Editor’s Note: This is the third of a series of columns Mr. Dean contemplates on the controversial investigative report by Al Jazeera Investigates.
When last we visited, in my prior column, it was not clear whether the defamation lawsuit filed by Washington Nationals infielder Ryan Zimmerman against Al Jazeera America (AJAM), and their investigative reporters, as well as a related action filed by Philadelphia Phillies first baseman Ryan Howard the same day, would go anywhere. But it is clear now that the game is definitely on. Defendant AJAM has thrown virtually identical opening efforts at the big leaguers, trying to get their lawsuits tossed out court.
Thus, my question from the prior column is still front and center: Can either or both of these men get on base with their lawsuits?
Nearly Identical Facts
Both lawsuits grew out of AJAM’s investigative reporting on alleged doping by elite American athletes. The central source for AJAM’s investigative documentary was a former pharmacy intern, Charlie Sly, initially but erroneously called a doctor by AJAM, who was trying to establish his business at the time he was surreptitiously interviewed in 2015. Liam Collins, an AJAM reporter pretending to be an aging British running star seeking “performance enhancing substances” (PES) (such as steroids and human growth hormone, or anything else that might give an edge), sought out Sly and drugs claiming he wanted in order to make the 2016 Rio Olympics. While many PES drugs have other medical uses they are banned by organized competitive sports.
During the secretly recorded interviews with Sly, both of which were later broadcast in the documentary, the following Collins/Sly exchanges took place. First regarding Zimmerman:
Collins: How long have you known Zimmerman?
Sly: Probably six years . . . I worked with him in the offseason.
That’s how I get him to change some stuff.
Collins: Is he on the [PES] D2 as well?
Collins: What does he think of the D2?
Sly: It does the job.
Collins: Does he notice a lot more power or not?
Sly: Yeah, I think some guys have just kinda gotten used to it.
Sly: It’s the new normal.
And then Howard:
Collins: So with the likes of Howard, once you’ve set him off is there like a maintenance thing?
Sly: He is somebody that you cannot overwhelm with stuff.
Sly: You just make sure you have everything in bags. He knows to take stuff twice a day. Usually I just have him like teach it back to me.
Collins: What did he notice in his hitting?
Sly: With the [PES] D2?
Sly: I think maybe some more explosiveness. He had a couple of years where he had just a ton of home runs.
Before the documentary was broadcast in December 2015, both Zimmerman and Howard were asked by AJAM for their comment on about Sly’s statements. Both, through their attorneys, “unequivocally and emphatically denied” using PES, apparently verbally to AJAM’s attorney, as well as via letters and email. Shortly before broadcasting AJAM also heard from Charlie Sly, who sent them a smart phone video with the following message:
My name is Charles Sly. It has come to my attention that the broadcaster Al Jazeera has somehow obtained recordings or communications of me making statements concerning a number of athletes and that Al Jazeera plans to air a program about them. Any recordings of me were made without my knowledge or consent. It is my belief that an individual named Liam Collins secretly made those recordings. Liam is a reputed fraudster who was banned in his native United Kingdom from running any investment businesses. The statements on any recordings or communications that Al Jazeera plans to air are absolutely false and incorrect. To be clear, I am recanting any such statements and there is no truth to any statement of mine that Al Jazeera plans to air. Under no circumstances should any of those statements, recordings or communications be aired
Sly also posted his message on YouTube. It was AJAM broadcasting of Sly’s comments that is the core of the two lawsuits, and both plaintiffs have file First Amended Complaints, adding a few more details. On April 11, 2016, AJAM filed motions under Rule 12(b)(6) of the Federal Rules of Civil Procedure seeking to have both lawsuits dismissed. This is a routine motion for most every federal lawsuit, although it can be more difficult for public figures like Zimmerman and Howard as defamation plaintiffs than it is for most other plaintiffs.
As the AJAM motion correctly notes as public figures they must prove “actual malice,” which has nothing to do with ill will rather that when publishing the statements about the plaintiffs, AJAM had “subjective knowledge that what Sly said was false” or they published the statements “with reckless disregard of indications of likely falsity.” AJAM adds, “This is an onerous requirement, mandated by the First Amendment and fifty years of Supreme Court and D.C. Circuit precedent, and makes it extremely difficult for a public figure plaintiff to win a defamation case.”
Surviving AJAM’s Attack Against the Lawsuits
As noted in the last column on this case, the D.C. Circuit has disposed of the anti-SLAPP motions in federal court defamation cases, and AJAM stayed away from it. Rather they focus their attack on the complaints in these lawsuits, arguing they fail to set forth necessary plausibility requirements under federal case law. Stated a bit differently, they believe the amended complaints fail to set forth a showing that AJAM acted with the requisite “actual malice.” (This is virtually the same hurdle that public figures have to leap with anti-SLAPP motions, and in some jurisdictions both an anti-SLAPP motion and a motion to dismiss under Rule 12(b)(6) are filed.)
