UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
(Alexandria Division)STEVEN J. HATFILL,
Plaintiff,
v. C.A. #04-cv-_______-A
DONALD FOSTER, Ph.D.;
CONDÉ NAST PUBLICATIONS, INC., a
subsidiary of Advance Publications, Inc.;
VASSAR COLLEGE;
THE READER’S DIGEST ASSOCIATION;
and
DOES 1 through 25,
Defendants.
COMPLAINT
Preliminary and Jurisdictional Statement
1. This is a lawsuit for defamation over which this court has jurisdiction under 28 U.S.C. § 1332, the parties being of diverse citizenship and the amount in controversy exceeding $75,000 exclusive of interest and costs.
Parties
2. Plaintiff Steven J. Hatfill is a medical doctor and researcher in the field of hematology and emerging viral diseases. He is currently a citizen and resident of the District of Columbia. In September 1997, Dr. Hatfill secured a two-year National Research Council Fellowship as a medical doctor and hematologist for research related to emerging viral diseases. During the two-year fellowship, he performed his research at the U.S. Army Medical Research Institute of Infectious Diseases (“USAMRIID”) at Ft. Detrick in Frederick, Maryland. However, he was never an employee of USAMRIID. In September 1999, following the end of Dr. Hatfill’s National Research Council
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Fellowship, he accepted full-time employment in the state of Virginia with Science Applications International Corporation (“SAIC”), a large research and engineering firm with numerous federal government contracts, including many in the field of biodefense. Dr. Hatfill was employed at SAIC until March 2002, and a substantial portion of the events at issue in this case occurred during this period of employment. As a consequence of the defendants’ defamatory and otherwise wrongful actions, Dr. Hatfill continues to suffer economic and reputational harm in Virginia, where federal biodefense contractors are heavily concentrated.
3. Defendant Donald W. Foster, Ph.D., is the author of an article that appeared in the October 2003 issue of Vanity Fair and was later republished in the December 2003 issue of Reader’s Digest, as explained below. Defendant Foster is a professor of English literature at Vassar College in Poughkeepsie, New York. On information and belief, he is an employee of Vassar College and a resident of New York.
4. Defendant Condé Nast Publications, Inc. (“CNP”), a subsidiary of Advance Publications, Inc., is the media enterprise that publishes Vanity Fair, a monthly magazine. Its principal place of business is in New York City. It actively solicits readers and subscribers in Virginia, delivers Vanity Fair to many homes and businesses in Virginia, sells Vanity Fair in numerous commercial outlets in Virginia, and generally avails itself of the business opportunities available to it in Virginia.
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5. Defendant Vassar College is a highly selective residential liberal arts college in Poughkeepsie, New York. Vassar employs defendant Foster. On information and belief, defendant Vassar actively recruits students in Virginia, including among other things sending its Admissions officers to attend college fairs within the state, and currently accepts tuition payments from Virginia residents.
6. Defendant Reader’s Digest Association (“RDA”) is a $2.5 billion diversified publishing and direct-marketing corporation producing and distributing magazines, books, music, videos and other products. The RDA’s principal place of business is in New York, but the RDA does business in all parts of the world, including Virginia. On information and belief, RDA’s flagship publication, Reader’s Digest, is the world’s most widely read magazine, reaching nearly 100 million readers worldwide each month, including over 200,000 in Virginia.
7. Does 1 through 25 are defendants whose identities are currently unknown to the plaintiff, but who may have supplied defamatory source information to one or more of the named defendants. In particular, some of these Doe defendants may be law enforcement officers who, officially or unofficially, provided nonpublic information about the anthrax investigation to defendant Foster.
Facts Giving Rise to Dr. Hatfill’s Claims for Relief
8. Defendant Foster is a practitioner of something he calls “literary forensics.” On information and belief, “literary forensics” involves the examination of “punctuation, spelling, word usage, regionalisms, slang, grammar, sentence construction, document formatting, topical allusions, ideology, borrowed source material” to assign authorship to anonymous written evidence in criminal cases, just as literary scholars sometimes assign authorship of anonymous-4-
literary works. On information and belief, Foster’s claimed expertise in “literary forensics” has led to a burgeoning consultancy in connection with various criminal investigations.
9. In the fall of 2001, anthrax-laced letters were sent through the United States mail to a variety of private and public parties, including two United States senators. As a result of the mailing and distribution of these letters, at least five persons died, the nation’s postal service was severely disrupted, massive dislocations occurred within the federal government and throughout the country, and the population was terrorized.
10. Following the receipt of the anthrax letters, the federal government began an effort to identify the source of the anthrax and the person or persons who mailed it. Unfortunately, despite a lengthy investigation, of unusual scale and intensity, no one has yet been convicted in connection with the attacks. Indeed, no one has been indicted, nor has anyone been officially named as a suspect.
11. In the months following the anthrax attacks, defendant Foster (a professor of English literature who on information and belief lacks any formal training as a criminal investigator) attempted to insinuate himself into the government’s investigation of the anthrax mailings, code-named “Amerithrax.” On information and belief, Foster has had intermittent contact with individual law enforcement officers involved at least peripherally with the Amerithrax investigation, and has received certain non-public information associated with that investigation, but has never been a member of the Amerithrax task force. The Amerithrax investigation was an attractive vehicle for Foster to use to advertise the value of “literary forensics” because it was a high-profile investigation involving at least some anonymous written evidence. Defendant Foster therefore had strong incentives for wanting to be part of the investigation. Indeed, defendant Foster had an interest in portraying “literary forensics” publicly
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as a useful crime-fighting technique, even if in fact “literary forensics” was not capable of identifying the perpetrator(s) of the 2001 anthrax attacks.
