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Alharbi v. TheBlaze, Inc.

United States District Court, D. Massachusetts

August 9, 2016

ABDULRAHMAN ALHARBI, Plaintiff,
v.
THEBLAZE, INC.; GLENN BECK; MERCURY RADIO ARTS, INC.; and PREMIERE RADIO NETWORKS. INC.; Defendants.

          MEMORANDUM AND ORDER

          PATTI B. SARIS Chief United States District Judge

         INTRODUCTION

         Plaintiff Abdulrahman Alharbi is a twenty-three-year-old student from Saudi Arabia, who resides in Revere, Massachusetts. He was a spectator at the Boston Marathon on April 15, 2013, was injured in the bombing, and was questioned by federal authorities investigating the event while he was still being treated for his injuries at Brigham and Women’s Hospital. Plaintiff brings this suit against radio and television commentator Glenn Beck, and the owners and distributor of The Glenn Beck Show, for defamation (Count I) and unjust enrichment (Count III) because Beck identified Alharbi as an active participant in the bombing, even after the authorities had publically exonerated him. The plaintiff also brings a claim against Glenn Beck for punitive damages (Count II). Between April 19, 2013 and May 8, 2013, Beck stated in radio broadcasts that Alharbi was involved in recruiting the Tsarnaev brothers, gave the “go order” for the bombing, and was the “money man” who funded the attacks.

         The defendants maintain that the statements were true, and that they relied on several confidential government sources in developing the broadcasts. The plaintiff has moved to compel the identity of the confidential sources (Docket No. 78), and the defendants have moved for summary judgment (Docket No. 97).

         Alharbi argues that the confidential source information is directly relevant to his claims, and cannot otherwise be determined from a less sensitive source. The defendants respond that the motion to compel is untimely, and that the sources’ identities are protected by a qualified privilege under the First Amendment.

         The defendants contend that they are entitled to summary judgment because the plaintiff has not met his burden to put forward evidence of negligence or malice. The defendants maintain that Alharbi is a limited-purpose public figure, and/or an involuntary public figure, and therefore must prove that the defendants acted with knowledge that the statements were false, or with reckless disregard as to their truth or falsity, under the constitutional malice standard. The plaintiff maintains that he is not a public figure. After hearing, the Court ALLOWS in part and DENIES in part both the motion to compel the identity of the confidential sources and the motion for summary judgment.

         UNDISPUTED FACTS

         With all reasonable inferences drawn in favor of the nonmoving party, Alharbi, the following facts are not in dispute, except where noted.

         I. The Boston Marathon Bombing

         The plaintiff is a citizen of Saudi Arabia. On April 15, 2013, he was a twenty-year-old student at the New England School of English, living in Revere, Massachusetts. He attended the Boston Marathon as a spectator to watch the event.[1] He was injured when two bombs exploded near the marathon finish line, and he was transported to Brigham and Women’s Hospital in an ambulance. At the hospital, he was treated for burn injuries on his back and leg. The defendants contend that Alharbi’s burns were “superficial and required no treatment.” Grygiel Decl., Docket No. 110, ¶ 128, Ex. 40, at 115. He was discharged from the hospital five days later on April 20, 2013.

         Law enforcement, including agents from the Federal Bureau of Investigation (FBI), questioned the plaintiff immediately upon his arrival at the hospital, and collected fingerprints and a DNA sample from him. The plaintiff consented to a search of his apartment in Revere, which took place at 11:00 pm on April 15. The defendants learned from confidential sources that law enforcement officials from the FBI, Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), the Massachusetts State Police, and the Boston Police identified the plaintiff as a person of interest, a subject, and a target of their investigation into the Boston Marathon bombing. On April 15 and 16, several other news organizations, such as Fox News and the New York Post, published online articles reporting that the plaintiff was a “person of interest” and a “potential suspect.” Id. ¶ 4.

