the attacks become so slanderous, that courts will rule against the offending media outlets? And if so, how high could the penalties run?
"Damages for every case come down to whatever the jury wants them to be," former New York Times general counsel George Freeman tells Media Matters.
Responding to speculation that a pricey courtroom loss could drive National Review out of business, publisher Jack Fowler assured readers in January that the magazine has libel insurance to cover damages, although he conceded "our insurance does not cover all the costs related to the suit." But even if the three outlets avoid a big jury loss, simply paying the legal fees becomes tantamount. "The costs can be absolutely staggering," says Robert Drechsel, professor at the University of Wisconsin who specializes in media law.
Not surprisingly, the three headline-making suits revolve around hot-button issues for the right-wing media: last year's Boston Marathon terror bombing case, which led to the suits against the New York Post and Beck, and the political jousting over climate change, which pits National Review versus Penn State meteorology professor Michael Mann.
"All three are plausible libels suits," says Drechsel.
New York Post 's Boston Bombing "BAG MEN" Cover
Three days after the Boston terror blast, Yassine Zaimi and Salaheddin Barhoum were depicted as "BAG MEN" in a full-page color photo on the cover of The New York Post. The sub-heading on the April 18, 2013, cover photo read: "Feds seek these two pictured at Boston Marathon." Inside, the Post published another photo of the men with red circles around their faces.
It turned out that Barhoum was a 16-year-old high school runner and Zaimi is a running coach. Neither man had any connection to the terrorist plot. In response, the men sued Rupert Murdoch's paper, accusing it of libel, negligent infliction of emotional distress, and invasion of the men's privacy.
"The front page would lead a reasonable reader to believe that plaintiffs had bombs in their bags, that they were involved in causing the Boston Marathon bombing," according to the complaint. The "Bag Men" debacle, and especially how the Post targeted two private citizens, was a libel case "waiting to happen," says former Times attorney Freeman.
In the court's view, a reasonable reader could construe the publication as expressly saying that law enforcement personnel were seeking not only to identify the plaintiffs, but also to find them, and as implying that the plaintiffs were the bombers, or at least investigators so suspected.
Fabricant also wrote:
The cover headline 'BAG MEN'" in large capital letters across a photograph of the plaintiffs carrying bags, could fairly have been understood to imply that their bags were the ones that had transported the bombs.
Early on, the Post's defense was that the incendiary headline was simply a way to grab readers' attention and that the article itself made clear the men were not suspects. Additionally, Post attorneys have claimed its story was based on an email obtained from law enforcement that confirmed officials were trying to identify the two men as part of a fast-moving investigation. "One can report that police are trying to identify persons in a photo without being held responsible for accusing those persons of committing a crime," Post attorneys argued in a filing.
The question is, did the Post treat that law enforcement information fairly and accurately? In other words, were authorities simply looking to question the two men and The New York Post then took that information and aggressively inflated it to portray the duo as suspected terrorists, thereby defaming them?
"My guess is a judge will let a jury decide that," says Freeman.
Glenn Beck's Saudi Bomber Conspiracy
If the Post's courtroom defense will be that reporters and editors simply followed the lead of law enforcement, what will Glenn Beck's defense be in his Boston bombing-related libel case? Unlike the "BAG MEN" suit and the Post's claim its reporters echoed investigators, Beck repeatedly attacked a 20-year-old Saudi national student living in Boston days after law enforcement had explicitly cleared him of any wrongdoing.
Not surprisingly last month the student, Abdulrahman Alharbi, filed a defamation suit against Beck, his online outlet The Blaze, and his radio syndicator, Clear Channel's Premiere Radio Networks, claiming he was slandered by the talker following the Boston attack. Alharbi accuses Beck of one count of defamation and one count of defamation with malice.
The student at the New England School of English had been injured by the terror blast on Boylston Street last year, was subsequently questioned by police, and then quickly dismissed as having any involvement. But that didn't stop Beck, who for days and weeks publically accused Alharabi of being a key player in the terror plot.
