‘NYT’ Scores Victory in Anthrax Libel Case

By: Larry O’Dell

A former Army scientist who sued The New York Times for libel is a public figure who failed to prove that columns linking him to the deadly 2001 anthrax attacks were malicious, a federal appeals court ruled Monday.

A three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously affirmed a lower court’s dismissal of Steven J. Hatfill’s lawsuit. Hatfill claimed a series of columns by Nicholas Kristof falsely implicated him as the culprit in anthrax mailings that killed five people and sickened 17 just weeks after the Sept. 11 terrorist attacks.

The court said Hatfill, who worked at the Army’s infectious diseases laboratory at Ft. Detrick, Md., from 1997 to 1999, had inserted himself into the national debate about bioterrorism years before the anthrax attacks. Hatfill advised the government, gave public speeches, participated in panels and was interviewed by the press.

“Through these media, Dr. Hatfill voluntarily thrust himself into the debate,” Judge Paul V. Niemeyer wrote. “He cannot remove himself now to assume a favorable litigation posture.”

A 1964 U.S. Supreme Court ruling, Times v. Sullivan, established the “actual malice” standard for public officials and public figures suing for libel. The appeals court cited that case in its ruling.

“We’re obviously delighted with the court’s decision,” said David McCraw, assistant general counsel for The New York Times. “We think it’s an important reaffirmation of Times v. Sullivan, which is intended to encourage vigorous discussion of public events.”

Hatfill’s attorney, Lee Levine, did not immediately return telephone messages seeking comment.

Kristof’s columns criticized the FBI for what he viewed as a lackadaisical investigation of the mailing of anthrax to members of Congress and to news organizations in New York and Florida. Then-Attorney General John Ashcroft publicly identified Hatfill as a “person of interest” in the investigation.

The court noted that an FBI search of Hatfill’s apartment was televised live, and that other media outlets besides The New York Times named him as a suspect in the anthrax attacks. Only then did Kristof refer to Hatfill by name in his columns, the appeals court said.

Joining Niemeyer in the opinion were Judge M. Blane Michael and visiting Judge C. Arlen Beam of the 8th U.S. Circuit Court of Appeals.

Last month, the Justice Department agreed to pay Hatfill $5.8 million to settle a lawsuit claiming officials violated his privacy rights by speaking with reporters about the case.

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