Posted by Eugene Volokh:
Ham + Muslim Students -> School Discipline -> Satire -> Serious Repetition on
National TV -> Libel Lawsuit -> First Circuit Opinion:
http://volokh.com/archives/archive_2009_03_15-2009_03_21.shtml#1237501555
Check out [1]Levesque v. Doocy, decided today:
On April 11, 2007, a student at Lewiston Middle School placed a bag
containing leftover ham on the cafeteria table where Somali Muslim
students were sitting for lunch. The Somali students reported the
incident to Bill Brochu, a Lewiston police officer stationed at the
school. After an investigation of the incident, the middle school's
assistant principal suspended the offending student for ten school
days, a decision in which the principal concurred. The assistant
principal classified the incident as "Hate Crime/Bias" in the
school's computer system, and Brochu filed a police report under
the direction of his superior officer, characterizing the incident
as "Crime: Harassment/Hate Bias." Levesque was informed of the
suspension and endorsed the decision.
The following week, while the Lewiston schools were closed for
April vacation, Bonnie Washuk, a reporter for the Lewiston Sun
Journal, contacted Superintendent Levesque to discuss an article
she intended to write about the incident. Published on April 19,
2007, the Washuk article included quotations from both Levesque and
Stephen Wessler, the executive director of the Center for the
Prevention of Hate Violence ("the Center") which was working with
the Lewiston Middle School to develop an appropriate response to
the incident. Washuk quoted Levesque as describing the offending
student's conduct as "a hate incident" and acknowledging, "We've
got some work to do to turn this around and bring the school
community back together ... All our students should feel welcome
and safe in our schools." Wessler described the incident as
"extraordinarily hurtful and degrading" and warned that without a
response, "more degrading acts will follow, until at some point
we'll end up having violence." Somali students reflected that the
event reminded them of an incident earlier that year when the head
of a pig was rolled into a Lewiston mosque during a prayer session
that many Somalis attended.
On April 23, four days after the Sun Journal ran Washuk's article,
Nicholas Plagman uploaded a piece he had written about the April 11
incident to Associated Content, a website platform that permits
registered users to publish content on topics of their choosing. [I
suspect [2]this is the piece. -EV] While the Plagman article
purported to describe the incident as a news story, it
mischaracterized some facts, such as reporting that the students
left a ham sandwich, rather than ham steak, on the cafeteria table.
Similarly, where Washuk reported that the Center was working with
the school to create a response plan, Plagman described it as "an
anti-ham 'response plan.'" Plagman also included fictitious
quotations which generally built upon those accurately used in
Washuk's article. For example, according to Plagman, Levesque
stated, "We've got work to do to turn this around and bring the
school community back together again. These children have got to
learn that ham is not a toy." Plagman also quoted Wessler as
stating, "It's extraordinarily hurtful and degrading. They probably
felt like they were back in Mogadishu starving and being shot at."
Finally, Plagman falsely listed the Associated Press ("AP") as a
source. Because Plagman indicated that his story should be housed
under Associated Content's "humor" and "news" categories, the
article was retrievable through Google News, a computer-generated
website that aggregates headlines from news sources worldwide.
([3]Show the rest of the opinion excerpt.)
Around 3:30 a.m. on April 24, a line producer for FNC's morning
news talk show "Fox & Friends" discovered the Plagman article. "Fox
& Friends" runs each weekday from 6 a.m. until 9 a.m., its hosts
discussing current events, interviewing guests, and reporting the
weather. Producers for the show search for compelling stories for
the hosts to discuss. The line producer sent the Plagman article to
the Fox News Research Department for additional research. An
information specialist was able to confirm some of the facts
presented in the article including the identities and professional
positions of Levesque and Wessler and the existence of the Center,
Lewiston Middle School, and the Lewiston Police Department. He also
discovered the Washuk article, confirmed that the Lewiston Sun
Journal was a legitimate newspaper, and found two articles related
to the incident at the Lewiston mosque.
