Opposition Brief — Hatfill v. New York Times Co., The (No. 08-483)

ik FILED

NOV 1 4 2008

\\\ No. Y) OFFICE OF THE CLERK

In the

Supreme Court of the United States

STEVEN J. HATFILL, M.D.,

Petitioner,

Vv.

THE NEW YORK TIMES COMPANY,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF IN OPPOSITION

Of Counsel: LEE LEVINE

Counsel of Record

DAVID E. MCCRAW DAVID A. SCHULZ

THE NEW YORK TIMES MICHAEL D. SULLIVAN

COMPANY LEVINE SULLIVAN KOCH

620 8th Avenue & SCHULZ, L.L.P.

New York, NY 10018 1050 17TH STREET, N.W.

(212) 556-4031 SUITE 800

WASHINGTON, D.C.

20036

(202) 508-1100

Counsel for Respondent

Cn re ee een ae aa een ae a RR

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WasnHinGTON, D.C. 20002

i

QUESTION PRESENTED

Whether summary judgment was properly

entered in this defamation action on the ground that

the plaintiff is a limited-purpose public figure who

failed to produce sufficient evidence from which a

reasonable jury could find “actual malice” by the

requisite clear and convincing evidence.

ii

PARTIES TO THE PROCEEDING

Pursuant to Rule 14.1(b) and Rule 29.6 of the

Rules of the Supreme Court of the United States, the

following are parties to the proceeding below:

The New York Times Company, appellee below

and respondent here, is a publicly traded company

and has no affiliates or subsidiaries that are publicly

owned, and no publicly held company owns more

than 10% of its stock.

Steven J. Hatfill, appellant below and petitioner

here, is an individual.

Nicholas Kristof, an individual, was dismissed as

a defendant in the case by the district court pursuant

to a stipulated order, and he is not a party to this

proceeding.

iii

TABLE OF CONTENTS

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PARTIES TO THE PROCEEDING .....0............ccccccccee0e ii

TABLE OF AUTHORITIES ................... Detnsiipieiitdiniaaiedicl iv

STATEMENT OF THE CASE...000...0....0...0.0cccccccceecceeeeees l

A. Hatfill and Bioterrorism .......0..........00..0..0.0cccccc0e l

B. Hatfill and the Attacks ..0...0..0.....0.cccccccsessccsesseesees 7

C. Hatfill and the Investigation...................0...0...0. 9

EEE 14

REASONS FOR DENYING THE PETITION ........... 20

I. “Limited Purpose” Public Figure..............0..........0. 20

Bs a. .scrcecccnescvesvascscomeanscn 28

I Nidal than acts bicttse sirens senecéapneeesntanteonevccastanii 38

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TABLE OF AUTHORITIES

CASES

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)....35

Cervantes v. Time, Inc., 464 F.2d 986

KR RERETRRSEERE e Ae ey 36

Chapin v. Knight-Ridder, Inc., 993 F.2d 1087

EES RI A a 32

FW/PBS, Inc. v. City of Dallas,

a. cosecsussneneesneiioe 7

Fitzgerald v. Penthouse International, Ltd..,

601 F.2d G66 (4th Cir. 1962)............c.ccccccoscocccceese 23

Foretich v. Capital Cities /ABC, 37 F.3d 1541

a sciualas 23, 24

Garrison v. Louisiana, 379 U.S. 64 (1964)............... 37

Gertz v. Robert Welch, Inc., 322 F. Supp. 997

aa cenepubnabipedades 22

Gertz v. Robert Welch, Inc.,

a ncccsccencoscscisivesseneschocseseces passim

Harte-Hanks Communications, Inc. v.

Connaughton, 491 U.S. 657 (1989)...................... 33

Hutchinson v. Proxmire, 443 U.S. 111 (1979).......... 26

Lerman v. Flynt Distributing Co.,

746 F.2d 123 (2d Cir. 1964) .......................000. 23, 24

Vv

Lohrenz v. Donnelly, 350 F.3d 1272

ie ee ilaintlidhiicnienictiinicieidsbanitaiepimesninnensinienins 28

Marcone v. Penthouse International Magazine

for Men, 754 F.2d 1072 (3d Cir. 1986)........... 23, 24

Maryland Highways Contractors Association v.

Maryland, 933 F.2d 1246 (4th Cir. 1991) ........... 35

O’Donnell v. CBS Inc., 782 F.2d 1414

I ii ois hcrnealinleduteiiniivcentonecosennesssyesen 28

Philadelphia Newspapers, Inc. v. Hepps,

NS isi ctreeciascccenccncrcccecesscoeseees 34, 36

Reuber v. Food Chemical News, Inc.,

925 F.2d 703 (4th Cir. 1991)................000000.2...c00e. 23

Ryan v. Brooks, 634 F.2d 726 (4th Cir. 1980) .......... 29

Southern States Rack & Fixture, Inc. v. Sherwin-

Williams Co., 318 F.3d 592 (4th Cir. 2003)......... 35

St. Amant v. Thompson,

I A Fie i vvccecccccnsccccccccocscose 29, 30, 32, 33

Swierkiewicz v. Sorema N.A.,

eT CC EES I. 32

Tavoulareas v. Piro, 817 F.2d 762

ESTES SEE ae ae IPT ae 28

Veilleux v. NBC, 8 F. Supp. 2d 23 (D. Me. 1998) .....32

eae te ae ee ee . se teste aed Ot Oe OM i»

vi

Waldbaum v. Fairchild Publications, Inc.,

627 F.2d 1287 (D.C. Cir. 1980)................ 21, 22, 24

Wayment v. Clear Channel Broadcasting, Inc.,

116 P.3d 271 (Utah 2005) ............cccccecccceseeeeeseeeees 24

. Wolston v. Reader’s Digest Association,

| EEE SLIGO 26

. STATUTES, CODES AND RULES

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I ns csusscesocscocescosooonovoses 35

) a chsdisgubiiaiosebebeniodai 7

EEE SS CS OTE ea 1, 20

| SS 15

TREATISES

1 ROBERT D. SACK, SACK ON DEFAMATION — LIBEL,

SLANDER & RELATED PROBLEMS § 5.3.3

RESET TENDS SE 24

OTHER MATERIALS

Alan Stang, Frame Up: Richard Nuccio and the War

on Police, AMERICAN OPINION 1 (April 1969) ...... 22

The Petition should be denied because it

(1) misrepresents the record evidence, see S. CT. R.

15.2, (2) misstates the Fourth Circuit’s holdings, and

(3) posits nonexistent conflicts between those

holdings and the decisions of this and other courts.

STATEMENT OF THE CASE

Shortly after September 11, 2001, anthrax-laced

letters killed five people, generating intense public

concern about who was responsible and whether

further such attacks were forthcoming. J.A.255. The

mailings reinvigorated a national debate about our

vulnerability to bioterrorism and ability to prevent

another attack. J.A.342-403.

A. Hatfill and Bioterrorism

Petitioner Steven Hatfill was an _ active

participant in this debate long before the attacks,

and his participation continued thereafter. He had

for years publicly advocated his views that our

government was ill-prepared to respond to

bioterrorism, that knowledgeable _ scientists

(including himself) could easily weaponize biological

agents such as anthrax, and that the 2001 attack

was the work of foreign terrorists.

Hatfill emerged on the national scene in 1996,

following his return from two decades abroad, where

he served in the Rhodesian military while pursuing

degrees there and in South Africa. J.A.507-13. In

1996, he won a fellowship at the National Institutes

of Health by submitting a résumé falsely claiming a

Ph.D. along with a forged diploma. J.A.513-15,563-

66,569. In 1997, he received another fellowship —

also based on his false claim of a Ph.D. — to work full-

2

time at the United States Army Medical Research

Institute of Infectious Diseases (““USAMRIID”) at

Fort Detrick. J.A.515-18,607,614-15. Employed

there until September 1999, Hatfill was cleared to

work with Biosafety Level 3 pathogens, which

include anthrax. J.A.449,615,633-37.