12. By mid-2003, the anthrax investigation had stalled and the FBI’s initial misguided interest in Dr. Hatfill had been called into question by the public, Members of Congress, and by law enforcement officials themselves. Dr. Hatfill was being viewed as another Richard Jewell, an innocent, wrongly accused victim, whom the media and government investigators had seized upon in their haste to link someone to a high-profile crime. In September of that year, FBI Special Agent in Charge Michael A. Mason reportedly stated to the press that the anthrax case might never be solved. It was in this milieu that defendant Foster wrote an article criticizing the FBI for its failure to take advantage of “literary forensics,” and attempting to demonstrate how his technique could save the day. To establish the crime-solving power of “literary forensics,” defendant Foster needed to identify a specific individual to whom the “evidence” pointed. The person selected by defendant Foster for this purpose was the plaintiff, Dr. Hatfill.
The Vanity Fair Article
13. In the October 2003 issue of Vanity Fair, defendant Foster published an article in which he purported to demonstrate how the methods of “literary forensics” pointed to Dr. Hatfill as the person responsible for the 2001 anthrax mailings as well as a number of anthrax hoax mailings. Although he left many of his accusations to implication – he is, after all, a professor of English literature and therefore presumably highly skilled in the subtle ways in which language can convey meaning – Foster wrote the Vanity Fair article in such a way as to leave no doubt in the
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minds of reasonable readers that he was imputing guilt for the anthrax attacks (as well as some anthrax hoaxes) to Dr. Hatfill.
14. Despite defendant Foster’s pretensions on behalf of “literary forensics,” his Vanity Fair article contains virtually no analysis of any text known to have been authored by Dr. Hatfill. The one and only such text that Foster purports to “analyze” in the article is a draft novel by Dr. Hatfill, Emergence, and the only excerpt on which Foster remarks is one in which a fictional pilot says, “Let’s get the hell out of Dodge.” Furthermore, Foster connects this phrase not to any of the written evidence from the anthrax mailings, but rather to a speech by bioterrorism expert William C. Patrick III, with whom Dr. Hatfill is concededly well acquainted. Even assuming that the occurrence of such a common phrase could be considered indicative of any linguistic connection, defendant Foster’s “literary forensics” would succeed only in tying Dr. Hatfill to Dr. Patrick; it would not tie either to the 2001 anthrax mailings.
15. In the Vanity Fair article itself, defendant Foster describes fairly succinctly the problem that this case posed for his “literary forensics” method: “Six months after the first deadly powder-bearing letter was mailed, five months after my initial call from the F.B.I., I still had only the four anthrax letters and envelopes, the three biothreats mailed nearly simultaneously from St. Petersburg, and the Quantico letter . . . . Barring further incidents, we would have to look for other extant writings by the anthrax killer. But where does one even begin looking?” (emphasis added). Obviously, “barring further incidents,” neither Foster nor anyone else could find “other extant writings by the anthrax killer” without knowing who the anthrax killer was; but just as obviously, if the identity of the killer were known there would be no need to worry about digging up material on which to apply the new technique of “literary forensics.” Facing an unpleasant-7-
choice between circular logic and a complete dead end, defendant Foster chose circularity,
indulging in the completely unsubstantiated assumption that an Internet search for stories of anthrax hoaxes would uncover the “other extant writings by the anthrax killer” that Foster needed in order to make his methodology appear to have value. According to Foster, he “uncovered a trail of seemingly related biothreat incidents, several of which exhibited language and writing strategies similar to those of the New Jersey and Florida documents.”
16. Defendant Foster’s decision to embrace an arbitrary sampling of hoax letters (arbitrary in the sense that the only ones he considered were those about which he could find information on the Internet), and to assume that this sampling represented a body of “other extant writings by the anthrax killer,” is the linchpin of his allegations against Dr. Hatfill. However, defendant Foster nowhere defends this crucial assumption. Indeed, this patently defective methodology is contradicted in at least two important ways by Foster’s own article. First, Foster considers at least two hoax episodes that occurred after the 2001 anthrax mailings had been discovered and widely reported – indeed, after those mailings had caused what could fairly be called a public panic about the safety of the mail. If these hoaxes shared common authorship with the actual anthrax mailings, it would contradict Foster’s hypothesis that the anthrax mailer only wanted to raise public awareness about the bioterror threat. Second, Foster reports elsewhere in the Vanity Fair article that, “Since April 1997 (the first recorded incidence of a major mailed anthrax hoax), law-enforcement agencies have responded to countless chemical and biological hoaxes – an estimated 10,000 of them in October 2001 alone, following the news of Bob Stevens’s infection.” Such a popular genre is bound to exhibit certain common features, and because hoaxes are by definition intended to simulate actual attacks, it can hardly be thought remarkable that “several” of them “exhibit<> language and writing strategies similar to the New Jersey and Florida
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documents.” Moreover, if it were reasonable to suppose that the hoax letters shared common authorship with the actual anthrax mailings, then there would seem to be no limit to that principle, leading to the absurd conclusion that the anthrax mailer sent out 10,000 hoaxes in October 2001 in addition to the two actual anthrax letters that he or she postmarked that month. These are only some of the logical flaws in defendant Foster’s so-called “literary forensic” analysis.
