The Volokh Conspiracy - Ham + Muslim Students -> School Discipline -> Satire -> Serious Repetition on National TV -> Libel Lawsuit -> First Circuit Opinion:

Check out Levesque v. Doocy, decided today:

On April 11, 2007, a student at Lewiston Middle School placed a bag containing leftover ham on the cafeteria table where Somali Muslim students were sitting for lunch. The Somali students reported the incident to Bill Brochu, a Lewiston police officer stationed at the school. After an investigation of the incident, the middle school's assistant principal suspended the offending student for ten school days, a decision in which the principal concurred. The assistant principal classified the incident as "Hate Crime/Bias" in the school's computer system, and Brochu filed a police report under the direction of his superior officer, characterizing the incident as "Crime: Harassment/Hate Bias." Levesque was informed of the suspension and endorsed the decision.

The following week, while the Lewiston schools were closed for April vacation, Bonnie Washuk, a reporter for the Lewiston Sun Journal, contacted Superintendent Levesque to discuss an article she intended to write about the incident. Published on April 19, 2007, the Washuk article included quotations from both Levesque and Stephen Wessler, the executive director of the Center for the Prevention of Hate Violence ("the Center") which was working with the Lewiston Middle School to develop an appropriate response to the incident. Washuk quoted Levesque as describing the offending student's conduct as "a hate incident" and acknowledging, "We've got some work to do to turn this around and bring the school community back together ... All our students should feel welcome and safe in our schools." Wessler described the incident as "extraordinarily hurtful and degrading" and warned that without a response, "more degrading acts will follow, until at some point we'll end up having violence." Somali students reflected that the event reminded them of an incident earlier that year when the head of a pig was rolled into a Lewiston mosque during a prayer session that many Somalis attended.

On April 23, four days after the Sun Journal ran Washuk's article, Nicholas Plagman uploaded a piece he had written about the April 11 incident to Associated Content, a website platform that permits registered users to publish content on topics of their choosing. [I suspect this is the piece. -EV] While the Plagman article purported to describe the incident as a news story, it mischaracterized some facts, such as reporting that the students left a ham sandwich, rather than ham steak, on the cafeteria table. Similarly, where Washuk reported that the Center was working with the school to create a response plan, Plagman described it as "an anti-ham 'response plan.'" Plagman also included fictitious quotations which generally built upon those accurately used in Washuk's article. For example, according to Plagman, Levesque stated, "We've got work to do to turn this around and bring the school community back together again. These children have got to learn that ham is not a toy." Plagman also quoted Wessler as stating, "It's extraordinarily hurtful and degrading. They probably felt like they were back in Mogadishu starving and being shot at." Finally, Plagman falsely listed the Associated Press ("AP") as a source. Because Plagman indicated that his story should be housed under Associated Content's "humor" and "news" categories, the article was retrievable through Google News, a computer-generated website that aggregates headlines from news sources worldwide.

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Around 3:30 a.m. on April 24, a line producer for FNC's morning news talk show "Fox & Friends" discovered the Plagman article. "Fox & Friends" runs each weekday from 6 a.m. until 9 a.m., its hosts discussing current events, interviewing guests, and reporting the weather. Producers for the show search for compelling stories for the hosts to discuss. The line producer sent the Plagman article to the Fox News Research Department for additional research. An information specialist was able to confirm some of the facts presented in the article including the identities and professional positions of Levesque and Wessler and the existence of the Center, Lewiston Middle School, and the Lewiston Police Department. He also discovered the Washuk article, confirmed that the Lewiston Sun Journal was a legitimate newspaper, and found two articles related to the incident at the Lewiston mosque.

By 4:15 a.m., the Plagman article and research materials were delivered to three of the show's four co-hosts, including Doocy and Kilmeade. Doocy used Google News to conduct additional research and also found the Plagman article, the Washuk article, and a brief article on the Boston Globe's website which both corroborated the general story of the incident and confirmed that the Center was working with the school on a response plan. The defendants agreed to include the story in that morning's show.

During the three-hour cablecast, the defendants repeatedly raised and discussed the April 11 incident, frequently ridiculing Levesque, ascribing the handling of the incident largely to him. They reported as true several of the fabricated quotations that Plagman attributed to Levesque including the "ham is not a toy" statement and also cited Levesque for the phony statement comparing the incident to Mogadishu, a comment that had been falsely attributed to Wessler in the Plagman article. Throughout the cablecast, the hosts repeated these two falsified quotations and used the incident as the basis for the "Question of the Day," inviting viewers to call or email the show to share their thoughts. Doocy and Kilmeade at times made statements that arguably called into question the veracity of the story. For example, Doocy on a number of occasions stated, "I am not making this up," once asserting that "I've looked it up on a couple of different websites up there from local papers," and at various times, Kilmeade stated "I hope we're not being duped," "I thought this was a joke," and "I thought this was almost from The Onion. I didn't think that was actually true." The show's producers attempted to contact Levesque for comment, leaving a message at his office around 8 a.m., two hours into the cablecast. Levesque did not return the calls.

