PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STEVEN J. HATFILL,
Plaintiff-Appellant,
v.
THE NEW YORK TIMES COMPANY,
Defendant-Appellee,
and
NICHOLAS KRISTOF,
Defendant.
AMERICAN BROADCASTING COMPANIES,
INCORPORATED; ALM MEDIA, No. 07-1124
INCORPORATED; THE ASSOCIATED
PRESS; BLOOMBERG L.P.; CBS
BROADCASTING, INCORPORATED; COX
ENTERPRISES, INCORPORATED; DOW
JONES & COMPANY, INCORPORATED;
GANNETT COMPANY,
INCORPORATED; HEARST CORPORATION;
LANDMARK COMMUNICATIONS,
INCORPORATED; MAGAZINE
PUBLISHERS OF
AMERICA, INCORPORATED; NBC
UNIVERSAL, INCORPORATED;
2 HATFILL v. NEW YORK TIMES
NEWSPAPER ASSOCIATION OF AMERICA;
NEWSWEEK, INCORPORATED; THE
RADIO-TELEVISION NEWS DIRECTORS
ASSOCIATION; THE REPORTERS
COMMITTEE FOR FREEDOM OF THE
PRESS; TIME, INCORPORATED; THE
WASHINGTON POST COMPANY,
Amici Supporting Appellee.
STEVEN J. HATFILL,
Plaintiff-Appellee,
v.
THE NEW YORK TIMES COMPANY,
Defendant-Appellant, No. 07-1162
and
NICHOLAS KRISTOF,
Defendant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Senior District Judge.
(1:04-cv-00807)
Argued: March 21, 2008
Decided: July 14, 2008
Before NIEMEYER and MICHAEL, Circuit Judges,
and C. Arlen BEAM, Senior Circuit Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Michael and Senior Judge Beam joined.
HATFILL v. NEW YORK TIMES 3
COUNSEL
ARGUED: Christopher J. Wright, HARRIS, WILTSHIRE & GRAN-
NIS, L.L.P., Washington, D.C., for Steven J. Hatfill. Lee Levine,
LEVINE, SULLIVAN, KOCH & SCHULZ, L.L.P., Washington,
D.C., for The New York Times Company. ON BRIEF: Thomas G.
Connolly, Mark A. Grannis, Timothy J. Simeone, Christopher P.
Nierman, HARRIS, WILTSHIRE & GRANNIS, L.L.P., Washington,
D.C., for Steven J. Hatfill. David A. Schulz, Michael D. Sullivan,
LEVINE, SULLIVAN, KOCH & SCHULZ, L.L.P., Washington,
D.C.; David E. McCraw, THE NEW YORK TIMES COMPANY,
New York, New York, for The New York Times Company. Jack M.
Weiss, Joshua Wilkenfeld, Laura M. Leitner, GIBSON, DUNN &
CRUTCHER, L.L.P., New York, New York; Theodore J. Boutrous,
Jr., GIBSON, DUNN & CRUTCHER, L.L.P., Washington, D.C., for
Amici Curiae.
OPINION
NIEMEYER, Circuit Judge:
In the days and weeks following the 9/11 attacks on the World
Trade Center and the Pentagon, someone sent letters laced with the
deadly toxin anthrax through the U.S. mails to members of Congress
and news organizations, and five people who handled the mail died
from contact with the anthrax.
In the months that followed, Nicholas Kristof, a columnist whose
articles appeared in the editorial section of The New York Times, criti-
cized the FBI’s investigation of the attacks as "lackadaisical" and "le-
thargic", "threaten[ing] America’s national security," and, over a
series of articles, Kristof began presenting evidence that pointed to
Dr. Steven J. Hatfill, a biodefense research scientist, as a suspect.
Even though Kristof acknowledged that by the time of his final article
in August 2002, the FBI was improving, he demanded that the FBI
either exculpate Dr. Hatfill or arrest him to "end this unseemly
limbo."
4 HATFILL v. NEW YORK TIMES
Dr. Hatfill commenced this action against The New York Times
Company, alleging that Kristof’s columns were defamatory in that
they "effectively" accused him of the crimes "in the mind of a reason-
able reader." The district court granted The New York Times Compa-
ny’s motion for summary judgment, concluding that Dr. Hatfill was
a "public official" or a "public figure" and that as a public official or
public figure, he was required to demonstrate that The New York
Times Company published the columns with "actual malice" in that
it had knowledge that Kristof’s columns were false or was reckless by
disregarding whether they were false. Because Dr. Hatfill failed to
demonstrate actual malice, the district court entered judgment for The
New York Times Company.
On appeal, we affirm. Because Dr. Hatfill voluntarily thrust him-
self into the controversy surrounding the threat of bioterrorism and
the nation’s lack of preparedness for a bioterrorism attack, we agree
with the district court’s finding that he was a "limited-purpose public
figure" and therefore was required to show actual malice. And
because Dr. Hatfill did not demonstrate actual malice, the district
court properly entered judgment in favor of The New York Times
Company. We also conclude that Dr. Hatfill did not present evidence
sufficient to prove intentional infliction of emotional distress.1
I
On September 18, 2001, and again on October 9, 2001, someone,
who has not yet been identified, sent letters laced with the deadly
toxin anthrax through the U.S. mails to members of Congress and
news organizations. Five people who handled the mail died from con-
tact with the anthrax. In addition, Congress was forced to close and
the U.S. Postal Service was severely disrupted.