17. Despite the lack of either hard evidence or “literary forensics” evidence implicating Dr. Hatfill, defendant Foster expressly called Dr. Hatfill a “suspect” in connection with the 2001 anthrax mailings. This description of Dr. Hatfill was false, and defendant Foster knew that it was false because he notes in the article that the FBI’s official characterization of Dr. Hatfill was that he was a “person of interest”, a phrase coined by the FBI in this case precisely in order to avoid calling Dr. Hatfill a “suspect.” In addition, the introduction to the article (which on information and belief, was written either by defendant Foster or by an unnamed person at Vanity Fair) refers to Dr. Hatfill as “a most intriguing – and disturbing – suspect.”
18. Defendant Foster also accused Hatfill of the anthrax murders by implication, using language that seems to have been chosen in the hope that it would be too subtle to provide a remedy at law. Specifically:
a. Defendant Foster contrasts Dr. Hatfill’s role in the anthrax case explicitly with the role of Richard Jewell in the Olympic Park bombing at the Atlanta Olympics in 1996. Foster lets his readers know in several places that he was personally involved in the investigation of the Olympic Park bombing, and he credits “literary forensics” with helping to correct an earlier investigative focus on “Richard Jewell, who was innocent.” Later in the article, addressing the suggestion that the FBI has ruined Dr. Hatfill’s life
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and “that Steve Hatfill is a second Richard Jewell,” Foster restates his familiarity with the Jewell case and asserts “that Hatfill is no Richard Jewell.” The assertion that “Richard Jewell . . . was innocent,” together with the assertion “that Hatfill is no Richard Jewell” clearly amounts to the assertion that Dr. Hatfill is guilty of the anthrax murders.
b. Most of the Vanity Fair article depicts Foster as a voice crying in the wilderness, full of so much insight into the guilt of Steven J. Hatfill if only the FBI would listen. Toward the end of the article, however, he states, “By midsummer 2002, the F.B.I. and even Attorney General John Ashcroft were obliged to call Steve Hatfill a ‘person of interest,’ despite diehard assurances from other government sources that he wasn’t.” The clear implication of this sentence is not just that Dr. Hatfill might reasonably be a person of some interest to investigators, but that the evidence pointing in his direction was so substantial as to overwhelm ordinary skepticism and “oblige” such a characterization, and that only a “diehard” would make contrary assurances.
c. Defendant Foster, who acknowledged that he has no particular skill in comparing handwriting exemplars, also noted in the article that when the FBI discouraged him from further attempts to implicate Dr. Hatfill because Hatfill “had a good alibi,” defendant Foster nonetheless “faxed a comparative-handwriting sample to “F.B.I. headquarters, with examples of Hatfill’s printing on the left and printing by the anthrax offender on the right.” Defendant Foster states that he “got a thank-you call.” This
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anecdote (which serves no other purpose in the article) clearly implies that Dr. Hatfill’s handwriting matched the anthrax killer’s handwriting closely enough to suggest that Dr. Hatfill might have committed the murders.
19. Defendant Foster included in his Vanity Fair article a number of discrete false statements that were adduced as evidence of Dr. Hatfill’s guilt in connection with the 2001 anthrax mailings. Specifically, Foster asserts in the Vanity Fair article
a. that distribution of the strain of anthrax that killed the first victim of the 2001 anthrax attacks (known as “the Ames strain”) was “regulated by USAMRIID” and “limited to about a dozen labs under tight security protocols;”
b. that in November 2002, Dr. Hatfill was a “big name” at the United Nations Monitoring, Verification, and Inspection Commission training course in Swindon, England;
c. that Dr. Hatfill was hired by USAMRIID in 1997 as “a concept man with a detailed vision for building mobile germ labs;”
d. that Dr. Hatfill once designed a “homemade spray disseminator”
suitable for bioterrorism;
e. that Dr. Hatfill had “an unusual hobby” of donning protective gear and using his kitchen as a “home laboratory” for bioterrorism;
f. that Dr. Hatfill was “fired by USAMRIID” in 1999;
g. that in March 2002, Dr. Hatfill “was building a mobile germ lab out of an old truck chassis, and after S.A.I.C. fired him he continued work on it using his own money;”
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h. that Dr. Barbara Hatch Rosenberg, who seems to have collaborated with Foster in their respective campaigns to smear Dr. Hatfill, is “a noted bioweapons expert;”
i. that an “Iraqi virologist” is the apparent culprit in the bioterror attack depicted in Dr. Hatfill’s unpublished draft novel, Emergence;
j. that “iowarfare fiction” was Dr. Hatfill’s “specialty,” and that “is responsibilities at USAMRIID included the writing of bioterror scenarios, at least one of which actually happened;”k. that “the government hired Hatfill . . . to commission a paper from Bill Patrick,” which paper allegedly described a hypothetical use of the U.S. mail to deliver aerosolized anthrax;
l. that FBI agents “found a canister of Bacillus thuringiensis, or B.t.” in Dr. Hatfill’s refrigerator;
m. that Dr. Hatfill “shaved his mustache of 20 years” for his press conference on August 25, 2002;
n. that “the F.B.I.’s best team of trained bloodhounds . . . finally persuaded the Amerithrax Task Force in July 2002 to associate Hatfill with the anthrax letters and put him under 24-hour surveillance;”
o. that in August 2000, Dr. Hatfill “trained forces at MacDill Air Force Base, in Tampa, using a makeshift bioterror ‘kitchen’ lab that he built himself out of scavenged parts, as well as biosafety cabinets taken from USAMRIID;”-12-
p. that the biosafety cabinets supposedly “taken” or “borrowed” from USAMRIID were “suitable for turning germs into weapons,” and “are still missing and are said to have been destroyed;”
q. that Dr. Hatfill “once spoke of how to use a pond in the Frederick Municipal Forest – a few miles from his former residence in Maryland – to dispose of toxins,” and that a search of Whiskey Springs Pond in Maryland based on this information “found a homemade biosafety cabinet”; and
r. that Dr. Hatfill “sprayed his trainees with samples of aerosolized B.g.,” another anthrax simulant.
