By Steven J.J. Weisman
BOSTON — In the days following the bombing at the Boston Marathon on April 15, 2013 that killed three people, wounded 260 more and initially dealt a blow to the psyche of Massachusetts and the rest of the country, the nation was obsessed with finding out who were the perpetrators of this horrendous and cowardly act of terrorism. It did not take long before authorities were able to identify Tamerlan Tsarnaev, who died in a shootout with police four days after the bombing, and his brother Dzhokhar Tsarnaev, who is presently awaiting trial as the terrorists behind the crime.
However, for talk show host Glenn Beck, the story did not end there. At the time of the bombings and for some time thereafter he was convinced that there was a conspiracy that included another individual, who he identified as an Al Qaeda “control agent” and the “money man” behind the bombing, although the lack of sophistication involved in the crime certainly did not appear to require any significant funding to bring about this attack. The man identified by Beck as the third conspirator was a 20-year-old Saudi Arabian studying in the United States named Abdulrahman Alharbi. Alharbi was present at the bombings in Boston and actually was among those injured by the blasts.
Following the bombings, Alharbi was interviewed extensively by federal authorities and had his home searched, after which it was determined by federal law enforcement that Alharbi had no connection to the terrorist attack.
But this was not good enough for Glenn Beck who continued to argue over the airwaves that Alharbi was involved in the crime and that the federal government was covering up his involvement. You can well imagine the harm to Alharbi’s reputation to be publicly labeled an Al Qaeda terrorist. So it should come as no surprise that Alharbi turned to the courts and on March 28 he filed a civil lawsuit in the Federal District Court of Massachusetts against Glenn Beck personally and other corporate entities involved in what Alharbi alleges was defamation of his character.
Beck, has been understandably quiet in response to the lawsuit and as a lawyer, I can tell you that his silence should not be considered an indictment of Beck. I am confident that his lawyers have advised him not to comment publicly about this matter. However, in recent court filings Beck has, for the first time, made the startling admission that he was wrong and that Abdulrahman Alharbi was not involved in the Boston Marathon bombings.
So what is Beck’s defense?
In order to prove defamation, a plaintiff must show that false statements were made about him and that these statements caused damage or harm to the plaintiff. It is now clear that indeed false statements were made by Beck about Alharbi and it should not be hard for Alharbi to prove that he was harmed by those statements, however, legally the case does not end there.
In the landmark Supreme Court case of New York Times v. Sullivan, the Supreme Court ruled that when it comes to public officials there is an additional burden of proof for a plaintiff alleging that he has been defamed by the media. The court ruled that even if the statement made by the media was false, it would not be legally actionable unless the statement was made either knowing the statement was false or with a reckless disregard for the truth. This case dealt with an advertisement in The New York Times seeking contributions to a defense fund for Martin Luther King. The advertisement contained a minor error regarding police actions against Dr. King that became the subject of a substantial defamation lawsuit intended to dissuade The New York Times and other media from covering the civil rights movement due to the concern that even the slightest of errors could result in major financial judgments against the media making these honest errors. In the New York Times v. Sullivan case, the unanimous Supreme Court, in overturning the Alabama plaintiff’s defamation verdict stated, “We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Justice Brennan’s decision went on to say in regard to holding media responsible for unintentional errors that it would result in critics of official conduct being “deterred from voicing their criticism, even though it is believed to be true and even though, in fact, true, because of doubt where it can be proved in court or fear of the expense of having to do so.” The Supreme Court went on to carve out a new standard for dealing with false statements made by the media about government officials whereby the media would only be held responsible for defamatory statements if those statements were made with actual malice, which means that either the defendant lied and knew what he was saying was false or that the statement was made with a reckless disregard for the truth.
This standard was later extended to defamation cases against public figures in the 1967 Supreme Court case of Curtis Publishing Co. v. Butts. It is clear that Alharbi is not a public official, but does he qualify as a public figure, such that he must meet this higher actual malice standard in order to hold Beck responsible for defamation? According to Beck’s lawyers in a recent filing, Alharbi is a public figure.
An all-purpose public figure is one who has a continuous and powerful influence on public matters and would in all circumstances be subject to this higher actual malice standard. Donald Trump or even Glenn Beck himself would be examples of all-purpose public figures. Alharbi certainly is not an all-purpose public figure. However for defamation purposes, there is another category of public figure that would also be subject to the actual malice standard. These people are referred to as limited public figures and they are people who have voluntarily put themselves into a public controversy. If Alharbi is considered to be a limited public figure the key issue in the case will be was Beck reckless when he made his allegations against Alharbi. It appears that much of Beck’s conclusion that Alharbi was involved in the bombings was based upon records Beck said that indicated that Alharbi was classified as a terrorist under the provisions of the Immigration and Nationality Act Section 212 (a) 3)(B) following his interrogation by federal law enforcement. However, as came to light on Beck’s own show when he interviewed retired Immigration and Naturalization Service Special Agent Bob Trent, such a classification is only used before a foreign national enters the United States and not used against someone after being allowed to enter this country. Whether this is enough to be make Beck’s actions considered reckless will be up to a court to determine. Or will it? It may well be that Alharbi will not be considered a limited public figure because he did not actively make himself a public figure and thus the lower standard of mere falsehood will apply.
Regardless as to how the court rules in this matter, we can all take this as a lesson to consider that before making accusatory statements that can carry serious repercussions to the people involved that we should be confident of the truth of the facts that we report. The First Amendment grants us great power. It also demands great responsibility.
Steven J.J. Weisman, a practicing attorney, is a senior partner in the talent management firm Harrison Strategies, LLC. He is also legal editor for TALKERS magazine and publisher of the websitewww.scamicide.com. He can be e-mailed at: firstname.lastname@example.org. Steven J.J. Weisman is available as a guest to discuss the subjects of identity theft and scams. Meet him at Talkers New York 2014 on Friday, June 20.