UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

(Alexandria Division)


STEVEN J. HATFILL,
Plaintiff,

v.

THE NEW YORK TIMES COMPANY

Serve: Secretary of the Commonwealth
830 East Main Street, 14th Floor
Richmond, Virginia 23219
and

NICHOLAS KRISTOF


Serve: Secretary of the Commonwealth
830 East Main Street, 14th Floor
Richmond, Virginia 23219
Defendants.

COMPLAINT

Preliminary and Jurisdictional Statement
1. This is a lawsuit for defamation over which this court has jurisdiction under 28 U.S.C. §1332, the parties being of diverse citizenship and the amount in controversy exceeding $75,000 exclusive of interest and costs.

Parties

2. Plaintiff Steven J. Hatfill is a medical doctor and researcher in the field of bio-terrorism formerly employed in Fairfax, Virginia. He is a citizen and resident of the District of Columbia and also maintains living quarters in Virginia.

3. Defendant The New York Times Company ("the Times Company" or "the company") is a media enterprise which, among other things, publishes The New York Times ("The Times"), a daily newspaper. Its principal place of business is New York City. It actively solicits readers and subscribers in the state of Virginia, delivers The Times to many homes and businesses in Virginia, sells The Times in numerous commercial outlets in Virginia, and generally avails itself of the business opportunities available to it in Virginia.

4. Defendant Nicholas Kristof is a journalist whose work appears regularly in The New York Times. On information and belief, he is an employee of the Times Company. In regard to the matters here at issue, defendant Kristof acted at all times as the company's authorized agent, whose actions here at issue were approved in advance and ratified after the fact by the company.
On information and belief he is a citizen of New York.

Claim for Relief

5. In the fall of 2001, anthrax-laced letters were sent through the United States mail to a variety of private and public parties, including two United States senators. As a result of the mailing and distribution of these letters, at least five persons died, the nation's postal service was severely disrupted, massive dislocations occurred within the federal government and throughout the country, and the population was terrorized.

6. Following the receipt of the anthrax letters, the federal government began an effort to identify the source of the anthrax and the identity of the person or persons who mailed it. This effort has been unsuccessful to date.

7. In the months following the anthrax attacks, defendant Kristof came to the view that the manner in which the government had been pursuing the anthrax case was grossly deficient. In his view, identifying the anthrax mailer was an urgent national security issue. He believed that it was imperative to prevent the perpetrator from escaping to some rogue state and helping its bio-terror program. Mindful of his status as a prize-winning and well established columnist in what is generally viewed as the country's most influential newspaper, he saw himself as particularly well suited to get the federal government to act in a responsible, rather than in what he viewed as a bumbling and plodding, manner.

8. To this end, beginning in May 2002, defendant Kristof undertook to bring an alleged culprit to the public eye in the pages of The Times. For defendant Kristof, this public identification of a designated suspect was to serve as a means to expedite the identification of the anthrax mailer, be it his designee or someone else. It was inconsequential to defendant Kristof whether it turned out that his designated culprit was guilty or innocent, how reckless his allegations and insinuations were, or how injurious they were to his victim. What was at issue, in defendant Kristof's view, was to help "light a fire" under the federal investigators so that they might prosecute their investigation more aggressively.

9. For his designated culprit, defendant Kristof selected an individual whose presumed political views and alleged past activities in white-ruled southern Africa, a decade and more before, were, as defendant Kristof well knew, markedly disfavored in contemporary American culture, and towards which he was personally hostile. Defendant Kristof correctly believed that it would be easier to garner support for his attack on his designated suspect if the latter were described in terms which would render him unappealing to most readers.

10. Specifically, on May 24, 2002, defendant Kristof published a column in The Times effectively accusing a then-unidentified person, in the mind of a reasonable reader, of having sent the anthrax letters. While defendant Kristof later confirmed that Dr. Hatfill was the subject of his May 24 column, this fact was not apparent from his May 24 column alone. Dr. Hatfill suffered no injury from the publication of the May 24 article alone.

11. On July 2, 2002, defendant Kristof wrote another column addressing the same issue. In this column, he saw fit to give Dr. Hatfill the pseudonym "Mr. Z." In his July 2 column, defendant Kristof stated that his accusations in his May 24 column were in reference to "Mr. Z." Defendant Kristof's description of "Mr. Z" was sufficiently detailed - albeit with inaccuracies as noted below - as to render "Mr. Z" readily recognizable as Dr. Hatfill, to the point that Marilyn Thompson, assistant managing editor for investigations at The Washington Post, later observed that defendant Kristof's descriptions of "Mr. Z" "read like Hatfill's biography." In an August, 2002 column, Mr. Kristof openly and voluntarily admitted that his "Mr. Z" was Dr. Hatfill.