Each of the statements a through r was false in one or more material respects.
20. Defendant Foster also implies, falsely, that Dr. Hatfill is connected in some way to a number of anthrax hoaxes and other crimes. Foster claims in Vanity Fair, “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.” In addition, Foster’s description of the individual hoaxes often includes a gratuitous reference to Hatfill, or an extremely contrived attempt at linkage where the information would not otherwise be relevant. Specifically:
a. Defendant Foster implies that Dr. Hatfill was somehow involved with an anthrax hoax letter sent from London, England in November 2001, by writing that this hoax occurred during a 12-day conference in Swindon, England, at which Dr. Hatfill was supposedly “ne of the big names”;b. Defendant Foster implies that Dr. Hatfill was somehow involved with a hoax in which a bottle said to contain “liquid chemical warfare agent” was placed outside the U.S. Treasury Building in 1998, by writing that this occurred
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“hortly after Insight published its ghoulish photograph of Hatfill in his home laboratory” and stating that the hoax had been carried out by “a white male, wearing a gas mask”;
c. Defendant Foster implies that Dr. Hatfill was somehow involved with hoaxes at B’nai B’rith and two Washington-area airports in 1997, by (1) interleaving his description of these events with articles in which Dr. Hatfill is quoted, (2) stating that Dr. Hatfill “audited a Super Terrorism seminar in Washington, D.C.” on the day of one of the incidents, and (3) stating that one of the three airport incidents involved the dissemination of “the same substance the F.B.I. discovered in Hatfill’s refrigerator in August 2002”;
d. Defendant Foster implies that Dr. Hatfill was somehow involved in “a fresh batch of anthrax hoax letters” sent from Louisiana in March 2002, by (1) noting that Hatfill accepted a job at Louisiana State University in March 2002 and these hoaxes occurred “hat same month,” and (2) implying that Dr. Hatfill moved to Louisiana at that time (in truth, Dr. Hatfill had not moved to Louisiana in March of 2002);e. Defendant Foster implies that Dr. Hatfill called to harass a former USAMRIID scientist of Egyptian descent, by (1) relating this story directly after stating that Dr. Hatfill accepted a job at Louisiana State University; (2) stating that the caller (again, in March 2002) claimed to be a Louisiana FBI agent; and (3) stating that the caller seemed to be reading from a document that would have been on file at USAMRIID; and
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f. Defendant Foster implies that Dr. Hatfill was somehow involved with an apparent 1998 hoax at the Finney State Office Building in Wichita, Kansas, by stating gratuitously that this occurred “40 miles southeast of Southwestern College, Hatfill’s alma mater.”
Each of these implied accusations is false. (To pick just one particularly clear example, the
Louisiana hoaxes described in subparagraph d have apparently resulted in a conviction, and not of Dr. Hatfill.) Each of the implications in these subparagraphs defames Dr. Hatfill by alleging his involvement in one or more acts that would be criminal even without any connection to the 2001 anthrax mailings. In addition, these implied accusations also function as support for Foster’s accusation that Dr. Hatfill committed the 2001 anthrax attacks.
21. In addition to the foregoing defamatory accusations and statements, defendant Foster’s Vanity Fair article betrays complete inattention to even a rudimentary sense of balance or fairness toward Dr. Hatfill. For example, defendant Foster notes that the FBI told him Dr. Hatfill “had a good alibi” and should therefore not be considered a suspect, but he gives no details about the alibi, leaving the reader with no ability to compare the strength of the alibi against the strength of Foster’s “literary forensics.” Moreover, while defendant Foster includes a perfunctory statement near the end of the article that “Through his lawyer, Hatfill maintained his innocence,” that statement is quite effectively undercut by the defendant’s triumphant account of how “literary forensics” correctly identified Joe Klein as the formerly anonymous author of the book Primary Colors. Foster notes that after he named Klein as the author, Klein “promptly announced on national TV that I was wrong.” Five months later, however, “Klein finally admitted that he had written Primary Colors after all.” Foster’s message “between the lines” is clear: “Hatfill may
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deny that I have correctly identified him, but so did Joe Klein, and Hatfill is lying just like Joe Klein was.”
22. Before closing his defamatory Vanity Fair article, defendant Foster focused particularly on Dr. Hatfill’s suitability as a member of America’s biodefense establishment. Calling him, among other things, a “rascal,” Foster asks a series of rhetorical questions clearly intended to assert that Dr. Hatfill should not be permitted to work in the field of biodefense.
