New York Trial Court Rejects Imam’s Libel Claim

Rashada v. New York Post (N.Y. trial court, Aug. 11, 2011), involved a libel claim brought by Melody Rashada against the New York Post and op-ed author Patrick Dunleavy based on what seems to be this article. The article focused on four Muslim terrorism suspects, and asked how they “were radicalized to the point where they’d even consider plotting to bomb synagogues in The Bronx and shoot down aircraft with missiles.” The article went on to say:

What stands out is the prison connection. All four defendants were former inmates. More important, all three imams at the mosque in Newburgh that the defendants attended after being released from prison had a connection with the prison system. Imams Salahuddin Muhammad, Hamin Rashada and Melody Rashada worked for the Department of Correctional Services. All had been hired by Warith Deen Umar — who for years headed ministerial services for the New York state prison system.

Rashada argued that this language, plus the title of the op-ed (“Converts to Terror: The Prison Chaplain Problem”), was defamatory. But the court disagreed, concluding that the suggestion of a possible connection between the chaplains and the terrorism suspects’ radicalization was nonactionable opinion and speculation, rather than a factual assertion (which could be libelous if false). “The article is painly intended to raise issues, rather than convey specific, objective facts about Rashada’s role in the radicalization of inmates…. [T]he article does not make any definitive accusations against Rashada, but rather the article suggests that the connection between the former inmates and the mosque should be investigated.”

I think this is probably right, because the op-ed was drawing an inference from accurately stated facts, rather than asserting that the author knows some undisclosed facts that support the implication he’s trying to draw. Here’s what the Restatement (Second) of Torts § 566 says about this general issue:

There are two kinds of expression of opinion. The simple expression of opinion, or the pure type [which is privileged against liability -EV], occurs when the maker of the comment states the facts on which he bases his opinion of the plaintiff and then expresses a comment as to the plaintiff’s conduct, qualifications or character….

The second kind of expression of opinion, or the mixed type, is one which, while an opinion in form or context, is apparently based on facts regarding the plaintiff or his conduct that have not been stated by the defendant or assumed to exist by the parties to the communication. Here the expression of the opinion gives rise to the inference that there are undisclosed facts that justify the forming of the opinion expressed by the defendant. To say of a person that he is a thief without explaining why, may, depending upon the circumstances, be found to imply the assertion that he has committed acts that come within the common connotation of thievery [and lead to liability -EV]….

Illustration 3. A writes to B about his neighbor C: “I think he must be an alcoholic.” A jury might find that this was not just an expression of opinion but that it implied that A knew undisclosed facts that would justify this opinion.

4. A writes to B about his neighbor C: “He moved in six months ago. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio listening to a news broadcast, and with a drink in his hand. I think he must be an alcoholic.” The statement indicates the facts on which the expression of opinion was based and does not imply others. These facts are not defamatory and A is not liable for defamation….

The New York Post article, read in context, seems to be analogous to illustration 4. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.