         II. Secretary Napolitano’s Testimony

         On April 23, 2013, then-Secretary of Homeland Security Janet Napolitano testified before Congress at a Senate Judiciary Committee hearing on comprehensive immigration reform. As part of her testimony, she discussed the Boston Marathon bombing. In response to a question from Senator Grassley about “a Saudi student who reportedly was on a terrorist watch list, ” Secretary Napolitano replied:

He was not on a watch list. What happened is this student was-really, when you back (ph) it (ph), he was in the wrong place at the wrong time. He was never a subject. He was never even really a person of interest. Because he was interviewed, he was at that point put on a watch list. And then, when it was quickly determined he had nothing to do with the bombing, the watch listing status was removed.

Transcript of Secretary Napolitano’s Testimony, Haley Decl., Docket No. 109, Ex. C, at 89. The plaintiff contends that her “testimony is consistent with the way [he] was treated by the government and what happened to [him] at the Boston Marathon.” Alharbi Aff., Docket No. 107, ¶ 16. In contrast, the defendants maintain that Secretary Napolitano’s testimony was not “truthful and accurate, ” based on conversations they had with confidential sources, including congressional staff. Docket No. 121, at 85.

         III. Beck’s Allegedly Defamatory Statements

         Between April 19 and May 8, Beck repeatedly identified Alharbi as being involved in the Boston Marathon bombing on his radio program, broadcasted on TheBlaze network. On April 19, Beck stated that Alharbi was a “very, bad, bad, bad man.” Beck Decl., Docket No. 112, Ex. 3, at 66. The plaintiff alleges that he further stated that Alharbi was involved in “blowing the legs off of our citizens, ” while the defendants contend that this statement did not refer to the plaintiff. Id. at 65.

         On April 22, Beck stated that Alharbi was one of three people involved in the attacks-along with the Tsarnaev brothers- and that Alharbi’s “clan is heavy with Al Qaeda links.” Beck Decl., Docket No. 112, Ex. 4, at 72. Beck further stated that he believed Alharbi’s “mission was to recruit fighters that are already in the country, ” and that “[o]nce he recruits, that he could fund and provide the go order when the time came.” Id. at 72-73. He explained that the Tsarnaev brothers “would’ve been easy targets for an Al Qaeda recruiter, ” and that “Al-Harbi would’ve jumped at it.” Id. at 73. Finally, he said that Alharbi had been “tagged” as a “proven terrorist, ” because Alharbi was allegedly designated as a person who has engaged or “is likely to engage” in terrorist activity in the United States under § 212(a)(3)(B)(i)(II) of the Immigration and Naturalization Act (INA), 8 U.S.C. § 1182(a)(3)(B)(i)(II). Beck Decl., Docket No. 112, Ex. 4, at 71. According to the defendants, this designation occurred shortly after the bombing on April 16.

         On April 24, after Secretary Napolitano testified before Congress, Beck continued to say that Alharbi was involved in the Boston Marathon bombing. He referred to Alharbi as “the worst of the worst, ” again due to the § 212(a)(3)(B) designation. Beck Decl., Docket No. 112, Ex. 5, at 78. On April 25, Beck appeared on the Bill O’Reilly Show on Fox News, and reiterated that Alharbi was designated as a terrorist, who was “armed and dangerous, ” according to government documents he received from confidential sources. Id. Ex. 6, at 87.

         On May 1, Beck stated on TheBlaze, that he didn’t know how Alharbi was involved in the attacks, “but he’s involved.” Id. Ex. 7, at 96. Finally, on May 8, Beck stated that Alharbi was “the money man, ” “the guy who actually paid for it.” Id. Ex. 8, at 99. When asked whether the statement that Alharbi funded the attacks was “speculation, ” “reporting, ” or “somewhere in between, ” Beck simply repeated, “He’s the money man.” Id. at 100.

         IV. Confidential Sources

         The plaintiff deposed Beck on February 17, 2016, and Beck identified Joel Cheatwood and Joe Weasel as persons with knowledge of the sources the defendants relied on for the broadcasts about Alharbi’s involvement in the Boston Marathon bombing. Cheatwood was TheBlaze’s President and Chief Content Officer at the time of the broadcasts, and Weasel was the head of TheBlaze’s investigatory documentary unit. Cheatwood has more than thirty years of experience in the news broadcasting industry, including as an Executive Director of Development for CNN, Senior Vice President of Program Development for Fox News, and Executive Vice President of News for CBS. Weasel has more than twenty-five years of experience as a professional journalist, and served as an adjunct professor of journalism and ethics at The Ohio State University from 1998 to 2003. The plaintiff deposed Cheatwood and Weasel on March 24, 2016 and March 30, 2016, respectively.