Pre-Vanity Fair Cause for Doubt About Foster’s Veracity
23. The Vanity Fair article was not defendant Foster’s first public statement on the anthrax investigation. A number of earlier articles quote defendant Foster as holding opinions that tend to suggest that the anthrax attacks were perpetrated by someone other than Dr. Hatfill. For example:
a. On October 23, 2001, defendant Foster appeared on ABC’s Good Morning America and noted among other things that the anthrax mailer’s reference to September 11 (“09-11-01”) was written in the American month-first style, but that “most Americans would not put the 09.” Foster speculated that this might suggest that the writer’s familiarity with the American dating style came from immigration cards or visa passes that “have six boxes with mm-dd-yy.” In addition, defendant Foster noted that the letter addressed to “509 Hart Senate Office Building” was broken into two lines with the word “Building” on a line by itself. According to Foster, the fact that the writer (1) ran out of room; and
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(2) chose to start a new line rather than abbreviate “Building” to make it fit, suggests “the possibility, at least, that this writer is not entirely familiar with the Western alphabet and even perhaps, someone who’s not well-practiced in writing from left to right. Arabic, of course, is written from right to left.”
b. An article in the November 5, 2001 issue of Time quoted defendant Foster as saying, “The syntax and vocabulary suggests someone who is not proficient in English.” “For example: ‘This is next/take penacilin now,’ instead of something more idiomatic like, ‘We’re only getting started; time to take your penicillin.’”c. A December 26, 2001 article in The Times of London has Foster stating, “It is my opinion that the documents are at least compatible with that of a foreign speaker of Urdu or Arabic – although it’s quite possible that it’s someone using it as a smokescreen. There are some other indications that this person may be a Pakistani.” The same article also attributes to Foster the opinion that a native English speaker would probably have written “God is Great” rather than “Allah is Great,” as well as the observation “that the number 9 is written in the Arabic or Urdu style, with the stem straight down, and that the 1 – the only other numeral that English shares with those languages – is carefully written with a top and bottom, as it would be if typewritten.” However, Foster’s Vanity Fair article omitted any mention of these opinions because Foster’s purpose was to portray “literary forensics” as a valuable technique and Don Foster as a skilled practitioner of that technique. Defendant Foster therefore omitted these earlier opinions because
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including them would have made clear to all that “literary forensics” is an extremely malleable technique, vulnerable to the all the prejudices of its practitioner (or his clients and editors).
24. Defendant CNP claims to be “committed to journalistic integrity,” and to “put a premium on truth.” However, with respect to defendant Foster’s Vanity Fair article, defendant CNP published assertions so inherently implausible that only a reckless person would put them in circulation. The factors placing CNP on notice of probable falsity begin with defendant Foster’s credentials. Defendant Foster is not a journalist, so any responsible editor or publisher would be on the lookout for factual errors and defamatory overstatements that a trained journalist might tend not to make. Similarly, defendant Foster is not a trained criminal investigator, so any responsible editor or publisher would be on the lookout for unsubstantiated implications and unwarranted assumptions such as a trained law enforcement officer might tend not to make. As it happened, defendant Foster’s article contained all of these flaws. The “credential gap” was particularly wide in this case because of the highly esoteric and at times quite technical subject matter. When a professor of English literature says that he has identified a criminal who has eluded the FBI for two years, deep skepticism is warranted. And when the criminal is a bioterrorist, and the professor of English literature peppers his analysis with statements like, “Patrick’s sample was purified to a trillion spores per gram – near the theoretical limit, and better than anything ever produced by Iraq, South Africa, or the Soviet Union,” it should be obvious that the professor’s more imaginative and dramatic faculties may very well be at work. In such a situation, only conscious avoidance of the truth can keep an editor or publisher from grasping at once that this professor of English literature is writing about facts he only dimly understands, and that the piece is therefore quite likely to be rife with errors. Such a casual attitude toward truth is simply unacceptable when it is deployed in service of an accusation of mass murder.-18-
25. In addition, even a rudimentary Internet search on defendant Foster would have disclosed to defendant CNP that several of the major flaws in Foster’s Vanity Fair article had already been in evidence in previous cases involving defendant Foster. For example, while Foster’s Vanity Fair article grounds his claim to expertise primarily on his identification of Joe Klein as the author of Primary Colors, Foster’s first real claim to fame was his attribution of a 1612 poem, “A Funeral Elegy,” to William Shakespeare. Foster’s attribution of the poem to Shakespeare was sensational in its time because Shakespeare is not known to have written anything else as late as 1612, and if in fact “A Funeral Elegy” were the work of William Shakespeare it would conclusively refute the hypothesis among some academics that “William Shakespeare” was a pseudonym for Edward de Vere, the 17th Earl of Oxford, who was dead by 1612. Unfortunately, Foster’s attribution was unfounded. By June 2002, Foster had recanted his attribution to Shakespeare and proclaimed himself convinced by another scholar’s argument that the poem was written by John Ford (1586-1640).
26. In addition, Foster’s public embarrassment in connection with the JonBenét Ramsey murder investigation suggests some of the same defects in both man and method that have appeared in this case. The similarity begins with Foster’s attempts to involve himself in the case in some capacity. Defendant Foster began frequenting Internet “chatboards” dedicated to the Ramsey case, and in May 1997 “wrote to someone close to the investigation with information that ought to have been investigated.” When this letter and a second by Foster (both of which he characterized as “offers”) were met with “absolute indifference,” Foster formed the conclusion “that there may be something quite rotten within the investigative bureaucracy.” At about the same time, Defendant Foster also first wrote to JonBenét’s mother, seeking to create a role for himself there as he did in connection with the anthrax investigation. In his letter to Mrs. Ramsey, written on Vassar College
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letterhead, he stated, “I know that you are innocent – know it, absolutely and unequivocally. I would stake my professional reputation on it – indeed, my faith in humanity.” However, the Ramseys chose not to avail themselves of his services. Notwithstanding his earlier expressions of support for Patsy Ramsey, he evidently felt free to accept a later offer of employment from the Boulder, Colorado Police Department, which was investigating the murder. In 1998, when the news media were reporting that Foster believed that Patsy Ramsey had written the anonymous ransom note in that case, the Ramseys countered by releasing the letter that Foster had written to Mrs. Ramsey, proclaiming her innocence. According to at least one detective familiar with the case, Foster was then fired by the Boulder District Attorney’s office.