Some time after the cablecast, Levesque contacted FNC to complain about the show's inaccuracies. Footnote On May 16, 2007, "Fox & Friends" issued a retraction and apology, agreeing that various statements attributed to Levesque were fictitious and noting that had the show realized the Plagman article was not legitimate, it would not have repeated the fabricated statements.

The following month, Levesque filed a complaint asserting libel, libel per se, false light invasion of privacy, and punitive damages, claiming that five statements made by the defendants during the cablecast were defamatory. Footnote First, he took issue with the defendants' claim that he classified the incident as a hate crime. He next objected to the defendants' references to an "anti-ham response plan." Third, Levesque asserted that the repeated mentions of "a ham sandwich" were defamatory. Fourth, he challenged the statement "Leon Levesque - he says, 'These children have got to learn that ham is not a toy.'" Finally, Levesque disputed the defendants' assertion that "the superintendent ... says it's akin to making these kids feel like they're being shot at back in Mogadishu and being starved to death." ...

[T]he defendants' repeated references to a ham sandwich and two fabricated statements attributed to Levesque [could be defamatory].... [But] "A public official advancing a defamation claim must show "that the [challenged] statement was made with a high degree of awareness of ... probable falsity." In other words, the defendant must act either with actual knowledge of the falsity or with reckless disregard for the truth. Actual malice [the legal misnomer for this test -EV] then is measured neither by reasonably prudent conduct, nor an industry's professional standards; rather, it is wholly subjective. Levesque does not suggest that the defendants actually knew the Plagman article provided false information. Thus, he must show "sufficient evidence to permit the conclusion that the defendant[s] in fact entertained serious doubts as to the truth of" the Plagman article and the statements it attributed to Levesque.

The defendants were negligent in their failure to question adequately the reliability of the Plagman article and conduct further research before attributing the outrageous quotations to Levesque, and like the district court, we hope that this conduct was "an extreme departure from professional standards." That the negligence was accompanied by derisive contempt and ridicule directed at Levesque makes all the more distasteful the defendants' carelessness. But while the defendants reported as true false statements, they did so after verifying the underlying facts of the April 11 incident. Their vetting process was perhaps too cursory and perfunctory, but no facts indicate that the defendants purposefully avoided the truth, and we think the substantial truth of the story which they reported obviates a finding of actual malice....

The libel case was therefore thrown out.

