November 4, 2013

Lawyers for two Boston-area residents depicted under the New York Post headline “Bag Men” in the aftermath of the April Boston Marathon bombings last week continued a heated legal brawl with the newspaper’s attorneysas part of a libel claim filed in June. The crux of the fight hovers over whether the New York Post’s treatment of the men, Salaheddin Barhoum and Yassine Zaimi, amounted to defamation. The New York Post says no; the story was accurate and the headline was nothing more than a play on words, argued the paper’s attorneys in a flurry of court filings in recent months.

The paper has conceded, however, that Barhoum and Zaimi have received more public attention than they’d bargained for.

The April 18, 2013, edition of the New York Post hit the streets just as authorities were pursuing a manhunt for the perpetrators of the April 15 bombings near the marathon’s finish line. In the intervening days, amateur Internet sleuths had taken to examining photos of relevant areas and attempting to identify suspicious-looking people. Federal and local law enforcement authorities poked through a lot of the same material, much of it posted online via social media.

Barhoum and Zaimi, 16 and 24 when they filed their complaint, carried athletic gear in their duffel bags on the day of the bombings. They watched the race from the finish line but left the area before the blasts; they found out about blasts on television later in the day. As the complaint states, they had “nothing whatsoever to do with the bombing.”

Yet the New York Post fixated on them. In addition to the now-famous headline, the cover broadcast this sub-headline: “Feds seek this duo pictured at Boston Marathon.” An inside headline read, “FEDS HAVE 2 MEN IN SIGHTS”; it sits above additional photos of Barhoum and Zaimi. The front-page presentation, argues the complaint against the New York Post, “unambiguously stated and/or implied that plaintiffs were involved in causing the Boston Marathon bombing.”

As laid out in court documents over recent months, the New York Post’s response to the suit consists of the following arguments:

*The newspaper placed important caveats in the story. In a memo to support its motion to dismiss the case, lawyers for the New York Post highlight this sentence in the original report: “There is no direct evidence linking [the two men] to the crime but authorities want to identify them.”

*The report was true. The New York Post argues that the e-mail on which it based the story was legitimate. In an exhibit to a filing, the paper even reproduced the e-mail:






Argues a brief for the New York Post: “The plaintiffs allege that the statements that law enforcement were circulating photos and seeking to identify them are false because, according to plaintiffs, they were not being sought by law enforcement’ and the Post ‘had no basis whatsoever to suggest that they were.’…But the plaintiffs are plainly wrong, and one need look no further than the law enforcement e-mail the article quotes to see that they are wrong.”

Attorneys for Barhoum and Zaimi take issue with that defense. The e-mail, they argue, shows not that the authorities were “seeking” the two people pictured on the front of the New York Post. “It only states that photos were being circulated ‘

    in an attempt to identify

the individuals highlighted therein

.'” (Emphases in original). There’s a world of difference between trying to ID someone and “seeking” someone, the plaintiffs contend. “This difference is especially important in the context of an ongoing manhunt,” reads the brief.

*No perp implications. The Post contends that the “article cannot reasonably be read to state or imply that the plaintiffs were the perpetrators of the bombing or were suspects in the crime; much less does it ‘affirmatively suggest that the author intends or endorses’ that conclusion.” This argument rests heavily on caveats in the story that said authorities had identified “potential suspects” and that there was no “direct evidence” linking the men to the bombings. Those details, of course, came in much smaller type than the headline, “Bag Men,” and the sub-headlines.

*Don’t belabor the headline. Lawyers for Barhoum and Zaimi argue in their initial complaint that “Bag Men” had more than one entrendre. First off, reports following the blasts suggested that the bombs were carried in duffel bags or backpacks, just the accessories that Barhoum and Zaimi used in the photographs. Also, “Bag Men” itself is a term that packs criminal meaning.

Never mind, argues the Post. “A headline is ‘commonly understood to function primarily as an attention-getter,'” notes a brief for the defendants, referring to a 1988 case, Fudge v. Penthouse Intl., “and that is certainly true of the Post’s headlines in general and this headline in particular.” The argument to disregard the headline goes deeper into nothing-to-see-here territory: “Taken in context, the headline in this case was obviously nothing other than a play on words,” states the brief.

*No big deal. Here’s the crux of the defendants’ response:

In the final analysis, all that plaintiffs ultimately have to say by way of complaint is that the Post printed a large headline that brought more attention to them than they believe was warranted, and that readers who jump to conclusions might have jumped to a wrong one — at least until they realized a day later that they were wrong.

A media critic couldn’t ask for a purer distillation of the New York Post’s ethic: How dare those readers reach the very conclusion to which our suggestive headline and photograph led them? And sorry if our publication showers on them more attention than they expected for attending a marathon.

The documents’ most significant contribution to the “Bag Men” case is clearly the e-mail on which the New York Post relied in publishing its story. It establishes that the New York Post based its story on something. That said, the document hardly bears the imprint of a sturdy legal defense. It appears to be a routine request for information, not a high-priority document in a fevered investigation. Furthermore, the e-mail appears to be the only piece of reporting that supports the New York Post’s story. “They have not disclosed any additional information regarding the basis of their story,” says C. William Barrett, Zaimi’s attorney.

The question that hangs over the entire proceeding springs directly from the defense mustered by the paper’s attorneys: If the New York Post wasn’t seeking to make the slightest allegation about the Barhoum and Zaimi’s status as suspects or perpetrators in the bombings, why did it place them on the cover of the New York Post?

 

The filings can be found here.

Erik Wemple writes the Erik Wemple blog, where he reports and opines on media organizations of all sorts.
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