1
The New York Times Company filed a conditional cross-appeal ("if
. . . the judgment is reversed") from the district court’s orders requiring
it to disclose its confidential sources. Because we affirm the district
court’s summary judgment in favor of The New York Times Company
on the merits, we do not reach the question of whether the district court
acted contrary to law when it ordered The New York Times Company
to disclose the identities of its confidential sources.
HATFILL v. NEW YORK TIMES 5
In response to these anthrax attacks, reporters began to discuss the
nation’s vulnerability to bioterrorism and its unpreparedness for a
bioterrorist attack. They also began to criticize the slow investigation
being conducted by the FBI into the attacks. Nicholas Kristof, a regu-
lar columnist in the editorial section of The New York Times, was one
such writer.
In a series of five columns appearing in The New York Times from
May 2002 to August 2002, which are fully described in our earlier
opinion, Hatfill v. N.Y. Times Co., 416 F.3d 320, 325-28 (4th Cir.
2005), Kristof used information provided by experts and other sources
to profile a suspect in the attacks, ultimately focusing on Dr. Steven
J. Hatfill, a biodefense research scientist. With each publication, Kris-
tof identified new evidence suggesting Dr. Hatfill as a prime suspect.
The columns noted that Dr. Hatfill had access to anthrax, had knowl-
edge of how to make it, and had a motive. In the same columns, Kris-
tof criticized the FBI for not investigating the facts against Dr. Hatfill.
He characterized its investigation as "lackadaisical" and "unbeliev-
ably lethargic" and admonished that the FBI’s investigatory attitude
"continues to threaten America’s national security." By August 13,
2002, however, when Kristof wrote his last column on this issue, he
observed that the FBI had appreciably intensified its investigation,
leading Kristof to conclude, "there is reason to hope that the bureau
may soon be able to end this unseemly limbo by either exculpating
Dr. Hatfill or arresting him."
Dr. Hatfill commenced this action against The New York Times
Company ("The New York Times" or "The Times"), alleging claims
under Virginia law for defamation, defamation per se, and intentional
infliction of emotional distress. In Count I of his complaint, he
alleged that The New York Times’ "false and reckless public identifi-
cation of Dr. Hatfill with the anthrax mailings, both directly and by
implication from the manner in which his personal and professional
background were presented in [Kristof’s] columns, constituted a false
factual allegation of terrorist and homicidal activity and impugned Dr.
Hatfill’s good name as a citizen, a physician and a bio-medical
researcher to a reasonable reader." Count II alleged that each of
eleven discrete factual misstatements in the five columns "constituted
defamation per se, that, in the mind of the reasonable reader, would
tend to incriminate Dr. Hatfill in the anthrax mailings." Finally, Count
6 HATFILL v. NEW YORK TIMES
III alleged that "Kristof’s intentional public identification of Dr. Hat-
fill with the anthrax murders" constituted intentional infliction of
emotional distress.
The district court originally granted The New York Times’ motion
to dismiss the complaint under Federal Rule of Civil Procedure
12(b)(6), concluding that the complaint did not state a claim on which
relief could be granted. On appeal, we reversed, finding that Kristof’s
columns were capable of defamatory meaning under Virginia law and
that if defamatory, they could be sufficiently outrageous to rise to the
level necessary for a finding of intentional infliction of emotional dis-
tress under Virginia law. Hatfill, 416 F.3d at 332-37.
During discovery after remand, Dr. Hatfill moved to compel The
New York Times to disclose the identity of five confidential sources
from whom Kristof allegedly obtained some of the information for his
columns, and the district court granted the motion, after three of the
sources had voluntarily revealed their identities. But The New York
Times still refused to disclose the two unrevealed sources, and the
district court sanctioned The Times. The court ordered that The Times
could not refer to, rely on, or enter into evidence any information
from those unrevealed sources.
Following the completion of discovery, the district court granted
The New York Times’ motion for summary judgment, concluding (1)
that Dr. Hatfill was a "public official" and therefore had to demon-
strate that The New York Times published the columns with "actual
malice" — i.e., that The Times had knowledge that the columns were
false or published them with reckless disregard of whether they were
false; (2) that Dr. Hatfill was also a "limited purpose public figure"
and therefore again had to show "actual malice"; and (3) that Dr. Hat-
fill had not shown that The New York Times’ columns were pub-
lished with knowledge that they were false or with reckless disregard
of whether they were false. For similar reasons, the court also con-
cluded that Dr. Hatfill could not succeed on his claim for intentional
infliction of emotional distress.
From the district court’s judgment in favor of The New York
Times, dated January 30, 2007, Dr. Hatfill appeals, contending (1)
that he is neither a public official nor a public figure; (2) that the evi-
HATFILL v. NEW YORK TIMES 7
dence in any event demonstrates actual malice; (3) that the evidence
Dr. Hatfill advanced was sufficient to support his claim for intentional
infliction of emotional distress; and (4) that the district court erred in
granting summary judgment despite The Times’ refusal to disclose
Kristof’s sources.