12. Defendant Kristof wrote his columns in such a way as to impute guilt for the anthrax letters to Dr. Hatfill in the minds of reasonable readers.

13. When writing his accusatory articles about Dr. Hatfill, aimed as they were at federal decision-makers, defendant Kristof knew and relied on the fact that The Times was heavily marketed and sold in northern Virginia (as well as Washington, D.C. and Maryland inside the Capital Beltway). Defendant Kristof sought to target public and private figures, agencies and organizations resident in northern Virginia and centrally involved in the ongoing counter-terrorism campaign, including, without limitation: the Central Intelligence Agency, which agency had jurisdiction over foreign intelligence, including investigation of the "rogue states" and their bio-terror programs expressly warned against by defendant Kristof; many United States senators including one to whom an anthrax letter had been mailed, representatives and other high level government officials; the Pentagon; and numerous private firms which supported the government in relation to national security and bio-terrorism work, including specifically Science Applications International Corporation ("SAIC") located in Fairfax, where Dr. Hatfill had been working on biological counter-terrorism before being terminated in 2002 following the anthrax attacks. Targeting such Virginia readers within this spectrum of persons of knowledge, power and influence regarding issues of bio-terrorism was central to defendant Kristof's effort to "light a fire" under the government.

14. Copies of defendant Kristof's defamatory columns regarding Dr. Hatfill are attached hereto as Exhibit A, and their contents incorporated herein by reference. The articles as a whole, and in various specific statements describing Dr. Hatfill's background and work in the field of bio-terrorism, state or imply that Dr. Hatfill was the anthrax mailer. Those articles are written in such a way that they would induce a reasonable reader to deem Dr. Hatfill responsible for the anthrax mailings.

15. Defendant Kristof's transparent identification of Dr. Hatfill, under the name of "Mr. Z," as the likely anthrax mailer was baseless and false, and placed Dr. Hatfill in a woefully injurious false and defamatory light. Defendant Kristof identified Dr. Hatfill as the likely anthrax mailer and placed him in this false light in reckless disregard of whether his accusation to this effect was true, and merely in aid of his collateral purpose to "light a fire" under what he viewed as the government's desultory anthrax investigation, notwithstanding the devastating consequences of his actions for Dr. Hatfill.

16. In addition to identifying Dr. Hatfill wrongfully and baselessly with the anthrax mailings, defendant Kristof published numerous discrete false statements about him, defamatory on their face or in the context in which they appeared, in reckless disregard of whether what he wrote was true. Such statements include the following, among others:

a) the assertion that Dr. Hatfill "unquestionably had the ability to make first-rate anthrax."

b) the assertion that Dr. Hatfill had the "ability" to send the anthrax.

c) the assertion that Dr. Hatfill had the "access" required to send the anthrax.

d) the assertion that Dr. Hatfill had a "motive" to send the anthrax.

e) the assertion that Dr. Hatfill was one of a "handful" of individuals who had the "ability, access and motive to send the anthrax."

f) the assertion that Dr. Hatfill "had access" to an "isolated residence" in the fall of 2001, when the anthrax letters were sent.

g) the assertion that Dr. Hatfill "gave Cipro [an antibiotic famously used in the treatment of anthrax infection] to people who visited [the 'isolated residence']."

h) the assertion that Dr. Hatfill's anthrax vaccinations were "up to date" as of May 24, 2002.

i) the assertion that Dr. Hatfill "failed 3 successive polygraph examinations" between January 2002 and August 13, 2002.

j) the assertion that Dr. Hatfill "was upset at the United States government in the period preceding the anthrax attack."

k) the assertion that Dr. Hatfill "was once caught with a girlfriend in a biohazard 'hot suite' at Fort Detrick [where Dr. Hatfill had concededly worked] surrounded only by blushing germs."

17. With the exception of the last assertion, each of the foregoing statements, which were independently false and defamatory, was intended, and interpreted by reasonable readers, to provide support for the false and defamatory assertion and implication that Dr. Hatfill was guilty of committing acts of murder and terrorism by means of the anthrax letters. The final false and defamatory assertion ("k") was intended, and interpreted by reasonable readers, to convey the impression that Dr. Hatfill was unprofessional, irresponsible, a security risk, and of such character as to engage in dangerous, unlawful and outrageous misbehavior. These misstatements meaningfully shaped and altered reasonable readers' estimations of the likelihood of Dr. Hatfill's guilt in the matter. They were made by defendant Kristof in reckless disregard of the truth or falsity of both the statements themselves and the truth or falsity of the resulting conclusory assertion or implication of Dr. Hatfill's guilt.

