The Volokh Conspiracy
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"Spy" vs. "Spy" (+ Piers Morgan, President Biden, and the Iranian Nuclear Weapons Program)
If someone was prosecuted (and later pardoned) for being an unregistered foreign agent for Iran, is it defamatory to say he was prosecuted for "spying"?
From today's order in Afrasiabi v. Morgan by Judge Brian Murphy (D. Mass.):
This case stems from an appearance made by Plaintiff on Defendant Piers Morgan's YouTube program, "Piers Morgan Uncensored." On that program, Morgan introduced Plaintiff by stating that he was "arrested in the US for alleged spying before being pardoned by Joe Biden." Plaintiff and Morgan disputed the accuracy of that statement live during the program, and Plaintiff disputed the statement's accuracy with Morgan's team afterward. Morgan or his team subsequently republished variations of Morgan's statements on social media….
The Court takes notice of the indictment brought against Plaintiff on January 19, 2021, in the Eastern District of New York, charging Plaintiff with violations of the Foreign Agents Registration Act ("FARA"). In the indictment, Plaintiff is alleged as having operated as an undisclosed agent of the Iranian government while engaging in political acts within the United States, for example, by drafting a Congressman's letter to the President of the United States regarding negotiations over Iranian nuclear weapons and enrichment programs.
The Court notes, as did Defendant Morgan, that these charges were dismissed upon the issuance of a presidential pardon. The Court further notes a hearing transcript from that criminal case, provided by Plaintiff, wherein Judge Korman, in the context of a discussion about why discovery was taking so long, stated: "You know, as far as I understand, this is not a case involving spying for Iran."
Notwithstanding, the Court agrees with Defendants that Plaintiffs' defamation claim is untenable as a matter of law. Massachusetts law immunizes from liability "fair and accurate" statements that report on official actions. "To qualify as 'fair and accurate' reporting, an article need only give a 'rough-and-ready summary' that was 'substantially correct.'" … As Judge Burroughs recently observed in another case brought by Plaintiff against a different media company, "[t]he word 'spy' has multiple definitions."
As noted above, the Court recognizes the remark made by Judge Korman, which Plaintiff has repeatedly highlighted. However, that statement must be viewed in context: Judge Korman was addressing the Government's failure to timely produce discovery. In that context, the difference between charges of espionage (where discovery may be fraught and prolonged because of the tension between national security concerns and a defendant's right to see the evidence against him) and of FARA violations is significant.
However, the Fair Report Privilege does not focus on procedural implications in litigation but rather on the "lay" understanding of legal charges and proceedings. In that sense, the Court agrees with Judge Burroughs that, in common parlance, "[g]iven the charges brought against [Plaintiff]… one could reasonably conclude that, if proven true, those allegations would justify labeling him a 'spy.'"
"[A] plaintiff cannot evade the protections of the fair report privilege merely by re-labeling his claim." Accordingly, Plaintiff's other claims {for … "civil rights violation," intentional infliction of emotional distress, unintentional infliction of emotional damage, and incitement of violence}, based on the same conduct, must likewise fail.
Justin P. O'Brien (Lovett O'Brien) and Nimra Azmi, Rachel F. Strom, and Ryan Hicks (Davis Wright Tremaine LLP) represent defendants.