II
We do not, on this appeal, address whether Dr. Hatfill presented
evidence sufficient to prove his defamation claims under Virginia
law. Rather, we address the dispositive issue of whether Dr. Hatfill
was a "public official" or "public figure," requiring him to prove that
The New York Times acted with "actual malice" in publishing the
Kristof columns.
A
As an accommodation to the First Amendment’s protections of free
speech and press, the Supreme Court has held that "public officials"
and "public figures" must prove, as part of a defamation case, that the
defendant’s allegedly defamatory statement was made with "actual
malice," meaning that it was made "with knowledge that it was false
or with reckless disregard of whether it was false or not." N.Y. Times
Co. v. Sullivan, 376 U.S. 254, 279-280 (1964) (as to a "public offi-
cial"); Curtis Publ’g Co. v. Butts, 388 U.S. 130, 162 (1967) (Warren,
C.J., concurring in the result) (as to a "public figure"); see also Gertz
v. Robert Welch, Inc., 418 U.S. 323, 334-37, 342-43 (1974); Foretich
v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1551 (4th Cir. 1994).
Under this standard, it is not enough for a plaintiff to prove simply
that the defendant failed to investigate or to check the accuracy of a
false statement. Gertz, 418 U.S. at 332, 334-35 n.6. The standard
requires that the defendant have a "subjective awareness of probable
falsity" of the publication. Id. at 335 n.6 (citing St. Amant v. Thomp-
son, 390 U.S. 727, 731 (1968)). In addition, the element of "actual
malice" must be proved by clear and convincing evidence. Gertz, 418
U.S. at 342; Foretich, 37 F.3d at 1551.
This compromise that limits a State’s interest in preventing and
redressing injuries to individuals’ reputations in favor of society’s
interest in uninhibited, robust, and wide-open debate on public issues
8 HATFILL v. NEW YORK TIMES
recognizes that public officials and public figures2 have "greater
access to the channels of effective communication and hence have a
more realistic opportunity to counteract false statements than private
individuals normally enjoy. Private individuals are therefore more
vulnerable to injury, and the state interest in protecting them is corre-
spondingly greater." Gertz, 418 U.S. at 344 (footnote omitted). In
addition, because public officials and public figures have generally
chosen to enter the public arena, they have "voluntarily exposed
themselves to increased risk of injury from defamatory falsehood con-
cerning them. No such assumption is justified with respect to a private
individual." Id. at 345.
Notwithstanding these generalities, the Supreme Court has subdi-
vided the class of public figures for determining when public figures
are subject to the actual malice standard. In Gertz, the Court
explained that some public figures have assumed roles "of such per-
suasive power and influence that they are deemed public figures for
all purposes." 418 U.S. at 345 (emphasis added). But more com-
monly, those who may be classed as public figures "have thrust them-
selves to the forefront of particular public controversies in order to
2
A public official is one who has a governmental role and whose "posi-
tion in government has such apparent importance that the public has an
independent interest in the qualifications and performance of the person
who holds it." Rosenblatt v. Baer, 383 U.S. 75, 86 (1966). Such interest
must go "beyond the general public interest in the qualifications and per-
formance of all government employees." Id. "An individual who decides
to seek governmental office must accept certain necessary consequences
of that involvement in public affairs. He runs the risk of closer public
scrutiny than might otherwise be the case." Gertz, 418 U.S. at 344. For
a public official, "society’s interest . . . is not strictly limited to the for-
mal discharge of official duties," but "extends to ‘anything which might
touch on an official’s fitness for office,’" id. at 344-45 (quoting Garrison
v. Louisiana, 379 U.S. 64, 77 (1964), and the Supreme Court has noted
that "[f]ew personal attributes are more germane to fitness for office than
dishonesty, malfeasance, or improper motivation, even though these
characteristics may also affect the official’s private character." Garrison,
379 U.S. at 77. A public figure, on the other hand, need not hold an
important governmental office or serve an important governmental role.
Public figures are persons who "have assumed roles of especial promi-
nence in the affairs of society." Gertz, 418 U.S. at 345.
HATFILL v. NEW YORK TIMES 9
influence the resolution of the issues involved," and they are public
figures for only those limited purposes. Id. (emphasis added). As the
Court summarized:
[The] designation [that one is a public figure] may rest on
either of two alternative bases. In some instances an individ-
ual may achieve such pervasive fame or notoriety that he
becomes a public figure for all purposes and in all contexts.
More commonly, an individual voluntarily injects himself or
is drawn into a particular public controversy and thereby
becomes a public figure for a limited range of issues.
Id. at 351 (emphasis added); see also Hutchinson v. Proxmire, 443
U.S. 111, 134-36 (1979); Wolston v. Reader’s Digest Ass’n., Inc., 443
U.S. 157, 164-68 (1979); Time, Inc. v. Firestone, 424 U.S. 448, 454-
55 (1976). Accordingly, we have stated that a public figure may be
either (1) an "all-purpose public figure[ ]," who achieves "such perva-
sive fame or notoriety" that he becomes a public figure "for all pur-
poses and in all contexts" or (2) a "limited-purpose public figure[ ],"
who voluntarily injects himself "into a particular public controversy"
and thereby becomes a public figure "for a limited range of issues."
Foretich, 37 F.3d at 1551-52; see also Wells v. Liddy, 186 F.3d 505,
532 (4th Cir. 1999).3
Accordingly, in 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 him-
self.