18. At no time prior to the writing of his defamatory columns did defendant Kristof contact or seek input from Dr. Hatfill, whose whereabouts were at all times readily available to him. Even after Dr. Hatfill appeared on national television denouncing the defamation which had victimized him, defendant Kristof did not contact him before once again writing falsehoods about him, set forth in Exhibit A. Nor did defendant Kristof contact Dr. Hatfill's counsel, whose name and address became matters of public record at Dr. Hatfill's first news conference. Nor did defendant Kristof contact Dr. Hatfill's press spokesman, who repeatedly appeared on national television criticizing the character assassination of Dr. Hatfill.

19. Defendant Kristof's repeated failures to seek or obtain input from Dr. Hatfill were magnified by the fact that defendant Kristof was not writing about suddenly breaking news on deadline, but writing at his leisure over a period of weeks. His not soliciting available input from or on behalf of the available subject of his seriously accusatory pieces of journalism set forth in Exhibit A constituted palpably substandard and unethical journalism, in which defendant Kristof engaged in reckless disregard of his obligations as a journalist and of Dr. Hatfill's rights.

20. On information and belief, when writing about persons defendant Kristof uses their actual names rather than pseudonyms unless there is sufficient cause to use a pseudonym. In this case, he used a pseudonym for Dr. Hatfill because he knew that what he was writing was written in reckless disregard of the truth, and imagined, or was counseled, that using the pseudonym might help shield him from liability for defamation.

21. On information and belief The Times has a policy of using person's actual names when publishing pieces about them, rather than using pseudonyms, unless there is good cause to use a pseudonym. In this case there was no such cause other than the fact that defendant Kristof's columns were transparently defamatory towards Dr. Hatfill, and The Times imagined, or was counseled, that using the pseudonym might help shield it from liability for defamation. The Times knew or should have known that defendant Kristof's columns were in fact defamatory towards Dr. Hatfill.

22. At no relevant time has The Times held its columnists to a lower standard than its news reporters relative to not publishing defamatory material in the newspaper.

23. On information and belief, on the issue of truthfulness and defamation defendant Kristof does not hold himself to a lower standard as a columnist than he sets for himself or others as a journalist writing news stories rather than columns.

24. Defendant Kristof's columns were published by The Times without the newspaper's taking appropriate steps to satisfy itself regarding the accuracy or fairness of defendant Kristof's libeling of Dr. Hatfill. The Times simply gave defendant Kristof free rein to defame Dr. Hatfill as he saw fit in its pages, without requiring him to justify his damning insinuations and accusations internally or in print, and in reckless disregard of whether his accusations and insinuations were true or reasonably supported by evidence. On information and belief, individual journalists at The Times remonstrated vigorously, albeit to no avail, with defendant Kristof, but the company let him do as he pleased.

25. On information and belief, The Times' editorial and management staff exercised lackadaisical control over the publication of erroneous information in the newspaper's pages until at least mid-2003, when numerous articles published in The Times were exposed as sheer fabrications. At this time the paper fired or caused the resignations of numerous writers and editors and instituted new procedures, including the designation of a "public editor" or ombudsman, intended to enhance the integrity of what appeared in its pages.

26. More recently, The Times, through its editorial staff and its public editor, has acknowledged that the newspaper's coverage of related biological warfare issues was "not as rigorous as it should have been," including the publication of information that was "insufficiently qualified or allowed to stand unchallenged." The Times' editors have publicly conceded that "Editors at several levels who should have been challenging reporters and pressing for more skepticism were perhaps too intent on rushing scoops into the paper." The newspaper's public editor has found "institutional failures" leading to credulous and inaccurate reporting, including: "the hunger for scoops," "hit and run journalism," "coddling sources" and inadequate, "end-run" editing. All these problems characterized The Times' review and control of defendant Kristof's defamatory pieces regarding Dr. Hatfill.

27. Defendants published the false and defamatory material regarding Dr. Hatfill in reckless disregard of its truth or falsity.

28. At the time of the publication of defendant Kristof's "Mr. Z" articles, The Times considered itself the nation's newspaper of record, and was generally recognized as the most prominent and influential daily newspaper in the country.

29. The publication of defendant Kristof's repeated defamation of Dr. Hatfill by The Times gave rise to severe notoriety gravely injurious to Dr. Hatfill. The injury to Dr. Hatfill's reputation was all the more severe given the status and journalistic clout of The Times.

30. By reason of the presumptively authoritative nature of information published in The Times, defamation of Dr. Hatfill paralleling that of defendants' was thereafter repeatedly published by a host of print and on-line publications and on the television and radio news. This republication, duly and reasonably anticipated by defendants given the conceded prominence of The Times, continued for a period of months.

31. On August 13, 2002, counsel for Dr. Hatfill sent a letter to the editor of The Times, intended for publication, in an effort to mitigate some of the harm that had befallen Dr. Hatfill as a result of defendants' actions. The letter is attached hereto as Exhibit B.

