Heading for The Dark Side of Journalism

Editor’s Note: This is the second of a series of columns Mr. Dean contemplates on the controversial investigative report by Al Jazeera Investigates.

Al Jazeera America’s explosive investigative report on alleged doping activities of elite American athletics grabbed immediate headlines when aired in late December of last year. As I noted in my prior column—Act One of “The Dark Side”?—the exposé directly or indirectly implicates quarterback Peyton Manning of the Denver Broncos, first baseman Ryan Howard of the Philadelphia Phillies, infielder Ryan Zimmerman of the Washington Nationals, former shortstop Derek Jeter of the New York Yankees, former boxing champion Mike Tyson and linebacker James Harrison of the Pittsburgh Steelers—to name only the headliners. It appears most of the athletes simply ignored the charges, while others denied them while considering whether the expense of suing Al Jazeera America was worth it or not, with most deciding it was not.

Notwithstanding their anger at being falsely accused, all these athletes were undoubtedly told by counsel about the incredible difficulty of successfully pursuing a defamation lawsuit. As those attorneys who practice in this area understand, American defamation law has been suffocated to near death in the name of free speech under our First Amendment. Accordingly, most of the athletes who say they have been falsely accused have backed off. But not all. On January 5, 2016, Washington Nationals infielder Ryan Zimmerman filed a 24-page complaint in the U.S. District Court for the District of Columbia against Al Jazeera America, and their “The Dark Side” reporters, Deborah Davies and Liam Collins. A related action was also filed that day by Philadelphia Phillies first baseman Ryan Howard. The question now is whether either or both of these men can even get on base with their lawsuits?

The case has been assigned to Judge Ketanji Brown Jackson, who is relatively new to the federal bench in the District of Columbia, arriving in March 2013 with a magna cum laude undergraduate degree from Harvard and a cum laude law degree from Harvard Law School. She knows the federal judiciary. She clerked for three federal judges: Judge Patti Saris on the U.S. District Court for Massachusetts, Judge Bruce Selya of U.S. Court of Appeals for the First Circuit, and Associate Justice Stephen Breyer of the U.S. Supreme Court. After stints in private practice and as a special counsel to the U.S. Sentencing Commission, she was nominated to the D.C. Federal District Court by President Obama and confirmed by unanimous consent of the Senate.

While the Zimmerman and Howard actions were being assigned, and the defendants were hiring Davis Wright Tremaine to represent them, the deep-pocket defendant, Al Jazeera America, went out of the television business. This could not have surprised either Zimmerman or Howard, for their complaints note that Al Jazeera America was suffering low ratings, that its news room was in disarray, and that it had admitted that their “reputation [was] low.” It appears Al Jazeera America started its investigative unit to “make the news,” rather than report it, but these efforts failed as well. Given that the entire operation will soon be shuttered, the mere recitation of these facts suggest that “The Dark Side” was a last hurrah to garner significant ratings. It did not work. Instead it attracted what could be very expensive lawsuits for Al Jazeera.

In reporting the demise of AJAM, the acronym employees at Al Jazeera America like to use, the New York Times acknowledged the negative impact of the Zimmerman and Howard lawsuits, but did not report these actions necessarily resulted in closing down the operation. Rather the Times suggests that it is the shrinking price of oil and gas, the source of the wealth of the government of Qatar that has been funding the money losing efforts of AJAM, that ended the business. The television operation will close down in April 2016, but AJAM apparently will continue with a more modest online presence. AJAM will have to resolve this lawsuit. Either litigate it or settle it. Whichever route is chosen will cost millions. As I write, AJAM and the other defendants have not filed responsive pleadings.

Undoubtedly, AJAM has insurance that will cover the cost of an effort to get the Zimmerman and Howard actions tossed out of court. We can be certain that defendants Deborah Davies and Liam Collins, who created the exposé and whose legal bills are being covered by AJAM do not want to settle because it will ruin their reputations. But Zimmerman and Howard are demanding not only millions for the damage to their reputations but retractions, and the removal of all the false and defamatory statements about them “from any and all websites, including Al Jazeera’s website and YouTube.” (I doubt that is even possible, for I have been told by knowledgeable experts nothing ever totally leaves the Internet once it is posted.) Even if AJAM wants to settle, it is very likely the fate of “The Dark Side” will play out in court for a while because American defamation law simply provided defendants who trash public people so many weapons to protect those who make false and defamatory statements from responsibility.

But Zimmerman and Howard have a strong case, and they have filed in the District of Columbia, where the first (and always potent) weapon protecting defamers has recently been defused. The District of Columbia, like many jurisdictions, has an anti-SLAPP statute (a totally misleading acronym for a law that only makes it more difficult for public figures—and others seeking money damages—to get their day in court, by requiring them, in essence, to prove their case before they undertake any discovery that would better position them to meet the demanding standards of the First Amendment defamation law). A relatively recent ruling by the U.S. Court of Appeals for the District of Columbia holds that in federal diversity of jurisdiction cases the local anti-SLAPP statute does not apply. Zimmerman resides in Virginia and Howard in Florida, and they are suing AJAM, along with Deborah Davies and Liam Collins, all of whom are residents of, or do business in, the District of Columbia, so there is diversity needed for a federal case. This recent ruling is nicely explained by Lee Birlik’s The Virginia Defamation Blog.

While the defendants may test this ruling by filing an anti-SLAPP motion, these statutes are increasingly meeting with disfavor by courts. For example, an anti-SLAPP statute itself has been ruled unconstitutional under the State of Washington’s constitution, for it effectively denies plaintiffs their day in court. Similar thinking appears to underlie the conclusion of the D.C. Circuit as well, noting that the D.C. anti-SLAPP statute adds another burden on plaintiffs who must already meet the demanding standards under the Federal Rules of Civil Procedure, specifically Rule 12 (even if all the facts in the complaints are true, there is still no cause of action so the cases must be dismissed by the court) and Rule 56 (a summary judgment by the court is appropriate because notwithstanding the additional information gathered as a matter of law the plaintiffs do not have a case). The D.C. Circuit ruled that anti-SLAPP statutes do not apply in federal court cases because Rules 12 and 56 alone provide defamation defendants with ample constitutional protection. Based on the strength of their complaints, I would be shocked if Zimmerman and Howard cannot easily survive the pro forma Rule 12 motion that will be filed, so unless settled, this case should head into discovery quickly. This will enable Zimmerman and Howard to learn how “The Dark Side” was assembled, and to explore and hopefully expose the dark side of journalism that produced it.