A Massachusetts judge has denied an effort by lawyers for the New York Post to secure a dismissal of the libel action filed against the paper last June by two young men who were identified as “BAG MEN” on the cover during the manhunt for the Boston Marathon bombers. The cover treatment (see right) was a classic tabloid play on words, considering reports that the bombers had carried explosive devices to the site of the marathon in backpacks or duffel bags.
The image of then-16-year-old Salaheddin Barhoum and 24-year-old Yassine Zaimi, residents of Revere and Malden, Mass., respectively, had been shared on social media sites as Internet sleuths attempted to solve the bombings. It went from the Web to the front page of the New York Post, which augmented the effect with an article stating that investigators “are circulating photos of two men spotted chatting near the packed finish line.” The New York Post had procured an e-mail to that effect in the course of its reporting on the bombings. Placing such information alongside the April 18 “BAG MEN” headline, said the complaint in the case, amounted to trouble:
The plaintiffs were not suspects and were not being sought by law enforcement. The Post had no basis whatsoever to suggest that they were, especially in light of a warning on Wednesday to the news media, by federal authorities, to exercise caution in reporting about this very matter. In fact, law enforcement authorities had then focused their investigation on two suspects who were not the plaintiffs.
In its defense, the New York Post claimed that “a reasonable reader could understand it as saying no more than the truth: that law enforcement officials were seeking to identify the individuals in the photos,” in the abridgment of Judge Judith Fabricant. To restate the matter in layman’s terms: Despite the “BAG MEN” headline, the New York Post argued that readers would think that the authorities were merely a touch curious about the fellows in the picture — not that they suspected them of wrongdoing.
This whole notion Fabricant destroyed, writing, “The Court is not persuaded. To the contrary, in the court’s view, a reasonable reader could construe the publication as expressly saying that law enforcement personnel were seeking not only to identify the plaintiffs, but also to find them, and as implying that the plaintiffs were the bombers, or at least investigators so suspected.”
As Fabricant’s 20-page decision wears on, so does the hurt visited on the New York Post. Against the backdrop of media reports that the assailants had used duffels to carry their weapons, writes the judge, “the cover headline ‘BAG ME’” in large capital letters across a photograph of the plaintiffs carrying bags, could fairly have been understood to imply that their bags were the ones that had transported the bombs.” And the judge all but laughed off the disclaimer on the cover, in small print, saying, “there is no direct evidence linking them to the crime, but authorities want to identify them.” “[T]his disclaimer,” she wrote, “even if a reader noticed it amidst the much larger headlines…would have accomplished little to dispel the overall impact of the publication.”
Another argument batted away in the decision was the New York Post’s contention that the plaintiffs would have suffered a loss of reputation only among readers who knew them — and that those people would have read the story carefully enough to reach the narrow and less explosive interpretation of the piece that the New York Post says it intended. Then why did Zaimi’s boss call the FBI about him? asks the judge.
Fabricant devotes a fair amount of detail as to whether an e-mail among law-enforcement authorities — which is the entire basis of the New York Post’s report — qualifies for the fair report privilege, which gives news outlets a wide berth in passing along information on official actions. The decision doesn’t reach a firm conclusion on whether the e-mail qualifies; however, it does state outright that the New York Post’s reporting on it was not “fair and accurate.” Again, the judge cites the inflammatory headline and other aspects of the “BAG MEN” drama.
Comforting that a judge finds backing in a web of legal precedent for exactly what any rational person would have concluded from the New York Post’s cover and article: That they framed these young men as bad actors. Fabricant did throw out two privacy counts in the lawsuit but left intact — very much intact — the bulk of the complaint.
Pursuant to the judge’s order, the litigation will plow ahead, at least as long as the New York Post resists offering a generous settlement.