27. Defendant Foster’s performance in the Ramsey investigation has significant points in common with his role in the anthrax investigation; indeed, the timelines of Foster’s involvement in the two cases are strikingly similar. First, defendant Foster attempts to insinuate himself into a high-profile case. Second, he ventures some possible solutions to the mystery, allegedly based on his “literary forensics.” Third, he obtains employment in some capacity, or failing that, criticizes investigators publicly for not recognizing how useful he could be. Fourth, he purports to apply himself more earnestly to his “literary forensic” analysis until all conflicting opinions disappear and the only remaining conclusions are such as would be found hospitable by the party engaging him. One can also find, both in Foster’s letter to Mrs. Ramsey and in his Vanity Fair article, numerous passages betraying his exaggerated sense of his own proficiency with “literary forensics.”
28. An Internet search on defendant Foster would also have disclosed to defendant CNP that his Vanity Fair article conflicted in significant ways with some of his own prior statements
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about the anthrax case – and that Foster had chosen to omit these conflicts rather than reconcile, explain, or even disclose them.
29. All of these facts, bearing on defendant Foster’s credibility and the reliability of his “literary forensics,” were readily available to defendant CNP at the time Foster’s Vanity Fair article was being considered for publication, and they gave defendant CNP ample reason to doubt the veracity and reliability of the accusations, implications, and supporting factual assertions in Foster’s article. Furthermore, these facts (and others to be developed through discovery) suggest defendant Foster’s propensity to predetermine the conclusion of his “literary forensics” analysis depending upon the pre-existing biases of editors or other clients, and to bias his own conclusions further by ignoring contrary evidence and resolving all ambiguities in the way most favorable to his own thesis.
The Reader’s Digest Article
30. Following publication of Foster’s Vanity Fair article in the October 2003 issue of that magazine, defendant RDA undertook to republish Foster’s article in Reader’s Digest. At that time, defendant RDA had available to it all of the same “red flags” regarding the veracity of Foster’s article that defendant CNP had before publishing the Vanity Fair article. But in addition, defendant RDA also had in its possession correspondence from counsel for Dr. Hatfill, proclaiming Dr. Hatfill’s innocence and warning of the serious methodological shortcomings in defendant Foster’s “literary forensic” analysis in the anthrax case.
31. In the December 2003 issue of Reader’s Digest, defendant RDA recklessly republished the Vanity Fair article anyway, ignoring the many obvious facts suggesting that
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defendant Foster’s analysis was unworthy of any responsible publication. The Reader’s Digest version of the article is shorter, and therefore many of the false and defamatory statements made in the Vanity Fair article are absent from the Reader’s Digest version. However, the gist of the article is still to the effect that Dr. Hatfill is responsible for the anthrax murders as well as several of the anthrax hoaxes. No other “persons of interest” are nominated, and the same basic methodological flaw (equating an arbitrary sampling of hoax letters with prior writings of the anthrax mailer) is indulged. Dr. Hatfill’s protestations of innocence are dutifully included, but they seem to come from nowhere and are in any event effectively undercut by the Joe Klein analogy. Significantly, the title of the article is no longer “The Message in the Anthrax,” as Vanity Fair had it; the new title is “Tracking the Anthrax Killer.” Since the (imagined) evidentiary trail toward Dr. Hatfill is unquestionably the subject of the article, there is simply no non-defamatory way to interpret this title.
32. In most respects, the Reader’s Digest version is just like the Vanity Fair version only less so. For example, the Reader’s Digest version omits several of the “hoax” incidents in the Vanity Fair version, but it retains the clear suggestion that Dr. Hatfill may have been responsible for several hoax incidents in Washington, D.C. and for the letter mailed from England. This avoids several of the more contrived attempts to implicate Dr. Hatfill, including the Louisiana hoaxes in which another man has already been convicted; but it does not render the text any less defamatory. The “sting” of the article is still in the basic thesis that the anthrax attacks were warnings gone awry, probably committed by someone who had sent previous hoax letters, and that several previous hoax letters seem to have come from places where Dr. Hatfill happened to have been physically present. The “vapor cloud” expression of this logic was particularly offensive, and
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RDA rightly edited that out; but with or without the “vapor cloud” language, the thesis remains the same and it is that thesis itself which defamed Dr. Hatfill.
