Ruth Shalit Barrett's Defamation Lawsuit Against The Atlantic Survives in Part

The opinion includes some interesting discussion of defamation by implication.

From Judge Loren L. AliKhan's opinion today in Shalit Barrett v. Atlantic Monthly Group LLC:

Ms. Barrett began working as a reporter for The New Republic magazine in the early 1990s after graduating from Princeton University. At that time, she used her maiden name, Ruth Shalit, as her byline. Within her first few years on the job, she published many feature-length stories and was hired to write political stories for The New York Times Magazine and GQ.

In 1994 and 1995, Ms. Barrett came under fire for plagiarism in two articles in The New Republic. First, Ms. Barrett had written a story "in which three sentence[s] of biographical information and a quote" had been taken, without attribution, from a Legal Times article. The second article, a profile of Steve Forbes, "contain[ed] 29 words from a National Journal article" that were also unattributed to the original author…. Also in 1995, a factual error was discovered in an article Ms. Barrett had written for The New Republic about The Washington Post. The error was addressed "using the standard practice of  … a post-publication correction." Ms. Barrett worked at The New Republic for four more years until she departed in 1999. None of Ms. Barrett's articles from 1996-1999 were found to contain factual errors and The New Republic did not issue any corrections to her work in this time span.

Twenty years later,

The Atlantic hired Ms. Barrett to write a long-form investigative article detailing the "efforts of affluent parents to use niche sports to give their already-privileged children further advantages in the competitive admissions process at elite colleges and universities." The eventual article, titled "The Mad, Mad World of Niche Sports Among Ivy League-Obsessed Parents" sparked the controversy that led to this lawsuit.

That controversy chiefly involved the description of a confidential source as having four children rather than three, which was apparently intended to help conceal the source's identity. That was uncovered and led to public criticism, followed by a retraction that Barrett says was libelous. Here's the heart of the court's analysis of the defamation claims:

Ms. Barrett raises four claims of defamation per se based on the following groups of statements: (1) accusations that she acted dishonestly with respect to the article; (2) accusations that she was fired from The New Republic in 1999 for misconduct; (3) statements alleging that she tried to disguise her identity by using "Ruth S. Barrett" in her byline; and (4) statements that she is a dishonest journalist with a history of fabricating facts….

Count One: Accusations that Ms. Barrett acted dishonestly with respect to the article

Ms. Barrett's first claim alleges defamation per se with respect to the following statements made in the Editor's Notes and the Peck Memorandum, specifically, that

• Barrett "was complicit with a source in the story … in an effort to deceive The Atlantic and its readers about the makeup of Sloane's family;" that her "fabrication" had been "confirmed," and that it was "established" that Ms. Barrett "deceived The Atlantic and its readers";
• Barrett "lied" to and "misled" the fact-checking department and editors and was "accused of inducing at least one source to lie to our fact-checking department";
• Sloane's attorney said "[Ms.] Barrett had first proposed the invention of a son, and encouraged Sloane to deceive The Atlantic as a way to protect her anonymity"; and
• "We have decided to retract this article. We cannot attest to the trustworthiness and credibility of the author, and therefore we cannot attest to the veracity of the article,"

Defendants argue that none of these statements are actionable because the first three are true based on the facts alleged in the complaint and the fourth is a protected statement of opinion. The court agrees ….

Ms. Barrett makes clear in her complaint that she knew before the article's publication that Sloane did not have a son. Ms. Barrett further alleges that she had pitched magazine editors about including such a masking detail, but they declined; that she knew that Sloane planned to tell fact-checkers this fictitious detail and supported it; and that, after the fabrication about Sloane's son was added, she was "aware of the inclusion" and believed it to be "fully justified." This course of events is fully consistent with Defendants' description of Ms. Barrett as "complicit with a source in the story … in an effort to deceive The Atlantic and its readers about the makeup of Sloane's family" and related statements. The "gist" of the statement is that Ms. Barrett allowed incorrect information about Sloane's family into the article—and that is substantially true…. The same is true for Defendants' statements that Ms. Barrett "lied" to and "misled" the fact-checking department and editors and had been "accused of inducing at least one source to lie to our fact-checking department." …

Ms. Barrett takes issue with the fact that The Atlantic did not qualify its statements with her motive to protect Sloane's identity, arguing that this omission suggests that she was acting in "bad faith." She suggests that a juror presented with these facts could choose between "two pictures: one of an insidious scammer out to deceive the world for no good reason … and one of a meticulous writer forced to make an impossible choice between absolute accuracy and … confidentiality … to sources." But, as Defendants note, the alleged defamatory statements do not omit this information. In his Memorandum, Mr. Peck states that the reference to a son was added "to make Sloane less identifiable, because she was concerned about maintaining anonymity." The same is true of the Editor's Notes. No matter how noble Ms. Barrett's motives may have been, it does not change that fact that Defendants' description accurately states the events that transpired.