         Weasel testified at his deposition that he had direct contact with six confidential sources in gathering information for the allegedly defamatory broadcasts, while Cheatwood had direct contact with just one of these sources. According to the defendants, these sources were only willing to cooperate pursuant to a promise of strict confidentiality. Weasel provided a detailed description of each of the sources in a declaration the defendants submitted in support of their summary judgment motion. See Weasel Decl., Docket No. 117, ¶¶ 38-73. The following descriptions come from that declaration. The plaintiff disputes these descriptions, as he has not had the opportunity to depose, or otherwise verify the identity of, the confidential sources.

         Source 1 is a founding member of the Department of Homeland Security (DHS), where Source 1 has worked for thirteen years. Source 1’s responsibilities include investigating and analyzing terrorists and their support networks. Source 1 is considered one of the country’s leading experts on Islamic terrorism. Source 1 has trained Joint Terrorist Task Force (JTTF) agents, including some of those who were involved in the Boston Marathon bombing investigation. Weasel first met Source 1 in 2010 or 2011 in Washington, D.C., and has spoken to Source 1 “hundreds of times” since. Id. ¶ 41.

         Source 1 served as a “key resource for law enforcement personnel who were on the ground conducting the investigation” surrounding the Boston Marathon attacks, starting on April 15. Id. ¶ 46. More specifically, Source 1 answered questions from law enforcement agents about the Islamic Society of Boston (ISB) because Source 1 is a subject matter expert on the ISB. Source 1 explained the meaning of two government documents provided to the defendants by Source 2, which are discussed in greater detail below. Source 1 also provided information about Alharbi’s family, a timeline of events regarding Alharbi, the basis for including him on the No Fly List, Alharbi’s role in the Boston Marathon bombing investigation, and the structure and function of terrorist cells in the United States. Source 1 was allegedly “emphatic that Plaintiff was involved in the Boston Marathon bombing.” Id. ¶ 49.

         Source 2 is a senior investigator at DHS, where Source 2 has worked for more than twenty years. Weasel first met Source 2 in Washington, D.C., in 2010 or 2011. Weasel “routinely” relies on Source 2 “for information regarding the United States government’s counterterrorism efforts.” Id. ¶ 53. Source 2 served as a liaison between law enforcement and Congress during the Boston Marathon bombing investigation, and “regularly communicated with field agents on the ground in Boston, including JTTF agents, ICE agents, and FBI agents.” Id. ¶ 56. Weasel relied on Source 2 for information regarding the status of the government’s investigation of Alharbi, the plaintiff’s § 212(a)(3)(B) designation, and the function and structure of terrorist cells.

         Source 2 also provided Weasel with two official government documents, produced in this case as Exhibits 60 and 61. Exhibit 60 is a four-page printout of screen shots from the federal government’s Treasury Enforcement Communications System II (TECS II) database, which appears to identify the plaintiff as a “suspected terrorist, ” who is “armed & dangerous” on the fourth page. Haley Decl., Docket No. 109, Ex. B, at 70-73. The first three pages of the print out state, “This record has not yet been approved, ” in all capital letters at the bottom of the screen. Id. at 70-72. The fourth page does not include this line. The first two pages are dated April 15, 2013, and the final two pages are dated April 16, 2013.

         Exhibit 61 is a one-page excerpt from the plaintiff’s “Event File, ” which states the plaintiff is “inadmissible to the U.S. under INA 212(a)(3)(B)(i)(II).” Id. at 75. Section 212(a)(3)(B)(i)(II) of the INA states: “Any alien who . . . a consular officer, the Attorney General, or the Secretary of Homeland Security knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity . . . is inadmissible.” 8 U.S.C. § 1182(a)(3)(B)(i)(II). Section 212 further provides that “aliens who are inadmissible under [this section] are ineligible to receive visas and ineligible to be admitted to the United States.” Id. § 1182(a).

