Son of Palestinian Authority President Loses Libel Lawsuit

The decision is Abbas v. Foreign Policy Group, LLC (D.D.C. Sept. 27, 2013); the defendants were the company that publishes Foreign Policy magazine and Jonathan Schanzer, the VP for Research at the Foundation for Defense of Democracies. An excerpt:

Mr. Abbas contends that the Commentary poses two “libelous questions:” (1) “Are the sons of the Palestinian president growing rich off their father’s system?; and (2) “Have they enriched themselves at the expense of regular Palestinians — and even U.S. taxpayers?” Mr. Abbas alleges that these questions “may be read as assertions of false fact that [he] is wrongfully and possibly criminally getting rich off his ‘father’s system.’” Purportedly, these questions ask “those he works with and all the world to wonder if plaintiff has ‘enriched’ himself ‘at the expense of regular Palestinians — and even U.S. taxpayers.’” Defendants argue that “the Commentary merely posed questions, without stating or implying as factual matter that Plaintiff was guilty of criminal or corrupt conduct, and Plaintiff has wholly mischaracterized the Commentary in an effort to suggest otherwise.”

A statement challenged as defamatory, regardless of whether it is posed as a question, cannot be libelous unless it can reasonably be read as a false assertion of fact. “[I]nquiry itself, however embarrassing or unpleasant to the subject, is not accusation.” …

[T]he two questions posed in the Commentary cannot reasonably be read to imply the meaning that Mr. Abbas alleges — that he “is wrongfully and possibly criminally getting rich off of his ‘father’s system’ ” or that he is enriching himself “at the expense of regular Palestinians and even U.S. taxpayers” — or can they be read to imply the assertion of objective facts. Though the conclusions Mr. Abbas draws are possible answers to the questions posed by Mr. Schanzer, the questions invite the reader to form her own judgments regarding the relationship between Mr. Abbas’s family ties and his admittedly great wealth. The reader could arrive at a number of different conclusions, a fact that Mr. Abbas acknowledges in his own complaint. See Compl. ¶ 49 (alleging that the Commentary asks “those he works with and all the world to wonder if plaintiff has ‘enriched’ himself at the expense of ‘regular Palestinians — and even U.S. taxpayers’ ”). That Mr. Abbas would prefer that readers do not answer the questions in the affirmative is not sufficient to support his defamation claim. Indeed, the invitation in the Commentary for the reader to form her own opinion is not libel, rather it “is the paradigm of a properly functioning press.” …

Even if the two questions posed by Mr. Schanzer were capable of defamatory meaning, they are statements of opinion protected by the First Amendment because they do not contain a provably false connotation. Where the factual basis for a conclusion is outlined in the article, or, as is the case here, for the questions, those statements are protected by the First Amendment. See Moldea v. New York Times Co., 22 F.3d 310, 318 (D.C. Cir. 1994) (holding that where “the readers understand that [ ] supported opinions represent the writer’s interpretation of the facts presented, and because the reader is free to draw his or her own conclusions based upon the facts, this type of statement is not actionable in defamation”)….

First, the rhetorical questions in the Commentary are supported by facts provided in article as well as hyperlinked source material in the form of articles in other publications, company websites, and interviews given by the plaintiff. All of this serves to put the reader on notice that the piece is one of opinion. Second, … the Commentary appeared in the “Arguments” section of the FP website. That page is described as “[p]olemical, controversial, and powerful,” and aims to provide “timely insight on stories making headlines around the world.” It is reasonable to assume that the “Arguments” section of FP is one in which readers expect to find analytical and opinionated pieces that reflect a particular viewpoint. See, e.g. Moldea, 22 F.3d at 313 (noting that a book review is a “forum in which readers expect to find such evaluations” of a literary work).

Moreover, writing like that in the Commentary is “[a]t the heart of the First Amendment,” which recognizes the “fundamental importance of the free flow of ideas and opinions on matters of public interest and concern.” This recognition has been vigorously upheld in the District of Columbia:

If the First Amendment’s guarantees of freedom of speech and of the press are to ensure that these rights are meaningful not simply on paper, but also in the practical context of their exercise, then a[n] Op–Ed column discussing a subject of public interest must surely be accorded a high level of protection, lest the expression of critical opinions be chilled. This is so because “[t]he reasonable reader who peruses [a] column on the editorial or Op–Ed page is fully aware that the statements found there are not ‘hard’ news like those printed on the front page or elsewhere [in the magazine]. Readers expect that columnists will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere in the [magazine].”

Guilford Transp. Industries, Inc. v. Wilner, 760 A.2d 580, 582–83 (D.C.2000)….

While there is no “wholesale exemption from liability in defamation for statements of ‘opinion,’ ” the purportedly libelous questions at issue do not “imply a provably false fact, or rely upon stated facts that are provably false.” Therefore, for this additional reason, Mr. Abbas’s defamation claim based on these questions in the Commentary must fail.

[Footnote: … Mr. Abbas’ libel claim arising from the rhetorical questions posed in the Commentary also fails on the basis of the District’s Fair Comment Privilege. “The District of Columbia has long recognized and accorded the media the privilege of fair comment on matters of public interest” as long as the opinions are based on true facts. The privilege affords “legal immunity for the honest expression of opinion on matters of legitimate public interest when based upon a true or privileged statement of fact.” In the District of Columbia, the fair comment privilege is applicable “even if the facts upon which [the opinion] is based are not included along with the opinion.”

Here, it is undisputed that the issue of corruption in the Palestinian Authority is one of public interest. The allegedly “libelous questions” are posed by Mr. Schanzer in the context of an article that generally discusses that issue in the context of an article about whether the sons of President Abbas are benefiting from their family connections. Hyperlinks to the underlying information upon which Mr. Schanzer is reporting are provided in the online version of the article. Mr. Schanzer’s questions, which he does not conclusively answer, are his interpretation of those underlying facts, an action which is protected by the Fair Comment Privilege.] …