The Ames strain of anthrax used in the attacks

was present at USAMRIID. Throughout the period

Hatfill was employed there, anthrax studies were

conducted in the buildings where he worked.

J.A.596-98,617-24,627-30. Anyone who had access to

certain biocontainment areas, as Hatfill did, had

access to anthrax spores. J.A.589-90,594-95,599-

602,625-37. Hatfill was one of about 100 people with

authorized access to an unlocked closet, located down

the hall from one of his laboratories, where Ames

strain anthrax was kept. Jd. The spores were in a

“wet” form and constituted “seed” from which “dry”

anthrax powder could be produced. J.A.596-97,758-

68,1602-09.!

At USAMRIID, Hatfill became, in his words,

“increasingly aware of the potential public health

risk caused by the release of a virulent virus in a

densely populated area.” J.A.514. The more he

learned about “{sleveral anthrax hoaxes

deseribed in the media,” the “more alarmed [he]

became about this potential threat.” Jd. As a result,

1 The Petition’s representation that Hatfill had no “access”

to “secure facilities in which [anthrax] was studied,” Pet.3

(emphasis added), is carefully crafted to conceal the undisputed

fact that he had access to the facility, and the specific cabinet,

in which anthrax was kept.

3

Hatfill “worked tirelessly to raise awareness of the

bioterrorism and bioweapons threats,” J.A.1570, and

became known for his warnings that the U.S. was

under-prepared. J.A.514-20,572-87,593,603-05,1736.

His own press spokesman asserted Hatfill was “very

concerned for a long time that the United States

{[wa]s not doing enough to protect itself against the

possibility of biological terrorism[,] and he spoke

about it. He was kind of a whistleblower of sorts in

government on the issue.” J.A.1736.

To promote his views, Hatfill gave multiple public

speeches. J.A.326-39,514-20,682-92. During one

appearance, he demonstrated “how easy it would be

for a terrorist to culture infectious disease organisms

using only low technology methods dating from the

1800’s.” J.A.515. Hatfill engaged the popular press

as well, appearing, for example, on CBS Radio as a

“guest-expert” and giving an interview to a

Washington Times columnist. J.A.283-84,572,579.

In the resulting column, Hatfill hypothesized

scenarios for a bioterrorist attack, including the

release of anthrax into a public building’s ventilation

system. J.A.283-84. Later, he gave an interview to

Insight magazine, during which he theorized that

unidentified fumes detected at airports “could be a

form of testing for a possible future bioterrorist

attack — perhaps next time using anthrax.” J.A.285-

86. Described as “a specialist in bioterrorism

management,” Hatfill again discussed the release of

a pathogen in a public building. Jd. For another

article, Hatfill posed for a photograph in which he

demonstrated “how a determined terrorist could cook

up a batch of plague in his or her own kitchen using

4

common household ingredients.” J.A.287-89,2070.

He was identified by multiple publications

internationally as someone who could culture —

pathogens at home. J.A.290-309.

Following a 1997 anthrax hoax at B’nai B'rith

headquarters in Washington, Hatfill contacted

nationally syndicated radio and television shows,

offering himself as a guest. J.A.310-13,579. On one

program, he was an “audience favorite” who

discussed “how anthrax can be sent in the mail.”

J.A.314-15. Shortly after the B’nai Brrith hoax,

Hatfill wrote to organizers of a conference on “Super

Terrorism,” offering himself as a speaker on this

“vital” national security issue because he was

“tremendously interested in becoming more involved

in this area.” J.A.282. Hatfill also appeared on the

Voice of America radio network, Radio America, and

Canadian television, and another interview of him

was included in a book about bio-weapons. J.A.321-

25,579,664.

Hatfill also pursued other public-speaking

engagements, including a lecture entitled “Building a

Biobomb” at the Council on Foreign Relations and a

presentation attended by the press on “Emerging

Threats of Biological Terrorism.” J.A326-39,514-

16,682-92. During at least one of his public

appearances, Hatfill hypothesized a bioterror attack

at the White House. J.A.515-16. Hatfill registered

with the Copyright Office a novel detailing a

bioterrorist plot against government officials.

J.A.316-20.

5

In August 1998, Hatfill spoke at the Defense

Department’s Worldwide Conference on

Antiterrorism, alongside William Patrick, the

nation’s foremost expert on anthrax production.

J.A.653. Hatfill cultivated a relationship with

Patrick and boasted that Patrick had shared with

him “a lot of technical knowledge about bioweapons

and bioweaponeering.” J.A.591-92,641,649-50,704-

05,708,723-30,732-34,744.

In January 1999, Hatfill was hired by Science

Applications International Corporation (“SAIC”), a

prominent government contractor. Hatfill’s SAIC

supervisors valued his “extensive network of contacts

within the Department of Defense, the special

operations community, and the Central Intelligence

Agency” and viewed his expertise in biological

weapons as a “valuable asset.” J.A.789-90,805,885.

SAIC touted Hatfill to potential clients as someone

with a “thorough working knowledge of offensive

biological warfare” gained “under the tutelage of

William C. Patrick.” J.A.723.

At SAIC, Hatfill wrote several papers and gave

many presentations on these topics. One paper

about the government’s response to anthrax hoaxes

bemoaned its “complete misunderstanding about dry

powder agents.” J.A.905-15. Another, co-authored

with Patrick, described a bio-weapons laboratory in a

single room that “feature[s] all the necessary

equipment ffor bacterial BW agent scale-up

fermentation and processing” and contained a section

on anthrax. J.A.1459,1486-89.

6

While at SAIC, Hatfill attended classified

briefings during which Patrick “described in detail

processes for producing powdered anthrax” and

Hatfill delivered at least one such briefing in

Patrick’s stead, a presentation described as

“[e]xtremely detailed.” J.A.707,709-12,735-37,753-

73,960,966-1330. Hatfill also commissioned a study

by Patrick concerning the risk of anthrax sent

through the mail, which detailed the characteristics

of weaponized dry anthrax. J.A.1534-65.

Hatfill held himself out to SAIC, the govermuent,

and the public as someone who possessed significant

expertise concerning biological agents, including

anthrax. His résumé touted his “working knowledge

... of wet and dry BW agents,” and his colleagues

believed he was “highly knowledgeable about

biological weapons and agents,” including anthrax.

J.A.639-40,642,65 1-52,657,733-34,738-43,799-

802,810-11,814,956-58. In 2001, Hatfill submitted to

his college alumni magazine an article describing

himself as “a specialist in biological warfare and its

defense,” along with a photograph depicting him in a

bio-safety suit. J.A.533-34,1374-75. Government

agencies sought Hatfill’s advice on biodefense

projects because he was, according to a Pentagon

official, the “ultimate biological weapons expert.”

J.A.1572-74.

In August 2001, weeks before the first antiwrax

mailing, the government suspended Hatfill’s security

clearance because “there is a reasonable basis for

concluding that [his] continued access to classified

information poses an imminent threat to the

7

national interest.” J.A.1575-76. The suspension

came after Hatfill failed four sessions of CIA

polygraphs “based on the issue of foreign influence”

and his “apparent lack of candor.” J.A.1577-78,1586-

88.

B. Hatfill and the Attacks

Following the attacks, the press sought out

Hatfill for his self-proclaimed expertise about the

mailings and his views about likely perpetrators.

J.A.665,1610-11,1673,1677-81. In October 2001, The

Washington Times republished the 1997 column

featuring Hatfill’s discussion about releasing

anthrax in public buildings. J.A.255,340-41. Then,

accompanied by “a colleague from the U.S. State

Department,” Hatfill was interviewed by an ABC

reporter, “tried to explain how difficult it was to

make anthrax,” and advocated the position that the

attacks were not of “domestic” origin.” J.A.665.?