Ms. Barrett also argues that the phrase "at least one" suggests the existence of multiple accusers and that the Third Editor's Note change of language from "at least one source" to "one source" suggests that Defendants were aware of the falsity and walked it back. But this is the type of "slight inaccurac[y] of expression" that is not actionable because the substance as a whole is accurate. At most, the phrase "at least one" suggests a "lack of definitive knowledge about the issue," comparable to a question, which is rarely a successful basis for a defamation claim…

Finally, Defendants argue that their statement in the Second and Third Editor's Notes that "[w]e have decided to retract this article [because w]e cannot attest to the trustworthiness and credibility of the author, and therefore we cannot attest to the veracity of the article" is not actionable because it is protected opinion. The court agrees….

Count Two: Accusations that Ms. Barrett was fired from The New Republic in 1999 for misconduct

Ms. Barrett's second count alleges defamation per se with respect to the following statement made in each Editor's Note and the Peck Memorandum:

In 1999, when Barrett (her married name) was known by Ruth Shalit, she left The New Republic, where she was an associate editor, after plagiarism and inaccurate reporting were discovered in her work.

Defendants again argue that these statements are technically and substantially true. This time, however, the argument fails because it ignores the most likely interpretation of the statement by readers and the context of the speech overall.

Defendants are correct that it is literally true as a matter of timing that Ms. Barrett left The New Republic after the controversy surrounding her work (several years after, in fact)—but that literal truth is a strained reading of the statement in its full context. A defamation-by-implication claim lies where a statement, viewed in context, is capable of defamatory meaning and implies provably false statements of fact. The court considers "both the words themselves and the entire context in which the statement occurs." In Fells, the D.C. Court of Appeals recognized a defamation-by-implication claim based on a statement that the plaintiff had been terminated after an investigation into sexual misconduct "triggered by allegations that another recently ousted executive … was having inappropriate sexual relationships with  subordinates." While the plaintiff had not been terminated for sexual misconduct, the defendant stated that the investigation had "brought to light the serious problems related to [the plaintiff's] abusive behavior towards staff, predominantly female staff." 281 A.3d at 586 (emphasis omitted). The court held that, although the defendant had not explicitly stated that the plaintiff was terminated for sexual misconduct, the defendant's reference to the other executive's departure and the plaintiff's abuse "towards … predominantly female staff" heavily implied that the plaintiff's termination was related to sexual misconduct.

The statement that Ms. Barrett left The New Republic "after plagiarism and inaccurate reporting were discovered in her work" similarly implies a causal relationship between her departure and the alleged infractions. That meaning is further underscored by the statement's placement alongside allegations that Ms. Barrett had been an inappropriate choice to write the story and that her assignment to the story was "a second chance." Like the mention of the sexual misconduct investigation and abuse toward women in Fells, use of the phrase "second chance" strongly suggests that Ms. Barrett had been driven out of the industry due to her past failings and had yet to receive another chance. This is especially the case considering the court's obligation to draw all inferences in Ms. Barrett's favor at this stage in the proceedings.

Defendants point to Ms. Barrett's concessions that she had been accused of plagiarism and other journalistic malfeasance during her tenure at The New RepublicBut that is beside the point—the defamation claim rests on the implication that she was pushed out of her job because of these incidents, not that they did not occur. Because the "gist" and "sting" of the statements addressed in Count Two are capable of defamatory meaning, they survive the motion to dismiss.

Count Three: Statements related to Ms. Barrett's byline

Ms. Barrett's third claim alleges defamation per se with respect to the following statement, made with slight variation in all three Editor's Notes and the Peck Memorandum:

The assignment [to Ms. Barrett] was a mistake. So was the initial byline under which the piece ran. We typically defer to authors on how their byline appears, and originally we referred to Barrett as Ruth S. Barrett at her request. In the interest of transparency to our readers, we should have included the name that she used in her byline in the 1990s. We have changed the byline on this article to Ruth Shalit Barrett.