3
Gertz and Foretich also suggested that an additional type of public
figure might be an "involuntary" public figure, one who obtains public
figure status "through no purposeful action of his own." Gertz, 418 U.S.
at 345; Foretich, 37 F.3d at 1551. But, as Gertz observed, the instances
of classifying a person as an involuntary public figure would be "exceed-
ingly rare." Gertz, 418 U.S. at 345.
10 HATFILL v. NEW YORK TIMES
The reasons for narrowing the protections of state defamation law
for limited-purpose public figures give rise to factors that we have
articulated for determining whether a plaintiff in a defamation case is
a private person entitled to the full protection of state defamation law
or a limited-purpose public figure entitled to only a narrowed protec-
tion. Under these factors, we focus on whether:
(1) the plaintiff had access to channels of effective commu-
nication; (2) the plaintiff voluntarily assumed a role of spe-
cial prominence in the public controversy; (3) the plaintiff
sought to influence the resolution or outcome of the contro-
versy; (4) the controversy existed prior to the publication of
the defamatory statement; and (5) the plaintiff retained
public-figure status at the time of the alleged defamation.
Foretich, 37 F.3d at 1553; see also Carr v. Forbes, Inc., 259 F.3d
273, 280 (4th Cir. 2001); Reuber v. Food Chem. News, Inc., 925 F.2d
703, 708-11 (4th Cir. 1991) (en banc); Fitzgerald v. Penthouse Int’l,
Ltd., 691 F.2d 666, 668 (4th Cir. 1982).
B
We now assess whether Dr. Hatfill was indeed a limited-purpose
public figure, as the district court concluded.4
The record shows the following about Dr. Hatfill. After he gradu-
ated from medical school in Rhodesia (now Zimbabwe) and obtained
a Master’s degree in pathology in South Africa, he practiced medicine
in South Africa. From South Africa, he returned to the United States
where, in 1996, he received a research fellowship from the National
Institutes of Health ("NIH") to study infectious diseases. At the NIH
he became a respected figure within the U.S. bioterrorism community,
giving public lectures and becoming involved in preparedness training
for bioterrorist attacks.
4
In addition to finding Dr. Hatfill to be a limited-purpose public figure,
the district court held that he could alternatively qualify as both a public
official and an involuntary public figure. We do not review these conclu-
sions, however, as we rest our holding only on our finding that Dr. Hat-
fill was a limited-purpose public figure.
HATFILL v. NEW YORK TIMES 11
At the conclusion of his NIH fellowship, Dr. Hatfill obtained a fel-
lowship from the National Research Council, a private organization,
to study infectious diseases, particularly the Ebola virus, at the U.S.
Army Medical Research Institute for Infectious Diseases at Ft.
Detrick, Maryland. While at Ft. Detrick, Dr. Hatfill was given secur-
ity clearance to work with Biosafety Level 3 pathogens, which
include anthrax, plague, and monkeypox, and was vaccinated against
anthrax. He was one of about 100 persons who had access to "wet"
anthrax spores, which were kept in an unlocked closet at the site, but
his official work at Ft. Detrick did not include working with anthrax.
During the course of his work at Ft. Detrick, Dr. Hatfill provided
briefings to government officials and taught the military, intelligence,
and law enforcement communities about biological weapons and pre-
paredness for bioterrorist attacks. He was an instructor for both the
CIA’s Chemical and Biological Weapons Proliferation Course and the
Defense Intelligence Agency’s Joint Military Attache School. He
briefed officials at the CIA, the Office of the Secretary of Defense,
and the State Department about bioterrorism, and spoke about it at a
conference sponsored by the Army War College. He also briefed,
among others, the FBI’s Joint Terrorism Task Force, the Assistant
Secretary of Defense for Special Operations/Low Intensity Conflict,
and the National Security Council. In this vein, he wrote a paper
describing how the military could address bioterrorism, which he
gave to the Commander at Ft. Detrick and the Special Opera-
tions/Low Intensity Conflict Officer at the Pentagon.
Dr. Hatfill also gave public speeches during this same period. For
example, he gave a lecture at the Council on Foreign Relations on
biological terrorism and made a presentation attended by the press on
"Emerging Threats of Biological Terrorism." He also attended the
Department of Defense’s Worldwide Conference on Antiterrorism
where, alongside other prominent bioterrorism experts, he spoke
about biological weapons.
While at the NIH and Ft. Detrick, Dr. Hatfill acknowledged that
"[t]he more I learned about biological warfare, the more alarmed I
became about this potential threat," particularly in the context of
"[s]everal anthrax hoaxes [that] had by then been described in the
media." Accordingly, during this time, he increased his efforts to pub-
12 HATFILL v. NEW YORK TIMES
licize the threat from bioterrorism and became known in the scientific
community for his warnings that the United States was unprepared for
an attack. Colleagues described him as "a strong believer that there
was a need to prepare against bioterrorism," and noted that "he was
a kind of whistle blower of sorts in government on the issue."