33. Indeed, there are some instances in which concision seems to have enhanced the defamatory “sting” of the Reader’s Digest version. For example, the Vanity Fair version of the article had drawn a connection between Hatfill’s education in Rhodesia/Zimbabwe and an outbreak of anthrax there in 1978. Neither article noted the overwhelming consensus of experts on this issue (endorsed in the authoritative text used to train U.S. military medical personnel) that the outbreak was a natural occurrence. Neither article noted that the primary epidemic was among cattle, with human infections occurring only secondarily. And neither article noted that 99.9% of the cases during this outbreak were cutaneous rather than inhalational. But at least the Vanity Fair article contained the names of the two writers behind the false and irresponsible claim that the Rhodesian anthrax outbreak was intentional. Readers armed with these names might conceivably learn on their own that neither Jeremy Brickhill nor Meryl Nass is an expert on anthrax and that each had political reasons for wishing to lay blame on the military (which, as again neither article mentioned, was controlled by a multiracial government after June 1979). The Reader’s Digest version eliminates any hope whatsoever that the errors and biases of Nass and Brickhill will be discovered by the reader, because Reader’s Digest omits their names and elevates Nass and Brickhill to the status of anonymous “experts,” thereby giving credibility to their views. “Experts have suggested the Rhodesian anthrax epidemic was deliberate,” says the text of the article. The larger and scarier print on the same page is more direct: “Experts think the anthrax epidemic in Rhodesia was deliberate.” The assertion that anyone deliberately caused an anthrax outbreak in Rhodesia is almost certainly false. The implication, in both the Vanity Fair and Reader’s Digest articles, that
Dr. Hatfill deliberately caused an anthrax outbreak in Rhodesia is certainly false and defamatory.
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34. Importantly, the Reader’s Digest version does not contain any new textual analysis, which was allegedly defendant Foster’s forte. Indeed, even Vanity Fair’s lone excerpt from Dr. Hatfill’s draft novel, Emergence (“Let’s get the hell out of Dodge”), is missing in the Reader’s Digest version. Also missing is any analysis of three St. Petersburg hoax letters, the importance of which had been obscure in the Vanity Fair article but which had seemed to be defendant Foster’s reason for suspecting a scientist. Unfortunately, in attempting to fill that logical gap after the excision of the St. Petersburg letters, the Reader’s Digest version ends up basing the “American scientist” hypothesis on “he quality and source of the powder coupled with the misspellings and helpful warnings.” Apparently the same editor who rightly saw the need for some explanation of where the “American scientist” hypothesis came from did not stop to wonder how a professor of English literature might come to acquire any professional opinion on “the quality and source of the powder” used in the anthrax attacks.35. Like its Vanity Fair precursor, the Reader’s Digest article ends by taking direct aim at Dr. Hatfill’s fitness to serve in the nation’s biodefense program.
36. Dr. Hatfill has in fact suffered severe reputational, emotional, and economic harm as a result of the misconduct of these defendants. Dr. Hatfill’s injuries include a complete loss of his ability to work in his chosen field of biodefense, a loss felt particularly within the state of Virginia.
Claims for Relief
Count I: Defamation Per Se Against Defendants Foster and CNP for the Vanity Fair Article
37. Plaintiff hereby realleges paragraphs 1 through 36 above.
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38. Plaintiff has not at any time relevant to this investigation been a “public official” or a “public figure” for purposes of the constitutional standards governing liability for defamation.
39. The statements identified above from the Vanity Fair article by defendant Foster are defamatory per se in that they accuse the plaintiff of one or more crimes involving moral turpitude.
40. The defamatory statements identified above are false.
41. Defendants Foster and CNP published the false and defamatory statements identified above (a) without reasonable grounds for believing them to be true; (b) without the exercise of due care to ascertain the true facts; and/or (c) in reckless disregard of whether the statements were true or false.
Defendants Foster and CNP also published in disregard of Dr. Hatfill’s rights and the consequences that these defamatory statements would have on his reputation, livelihood, and freedom; and in general, exhibited such common-law malice as would make an award of punitive damages appropriate.
Count II: Defamation Per Se Against Defendants Foster, CNP, and RDAfor the Reader’s Digest Article
42. Plaintiff hereby realleges paragraphs 1 through 36 above.
43. Plaintiff has not at any time relevant to this investigation been a “public official” or a “public figure” for purposes of the constitutional standards governing liability for defamation.
44. The statements identified above from the Reader’s Digest article by defendant Foster are defamatory per se in that they accuse the plaintiff of one or more crimes involving moral turpitude.
45. The defamatory statements identified above are false.
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46. Defendants Foster and RDA published the false and defamatory statements identified above (a) with actual knowledge that they were false, or without reasonable grounds for believing them to be true; (b) without the exercise of due care to ascertain the true facts; and/or (c) in reckless disregard of whether the statements were true or false. Defendants Foster and RDA also published in disregard of Dr. Hatfill’s rights and the consequences that these defamatory statements would have on his reputation, livelihood, and freedom; and in general, exhibited such common-law malice as would make an award of punitive damages appropriate.
47. Republication of the Vanity Fair article by defendants Foster and RDA was reasonably foreseeable at the time it was first published, and on information and belief the republication in Reader’s Digest was specifically authorized by defendant CNP such that CNP is equally liable for that republication.
Count III: Defamation Per Se Against Defendants Foster and Vassar for the “Crime and Close Reading” Poster and Web Page
48. Plaintiff hereby realleges paragraphs 1 through 36 above.
49. Plaintiff has not at any time relevant to this investigation been a “public official” or a “public figure” for purposes of the constitutional standards governing liability for defamation.
50. Sometime in 2004, defendant Vassar sponsored a “Teaching with Technology Forum” at which it asked defendant Foster to be a Faculty Presenter. Defendant Foster’s presentation was entitled, “Crime and Close Reading.”