2 The Petition attempts to explain away this undisputed

evidence by asserting that “ABC News sought out Hatfill in an

unsuccessful attempt to get him to agree to an interview so that

they could confront him.” Pet.5. This assertion is

unaccompanied by any citation, and for good reason — there is

no record evidence to support it. See FW/PBS, Inc. v. City of

Dallas, 493 U.S. 215, 235 (1990) (Court may not rely on

evidence “not in the record of the proceedings below”). In the

Fourth Circuit, Hatfill attempted to supplement the record with

material neither generated during discovery nor otherwise in

evidence in the district court. Not only did the Fourth Circuit

deny that motion, see Order (7/19/07); 4TH Cr. R. 30(c), but the

proffered evidence revealed that Hatfill freely offered his views

to ABC that the attack “was all Saddam Hussein and Iraq and

he could prove it” and discussed becoming an ABC “news

consultant.” Motion Opp’n (7/13/07) at 4-5.

8

In October 2001, Hatfili and several others visited

a forty-acre property in rural Virginia. J.A.559-

62,1380-87,1612-28, 1630-39, 1643. The property

includes a three-bedroom house and guest cabin,

which are not visible to passersby. Jd. While there,

Hatfill “answer[ed] questions about the ability to

process anthrax,” and the group discussed Cipro and

whether Hatfill could provide it. J.A.1635-36,1641-

42. Hatfill had been to the property at least a dozen

times. J.A.694-703,1617-18.

Hatfill began taking Cipro in early September

2001, before the first mailing, and did so through

November. J.A.542-58,1644-50. Although he is not

licensed to practice medicine in the U.S., Hatfill

dispensed Cipro to at least four people in late 2001.

J.A.538-39,713-18,1653,1655. In addition to giving it

“to people who have visited [him],” J.A.953, Hatfill

dispensed Cipro from a stock kept in the trunk of his

car. J.A.745-47.

After the attacks, Hatfill told a colleague he could

make dry anthrax of the same type without access to

a substantial laboratory “because I know what I’m

doing.” J.A.1602-09.3 In May 2002, SAIC held a

“Weapons of Mass Destruction Conference” in

Washington and publicized Hatfill’s appearance

there as a featured speaker. J.A.1670-71.

3 “Wet” anthrax can be safely dried on a small scale and a

skilled person can handle it in a home laboratory with an over-

the-counter mask and antibiotics. J.A.749-52.

9

C. Hatfill and the Investigation

Shortly after the attacks, the FBI released a

profile indicating the perpetratcr had a scientific

background, took steps to protect his safety through

vaccine or antibiotics, and had access to anthrax and

expertise in refining it. J.A.208-11. Working from

the profile, the FBI developed a list of people who

could have committed the attacks and investigated

these “persons of interest.” J.A.213C-214. The FBI

identified Hatfill as such a person and interviewed

him in December 2001. J.A.215. In January 2002,

Hatfill took an FBI-administered polygraph, which

“involved more than one test sequence.” J.A.1656.

He concedes he took “at least” one polygraph and FBI

records reference the “results of a “second

polygraph.” J.A.224,954.

Early in 2002, the FBI asked the American

Society for Microbiology for help in finding the

perpetrator, described as a “single person” who “has

or had legitimate access to select biological agents at

some time.” J.A.237-38. The FBI asserted “[ilt is

very likely that one or more of you know this

individual” and invited scientists to bring “all

relevant information, no matter how insignificant it

may seem ... to the attention of the investigators.”

Id.

Barbara Rosenberg, a moiecular biologist who

headed a working group on bio-weapons for the

Federation of American Scientists, developed a

similar profile. J.A.345-59. She posted it on the

Federation’s website and gave presentations about it

at Princeton’s Woodrow Wilson School and at the

10

Biological Weapons Convention in Geneva. J.A.256-

58. Following the attacks, she was frequently quoted

in the press as a bio-weapons expert. Jd. In June

2002, with the FBI present, Rosenberg briefed the

staffs of two senators who received anthrax-laced

letters and “made clear . . . that her suspicions rested

on Dr. Hatfill as the person most likely responsible

for the mailings.” J.A.1F 1-52.

By early 2002, press reports began to focus on

Hatfill, without identifying him by name. J.A.258-

59. Those reports included a February 19 article in

the Newark Star-Ledger, which drew “a likely

portrait of the perpetrator as a former Fort Detrick

scientist who is now working for a contractor in the

Washington, D.C. area.” J.A.395. An article in The

Washington Times on February 25 described the

FBI’s prime suspect as a “former scientist” at

USAMRIID who “is now employed as a contractor in

the Washington area,” and a March 2002 article in

The New Yorker hypothesized that the perpetrator

was a “a middle-aged man who had worked at

[(USAMRIID] . . . was familiar with the method of

weaponizing anthrax devised by William Patrick . . .

[and] now works for a Washington-area

subcontractor to the U.S. _biological-weapons

program.” J.A.374-75,400-01. In March, Hatfill

received an email from a medical school classmate,

who reported that Hatfill had “becom[e] quite the

celebrity recently” and that the classmate had been

“plagued’ by [South African television] and the

Baltimore Sun_ regarding /({Hatfill’s} alleged

11

involvement with that large anthrax outbreak in

Zimbabwe.” J.A.1682.4

During this period, Hatfill continued to engage

the press. For example, Baltimore Sun reporter

Scott Shane contacted Hatfill twice in February 2002

because he “had presented himself to the world as a

biodefense expert,” and Shane “was talking to all the

bioterrorism experts that [he] could about the case,”

and also because Shane “had been told that (Hatfill) .

. . was among the scientists and others who had been

questioned by the FBI.” J.A.1673. In February

2002, The Sun published an article quoting Hatfill

(though not by name). J.A.398,530-32,1677-81.

On June 25, 2002, the FBI searched Hatfill’s

apartment. The search was televised live and

generated massive news coverage. J.A.152-53.

Contrary to the Petition’s representation that

“nothing incriminating was found,” Pet.7, the FBI

seized “notes re: anthrax, milling and munitions,” a

“notebook w/ handwritten notes re: dissemination

and Pentagon, WTC, White House and Congress,”

4 The Petition’s most significant misrepresentation may be

its stated premise that the “[w]hen The Times began publishing

Kristof's articles, Hatfill was a virtual unknown. But Kristof

made Hatfill infamous.” Pet.1.; see also Pet.2 (asserting

Hatfill’s “virtual anonymity at the time of the attacks”). In fact,

Hatfill had become a central figure in the investigation, and in

press reports about it, long before Kristof first wrote about “Mr.

Z” in July 2002 or discussed him (albeit not by name) that May.

Indeed, at his first press conference in August, Hatfill blamed

his predicament on Rosenberg, the FBI, and other news

organizations and journalists, not including either Kristof or

the Times. J.A.1717-21.

12

and a spinner flask of anthrax simulant. J.A.1686-

87. Hatfill has characterized the press coverage that

followed as a “media frenzy.” J.A.526.

For example, before the first column at issue was

published on July 2, 2002, The Sun had identified

Hatfill by name and reported, inter alia, that he had

the necessary skills and access to anthrax to have

carried out the attacks and had “spoken frequently

on the bioterrorist threat, stressing how easy it

would be for a terrorist to brew a deadly bioagent in

his kitchen.” J.A.413-15. The Hartford Courant

published an extensive article identifying Hatfill on

June 26. J.A.419-22. The following day, it reported

that government “scrutiny of Hatfill appears to be

intensifying.” J.A.423-26.

On August 1, 2002, the FBI searched Hatfill’s car

and apartme. and his girlfriend’s condominium.