32. The Times rejected counsel's letter as "too long."

33. Counsel thereupon recast his letter as an op-ed article, and submitted it a second time to The Times.

34. The Times rejected the op-ed article on the alleged ground that "it is a response to a column and would therefore have to be considered a letter."

35. Counsel thereupon sent his August 13, 2002 letter to defendant Kristof, requesting that he publish it in his next column, followed by whatever he, Kristof, saw fit.

36. Defendant Kristof replied that "the place to publish a letter is either in the letters columns or on the op-ed page."

37. Neither counsel's letter, nor any portion thereof or reference thereto, was ever published in The Times. Rather, in an editorial dated August 14, 2002, The Times, studiously ignoring the damage it and its journalist had caused, purported to bemoan any process of "assuming [Dr. Hatfill] is guilty before he is charged," even as the editorial repeated defendant Kristof's insinuations and stated that "The public scrutiny [of Dr. Hatfill] is legitimate." In an article published on August 26, 2002, The Times' editorial page editor Gail Collins further responded to Dr. Hatfill's criticisms by stating: "We have confidence in our columnists."

38. Defendant Kristof knowingly and recklessly traded off Dr. Hatfill's good name in return for his, Kristof's, private aggrandizement as the one who allegedly "lit a fire" under the federal investigation into the anthrax mailings. This defamatory trade-off, accomplished in derogation of Kristof's elementary obligations of professionalism and fairness as a journalist, was malicious, willful and oppressive, to Dr. Hatfill's great detriment. Defendant Kristof's intentional, knowing and cynical public campaign of subordinating Dr. Hatfill's good name, reputation and well being to his, Kristof's, private vigilante agenda was calculated to inflict severe emotional distress upon Dr. Hatfill, which it did.
39. Defendant The New York Times Company knowingly and recklessly suffered defendant Kristof repeatedly to publish defamation of Dr. Hatfill in the pages of The Times without regard to the truth or falsity of what defendant Kristof had written, following which it refused Dr. Hatfill's counsel an opportunity fairly to correct the record and editorially encouraged an ongoing journalistic feeding frenzy at Dr Hatfill's expense by noting, that "The public scrutiny [of Dr. Hatfill] is legitimate." In fact, The Times knew but recklessly disregarded the fact that while discreet governmental scrutiny of all bio-weapons experts, including Dr. Hatfill, was appropriate, "public scrutiny,"to say nothing of public innuendo or accusations such as defendant Kristof's against Dr. Hatfill were inimical to an orderly and effective governmental investigation of the anthrax letters.

40. As a result of defendants' defamation here at issue, Dr. Hatfill has suffered severe and ongoing loss of reputation and professional standing, loss of employment, past and ongoing financial injury, severe emotional distress and other injury.

41. On or about June 18, 2003, Dr. Hatfill filed suit stating the claims here at issue against these defendants in Fairfax County Circuit Court. That lawsuit was nonsuited by order dated March 9, 2004. The instant case is filed within all relevant statutory periods of limitation.


Causes of Action

Count I: Defamation; Defamation per se: Identification of Dr. Hatfill As Anthrax Mailer

42. Defendants' false and reckless public identification 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 the "Mr. Z" 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. This identification of Dr. Hatfill with the anthrax mailer constituted, separately, defamation and defamation per se.

Count II: Defamation; Defamation Per Se: Discrete Untruths

43. Each of defendants' discrete false and reckless allegations enumerated in 16 of this complaint, constituted defamation and defamation per se, that, in the mind of a reasonable reader, would tend to incriminate Dr. Hatfill in the anthrax mailings, to his enormous detriment.

Count III: Intentional Infliction of Emotional Distress

44. Defendant Kristof's intentional public identification of Dr Hatfill with the anthrax murders regardless of whether Dr. Hatfill was guilty or innocent, and expressly for the collateral purpose of "lighting a fire" under the governmental investigation of the anthrax letters, was unconscionable, malicious, intentional, and calculated to inflict grievous emotional distress upon Dr. Hatfill, which it did. Defendant New York Times Company is liable for this tort and its consequences under the theories of respondeat superior, agency, or both.


Relief Requested

Wherefore, Dr. Hatfill requests judgment against defendants, jointly and severally, for his actual damages and for punitive damages in amounts appropriate to the proof at trial, for his costs, and for such other relief as is just.
Dr. Hatfill requests trial by jury.
Respectfully submitted,

STEVEN J. HATFILL,

By counsel

Dated: July ___, 2004

Counsel for plaintiff:

_______________________________
Victor M. Glasberg, #16184
Victor M. Glasberg & Associates
121 S. Columbus Street
Alexandria, VA 22314