When his fellowship for work at Ft. Detrick ended in January 1999,
Dr. Hatfill took a job as Director of Biological Security Programs
with Science Applications International Corporation ("SAIC"),
another private company, but one receiving nearly 90% of its revenue
from government-contracted work. While at SAIC, Dr. Hatfill devel-
oped a special biological warfare defense curriculum for the State
Department; he upgraded course materials for the CIA; and he served
as an expert or consultant on various government projects. He
designed and gave classified lectures on biological weapons produc-
tion to the CIA, the Defense Intelligence Agency, and Special Opera-
tions units of the armed forces. He also attended a classified lecture
which described the process for producing powdered anthrax and on
at least one occasion delivered a lecture himself on weaponizing
anthrax.
After the September 11, 2001 attacks on the World Trade Center
and the Pentagon, Dr. Hatfill led the SAIC team preparing recommen-
dations for securing U.S. ports and harbors against biological threats,
and went to work on other security-related government contracts. His
supervisors at SAIC described him as "a national subject matter
expert, whose opinions and technical advice [were] widely sought" in
the area of bioterrorism, and noted that Dr. Hatfill had "an extensive
network of contacts within the Department of Defense, the special
operations community, and the Central Intelligence Agency."
In addition to the reputation he developed in carrying out his jobs,
Dr. Hatfill spread his message through the media. In September 1999,
Dr. Hatfill co-authored an article in the journal Surgical Services
Management entitled "Answering the Chemical and Biological War-
fare Threat," which urged the public health community to step up
efforts to prepare for a chemical or biological attack. And in 2001, he
submitted an article to his college alumni magazine, describing his
career and identifying himself as "a specialist in biological warfare
and its defense." The article included a photograph of him in a bio-
HATFILL v. NEW YORK TIMES 13
safety suit. He also wrote or called the media to volunteer his message
on bioterrorism. For instance, following an anthrax scare at the B’nai
B’rith headquarters in Washington, D.C., he called Armstrong Wil-
liams, a syndicated columnist, to offer "thoughts . . . on it." In April
1997, following a seminar on "Super Terrorism," he wrote a panelist,
"I am tremendously interested in becoming more involved in this area
and would like to volunteer my background, expertise and time, for
whatever use these might be to the Terrorism Studies Program." Dr.
Hatfill succeeded in appearing in news publications, magazines,
books, and on television and radio programs on numerous occasions.
He posed for a picture demonstrating how a determined terrorist could
create biological weapons by "cooking up" plague in his own kitchen.
The picture appeared in Insight magazine, and a commentary on the
demonstration also appeared in Quebec Science magazine, in an edi-
torial questioning Canada’s preparedness for bioterrorist attacks. In
addition, Insight magazine printed an article discussing the possibility
of an anthrax attack at an airport, which included an interview with
Dr. Hatfill, referring to him as a specialist in bioterrorism manage-
ment. In 1996, Dr. Hatfill appeared on "Capital Ideas" with Rob Arm-
strong, a CBS News Radio program, to discuss topics related to his
research, and in August 1999, he provided an interview to The Wash-
ington Times on the subject of bioterrorism and the threat of weapo-
nized anthrax, noting that, in his opinion, the United States was
unprepared for such an attack.
Following the anthrax attacks in the fall of 2001, Dr. Hatfill contin-
ued to appear publicly in the discussion of bioterrorism and the
anthrax attacks. On October 1, 2001, four days before the first anthrax
victim died, The Washington Times republished a 1997 article on
bioterrorism featuring Dr. Hatfill, which included his observations
about the release of anthrax in public buildings. He told ABC News
that it was difficult to make anthrax and stressed that he thought the
attacks were probably the work of international terrorists, even though
he had earlier told a colleague that he could make dry powdered
anthrax like that used in the attacks without access to a lab "because
I know what I’m doing." During this period Dr. Hatfill sent a letter
to three doctors discussing the characteristics of the mailed anthrax
and describing his expertise regarding the use of anthrax as a biologi-
cal weapon. And in February 2001, he was interviewed by a journalist
with The Baltimore Sun, which quoted him (although not by name)
14 HATFILL v. NEW YORK TIMES
as saying that although he was one of "a bunch of people on [an FBI]
list" of suspects based on a "profile" of the suspected anthrax mailer,
he was "one of the good guys."
Apart from his voluntary efforts, the FBI investigation into the
anthrax attacks drew wide attention to Dr. Hatfill. An FBI search of
Dr. Hatfill’s apartment was televised live and attracted extensive
media coverage, and after Dr. Hatfill’s home was searched, news
agencies began printing stories about him. Dr. Hatfill characterized
the press coverage that followed the search as a "media frenzy."
As the investigation continued, so did the media coverage increase.
A friend described Dr. Hatfill to Wolf Blitzer in an interview on CNN
as "kind of a whistle blower of sorts in government on the issue [of
bioterrorism]. A lot of people didn’t like what he was saying because
it was uncomfortable, but he was trying to focus attention on the issue
in a positive and constructive way." Newsweek magazine reported that
bloodhounds exposed to scent packets preserved from the anthrax
envelopes had reacted strongly to Dr. Hatfill’s home, his girlfriend’s
home, his ex-girlfriend’s home, and restaurants he had recently vis-
ited. During this time, Dr. Hatfill also had numerous voluntary meet-
ings and contacts with reporters. He had dinner with Judith Miller of
The New York Times, lunch with Tom Connolly and Ted Koppel of
ABC News, and lunch with Jim Stewart and Mark Katov of CBS
News. He also made formal public statements on the case and
attended meetings with other journalists from The Washington Post,
National Public Radio, The Los Angeles Times, NBC News, United
Press International, and The Washington Times.