J.A.215. Once again, the media covered these

searches. J.A.157-58. The FBI seized a container of

Cipro hidden within a_ coffee jar in Hatfill’s

girlfriend’s apartment, and told her that it had

“conclusive evidence” from _ specially trained

bloodhounds that Hatfill had killed five people.

J.A.241B-C,243-44,1699,1703. 5

5 The Petition contends that Kristof recklessly reported that

“[s]pecially trained’ bloodhounds” had “responded strongly’ to

Hatfill,” even though another journalist had “debunked the

‘bloodhound evidence” five days earlier. Pet.29. First, it is

undisputed that the FBI did widely disclose the bloodhound

information. J.A.172-73,186-87,241B-C,243-44. Second, the

FBI’s information had already been prominently reported in

Newsweek and repeated in multiple newspapers and on

national television well before Kristof's column. Third, the

13

Throughout this period, Hatfill had several

additional meetings with reporters, including dinner

with then-Times reporter Judith Miller, lunch with

Ted Koppel, and lunch with Jim Stewart of CBS

News. J.A.665-66. He gave formal interviews to two

other reporters and attended “meetings” with

journalists from The Washington Post, National

Public Radio, The Los Angeles Times, NBC News,

United Press International, and The Washington

Times. J.A.666.

On August 6, 2002, Attorney General Ashcroft

announced on national television that Hatfill was a

“person of interest.” J.A.161,246-46B. On August 11

and 25, 2002, Hatfill held widely publicized press

conferences to protest his innocence. J.A.261-

63,1701-21. Thereafter, he filed a lawsuit against

the federal government, alleging that his reputation

was irretrievably damaged because the FBI

disseminated to the press information from

government files indicative of his guilt, including the

facts that he “possesse[d] the expertise to handle

deadly pathogens,” “had access to the Ames strain of

anthrax at Fort Detrick,” “had received prescriptions

for Cipro,” and had “failed polygraphs.”

J.A.156,165,168,171,247-49.

“bloodhound evidence” had not been “debunked” —- the

referenced article purports only to report “doubts about the

significance” of the information, J.A.436-41, and the press

continued to report the FBI’s claims thereafter, J.A.184-90.

Fourth, Kristofs passing reference to bloodhounds expressly

diminished their significance as “obscure.” J.A.436-41.

14

On June 27, 2008, the government agreed to pay

Hatfill more than $5.8 million in settlement of his

claims. On August 6, the FBI announced that Dr.

Bruce Ivins, another scientist employed at

USAMRIID who had taken his own life on July 29,

had sent the anthrax letters. On August 8, the

government publicly exonerated Hatfill.

D. Kristofs Columns

Kristof is a columnist. His work appears on the

“Op-Ed” page, opposite the newspaper's editorials.

He received his second Pulitzer Prize in 2006, for

what the Pulitzer Committee described .s “graphic,

deeply reported columns that, at personal risk,

focused attention on genocide in Darfur and... gave

voice to the voiceless in other parts of the world.”

J.A.250-51, 263,280-81.

In late 2001, Kristof came to believe that

bioterrorism constituted a significant, ongoing threat

to the United States and that apprehending the

anthrax mailer was vitally important to our national

security. As the investigation dragged on, Kristof

became increasingly concerned the FBI was not

doing all it should. He wrote a series of columns on

6 The Petition begins by quoting a January 2002 column in

which Kristof stated, “I think I know who sent out the

anthrax,” Pet.1 (quoting App.66a), but neglects to disclose that

the column addresses only Kristof’s belief that the mailer was

more likely an American scientist than a foreign terrorist, as

was widely assumed at the time, and disclaims any knowledge

of the specific perpetrator’s identity.

15

the subject. J.A.264-65. Four of them, published in

July and August 2002, are at issue.”

The theme of the first column, published July 2,

was that the FBI’s failure to find the perpetrator

“continues to threaten America’s national security.”

The column criticized the FBI for its “lackadaisical”

attitude and cited several examples, including that

the bureau permitted stocks of anthrax to be

destroyed before they had been genetically analyzed,

delayed review of anthrax strains stored at various

labs, and failed to “systematically polygraph

scientists” at two labs where anthrax was stored. In

this context, the column held up the FBI’s probe of

an otherwise unidentified “Mr. Z” as another

example of the _ investigation’s shortcomings.

Specifically, Kristof noted that, “[slome in the bio-

defense community” thought Mr. Z was “a likely

culprit,” and chastised the FBI for failing to

investigate him thoroughly. Nevertheless, the

column emphasized that Mr. Z “denie[d] any wrong-

doing,” and that his friends were “heartsick at

suspicions directed against a man they regard as a

7 Much of the “evidence” cited in the Petition relates to a

May 2002 column published more than a year before Hatfill

initiated this litigation in state court. His initial pleading

contains no reference to the May column and affirmatively

alleges that Hiatfill’s claims are directed only to columns

published “[bleginning July, 2002.” J.A.2033-34. Hatfill

undoubtedly framed his pleading in this manner because he

recognized that any claims arising from the May column were

already time-barred when it was filed ard could not later be

resuscitated when he voluntarily dismissed his state court

action and re-filed it in federal court. VA. CODE §8.01-247.1.

16

patriot.” The column urged the FBI either to “go

after [Mr. Z] more aggressively” or “exculpate him

and remove this cloud of suspicion.” It asserted that

deficiencies in the investigation of Mr. Z were “part

of a larger pattern” of government inattention to the

bioterrorism threat. J.A.275-76,406.

The second column, published July 12, again

criticized what Kristof termed the FBI's

“unbelievably lethargic” investigation. The column

described earlier anthrax hoaxes the FBI had

ignored and criticized the bureau for not

investigating letters sent to media organizations in

1999. Kristof briefly referred to “Mr. Z,” noting that

he made public comments about the B’nai B'rith

hoax. The column identified Mr. Z as a “bio-defense

insider” and someone who “intrigues investigators”

but who “denies any involvement with the anthrax

attacks.” J.A.276,407.

On July 19, Kristofs column criticized lax

security at bio-weapons facilities and inadequate

management of pathogens in the U.S. bio-defense

program. Kristof described instances in which Ebola

and other pathogens had gone missing from U:S. labs

and urged Congress to investigate. He noted in

passing that his interest in bio-security had been

piqued by his research into the still-unidentified Mr.

Z, who had been hired to work on deadly viruses at

USAMRIID despite having “spent years in the armed

forces of Rhodesia and apartheid South Africa.” The

column noted that Mr. Z had been “interviewed four

times by the FBI” and had his home “searched twice

in connection with the anthrax investigation,” but

17

emphasized that USAMRIID personnel “are

dedicated patriots who could earn more in the

private sector” and “risk their lives working with

deadly germs to improve vaccines for American

troops.” J.A.276-77,408.

The final column was published August 13, after

the Attorney General publicly identified Hatfill and

he held his first press conference. It began by

disclosing that “Mr. Z” was Hatfill, who “over the

weekend” had “named himself.” Kristof underscored

the importance of not jumping to conclusions about

Hatfill, warning “(i]t must be a genuine assumption

that he is an innocent man caught in a nightmare”

and that “(t]here is not a shred of traditional

physical evidence linking him to the attacks.”

Nevertheless, the column defended what Kristof

considered the FBI's _ legitimate interest in

investigating Hatfill, given “his expertise in dry

biological warfare agents,” his access to labs “where

anthrax spores were kept,” and the animus he had

shown “to some feder#, agencies.” Even so, Kristof

emphasized his hope that “the bureau may soon be

able to end this unseemly limbo by either

exculpating Pr. Hatfill er arresting him.” In

Kristofs view, the FBI's investigation of Hatfill

raised two “larger issues” ~— the bureau's “initial

slowness in carrying out the anthrax investigation”

and “the need for much greater care within the U.S.

bio-defense program.” J.A.277,409.