         According to Weasel, on or around April 18, a member of Congress asked Source 2 to obtain these two documents. Source 1 sent the documents to Source 2 via fax at Source 2’s request. Source 2 received the documents in a congressional member’s office. After Secretary Napolitano testified, Sources 1 and 2 called Weasel to report that they believed her testimony was false. Also, on April 23, Weasel traveled to Washington, D.C., to meet with Source 2. Source 2 showed him a copy of the documents that day, and provided Weasel a copy in an envelope the following day. Weasel returned to New York, where he opened and reviewed the documents with Cheatwood.

         Source 3 is a former JTTF agent, with more than thirty years of experience as a law enforcement officer. Weasel first met Source 3 in Washington, D.C. in 2010 or 2011, and has spoken with him/her “on numerous occasions about counterterrorism strategy and operations.” Weasel Decl., Docket No. 117, ¶ 60. Weasel relied on Source 3 primarily to verify and confirm information gathered from other sources. Source 3 “educated” Weasel about the content and meaning of the documents provided by Source 2 (although the defendants never shared the documents themselves with Source 3), and provided information about “what was likely to be happening on the ground in Boston.” Id. ¶ 61.

         Source 4 is a former DHS agent, whom Weasel has known for many years. Source 4 has never served as a direct source for a particular story for Weasel, but has provided background information and explained law enforcement concepts. “Source 4 is an expert in terrorist cells and the manner in which terrorist cells are structured and operate.” Id. ¶ 63. With respect to the defendants’ reporting about Alharbi, Source 4 described how the Boston Marathon bombing “fit the profile of a typical terrorist cell.” Id. ¶ 64.

         Sources 5 and 6 are both congressional aides, who had “direct knowledge of the Boston Marathon bombing investigation.” Id. ¶¶ 67, 71. Both sources suggested that Secretary Napolitano had been “less than honest” in her April 23 testimony before the Senate Judiciary Committee. Id. ¶¶ 68, 72. These sources also confirmed that members of Congress possessed the documents provided to the defendants by Source 2, and were concerned about the Secretary’s testimony.

         Weasel spoke with Source 5 “as often as three times per day” during the defendants’ reporting surrounding the Boston Marathon bombing, met with Source 6 once in person, and spoke with Source 6 on the phone more than ten times. Id. ¶ 68, 71. Source 5 is the only source that Cheatwood also met with. He met with Source 5 once on April 18 or April 19, and again in late May.

         According to Weasel, by May 1, two of the sources were increasingly convinced to “a high level of probability, nearly 90 percent” that Alharbi was involved in funding the attacks, and that this involvement was the basis for Alharbi’s § 212(a)(3)(B)(i)(II) designation. Id. ¶ 120, Ex. 1, at 159-60. He does not specify which two sources these were, but based on his declaration they appear to be Sources 2 and 3. A third source was “more adamant and said [Alharbi] financed it.” Id. ¶ 120, Ex. 1, at 160. Again, based on the declaration this appears to be Source 1.

         Beck never met with or spoke to any of the confidential sources. Weasel took notes of his discussions with the sources on post-its, which he then discarded. Cheatwood “acted as gatekeeper to TheBlaze’s broadcasts, ” and vetted the information and materials provided by Weasel and other staff members. Cheatwood Decl., Docket No. 111, ¶ 16. Another staff member of TheBlaze, Sara Carter, reached out to the FBI and ICE on the record to ask about the plaintiff’s involvement and the government documents provided by Source 2. An email from Weasel to Cheatwood on April 22, states that Carter was “getting a very different picture” from her sources. Weasel Decl., Docket No. 117, Ex. 18, at 84. According to Weasel, TheBlaze’s determination that Alharbi was involved in the Boston Marathon bombing was ultimately based on:

(1) the creation of Plaintiff’s Event File on April 16, 2013, shortly after his apartment was searched by law enforcement authorities; (2) the entry of data into the TECS II database concerning Plaintiff following the attacks in Boston; (3) the information reported in the TECS II database, including that Plaintiff was a ‘suspected terrorist’ and was ‘armed & dangerous;’ (4) the information reported in Plaintiff’s Event File, including that Plaintiff had received a 212(a)(3)(B) designation; and (5) the explanations provided by Sources 1 and 2 regarding the government’s investigation, including explanations as to the specific information included in the TECS II database and the Event File.