During these same months following the anthrax attacks, several
media outlets (other than The New York Times) identified Dr. Hatfill
by name as a prime suspect in the anthrax attacks. Only after other
media so identified him did Kristof refer to him by name in his col-
umns.
C
To determine whether Dr. Hatfill "thrust [himself] to the forefront"
of the relevant controversy "to influence the resolution of the issues
involved," see Gertz, 418 U.S. at 345 (defining a limited-purpose
HATFILL v. NEW YORK TIMES 15
public figure), we now turn to the five factors we identified for mak-
ing the limited-purpose-public-figure determination, see Foretich, 37
F.3d at 1553.
First, on whether Dr. Hatfill had "access to channels of effective
communication," it becomes readily apparent from the record that Dr.
Hatfill was viewed as an expert on the topics of bioterrorism and bio-
logical weapons, including anthrax, and that he could command atten-
tion in this field. He was a frequent instructor of government agencies
and personnel, had frequent meetings with journalists on the subject,
and appeared on television, radio, and in print, both before and after
the anthrax attacks occurred. Indeed, he was able, through two press
conferences he convened, to refute "facts" written about him and to
deny his involvement in the anthrax attacks. His access to channels
of communication substantially exceeded those that we held sufficient
in Reuber. In Reuber, we found that the plaintiff had testified before
Congress and the Environmental Protection Agency; had given lec-
tures on subjects related to the allegedly defamatory articles in which
he was mentioned; had provided interviews to a newspaper; and had
published several relevant scientific papers. Reuber, 925 F.2d at 708-
09. If Reuber’s access to channels of communication was sufficient,
so too is Dr. Hatfill’s.
The second and third factors — which, in Reuber, 925 F.2d at 709,
we combined to inquire "‘whether the plaintiff [had] voluntarily
assumed a role of special prominence in a public controversy by
attempting to influence the outcome of the controversy’" — represent
the "heart of our five-factor test," Carr, 259 F.3d at 280 (quoting Reu-
ber, 925 F.2d at 709). To determine whether these combined factors
are satisfied, we first address the nature of the "particular public con-
troversy" that gave rise to the alleged defamation to determine
whether Dr. Hatfill thrust himself into that controversy. See Gertz,
418 U.S. at 345; Foretich, 37 F.3d at 1553-54.
Dr. Hatfill argues that we should interpret the words "particular
public controversy" narrowly and therefore that the relevant public
controversy is "who committed the anthrax attacks in 2001." With
this limited definition of public controversy, he argues that he did not
"voluntarily assume a role of special prominence," even if he had pre-
viously been vocal about bioterrorism. The New York Times, by con-
16 HATFILL v. NEW YORK TIMES
trast, argues that we have previously interpreted "particular public
controversy" more broadly, explaining that the "use of the word ‘par-
ticular’ signifies only that a court must identify the specific or ‘partic-
ular’ controversy or controversies fairly addressed by the publication
at issue before determining whether the plaintiff had voluntarily par-
ticipated in the controversy so identified." The New York Times
believes the particular public controversy in this case to be the debate
on the threat from bioterrorism and the nation’s lack of preparation
for it, rather than the relatively narrow example of that threat exempli-
fied by the specific anthrax mailings in 2001.
We agree with the view suggested by The New York Times. In
light of the purpose of the public figure doctrine to encourage robust
and uninhibited commentary on public issues, it stands to reason that
we should look to the scope of the message conveyed in The New
York Times through the articles that Dr. Hatfill is challenging. A fair
reading of Kristof’s columns reveals a debate about national security,
the nation’s lack of preparedness for bioterrorism, and the example
provided by the FBI’s investigation of the anthrax attacks in light of
the evidence appearing against Dr. Hatfill. And, as Kristof stated in
one of the early columns, the FBI’s "lackadaisical attitude in pursuing
the anthrax killer continues to threaten America’s national security."
(Emphasis added). As the FBI investigation continued to show FBI
lethargy, Kristof said in a later column that "there are two larger
issues." He pointed first to the FBI’s slowness in carrying out the
investigation and second to "the need for much greater care within the
U.S. biodefense program." Finally, focusing on Dr. Hatfill as a recog-
nized expert as well as a potential suspect, Kristof quoted Dr. Hatfill’s
response to an earlier anthrax scare in Washington, D.C., when Dr.
Hatfill had stated, "As was evidenced in downtown Washington,
D.C., a few hours later [after the false anthrax letters were received
at the B’nai B’rith headquarters], this topic [bioterrorism] is vital to
the security of the United States. I am tremendously interested in
becoming more involved in this area." Kristof observed that Dr. Hat-
fill used the earlier incident "to underscore the importance of his field
and his own status within it."
Thus, while focusing on solving the anthrax mailings of 2001,
which prompted the larger debate, Kristof was, above all, concerned
HATFILL v. NEW YORK TIMES 17
about the government’s efforts to protect the nation from a bioterrorist
attack.