Ms. Barrett further points to an additional statement by an editor at The Atlantic—later included in a Washington Post article—that Ms. Barrett "was hoping to disguise her name in her byline to prevent people from realizing that she had once written articles under her maiden name of Ruth Shalit." Defendants argue that these statements are truthful and that the assertion "we should have included the name that she used in her byline in the 1990s" is an inactionable subjective judgment and statement of opinion. The court disagrees and concludes that these statements are capable of defamatory meaning.

A defamation-by-implication claim survives here because the statements, viewed in context, are capable of defamatory meaning and imply provably false statements of fact. As Defendants note, it is literally true that Ms. Barrett requested the "Ruth S. Barrett" byline. But the context of the statement suggests that Ms. Barrett chose this variation to distance herself from her journalism in the 1990s and to mislead readers. However, Ms. Barrett alleges that this is false—she never intended to conceal her identity, and in fact, she affirmatively chose to use the more identifying "Ruth S. Barrett" as opposed to "Ruth Barrett." She even requested that the magazine link to her personal website, which included articles she had penned under her unmarried "Ruth Shalit" byline. The "gist" of the statements is that Ms. Barrett sought to conceal her identity and distance herself from some nefarious past; that is capable of defamatory meaning.

Defendants argue that these statements are inactionable opinion because they "reflect[] a subjective judgment about what The Atlantic 'should' have done to better promote 'transparency' to its readers." To be sure, that is what the text literally says.

But a reasonable reader could infer two negative narratives, both of which "imply unstated defamatory facts": first, that Ms. Barrett sought to conceal her identity and distance herself from her work in the 1990s; second, that her history was sufficiently unsavory to warrant her doing this. Here, a reader cannot understand that The Atlantic's opinion represents its interpretation of the facts presented because no truthful facts in relation to the byline or Ms. Barrett's professional past are presented.

Accordingly, the reader cannot "draw his or her own conclusions" and is instead led to believe the negative implications of the statements. The key question is whether this statement of opinion has an "implicit factual foundation" that would be "objectively verifiable." In this instance, the implicit factual foundation is that Ms. Barrett tried to use an opaque byline to mislead readers because her maiden name evoked a nefarious history from the 1990s. Those facts can be proven true or false. Accordingly, Count Three survives.

Count Four: Statements suggesting that Ms. Barrett is a dishonest journalist with a history of fabricating facts

As her final defamation claim, Ms. Barrett argues that each of the previously addressed allegedly defamatory statements, taken together and with two additional statements, constitute defamation. The two additional statements are substantially similar to each other. In his Memorandum to The Atlantic staff, Mr. Peck stated

We decided to assign Barrett this freelance story in part because more than two decades separated her from her journalistic malpractice at The New Republic and because in recent years her work has appeared in reputable magazines. We took into consideration the argument that Barrett deserved a second chance to write feature stories such as this one. We were wrong to make this assignment, however. It reflects poor judgment on our part, and we regret our decision.

In each version of the Editor's Note, there were slight variations on the statement that

[The Atlantic] decided to assign Barrett this freelance story in part because more than two decades separated her from her journalistic malpractice at The New Republic and because in recent years her work has appeared in reputable magazines. We took into consideration the argument that Barrett deserved a second chance to write feature stories such as this one. We were wrong to make this assignment, however. It reflects poor judgment on our part, and we regret our decision.

Defendants contend that the newly added statements are inactionable as subjective opinion. As explained in relation to the statements regarding Ms. Barrett's professional past and the byline, Defendants failed to provide the reader with adequate truthful facts from which to infer their own conclusions. Defendants' opinions have "implicit factual foundation[s]" that would be "objectively verifiable"—namely, that Ms. Barrett had committed journalistic malpractice, that she needed a "second chance" as a result of that malpractice, and that her conduct was sufficiently severe that she should not have been afforded the opportunity to write the article.

The question is close with respect to the statements that "[The Atlantic] [was] wrong to make this assignment, however. It reflects poor judgment on our part, and we regret our decision." These two sentences, standing alone, could be classic statements of opinion. But "[c]ontext is critical … '[to] determin[ing] the way in which the intended audience [would] receive'" these statements. These sentences cannot be separated from the preceding statements. A reader would consider them part of a whole in conveying a defamatory narrative….

Further, this count draws in all the defamatory statements together—the scope now captures the larger narrative. Here, the court concludes that a reasonable juror could infer that the full cadre of statements paints a picture of a serial liar who maliciously set out to deceive editors and readers. There is enough in the complaint to survive this initial stage….

The court also concluded that Barrett was not a public figure, and, separately, rejected Barrett's breach of contract claims.