"Beck repeatedly and falsely identified Mr. Alharbi as an active participant, repeatedly questioned the motives of federal officials in failing to pursue or detain Alharbi and repeatedly and falsely accused Mr. Alharbi of being a criminal who had funded the attacks," the lawsuit alleges.
Indeed, Beck called the student a "dirt bag," a "bad, bad, bad man," and "possibly the ringleader" of the bombing that killed three people and injured more than two hundred. The host even called for President Obama to be impeached for what the host considered to be a sprawling government cover-up surrounding the student, Saudi Arabia and Al Qaeda.
From the Washington Post:
Beck continued days later: "While the media continues to look at what the causes were [behind] these two guys, there are, at this hour, three& people involved," he said, alleging the U.S. government had "tagged" Alharbi as a "proven terrorist."
The broadcaster eventually called Alharbi an al Qaeda "control agent" and the "money man" behind the attacks. "You know who the Saudi is?" Beck asked. "He's the money man. He's the guy who paid for it."
Will Beck opt for an opinion defense and suggest his Saudi national comments were rhetorical and never meant to be taken seriously? It might be his only option.
National Review's "Climategate" Coverage
Unlike the two Boston bombing cases, the libel suit filed against National Review, as well as the conservative think tank, Competitive Enterprise Institute (CEI), involves a plaintiff who is likely considered to be a public figure, Penn State professor Michael Mann. Yet despite the higher burden of proof associated with that type of case, it continues to progress, surviving the Review's attempts to have it thrown out.
"I wouldn't want to be the defendant in the Mann suit," says media law professor Drechsel, noting the suit's survival to this point must be "worrisome" to National Review. "Even if Mann is a public figure and he has to prove what was published was known to be false and represented a reckless disregard for the truth, there's still a lot of disconcerting evidence there," says the libel expert.
In 2009, Mann found himself at the center of the so-called "Climategate" scandal when more than 1,000 emails were stolen from Britain's University of East Anglia Climatic Research Unit, one of the world's leading climate research institutions. Based on a gross misrepresentation of one of the emails, conservative critics falsely portrayed Mann as having corruptly manipulated his research to find evidence of global warming. The next year Penn State cleared Mann of any academic misconduct; at least six other institutions, including the Environmental Protection Agency, have conducted their own reviews of Mann's work and found no wrongdoing.
Fast forward to 2012 when Penn State became embroiled in allegations that the university had ignored or concealed evidence that longtime football assistant coach Jerry Sandusky had been molesting children. That July, Rand Simberg blogged at CEI that Mann was "the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data." (That sentence has since been removed from the post.) Over at National Review Online, Rush Limbaugh's fill-in host Mark Steyn quoted the "Jerry Sandusky" smear, writing, "Not sure I'd have extended that metaphor all the way into the locker-room showers with quite the zeal Mr Simberg does, but he has a point."
When Mann demanded retractions and apologies for the Sandusky attack and for claiming he faked his scientific research, CEI and National Review refused. A lawsuit was subsequently filed.
Accusing a scientist of conducting his research fraudulently, manipulating his data to achieve a predetermined or political outcome, or purposefully distorting the scientific truth are factual allegations. They go to the heart of scientific integrity. They can be proven true or false. If false, they are defamatory. If made with actual malice, they are actionable.
Frederick concluded that "a reasonable jury" might "find the statement that Dr. Mann 'molested and tortured data' was false, and published with knowledge of its falsity or reckless disregard for whether it was false or not." Steyn hasn't been published at NRO since last year and has since countersued Mann; in a January blog post on his own website, he wrote that his "absence at National Review Online and my termination of our joint representation" were due to "differences between me and the rest of the team."
Unless settlements are reached or the cases eventually thrown out, representatives for The New York Post, National Review and Glenn Beck will be forced to defend their clients in front of juries with the threat of defamation damages looming large. That's the possible price you pay when standards become submerged.