Defamation Lawsuit Against NYT by Informant in Plot to Bomb 2008 RNC May Have a Chance

A former FBI informant who helped foil a bomb plot at the 2008 Republican National Convention has sued the New York Times for libel and defamation.

A Times story from February 22 claimed that Brandon Darby had "encouraged" others to bomb the RNC, when in fact he had been essential to law enforcement efforts that disrupted the plot. Evidence shows that the Times was aware of the error as early as March 3, yet the online version remains uncorrected. Applicable precedent holds that a publisher may be liable for continued publication of defamatory material, even if it was thought to be true when published, if the publisher does not make a sufficient effort to remove that material after being made aware of its inaccuracy.

"Though having to fight a Goliath that buys ink by the barrel is the last thing I wish to do," Darby said in a Thursday letter to the Times, "the New York Times has left me no choice." Darby said that he could not "allow a lie of this seriousness and magnitude about my character and integrity to go unanswered" (h/t Matthew Vadum).

Here is the full text of that letter, via Big Government:

Darby.Let.031011.Corrected -

In order to win damages, Darby must show that the Times acted with "actual malice" and with knowledge of the truth and "reckless disregard" for it (there are a number of other conditions that must also be satisfied - more on that below). Here is a brief filed by Darby's attorney on Thursday:

Court.Stamped.Darby.Original.Petition-1 -

So is there anything to the suit? I reached out to UCLA law professor Eugene Volokh, who noted the Restatement (Second) of Torts § 577 holds liable for continued publication "One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control."

p. Failure to remove defamation. One who knows that defamatory matter is exhibited upon land or chattels in his possession or under his control and intentionally and unreasonably fails to remove it, becomes subject to liability for the continued publication. The basis of the liability is his duty not to permit the use of his land or chattels for a purpose damaging to others outside of the land. Something of an analogy may be found in § 362(c), as to the duty to use reasonable care to remedy a condition upon the defendant's land created by another, which involves unreasonable danger to those outside of the land.

So far as the cases thus far decided indicate, the duty arises only when the defendant knows that the defamatory matter is being exhibited on his land or chattels, and he is under no duty to police them or to make inquiry as to whether such a use is being made. He is required only to exercise reasonable care to abate the defamation, and he need not take steps that are unreasonable if the burden of the measures outweighs the harm to the plaintiff. In extreme cases, as when, for example, the defamatory matter might be carved in stone in letters a foot deep, it is possible that the defendant may not be required to take any action at all. But when, by measures not unduly difficult or onerous, he may easily remove the defamation, he may be found liable if he intentionally fails to remove it.

Clearly, changing one sentence in an online news article does not constitute an overly-burdensome or unreasonable measure. The Times did not "exercise reasonable care to abate the defamation," therefore, as doing so would require only one minor change to an online article.

It is also clear from communications quoted in the brief with James McKinley, the Times's Houston bureau chief, that the paper was aware as early as March 3 that its claim regarding Darby's role in the RNC plot was false, and yet, more than a week later, the claim has yet to be corrected. So even if the Times thought the claim was true when the article was initially published, it is liable for the continued publication (after March 3) of the defamatory claim on its website.

The email from McKinley also demonstrates that the Times acknowledged the error - that it knew its claim was false - which supports Darby's allegation of "actual malice." As Professor Volokh noted, "If the publisher sincerely (even unreasonably) believes the story is correct, and doesn’t think there’s a substantial likelihood that it’s wrong, and the plaintiff is a public figure, then the publisher may be immune because it isn’t acting with 'actual malice.'"

So If the Times were still in the position that its claim regarding Darby's role in the RNC plot was true, Darby might not have a case. But the email cited in the brief above demonstrates that McKinley - and therefore the Times - was aware that the claim was false, and yet did not correct its online story.

Darby's case also seems to satisfy other conditions necessary for a meritorious suit. The article was published recently, and therefore the statute of limitations is nowhere near expired. The article was written and published by the New York Times, and the Times is therefore fully liable for its content.

It will be interesting to see how the Times reacts. But just based on the information here, it seems that Darby may well have a case.