The discussion of a particularized threat within the context of a
larger debate in this case is strikingly similar to the circumstances
defining the "particular controversy" in Fitzgerald v. Penthouse Inter-
national, Ltd. ("Fitzgerald II"), 691 F.2d 666 (4th Cir. 1982), which
concerned the plaintiff’s defamation action arising out of publication
of an article on the military use of dolphins. Fitzgerald, the plaintiff
and a self-proclaimed expert on the use of dolphins for military pur-
poses, alleged that an article in Penthouse magazine was defamatory
when it suggested that he may have disclosed "top secret" information
related to the military use of dolphins to other countries. Fitzgerald
v. Penthouse Int’l, Ltd. ("Fitzgerald I"), 639 F.2d 1076, 1079 (4th Cir.
1981). In Fitzgerald II, we held that, although the allegedly defama-
tory statements were the suggestions that Fitzgerald had disclosed
secret information and that he had been involved in espionage by
offering to sell dolphin torpedoes to other countries, the "particular
public controversy" within which to analyze his status as a public fig-
ure was the larger controversy surrounding the military’s use of dol-
phins, not the specific and narrow question of who had leaked the
information. See Fitzgerald II, 691 F.2d at 668-69. Indeed, the situa-
tion in Fitzgerald — where an expert in a field claims defamation
when a news publication later suggests he might have committed a
crime relevant to that field — is almost identical to the circumstance
in this case. Thus, just as we identified the particular public contro-
versy in Fitzgerald II, we conclude in this case that the particular pub-
lic controversy is the threat from bioterrorism and the nation’s
preparedness to handle that threat, with the anthrax attacks as the spe-
cific example that opened the debate to greater discussion.
It follows from the nature of the particular controversy that Dr.
Hatfill "voluntarily assumed a role of special prominence" in the con-
troversy. And he did so in an attempt "to influence the resolution of
the controversy." Reuber, 925 F.2d at 709. Throughout his career, Dr.
Hatfill was not only repeatedly sought out as an expert on bioterro-
rism, but was also a vocal critic of the government’s unpreparedness
for a bioterrorist attack, as evidenced by the topics of his lectures,
writings, participation on panels, and interviews. Through these
18 HATFILL v. NEW YORK TIMES
media, Dr. Hatfill voluntarily thrust himself into the debate. He can-
not remove himself now to assume a favorable litigation posture.
The last two factors are also indisputably satisfied in this case. The
particular public controversy surely existed prior to the publication of
the allegedly defamatory statements. The controversy over the
nation’s preparedness for bioterrorist attack existed years before The
New York Times published Kristof’s columns, and it was this very
topic on which Dr. Hatfill centered his entire career. In addition, the
controversy heightened with the investigation into the anthrax attacks
themselves, which began in the fall of 2001, more than six months
before Kristof’s columns appeared, and Dr. Hatfill himself used the
attacks as a platform from which to intensify his message about
national unpreparedness, thus satisfying the final requirement — that
he "retained public-figure status at the time of the alleged defama-
tion." Foretich, 37 F.3d at 1553.
We therefore conclude that Dr. Hatfill meets the criteria for classi-
fication as a public figure for the limited purpose of the controversy
regarding the bioterrorism threat and the nation’s preparedness for a
bioterrorist attack, with the anthrax attacks as but an example of that
controversy.
III
As a limited-purpose public figure, Dr. Hatfill had to show, in
order to prevail on his defamation claim, that The New York Times
acted with actual malice in publishing the challenged columns, mean-
ing that the alleged defamatory statements had to be made with
knowledge that they were false or with reckless disregard of their fal-
sity, i.e., with a "high degree of awareness of [their] probable falsity."
Reuber, 925 F.2d at 714 (quoting Garrison, 379 U.S. at 74). More-
over, he had to "forecast evidence sufficient to prove actual malice by
clear and convincing evidence." Carr, 259 F.3d at 282 (emphasis
added). Dr. Hatfill did not make that showing.
In both counts for defamation, Dr. Hatfill asserted that Kristof’s
columns, as well as isolated statements within them, conveyed a spe-
cific defamatory meaning — the strong suggestion that Dr. Hatfill
was the anthrax mailer and therefore that he was a terrorist who com-
HATFILL v. NEW YORK TIMES 19
mitted murder. Therefore, to show actual malice Dr. Hatfill had to
show by clear and convincing evidence that Kristof either knew of the
falsity of this suggestion, i.e., he knew Dr. Hatfill did not commit the
anthrax mailings, or that Kristof had a "high degree of awareness" of
its probable falsity, again that Dr. Hatfill did not commit the anthrax
mailings. From our careful review of the record, we conclude that Dr.
Hatfill did not satisfy this burden.
Indeed, the record contains substantial evidence to support The
New York Times’ contention that Kristof actually believed that Dr.
Hatfill was the prime suspect. At the time that Kristof wrote his col-
umns, he knew from several sources that Dr. Hatfill fit the profile that
the FBI had developed and that he had been identified specifically by
the FBI as a suspect who should be investigated carefully. In conduct-
ing research for his columns, Kristof had reviewed many previously
published articles about Dr. Hatfill, which recounted that he had been
questioned by the FBI more than once; that he had voluntarily vacci-
nated himself against anthrax shortly before the mailings; that he had
access to labs where anthrax was stored; that he had knowledge about
anthrax’s use as a weapon; that he had strong views about the bioter-
rorism threat; that he had agreed that his "background naturally drew
the FBI’s attention"; that he had spoken frequently about possible
bioterrorism; and that he lost his security clearance after he failed a
polygraph test shortly before the mailings. In addition, Kristof
reviewed numerous documents, including Dr. Hatfill’s resume and
various reports, papers, and letters written by him describing his
knowledge of bioterrorism and biological weapons.
