Mark Hamblett
New York Law Journal
11-08-2005

Articles in Vanity Fair and Reader's Digest that pointed to a former Army bioweapons researcher as the perpetrator behind the 2001 mailings of anthrax that led to the deaths of five people are per se defamatory, a federal judge has ruled.

Southern District of New York Judge Colleen McMahon refused to dismiss claims brought against the magazines and author Donald Foster for his 2003 articles on Dr. Steven Hatfill of Virginia, a researcher in the field of hematology and emerging viral diseases.

Foster, a specialist in literary forensics who has analyzed writings in high-profile investigations, including the Unabomber case, wrote an article for Vanity Fair, "The Message in the Anthrax," which looked at Dr. Hatfill's history and movements alongside the dates when letters containing anthrax were sent to two U.S. Senate offices, the New York Post and NBC News.

The Vanity Fair article complained that the Federal Bureau of Investigation had asked Foster to discern who the author of the letters might be, but that the FBI had taken many of the documents in the case and "zero-filed" them -- or placed them in a file cabinet and ignored them.

His theory in the article was that Hatfill sent the anthrax to raise public awareness of the bioterror threat and spur the government to action.

One particularly egregious line, Hatfill said, was delivered when Foster stated: "Steven Hatfill was now looking to me like a suspect ... When I lined up Hatfill's known movements with the postmark locations of reported biothreats, those hoax anthrax attacks appeared to trail him like a vapor cloud."

But Hatfill, who was declared a person of interest in the investigation but not a suspect, was never charged in the mailings and the investigation remains ongoing.

Judge McMahon first ruled in Hatfill v. Foster, 04 Civ. 9577, that the law of Virginia, where Hatfill also has sued The New York Times and columnist Nicholas D. Kristof for naming him in the investigation, governs the claims against Foster and the magazines.

The magazines and Foster had offered several defenses, including that the articles could not be considered defamatory because they were reports on an official investigation and that they were opinion pieces.

"The Message in the Anthrax," McMahon said, "does contain references to the fact that the FBI was conducting an investigation into the anthrax mailings that occurred in the autumn of 2001."

"And the article criticizes the FBI," she said. "But it does not take a literary forensicist to figure out that the focus of the article is Foster's investigation, not the FBI's. And to the extent the article is critical of the FBI, it is because the FBI has yet to reach Foster's conclusions about Hatfill."

In the end, she said, "No reasonable reader could conclude that 'The Message in the Anthrax' qualifies as a report of an official investigation."

Nor could the article be read as pure opinion under Virginia law.

"At the end of the article, Foster inserts a disclaimer: 'It is not my job to indict or to try my own suspect for the anthrax murders ... Even if the FBI should find hard evidence linking Hatfill to a crime, he will remain innocent until proven guilty,'" McMahon said. "But that does not transform this article into opinion."

SECURITY CLEARANCE CONTESTED

The judge also found that Hatfill sufficiently alleged both a number of falsehoods in the article and that "the defamatory implication was intended."

"I reject categorically the notion that the words used do not support the conclusion that defamatory implication was intended," she said. "At the end of the article, Foster questions why a liar and a rascal like Hatfill was permitted to work in the sensitive and secret biodefense industry, and overtly challenges his qualification for security clearance."

And the fact that Foster compared Hatfill to Richard Jewell, the man wrongly accused of the 1996 Centennial Olympic Park bombing in Atlanta by saying "Hatfill is no Richard Jewell," McMahon said, "is more than sufficient for me to conclude, as a matter of law, that Foster intended to imply that Hatfill was the anthrax murderer."

McMahon made similar findings regarding a related article that appeared in Reader's Digest, "Tracking the Anthrax Killer," which republished large portions of the Vanity Fair article and, Hatfill alleged, "all of the same 'red flags'" contained in the Vanity Fair article.

Matthew Roy Aloysius Heiman of McGuire Woods in McLean, Va., represented Foster. Eric O. Bravin, Thomas G. Connolly, Mark Andrew Grannis, Tonya Mitchell and Patrick Pearse O'Donnell of Harris, Wittshire & Grannis in Washington, D.C., represented Hatfill.

Jay Ward Brown of Levine Sullivan Koch & Schultz in Washington D.C., represented Conde Nast Publications, which owns Vanity Fair. Laura R. Handman of Davis Wright Tremaine in New York represented the Reader's Digest Association.