In researching these columns, Kristof reviewed

many previously published news reports. These

reports recounted that Hatfill had been questioned

18

by the FBI more than once; had been vaccinated

against anthrax; had taken Cipro; had access to labs

where it was stored; had knowledge about anthrax’s

use as a weapon; had strong views about the

bioterrorism threat; had agreed that “his background

naturally drew the FBI’s attention;” had spoken

frequently about possible bio-terror events; had

access to a “remote location;” and lost his security

clearance after he failed a polygraph. J.A.265-

69,410-35..

Kristof also reviewed hundreds of pages of

documents. Among them were several versions of

Hatfill’s résumé, which touted his “{wlorking

knowledge of the former U.S. and foreign BW

programs, wet and dry BW agents” and boasted that

he had “clearance to conduct research on Biosafety

Level 3 pathogens (Plague, Anthrax and

Monkeypox).” These representations indicated to

Kristof that Hatfill had expertise in handling

pathogens, including anthrax. J.A.269-70,447-73.

In addition, Kristof reviewed the letter Hatfill

had sent to organizers of the “Super Terrorism”

conference and the text of the presentation he gave

on “Emerging Threats of Biological Terrorism.”

Kristof read the report Hatfill had commissioned

from Patrick describing anthrax sent through the

mail and detailing the characteristics of weaponized

dry anthrax. These documents further contributed

to Kristofs understanding that Hatfiil was an expert

in bio-weapons, including anthrax. J.A.270,282,474-

503.

19

Kristof also consulted dozens of sources, including

microbiologists, bio-defense experts, and Hatfill’s

friends and co-workers. J.A.270. None expressed

any doubt that Hatfill had substantial experience

with bio-weapons, particularly anthrax. J.A.274.

For example, Dr. Richard Ebright, a microbiologist

with multiple degrees from Harvard University,

J.A.271-72, told Kristof that, “[blased upon

information in [Hatfill’s] C.V., as well as the record

of his publications,” he believed Hatfill “did have the

means to prepare bacterial culture and to dry

bacterial culture” and “to prepare a_ highly

aerosolized dried powder.” J.A.1734.- Kristof also

reviewed materials written and compiled by

Rosenberg which indicated that the person she had

focused on (who Kristof knew to be Hatfill) had “the

right skills, experience with anthrax, up-to-date

anthrax vaccination, forensic training, and access to

USAMRIID and its biological agents through 200i”

as well as “access to a conveniently-located but

remote location.” J.A.270-71,345-59. Through her

writings and their telephone conversations, Kristof

learned that Hatfill had the ability to make anthrax,

access to anthrax spores, a possible motive for the

attacks, access to a “remote location,” and that he

gave Cipro to people who visited him. J.A.271.8

® The Petition asserts that Rosenberg’s testimony about

what she told Kristof “contradicts” his own. Pet.28 The

otherwise unexplained “contradiction” is, however, another

misstatement of the evidence. Specifically, Hatfill asserted

below that Rosenberg “denied telling Kristof that Hatfill could

make first-rate anthrax.” Reply Br.39 (emphasis added).

Rosenberg actually testified that, although she did not recall

20

Hatfill’s friends told Kristof they did not believe

he was the mailer, and their sentiments were

included in the columns. But not even they

suggested that Hatfill was anything other than a

gifted bio-weapons researcher with expertise in

anthrax. J.A.274.

REASONS FOR DENYING THE PETITION

I. “Limited Purpose” Public Figure

The Petition asserts that the Fourth Circuit

found Hatfill to be a “limited purpose” public figure

without identifying the “particular” public

controversy that gave rise to the defamation, as

required by Gertz v. Robert Welch, Inc., 418 U.S. 323,

345 (1974), and instead applied a standard that

conflicts with Gertz and with the decisions of several

circuits. These contentions constitute a plain

misstatement of the Fourth Circuit’s decision, the

relevant post-Gertz case law, and the record

evidence.

First, the Fourth Circuit did not, as the Petition

asserts, set aside this Court’s requirement that a

limited-purpose public figure voluntarily participate

in the “particular” public controversy that gave rise

to the defamation at issue. Gertz, 418 U.S. at 345.

making such a statement to Kristof “orally,” she was confident

he had learned precisely that information from “something

[she] wrote” and to which she had referred him. J.A.1764.

® The district court also found that Hatfill was a public

official. See App.40a-41a. The Fourth Circuit did not reach this

issue, see App.lla, which provides an alternative basis for

affirming the Fourth Circuit’s decision, see S. CT. R. 15.2.

21

See Pet.i (question presented is “[wJhether the court

of appeals erred by declining to identify the

‘particular controversy giving rise to the

defamation”). The Fourth Circuit actually began its

analysis by citing to and embracing the operative

language in Gertz:

[I]n contrast to a public official or an all-

purpose public figure, either of whom must

always meet the actual malice standard, a

“limited-purpose public figure,” one who

has “thrust [himself] to the forefront of

particular public controversies in order to

influence the resolution of the issues

involved,” Gertz, 418 U.S. at 345 (emphasis

added), must show actual malice only when

alleging defamation with regard to the

particular controversy into which he has

inserted himself.

App.10a. The Fourth Circuit then “address[ed] the

nature of the ‘particular public controversy’ that gave

rise to the alleged defamation to determine whether

Dr. Hatfill thrust himself into that controversy.”

App.19a (citing Gertz, 418 U.S. at 345).!° It did not,

in words or substance, purport to “look[] broadly at

every issue raised by the articles in which the

10 The Petition cites no case, because there is none, that

purports to put the weight on this Court’s use of the word

“particular” in Gertz that the Petition asserts it should bear.

See, e.g., Waldbaum v. Fairchild Publ’ns, Inc., 627 F.2d 1287,

1292 (D.C. Cir. 1980) (distinguishing between those “persons

who are public figures for all purposes and those who are public

figures for particular public controversies”) (emphasis added).

22

defamation happened to appear” and then “examine[]

whether the plaintiff voluntarily participated in

debate on any such issue.” Pet.14.4

Second, the Fourth Circuit’s decision in no sense

conflicts with the law of any other circuit. There is

no suggestion in either Waldbaum v. Fairchild

Publications, Inc., 627 F.2d 1287 (D.C. Cir. 1980), or

in decisions of other circuits, that they have parted

company with the Fourth Circuit in construing the

Gertz standard in this context. Similarly, there is no

suggestion in the Fourth Circuit’s opinion that it is

taking or has previously taken a different route to

identifying limited purpose public figures than the

D.C. Circuit did in Waldbaum. To the contrary, the

Fourth Circuit has consistently endorsed the D.C.

11 The Petition’s assertion that the Fourth Circuit’s

“approach is irreconcilable with Gertz,” is also based on its false

assumption that the disputed article in Gertz “surely included,

for example, discussion of the perceived threat from

communism generally” which, according to the Petition,

rendered it significant that this Court did not assess whether

“Gertz ever spoke or wrote on communism.” Pet.14-15. The

article at issue in Gertz did not address “the perceived threat

from communism generally”- it focused tightly on the shooting

of a “hoodlum” by a decorated police officer and his subsequent

conviction, ostensibly as a result of a communist-inspired war

on local police. See Alan Stang, Frame Up: Richard Nuccio and

the War on Police, AMERICAN OPINION 1 (April 1969). As this

Court noted, see Gertz, 418 U.S. at 352, there was no evidence

that, beyond his legal representation of the victim’s family,

Gertz had taken any public position with respect to the case

specifically, or the broader issue of the alleged “conspiratorial

war being waged by the Communists against the police in

general.” Gertz v. Robert Welch, Inc., 322 F. Supp. 997, 998

(N.D. Ill. 1970).