Id. ¶ 116.

         V. Plaintiff’s Interaction with the Press

         Several members of the Saudi Arabian press contacted the plaintiff while he was still hospitalized. According to Alharbi, his father had informed him that people in Saudi Arabia were saying that he was suspected of being involved in the Boston Marathon attacks. Alharbi was concerned about this, and, when contacted by members of the press, agreed to several interviews in order to speak about his lack of involvement. The defendants dispute whether Alharbi’s goal in granting the interviews was to tell the truth.

         First, on or around April 19, the plaintiff had a telephone interview in Arabic with the reporter Dawood al-Shirian for a Saudi television program called “8 O’Clock with Dawood.” In the interview, Alharbi explained that he was not involved in the bombing, but that he “was thrown to the street” when the second bomb exploded behind him. Grygiel Decl., Docket No. 110, Ex. 25, at 57. Alharbi stated that he was the first individual to be transported to the hospital by ambulance, and that his injuries were “minor.” Id. at 56-57. He recounted that the FBI interrogated him when he arrived at the hospital, he gave the FBI permission to search his residence, the FBI took photos of his apartment, and the media followed the FBI there. Finally, he said that the media was telling “lies” about him. Id. at 57-58.

         Next, Alharbi granted at least one, and possibly two, telephone interviews to the newspaper Al Hayat, which subsequently published two articles about the plaintiff in Arabic on April 19 and 23. Id. Ex. 30-31, at 73, 78. The plaintiff alleges that he only spoke with Al Hayat once, but the articles Al Hayat published refer to two different phone interviews. The first interview and article focused on the explosion and initial investigation. See id., Ex. 30, at 73. Alharbi told Al Hayat that he was injured in the second explosion, that he did not flee the scene, and that he was not arrested. He was quoted as saying:

There was an explosion and I was very mildly injured. I asked a police officer and he told me where to go. No one stood in my way, I didn’t flee, and I didn’t run away from the explosion. All of this was written in the American press, and none of it happened. I went to the ambulance and I was the first of the injured to arrive at the hospital.

Id. He explained that the police and FBI asked to search his apartment “as a precautionary measure, ” because he “was the first Boston explosion casualty to reach the hospital, ” and he agreed. Id. He stated that the search only lasted for two hours, but that he planned to move to a new apartment because the media had photographed his apartment and published his address, violating his privacy.

         The second article was published after he left the hospital, and focused on his plans for the future and alleged mistreatment by the media. See id., Ex. 31, at 78. Alharbi reiterated that he did not plan to return to his residence because it was photographed by the media. He explained that he was staying in a hotel until he could find a new apartment. He said that “the accusations, libel, and mistreatment by some media would not interrupt his studies, affirming that it would be a motivator for him to acquire learning and knowledge.” Id. He noted that the Saudi consulate, American authorities, and hospital all treated him well, but that he felt mistreated by the media that had “maligned” him. Id. He said that the visit from First Lady Michelle Obama, who visited all those injured in the bombing at Brigham and Women’s hospital, helped to demonstrate “his innocence to the American media.” Id.

         Okaz, a daily Saudi Arabian newspaper, also published an article about the plaintiff in Arabic on April 17 or 18, with a photograph of Alharbi in the hospital. See id., Ex. 32, at 86. The plaintiff does not recall speaking to anyone from the newspaper, but the article states Alharbi “narrated to Okaz the details of the moment of the bombing . . . .” Id. The article describes that Alharbi fell to the ground after the explosion, and was transported to the hospital in an ambulance. It states that Alharbi was able to contact his father roughly a day and a half after the explosion. The article also notes that Alharbi was suffering from dehydration and muscle contraction, and that he “thanked the U.S. authorities who refuted media allegations about his being suspected . . . .” Id.

         Finally, the plaintiff granted an interview to Amina Chaudary, the Editor-in-Chief of The Islamic Monthly. On May 21, a transcript and audio recording of the interview, two photographs of the plaintiff at the finish line of the Boston Marathon, and a commentary written by Ms. Chaudary were posted to The Islamic Monthly website. See id., Ex. 20-21. The parties do not know exactly when the interview took place, but ...


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