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	[Eugene Volokh, March 19, 2009 at 6:25pm] Trackbacks Ham + Muslim Students -> School Discipline -> Satire -> Serious Repetition on National TV -> Libel Lawsuit -> First Circuit Opinion: Check out Levesque v. Doocy, decided today: On April 11, 2007, a student at Lewiston Middle School placed a bag containing leftover ham on the cafeteria table where Somali Muslim students were sitting for lunch. The Somali students reported the incident to Bill Brochu, a Lewiston police officer stationed at the school. After an investigation of the incident, the middle school's assistant principal suspended the offending student for ten school days, a decision in which the principal concurred. The assistant principal classified the incident as "Hate Crime/Bias" in the school's computer system, and Brochu filed a police report under the direction of his superior officer, characterizing the incident as "Crime: Harassment/Hate Bias." Levesque was informed of the suspension and endorsed the decision. The following week, while the Lewiston schools were closed for April vacation, Bonnie Washuk, a reporter for the Lewiston Sun Journal, contacted Superintendent Levesque to discuss an article she intended to write about the incident. Published on April 19, 2007, the Washuk article included quotations from both Levesque and Stephen Wessler, the executive director of the Center for the Prevention of Hate Violence ("the Center") which was working with the Lewiston Middle School to develop an appropriate response to the incident. Washuk quoted Levesque as describing the offending student's conduct as "a hate incident" and acknowledging, "We've got some work to do to turn this around and bring the school community back together ... All our students should feel welcome and safe in our schools." Wessler described the incident as "extraordinarily hurtful and degrading" and warned that without a response, "more degrading acts will follow, until at some point we'll end up having violence." Somali students reflected that the event reminded them of an incident earlier that year when the head of a pig was rolled into a Lewiston mosque during a prayer session that many Somalis attended. On April 23, four days after the Sun Journal ran Washuk's article, Nicholas Plagman uploaded a piece he had written about the April 11 incident to Associated Content, a website platform that permits registered users to publish content on topics of their choosing. [I suspect this is the piece. -EV] While the Plagman article purported to describe the incident as a news story, it mischaracterized some facts, such as reporting that the students left a ham sandwich, rather than ham steak, on the cafeteria table. Similarly, where Washuk reported that the Center was working with the school to create a response plan, Plagman described it as "an anti-ham 'response plan.'" Plagman also included fictitious quotations which generally built upon those accurately used in Washuk's article. For example, according to Plagman, Levesque stated, "We've got work to do to turn this around and bring the school community back together again. These children have got to learn that ham is not a toy." Plagman also quoted Wessler as stating, "It's extraordinarily hurtful and degrading. They probably felt like they were back in Mogadishu starving and being shot at." Finally, Plagman falsely listed the Associated Press ("AP") as a source. Because Plagman indicated that his story should be housed under Associated Content's "humor" and "news" categories, the article was retrievable through Google News, a computer-generated website that aggregates headlines from news sources worldwide. (Show the rest of the opinion excerpt.) Around 3:30 a.m. on April 24, a line producer for FNC's morning news talk show "Fox & Friends" discovered the Plagman article. "Fox & Friends" runs each weekday from 6 a.m. until 9 a.m., its hosts discussing current events, interviewing guests, and reporting the weather. Producers for the show search for compelling stories for the hosts to discuss. The line producer sent the Plagman article to the Fox News Research Department for additional research. An information specialist was able to confirm some of the facts presented in the article including the identities and professional positions of Levesque and Wessler and the existence of the Center, Lewiston Middle School, and the Lewiston Police Department. He also discovered the Washuk article, confirmed that the Lewiston Sun Journal was a legitimate newspaper, and found two articles related to the incident at the Lewiston mosque. By 4:15 a.m., the Plagman article and research materials were delivered to three of the show's four co-hosts, including Doocy and Kilmeade. Doocy used Google News to conduct additional research and also found the Plagman article, the Washuk article, and a brief article on the Boston Globe's website which both corroborated the general story of the incident and confirmed that the Center was working with the school on a response plan. The defendants agreed to include the story in that morning's show. During the three-hour cablecast, the defendants repeatedly raised and discussed the April 11 incident, frequently ridiculing Levesque, ascribing the handling of the incident largely to him. They reported as true several of the fabricated quotations that Plagman attributed to Levesque including the "ham is not a toy" statement and also cited Levesque for the phony statement comparing the incident to Mogadishu, a comment that had been falsely attributed to Wessler in the Plagman article. Throughout the cablecast, the hosts repeated these two falsified quotations and used the incident as the basis for the "Question of the Day," inviting viewers to call or email the show to share their thoughts. Doocy and Kilmeade at times made statements that arguably called into question the veracity of the story. For example, Doocy on a number of occasions stated, "I am not making this up," once asserting that "I've looked it up on a couple of different websites up there from local papers," and at various times, Kilmeade stated "I hope we're not being duped," "I thought this was a joke," and "I thought this was almost from The Onion. I didn't think that was actually true." The show's producers attempted to contact Levesque for comment, leaving a message at his office around 8 a.m., two hours into the cablecast. Levesque did not return the calls. Some time after the cablecast, Levesque contacted FNC to complain about the show's inaccuracies. Footnote On May 16, 2007, "Fox & Friends" issued a retraction and apology, agreeing that various statements attributed to Levesque were fictitious and noting that had the show realized the Plagman article was not legitimate, it would not have repeated the fabricated statements. The following month, Levesque filed a complaint asserting libel, libel per se, false light invasion of privacy, and punitive damages, claiming that five statements made by the defendants during the cablecast were defamatory. Footnote First, he took issue with the defendants' claim that he classified the incident as a hate crime. He next objected to the defendants' references to an "anti-ham response plan." Third, Levesque asserted that the repeated mentions of "a ham sandwich" were defamatory. Fourth, he challenged the statement "Leon Levesque - he says, 'These children have got to learn that ham is not a toy.'" Finally, Levesque disputed the defendants' assertion that "the superintendent ... says it's akin to making these kids feel like they're being shot at back in Mogadishu and being starved to death." ... [T]he defendants' repeated references to a ham sandwich and two fabricated statements attributed to Levesque [could be defamatory].... [But] "A public official advancing a defamation claim must show "that the [challenged] statement was made with a high degree of awareness of ... probable falsity." In other words, the defendant must act either with actual knowledge of the falsity or with reckless disregard for the truth. Actual malice [the legal misnomer for this test -EV] then is measured neither by reasonably prudent conduct, nor an industry's professional standards; rather, it is wholly subjective. Levesque does not suggest that the defendants actually knew the Plagman article provided false information. Thus, he must show "sufficient evidence to permit the conclusion that the defendant[s] in fact entertained serious doubts as to the truth of" the Plagman article and the statements it attributed to Levesque. The defendants were negligent in their failure to question adequately the reliability of the Plagman article and conduct further research before attributing the outrageous quotations to Levesque, and like the district court, we hope that this conduct was "an extreme departure from professional standards." That the negligence was accompanied by derisive contempt and ridicule directed at Levesque makes all the more distasteful the defendants' carelessness. But while the defendants reported as true false statements, they did so after verifying the underlying facts of the April 11 incident. Their vetting process was perhaps too cursory and perfunctory, but no facts indicate that the defendants purposefully avoided the truth, and we think the substantial truth of the story which they reported obviates a finding of actual malice.... The libel case was therefore thrown out. (Hide much of the opinion excerpt.)