23

Circuit’s “two-part inquiry for determining whether a

defamation plaintiff is a limited-purpose public

figure. First, was there a particular ‘public

controversy that gave rise to the alleged

defamation? Second, was the nature and extent of

the plaintiffs participation in that particular

controversy sufficient to justify ‘public figure’

status?” Foretich v. Capital Cities/ABC, 37 F.3d

1541, 1553 (4th Cir. 1994) (citations omitted); id. at

1554 (citing Waldbaum); see Fitzgerald v. Penthouse

Int'l, Ltd., 691 F.2d 666, 669 (4th Cir. 1982) (same);

Reuber v. Food Chem. News, Inc., 925 F.2d 703, 709

(4th Cir. 1991) (same).!2 The Fourth Circuit has not,

in this or any other case, purported to dispense with

the requirement that, in determining whether a

plaintiff is a limited purpose public figure, a court

must first “address the nature of the ‘particular

public controversy that gave rise to the alleged

defamation.” App.19a (quoting Gertz, 418 U.S. at

345).18

12 To the limited extent it has modified the Waldbaum

approach, the Fourth Circuit has made it more difficult for a

plaintiff to become a public figure. See, e.g., Foretich, 37 F.3d at

1554 n.ll (explaining Fourth Circuit's comparatively

“stringent” approach).

13 Neither have the Second or Third Circuits. See Lerman v.

Flynt Distrib. Co., 745 F.2d 123, 136 (2d Cir. 1984) (“question in

each case is what is ‘the nature and extent of an individual’s

participation in the particular controversy giving rise to the

defamation”) (quoting Gertz, 418 U.S. at 352); Marcone v.

Penthouse Int’l Magazine for Men, 754 F.2d 1072, 1082-83 (3d

Cir. 1985) (explaining that “the alleged libel involves a public

controversy,” — i.e., “illicit drug activities” — and that it is

therefore “necessary to examine the nature and extent of

24

Third, the Petition’s disagreement with the

Fourth Circuit rests not on any conflict with this or

any other court’s decisions, but rather with its

conclusion that “the particular public controversy” at

issue “is the threat from bioterrorism and the

nation’s preparedness to handle that threat, with the

anthrax attacks as the specific example that opened

the debate to.a greater discussion.” App.21a-22a.

See Pet.12 (“Rather, the controversy was about who

committed the 2001 anthrax murders and whether

law enforcement authorities were doing enough to

apprehend the criminals.”). Not only is such

disagreement with the application of law to fact an

inappropriate basis on which to premise a request for

review in this Court, the Petition is demonstrably

unreliable in its rendition of the record evidence.

Both courts below recognized that “the

controversy into which Plaintiff thrust himself can

be properly defined as the government’s handling of

the bioterrorism threat, and more specifically, its

handling of the anthrax investigation.” App.44a.

These twin controversies are both the express subject

Marcone’s participation in it”). The notion that there is “one

‘limited purpose public figure’ test that respects this Court’s

balance and an equally influential one that does not,” Pet.24, is

pure fiction — neither Lerman nor Marcone (nor any other cases

decided in either circuit) seeks to distance itself from

Waldbaum. See Wayment v. Clear Channel Broad., Inc., 116

P.3d 271, 282-84 (Utah 2005) (relying interchangeably on

Waldbaum, Lerman, and Foretich in evaluating plaintiffs

status); 1 ROBERT D. SACK, SACK ON DEFAMATION —- LIBEL,

SLANDER & RELATED PROBLEMS § 5.3.3 at 5-24 n.147 (3d ed.

2006) (explaining that every circuit has adopted similar

formulations).

25

of Kristofs columns and the focus of Hatfill’s

purposeful activity prior to their publication. Each

column took on the “larger issue[]” that Kristof said

deserved increased public attention following the

mailings: “the need for much greater care within the

U.S. biodefense program.” J.A.409. Their discussion

of the investigation, and Hatfill’s role in it, was

offered in support of Kristof’s thesis that the FBI’s

“lackadaisical ineptitude in pursuing the anthrax

killer continues to threaten national security.”

J.A.406.

The record contains overwhelming, undisputed

evidence that Hatfill purposefully injected himself in

the larger controversy that gave rise to the

defamation — i.e., the adequacy of the government's

response to the bioterrorism threat — as well as the

narrower controversy he identifies -— i.e., who

committed the murders. The record overflows with

Hatfill’s efforts to shine a spotlight on himself and

his views about the bioterrorism threat, from

multiple appearances in the media, to countless

public speeches, to the publication of articles about

the subject, to the completion of a novel illustrating

his concerns. J.A.282-339,514-20,530-32,572-

87,593,603-05,615,617-37,653-92,890-95 1, 1673-

75,1677-81,1735-38.14 And, the Petition’s only

‘* The Petition’s assertion that, “{iJn sum, Hatfill’s public

appearances before the anthrax articles included two radio

appearances, one non-speaking television appearance, and

quotations ir two print media articles,” Pet.4 (emphasis added),

as well as the accompanying discussion, is carefully crafted to

obscure the entirety of Hatfill’s efforts to thrust himself into

public debate. See also Pet.17 (inaccurately stating that Hatfill

26

rejoinder to the substantial evidence that Hatfill

voluntarily engaged the press on the subject of who

committed the attacks long before Kristof’s columns

is based on inadmissible “evidence” that is nowhere

in the record. See note 2 supra.* Hatfill is bound by

his sworn concession that, in the wake of the attacks,

he and “a colleague from the U.S. State Department”

set out to persuade ABC “how difficult it was to

make anthrax” and that the attacks were not of

“domestic origin.” J.A.665,1748. Similarly, the

Petition cannot wish away Hatfill’s statements to

The Sun following the attacks in his capacity as a

bioterrorism expert, J.A.413-15, his publicized

appearance as a featured speaker at a May 2002

conference on weapons of mass destruction, or the

undisputed evidence of his apparently insatiable

appetite for lunches, dinners and other voluntary

interactions with reporters following the attacks.

J.A.665-66,1670-71.

“had one minor publication in a specialized trade magazine”)

(emphasis in original).

15 The Petition incorrectly asserts that the Fourth Circvit’s

“reliance on Hatfill’s contacts with the press after the anthrax

attacks” conflicts with Wolston v. Reader’s Digest Ass’n, 443

U.S. 157 (1979), and Hutchinson v. Proxmire, 443 U.S. 111

(1979), ostensibly because “those charged with defamation

cannot, by their own conduct, create their own defense by

making the claimant a public figure.” Pet.16-17 (quoting

Hutchinson, 443 U.S. at 135). Lest there be any confusion, well

before Kristof wrote the columns at issue or even the time-

barred May 2002 column, Hatfill was both the subject of

multiple press reports about the attacks and voluntarily offered

to the public his views concerning who committed them. See

pp.7,11 supra.

27

In short, Hatfill’s long history — beginning in 1996

and extending at least through early 2002 —- of

affirmatively courting the public and the media to

trumpet his expertise concerning bioterrorism, the

threat it posed, and his views concerning the attacks

rendered him a public figure with respect to the

public controversy engendered by bioterrorism

generally and by the September 2001 bioterrorism

incident specifically. See Pet.6 (conceding Hatfill

was so well known that “[mJany readers recognized”

him as “Mr. Z” described in columns).!* Hatfill was

not off the mark when he asserted below that the

relevant question is “did the plaintiffs participation

in a particular public controversy somehow lead to or

prompt or cause or invite the defamation?” Reply

Br.15. In this case, the answer is undoubtedly “yes”

— Hatfill’s purposeful conduct, which included

showing the world how he could whip up a biological

weapon in his kitchen and persistently expressing

his frustration with the government for not treating

more seriously the threat that someone would do so,

“prompted,” “caused,” and “invited” Kristof to

question the FBI’s failure to subject him to more

serious scrutiny in the wake of the attacks.!7

‘6 Holding that a plaintiff such as Hatfill is a public figure

does not, as the Petition repeatedly asserts, leav> him or others

to be defamed “with impunity.” Pet.2,13,24. As the Fourth

Circuit recognized, a public figure may secure both

compensatory and punitive damages if a defamatory falsehood

about him is published with constitutional malice. App.7a,23a.