By 4:15 a.m., the Plagman article and research materials were
delivered to three of the show's four co-hosts, including Doocy and
Kilmeade. Doocy used Google News to conduct additional research and
also found the Plagman article, the Washuk article, and a brief
article on the Boston Globe's website which both corroborated the
general story of the incident and confirmed that the Center was
working with the school on a response plan. The defendants agreed
to include the story in that morning's show.
During the three-hour cablecast, the defendants repeatedly raised
and discussed the April 11 incident, frequently ridiculing
Levesque, ascribing the handling of the incident largely to him.
They reported as true several of the fabricated quotations that
Plagman attributed to Levesque including the "ham is not a toy"
statement and also cited Levesque for the phony statement comparing
the incident to Mogadishu, a comment that had been falsely
attributed to Wessler in the Plagman article. Throughout the
cablecast, the hosts repeated these two falsified quotations and
used the incident as the basis for the "Question of the Day,"
inviting viewers to call or email the show to share their thoughts.
Doocy and Kilmeade at times made statements that arguably called
into question the veracity of the story. For example, Doocy on a
number of occasions stated, "I am not making this up," once
asserting that "I've looked it up on a couple of different websites
up there from local papers," and at various times, Kilmeade stated
"I hope we're not being duped," "I thought this was a joke," and "I
thought this was almost from The Onion. I didn't think that was
actually true." The show's producers attempted to contact Levesque
for comment, leaving a message at his office around 8 a.m., two
hours into the cablecast. Levesque did not return the calls.
Some time after the cablecast, Levesque contacted FNC to complain
about the show's inaccuracies. Footnote On May 16, 2007, "Fox &
Friends" issued a retraction and apology, agreeing that various
statements attributed to Levesque were fictitious and noting that
had the show realized the Plagman article was not legitimate, it
would not have repeated the fabricated statements.
The following month, Levesque filed a complaint asserting libel,
libel per se, false light invasion of privacy, and punitive
damages, claiming that five statements made by the defendants
during the cablecast were defamatory. Footnote First, he took issue
with the defendants' claim that he classified the incident as a
hate crime. He next objected to the defendants' references to an
"anti-ham response plan." Third, Levesque asserted that the
repeated mentions of "a ham sandwich" were defamatory. Fourth, he
challenged the statement "Leon Levesque - he says, 'These children
have got to learn that ham is not a toy.'" Finally, Levesque
disputed the defendants' assertion that "the superintendent ...
says it's akin to making these kids feel like they're being shot at
back in Mogadishu and being starved to death." ...
[T]he defendants' repeated references to a ham sandwich and two
fabricated statements attributed to Levesque [could be
defamatory].... [But] "A public official advancing a defamation
claim must show "that the [challenged] statement was made with a
high degree of awareness of ... probable falsity." In other words,
the defendant must act either with actual knowledge of the falsity
or with reckless disregard for the truth. Actual malice [the legal
misnomer for this test -EV] then is measured neither by reasonably
prudent conduct, nor an industry's professional standards; rather,
it is wholly subjective. Levesque does not suggest that the
defendants actually knew the Plagman article provided false
information. Thus, he must show "sufficient evidence to permit the
conclusion that the defendant[s] in fact entertained serious doubts
as to the truth of" the Plagman article and the statements it
attributed to Levesque.
The defendants were negligent in their failure to question
adequately the reliability of the Plagman article and conduct
further research before attributing the outrageous quotations to
Levesque, and like the district court, we hope that this conduct
was "an extreme departure from professional standards." That the
negligence was accompanied by derisive contempt and ridicule
directed at Levesque makes all the more distasteful the defendants'
carelessness. But while the defendants reported as true false
statements, they did so after verifying the underlying facts of the
April 11 incident. Their vetting process was perhaps too cursory
and perfunctory, but no facts indicate that the defendants
purposefully avoided the truth, and we think the substantial truth
of the story which they reported obviates a finding of actual
malice....
The libel case was therefore thrown out.
([4]Hide much of the opinion excerpt.)
References
1. http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=08-1814P.01A
2. http://media.westword.com/840782.0.pdf
3. file://localhost/var/www/powerblogs/volokh/posts/1237501555.html
4. file://localhost/var/www/powerblogs/volokh/posts/1237501555.html
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