51. Sometime in 2004, defendants Foster and Vassar published, on a World Wide Web Internet server under the control of defendant Vassar, a poster relating to the “Crime and Close Reading” presentation. That poster contained the likeness of the plaintiff. The poster was intended
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to reflect favorably on the work of defendant Foster, who by that time had already published the many false and defamatory statements identified above, in periodicals reaching millions of readers. The plaintiff’s face appeared on the poster surrounded by the word “anthrax” and by facsimiles of the anthrax letters of 2001. In addition, the only two other faces on the poster were those of (a) Eric Rudolph, who at that time had been charged with the 1996 Olympic Park bombing in Atlanta and was awaiting trial; and (b) Ted Kaczynski, the already-convicted “Unabomber.” Under these circumstances, Vassar’s display of the plaintiff’s likeness was defamatory per se in that it implied that the plaintiff was guilty of one or more crimes involving moral turpitude.
52. Defendants Foster and Vassar published the false and defamatory imputation of Dr. Hatfill’s guilt (a) with actual knowledge that it was false, or without reasonable grounds for believing it to be true; (b) without the exercise of due care to ascertain the true facts; and/or (c) in reckless disregard of whether the statement was true or false. Defendants Foster and Vassar also published in disregard of Dr. Hatfill’s rights and the consequences that the defamatory imputation of guilt would have on his reputation, livelihood, and freedom; and in general, exhibited such common-law malice as would make an award of punitive damages appropriate.
Count IV: Respondeat Superior Against Defendant Vassar for All Acts of Defendant Foster
53. Plaintiff hereby realleges paragraphs 1 through 36 above.
54. Vassar’s official policies provide that no full-time teacher is to accept paid employment, engage in independent business outside the college, or accept an engagement involving protracted absence from the college, during the academic year or during periods of leave at full
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pay, except by special permission from the Dean of the Faculty and with the consent of the
department.
55. Defendant Foster routinely represents himself as a Vassar professor of English literature even when writing about criminal investigations and granting interviews on such topics.
56. On information and belief, defendant Vassar either expressly or tacitly approved of defendant Foster’s involvement with the anthrax investigation and/or his authorship of the Vanity Fair and Reader’s Digest articles, and considered them to be within the scope of his employment.
57. Defendant Vassar is liable in respondeat superior for the wrongs committed by defendant Foster within the scope of his employment, including the defamatory articles defendant Foster wrote for Vanity Fair and Reader’s Digest.
Count V: Intentional Infliction of Emotional Distress Against Defendants Foster, CNP, and RDA
58. Plaintiff hereby realleges paragraphs 1 through 36 above.
59. Plaintiff has not at any time relevant to this investigation been a “public official” or a “public figure” for purposes of the constitutional standards governing liability for defamation.
60. By publishing and/or republishing the Vanity Fair and Reader’s Digest articles, defendants Foster, CNP, and RDA either intentionally or recklessly engaged in conduct of an outrageous, intolerable nature, which conduct caused Dr. Hatfill severe emotional distress.
61. To the extent that the U.S. Constitution requires it, Dr. Hatfill can prove that defendants Foster, CNP, and RDA acted (a) with actual knowledge that their statements about Dr. Hatfill were false, or without reasonable grounds for believing them to be true; (b) without the exercise of due care to ascertain the true facts; and/or (c) in reckless disregard of whether the
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statements were true or false. Defendants Foster, CNP, and RDA also acted with such commonlaw malice as would make an award of punitive damages appropriate.
62. On information and belief, the intentional infliction of emotional distress upon Dr. Hatfill occurred during the course of agency relationships between defendants Foster and CNP and between defendants Foster and RDA. Defendants CNP and RDA are therefore liable in agency for intentional infliction of emotional distress by defendant Foster, in addition to whatever direct liability they may have.
Count VI: Misappropriation of Likeness for Purposes of Trade Against Defendants Foster and Vassar
63. Plaintiff hereby realleges paragraphs 1 through 36 and 49 through 51 above.
64. The use of Dr. Hatfill’s likeness by defendants Foster and Vassar occurred without Dr. Hatfill’s consent.
65. The use of Dr. Hatfill’s likeness by defendants Foster and Vassar in an academic conference was “for the purposes of trade” within the meaning of section 8.01-40(A) of the Virginia Code.
Count VII: Injurious Falsehood – Commercial Disparagement Against Defendants Foster, CNP, and RDA
66. Plaintiff hereby realleges paragraphs 1 through 36 above.
67. Plaintiff has not at any time relevant to this investigation been a “public official” or a “public figure” for purposes of the constitutional standards governing liability for defamation.
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68. The false statements identified above from the Vanity Fair and Reader’s Digest articles by defendant Foster communicated, and were intended to communicate, the proposition that Dr. Steven J. Hatfill was not a suitable candidate for jobs in the biodefense industry.
69. These false statements, disparaging Dr. Hatfill’s talents and abilities in the biodefense field as well as his character more generally, were published with malice and without privilege.
Relief Requested
WHEREFORE, plaintiff Steven J. Hatfill, M.D. requests judgment against all defendants, jointly and severally, for his actual damages and for punitive damages in amounts appropriate to the proof at trial, for equitable relief under section 8.01-40(A) of the Virginia Code, for his costs, and for such other relief as the Court may deem just.
Dr. Hatfill requests trial by jury.
Respectfully submitted,
Thomas G. Connolly, Va. Bar #29164
Mark Grannis, pro hac vice
Eric O. Bravin , pro hac vice
Harris Wiltshire & Grannis LLP
1200 18th Street, NW
Washington, D.C. 20036
Counsel for Dr. Steven J. Hatfill
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