‘7 For the same reason, the putative plaintiff in the

Petition’s hypothetical would surely be a public figure for

purposes of an articie reporting that he — an outspoken critic of

28

II. Constitutional Malice

The Petition contends that the Fourth Circuit

improperly “held” that, unless a defamatory charge is

“completely fabricated,” a public figure plaintiff

cannot establish constitutional malice. Pet.25

(quoting App.25a). This contention is, to borrow a

phrase, “completely fabricated,” as is the Petition’s

suggestion that the record evidence would allow a

reasonable jury to find constitutional malice with

convincing clarity.

The Fourth Circuit's use of the phrase

“completely fabricated” follows its accurate recitation

of this Court’s definition of constitutional malice —

i.e., publication of a defamatory statement “‘with

gun control — had shot innocent shoppers, regardless of whether

he hed ever mounted the public rostrum to advocate random

murder and especially if, like Hatfill, he had publicly offered his

views about the specific crime of which he was suspected. This

would be so regardless of whether the case was litigated in the

Fourth Circuit, the D.C. Circuit, or any of the others with which

the decision below allegedly conflicts. E.g., Tavoulareas v. Piro,

817 F.2d 762, 773-74 (D.C. Cir. 1987) (plaintiff had participated

in broad public controversy regarding the general “state of the

oil industry,” while challenged article addressed allegations he

engaged in nepotism); Lohrenz v. Donnelly, 359 F.3d 1272,

1277, 1280 (D.C. Cir. 2003) (plaintiff participated in broad

public controversy regarding “women in combat,” while alleged

defamation questioned whether she was “an incompetent

combat pilot”); O’Donnell v. CBS Inc., 782 F.2d 1414, 1416-17

(7th Cir. 1986) (cited at Pet.19) (plaintiff participated in broad

public controversy regarding “disposal of toxic waste and the

EPA’s failure to enforce its regulations,” while challenged

article addressed his firing from position as_ television

executive).

29

knowledge that it was false or with reckless

disregard of whether it was false or not.” App.7a

(citation omitted); see also id. (“[t]he standard

requires that the defendant have a ‘subjective

awareness of probable falsity”) (citing Gertz, 418

U.S. at 335 n.6; St. Amant v. Thompson, 390 U.S.

727, 731 (1968)). The phrase is contained in a

paragraph explaining that, although constitutional

malice “requires ‘much more than a failure to

exercise ordinary care,” there are several alternative

ways in which a public figure can prove it, including

through:

evidence of the “publication of a completely

fabricated story, or of one based entirely on

an unverified anonymous telephone call; or

publication where there are obvious

reasons to doubt the veracity of the

informant.”

App.25a (quoting Ryan v. Brooks, 634 F.2d 726, 732

(4th Cir. 1980) and citing St. Amant, 390 U.S. at

732)) (emphasis in boldface added). The Fourth

Circuit’s description of the various ways a plaintiff

may go about establishing constitutional malice is

derived directly from St. Amant:

The defendant in a defamation action

brought by a public official cannot,

however, automatically insure a favorable

verdict by testifying that he published with

a belief that the statements were true... .

Professions of good faith will be unlikely to

prove persuasive, for example, where a

story is fabricated by the defendant, is the

’

:

1

;

30

product of his imagination, or is based

wholly on an_ unverified anonymous

telephone call. Nor will they be likely to

prevail when the publisher’s allegations are

so inherently improbable that only a

reckless man would have put them in

circulation. Likewise, recklessness may be

found where there are obvious reasons to

doubt the veracity of the informant or the

accuracy of his reports.

390 U.S. at 732 (emphasis added).

Neither the quoted passage nor any other

language in the Fourth Circuit’s opinion contains the

slightest suggestion that it articulated or applied the

“completely fabricated’ rule” described in the

Petition. Pet.25-38.!8 Not surprisingly, there is not a

single case cited in the Petition that purports either

to embrace or reject such a “rule.” Nor is there any

suggestion in the Fourth Circuit’s opinion that it

“ignored” or deemed “irrelevant” any admissible

evidence proffered by Hatfill, or that it declined to

consider the “cumulative impact” of such evidence in

the “aggregate,” much less that it did so because it

had adopted a “rule” that only evidence of a

“completely fabricated story” would _ suffice.

Pet.26,37.

18 Contrary to the Petition’s contention, see Pet.31, in its

brief below (at 58), the Times, like the Fourth Circuit, cited the

quoted language from Ryan as one of a number of examples,

derived from St. Amant, of the kinds of evidence that could

support a finding of constitutional malice.

31

In addition, the Petition’s recitation of the record

evidence with respect to Kristof's state of mind,

including evidence that the Fourth Circuit allegedly

“ignored,” is neither reliable nor complete. For one

thing, it is undisputed that, when he wrote the

columns, Kristof knew:

At least five bio-weapons experts had

identified Hatfill to the FBI as someone

who should be investigated carefully

(J.A.266-67,356-59,416-18);

Several news organizations had reported

that Hatfill had access to labs where

anthrax was stored; had knowledge of how

to weaponize anthrax; had lost his security

clearance after failing a polygraph exam;

and had access to a “remote location” where

anthrax could be refined (J.A.265-69,410-

35);

The FBI and Rosenberg, the chair of a

working group convened by the American

Federation of Scientists, had both issued

profiles of the mailer with many

characteristics matching what Kristof

knew about Hatfill (J.A.255-56,342-59);

and

Hatfill’s own résumés claimed expertise in

“dry” bio-warfare agents, tenure in

government facilities where anthrax

research was conducted, and many

publications on bioterrorism, including

anthrax (J.A.269-70,282,326-39,447-73).

32

For another, there is no evidence in the record

that Kristof “fabricated” anything. The Petition

relies on the alleged “fabrication” of four published

statements to demonstrate that “Kristof either

doubted the truth of his assertion that Hatfill was

the anthrax murderer or recklessly made claims

supporting that assertion.” Pet.26-29. No amount of

hyperbole can transform Kristofs newsgathering

with respect to these statements, three of which were

never alleged to be faise in Hatfill’s Complaint,!9 into

clear and convincing evidence that, at the time he

wrote his columns, Kristof “in fact entertained

serious doubts,” St. Amant, 390 U.S. at 731, about

the truth of the only defamatory accusation Hatfill

placed at issue — that “Kristofs columns falsely

accused him of committing the anthrax murders,”

Pet.6.

19 These statements — concerning the “safe house,” “alias,”

and “bloodhounds” - were first alleged to be false after

discovery closed. See Chapin v. Knight-Ridder, Inc., 993 F.2d

1087, 1098 (4th Cir. 1993) (in Fourth Circuit, plaintiff may not

“belatedly rely” on statements “not labeled as false in the

complaint”); Veilleux v. NBC, 8 F. Supp. 2d 23, 35-36 (D. Me.

1998) (defamation plaintiff may not on summary judgment

dispute “entire statements not alleged in the complaint,” lest

defendant be unfairly forced “to prepare a defense to virtually

every statement made” in_ publication); see generally

Swierkiewicz v. Sorema N_A., 534 U.S. 506, 512 (2002) (purpose

of federal pleading rules is to “give the defendant fair notice of

what the plaintiffs claim is and the grounds upon which it

rests.”). This effort at sandbagging — not the adoption of a

“rule” requiring “complete fabrication” — explains why the

Fourth Circuit “did not address any of the evidence” on which

the Petition now relies. Pet.29.