With these undisputed facts, no reasonable jury could find that
Kristof had a "high degree of awareness" that Dr. Hatfill was not the
anthrax mailer. Garrison, 379 U.S. at 74. As the district court found,
the evidence in this case "at best" reveals that 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." (Emphasis added).
Dr. Hatfill contends that because Kristof was warned that one of
his main sources, Dr. Barbara Rosenberg, was untrustworthy, and yet
still published his columns, we should find actual malice. But Dr.
Rosenberg was considered an expert in the field of biological weap-
20 HATFILL v. NEW YORK TIMES
ons and had been called upon by the FBI to discuss the anthrax inves-
tigation. Given Dr. Rosenberg’s background, there is no reason that
Kristof’s reliance on her statements constitutes actual malice, even
given the expressed disagreement of others with regard to her opin-
ions. Constitutional malice requires "much more than a failure to
exercise ordinary care" — it demands evidence of the "publication of
a completely fabricated story, or of one based entirely on an unveri-
fied anonymous telephone call; or publication where there are obvi-
ous reasons to doubt the veracity of the informant." Ryan v. Brooks,
634 F.2d 726, 732 (4th Cir. 1980) (emphasis added) (citing St. Amant,
390 U.S. at 732). Such was not the case here. We agree with the dis-
trict court’s conclusion that "based on all the information he had gath-
ered, Mr. Kristof had no reason to seriously doubt that [Dr. Hatfill]
could have been the anthrax mailer."
The allegations in Count II, listing discrete statements alleged to be
false, do not improve Dr. Hatfill’s arguments, because at bottom, Dr.
Hatfill still maintains that the discrete false statements in the columns
constituted defamation because they "tend[ed] to incriminate Dr.
Hatfill in the anthrax mailings." (Emphasis added). This is the same
defamatory message allegedly conveyed by the columns as a whole,
as alleged in Count I.
Accordingly, we affirm the district court’s judgments on Counts I
and II.
IV
Dr. Hatfill also contends that the district court erred in granting
summary judgment on his claim for intentional infliction of emotional
distress.
Under Virginia law, to recover for intentional infliction of emo-
tional distress, Dr. Hatfill had to prove that (1) "the wrongdoer’s con-
duct was intentional or reckless"; (2) "the conduct was outrageous and
intolerable"; (3) "there was a causal connection between the wrongdo-
er’s conduct and the emotional distress"; and (4) "the emotional dis-
tress was severe." Womack v. Eldridge, 210 S.E.2d 145, 148 (Va.
1974). When we had this case on the first appeal and reinstated Dr.
Hatfill’s claim for intentional infliction of emotional distress, we rec-
HATFILL v. NEW YORK TIMES 21
ognized that "if Dr. Hatfill "ultimately [could not] prevail on his defa-
mation claims because he [was] unable to satisfy [the] constitutional
requirements for recovery, then he likely [would] be unable to prove
that The Times’ misconduct was intentional or reckless or that such
misconduct was sufficiently outrageous to warrant recovery" for
intentional infliction of emotional distress. Hatfill, 416 F.3d at 336-
37.
On remand, the district court concluded that because Dr. Hatfill
"failed to satisfy his burden of showing" that The New York Times
"act[ed] with malice when it published Kristof’s columns," he also
had failed to produce enough evidence to be able to convince a rea-
sonable jury that The New York Times had either "intentionally or
recklessly caused him severe emotional distress" or that its conduct
was otherwise "sufficiently outrageous" to support liability for inten-
tional infliction of emotional distress. We agree and affirm the district
court’s conclusion.
V
Finally, as an overarching claim, Dr. Hatfill contends that the dis-
trict court erred in granting summary judgment to The New York
Times in light of The Times’ refusal to comply with the district
court’s order that it disclose its sources. We find the argument unper-
suasive.
Dr. Hatfill’s argument is based on a non sequitur. Simply because
The New York Times refused to comply with the district court’s order
that it disclose its sources does not mean that The Times was pre-
cluded an award of summary judgment. The district court, in its dis-
cretion, sanctioned The Times for refusing to comply with the order,
precluding it from referring to, relying on, or entering into evidence
the existence of the two confidential sources that were not disclosed
or the information they provided to Kristof. Dr. Hatfill does not sug-
gest that The New York Times’ motion for summary judgment vio-
lated that sanction.
Thus, Dr. Hatfill can only be challenging the adequacy of the sanc-
tion itself. But the district court exercised its discretion to impose a
penalty that would "ameliorate [the] prejudice" to Dr. Hatfill "without
22 HATFILL v. NEW YORK TIMES
resorting to overly drastic measures given the nature of this case," and
therefore restricted The Times’ ability to refer to the sources for evi-
dence. We conclude that the sanction imposed by the district court did
not amount to an abuse of discretion, and therefore we reject Dr. Hat-
fill’s argument. See Southern States Rack & Fixture, Inc. v. Sherwin-
Williams Co., 318 F.3d 592, 595 (4th Cir. 2003) (noting standard of
review).
The judgment of the district court is accordingly
AFFIRMED.