In the name of the First Amendment, judges have stacked the deck against the public figure plaintiffs, so it takes guts—and money—to do what Zimmerman and Howard are doing. Here is the essence of the attacks their lawyers’ must address to survive the effort to end their lawsuits with no discovery (no interrogatories, document requests and depositions that might reveal “actual malice”). Today, the public figure plaintiff must have an actual malice case in hand when going into court, which is manifestly unfair since media organizations hide this information from their targets.
First, AJAM does not believe Zimmerman and Howard have fully denied the truth of the Sly charges in their documentary. It is not clear if this is a pleading or factual problem, or simply irrelevant, but AJAM claims neither Zimmerman nor Howard denies that he knows Sly. Rather both merely deny taking “Delta-2, human growth hormone, or other substance banned by MLB (Major League Baseball).” To this outside observer whether they knew Sly appears irrelevant.
Second, AJAM argues that Zimmerman and Howard offer only a “weak” allegation of AJAM’s actual malice, or, stated differently, that they “disbelieved Sly’s veracity at the time of publication” of Sly’s statements, when AJAM reporter Deborah Davies acknowledged that “Charlie Sly now says that anything he said to us wasn’t true. * * * [I]s he lying now or was he lying during the day upon day upon day of undercover filming. Because obviously the two don’t square.” Zimmerman and Howard claim that Davies is admitting “Sly is untrustworthy.” AJAM claim “no rational viewer would interpret Davies’ statement this way.” Actually, it does appear to be a concession of untrustworthiness by AJAM’s reporter. While I have not researched all the relevant law—plaintiffs will do so in responding—their claim that this is not a situation where actual malice can be established by circumstantial evidence, like Sly’s recanting, is dubious. I do not believe they have accurately stated the law, and if their source recanted prior to publication, as happened here, they had a far larger problem than they are acknowledging.
Note: While not relevant to these motions to dismiss, Charlie Sly has remained consistent in his denial, both why he gave his recantation, and that what he told Liam Collins being untrue. When watching the documentary it was clear that Sly was being secretly recorded, but it was also clear he was boasting, treating Collins as something of a rube, so Sly was acting like a big deal. When interviewed by other media, after the AJAM program, he made statements like this to ESPN: “I don’t see how [Al-Jazeera] can say all this,” he said, adding, “There’s no proof to any of this stuff.”
AJAM spends much of its motion legitimizing its surreptitious and sleazy techniques in dealing with Charlie Sly, and then explaining why it was appropriate to believe Sly when he was being deceived by Liam Collins, and not now that he is aware that Collins was secretly recording him. In attacking the complaint for relying on Sly’s retraction as showing actual malice—knowingly publishing Sly’s statement aware that it was false or in utter disregard to whether is was true or false—AJAM does not cite a lot of law to support its position, because there is not a lot of law to rely upon.
AJAM claims the Zimmerman and Howard complaints are also insufficient because they fail to flush out its assertions, they make irrelevant allegations, and raise inconsequential errors. This appears pure advocacy to minimize the charges of the complaints, which Zimmerman and Howard will counter in responding.
I was interested in how AJAM would deal with the fact that both Zimmerman and Howard, through their attorneys, denied the Sly statements about them on three occasions. In proceeding with their program they included the denials by Zimmerman and Howard. Unfortunately, it has long been the law for public figures that denials are all but useless. In 1989, in a footnote, the U.S. Supreme Court disposed on denials in Harte-Hanks Communications, Inc. vs. Connaughton, 491 U.S. 657, 692 n. 37, noting the publisher of a statement need not accept “denials, however vehement; such denials are so commonplace in the world of polemical charge and countercharge, in themselves they hardly alert the conscientious reporter to the likelihood of error.” While they misquoted the footnote, AJAM relied on Harte-Hanks to dispose of the Zimmerman and Howard denials. To make their point that big league athletes lie in denying doping, AJAM attached a list of 29 high-profile athletes who had done so.
While AJAM cites other standards for actual malice, in truth the standard is so imprecise and unclear, not to mention evolving, that no trial judge can say exactly what is or is not actual malice; in fact, only five votes of the U.S. Supreme Court can say what it is or is not. The issue in this case appears to be whether Zimmerman and Howard can show, with clear and convincing evidence, actual malice by AJAM based on the way the documentary was developed and Charlie Sly’s recantation. It is going to be a close call.
There is nothing in the AJAM motion that could have surprised the Zimmerman and Howard attorneys, so let’s see what they do with what they have been thrown. Zimmerman and Howard are still at bat, and we have yet to see what they have got.
Charles Sly states that “[t]he statements on any recordings or communications that Al Jazeera plans to air are absolutely false and incorrect”. How can he say that with a straight face when (a) he was unaware his statements were secretly recorded at the time of their recording; and (b) he had not actual knowledge of the content of those recordings when he issued his recantation? In sum, “I don’t know what I said, and haven’t listened to the recordings of what I said, but whatever it was that I said is a lie.” Cross-examination, if it comes to that, should be amusing.