33

It is, for example, undisputed that Kristof was

both told about Hatfill’s access to the “isolated

residence” by Rosenberg and read about it in other

publications before referencing it — in the form of a

question — in one of his columns. J.A.356-59,416-

18,1768-72,1777-78,1793-97. It is equally undisputed

that Cipro was discussed by Hatfill there and that he

not only was taking it himself, but dispensed it to

others from the trunk of his car. J.A. 542-58,745-

47,1387,1628,1630-33,1644-50,1655.2° It is also

undisputed that the FBI said it used bloodhounds as

Kristof described, J.A.172-73,241B-C,243-244, and

that he read a lengthy article in Newsweek relating

the same facts he repeated, J.A.269,442-46. See also

20 In the face of this undisputed evidence, the Petition’s

effort to equate Kristof's failure to locate the property’s owner

with the failure of the newspaper in Harte-Hanks

Communications, Inc. v. Connaughton, 491 U.S. 657 (1989), to

interview Patsy Stephens, the one person who could corroborate

her sister’s defamatory claims, is unpersuasive. See Pet.33. In

Harte-Hanks, there was substantial evidence that Stephens’

sister, the newspaper's only source, was known to be unreliable.

491 U.S. at 689 n.36. In stark contrast, Kristof read about the

“isolated residence” in several reputable publications, did not

know who owned the property, J.A.416-18,1768-72, and was

told about it by Rosenberg, “an expert in the field of biological

weapons [who] had been called upon by the FBI to discuss the

anthrax investigation,” App.25a. See St. Amant, 390 US. at

732 (for purposes of constitutional malice, a duty to investigate

arises where there are obvious reasons to doubt source’s

credibility or source’s information is inherently improbable).

Nor does the relevant column “fabricate” an accusation that the

isolated residence was a “safe house.” Rather, it wondered

whether, in the form of a question, the residence “may be” a

“safe house.” J.A.52 (emphasis added).

34

p. 12 supra. And, it is undisputed that Kristof’s

research assistant investigated the “alias” issue

using electronic databases and assured Kristof, in

writing, that Hatfill “definitely has at least one alias,

the hatfield one, based on the ss# and address in

Florida. this I am positive about.” J.A.1938-39. See

J.A.538 (Hatfill also used another alias).

Finally, despite the Petition’s representation to

the contrary, see Pet.27, Hatfill was unable to carry

his burden of proving the material falsity of the

published statement that he “failed three successive

polygraph examinations.” See Philadelphia

Newspapers, Inc. v. Hepps, 475 U.S. 767, 775

(1986).21 His effort to do so consisted entirely of

citation to his own press release that he “took one

FBI polygraph examination and was told by the

examiner that he passed.” Pet.27 (emphasis added).

Hatfill made no effort to secure from the FBI any

evidence that would corroborate the truth of that

statement, even though he presumably knows who

gave him the polygraph exam he concedes he took

21 Although the Fourth Circuit did not reach the issue, the

district court concluded that Hatfill had failed to carry his

burden of proving the substantial falsity of any of the specific

statements that allegedly contributed to the single defamatory

meaning he attributed to the columns - including that Hatfill

had “access to Fort Detrick labs where anthrax spores were

kept;” “expertise in dry biological warfare agents;” and “access”

to an “isolated residence.” App.50a-53a (district court decision).

The Petition’s repeated assertions that such statements are

“false,” see, e.g., Pet.6-7. cannot be squared with either that

holding or the record evidence.

al

35

and where to go to obtain the actual results.22 His

own testimony about what the FBI allegedly said is

inadmissible hearsay that “cannot be considered on a

motion for summary judgment.” Maryland

Highways Contractors Ass’n v. Maryland, 933 F.2d

1246, 1251 (4th Cir. 1991); see also FED. R. Civ. P.

56(e); Adickes v. S.H. Kress & Co., 398 U.S. 144, 159

n.19 (1970). On the other hand, the record contains

significant, undisputed evidence that the FBI

administered to Hatfill “at least one polygraph

examination” that “involved more than one test

sequence,” J.A.215-16,954,1656, and that FBI

records reference the “results” of a “second

polygraph,” J.A.224.23

22 The Petition’s related contention that Kristof “fabricated”

what the FBI told him about the polygraphs cannot be

reconciled with his admission in his suit against the

government that the FBI leaked to the media, in violation of the

Privacy Act, the fact that he had “failed polygraphs.” J.A.171.

23 Hatfill argued below that the Times should not have

secured summary judgment because it did not comply with a

magistrate’s order that it disclose the identities of two of the

more than thirty sources on whom Kristof relied. Br.59. The

district court rejected Hatfill’s request for such a sanction,

exercising its discretion to impose a different penalty that

would “ameliorate th{e] prejudice” to Hatfill “without resorting

to overly drastic measures.” J.A.107. The district court’s

decision to permit the Times to seek summary judgment,

provided it did not rely on its two confidential sources, was

reviewable only for abuse of discretion. Southern States Rack &

Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 595 (4th

Cir. 2003). Hatfill does not now and did not in the Fourth

Circuit contend that the district court acted arbitrarily,

especially since his speculation in this Court about what he

might have learned from these sources is inconsistent with his

4

3

36

Most importantly, the Fourth Circuit reasonably

determined, based on its own “careful review of the

record,” App.24a, that none of the “evidence” on

which the Petition relies, even if credited, can

support the conclusion that the Times had serious

doubts about the truth of the implication that Hatfill

is the anthrax mailer, the only allegedly defamatory

meaning that Hatfill attributed to the coiumns.

App.23a. Put differently, even if a jury were to

accept all of Hatfill’s suggestions about additional

steps Kristof should have taken before publication —

investigating the isolated residence further,

disclosing that the “alias” to which he referred was

“Hatfield,” being skeptical of the FBI’s use of

bloodhounds, or avoiding references to polygraphs,

such a showing cannot, in the face of the “substantial

{undisputed] evidence . .. that Kristof actually

believed that Dr. Hatfill was the prime suspect,”

App.24a, reasonably be considered proof of

“convincing clarity” that Kristof in fact entertained

serious doubts about the truth of the implication that

Hatfill perpetrated the anthrax attacks. See App.25a

(“the evidence in this case, ‘at best,’ reveals that

concessior. elsewhere that the statements about which he

complains were in fact leaked to the press by the FBI. J.A.171.

See Cerveates v. Time, Inc., 464 F.2d 986, 994 (8th Cir. 1972)

(must be “cognizable prejudice” before unavailability of

testimony from confidential sources can defeat summary

judgment: “[mJere speculation or conjecture about the fruits of

such examination simply will not suffice”); see also Hepps, 475

U.S. at 779 (concluding that plaintiffs inability to secure

testimony from newspaper's sources because of state shield law

. does not excuse plaintiffs failure to carry his burden of proving

falsity).

37

Kristof ‘did not know whether or not [Dr. Hatfill]

was the anthrax mailer, but did believe that [Dr.

Hatfill] was someone that [the] FBI should

investigate more thoroughly”) (citation omitted).

If there were any doubt on this score, it was

removed when Hatfill affirmatively asserted below,

as an undisputed material fact, that “Kristof set out

to prod the FBI because he believed Hatfill was the

anthrax killer.” J.A.1744. This is the antithesis of

constitutional malice and amply supports the

conclusion, reached by both the district court and a

unanimous Court of Appeals, that “no reasonable

jury could find that Kristof had a ‘high degree of

awareness that Dr. Hatfill was not the anthrax

mailer.” App.24a (quoting Garrison v. Louisiana,

379 U.S. 64, 74 (1964)).

38

CONCLUSION

The Petition should be denied.

November 14, 2008

Respectfully submitted,

LEE LEVINE

Counsel of Record

DAVID A. SCHULZ

MICHAEL D. SULLIVAN

LEVINE SULLIVAN KOCH &

SCHULZ, L.L.P.

1050 17TH STREET, N.W.

SUITE 800

WASHINGTON, D.C. 20036

TELEPHONE: (202) 508-1100

FACSIMILE: (202) 861-9888

Counsel for Respondent