‘Spy’ label in headline non-actionable opinion
Eric T. Berkman//September 30, 2021
A U.S. District Court judge has ruled that a Boston University professor who was arrested for failing to register as a foreign agent could not bring a defamation suit against a wire service for a headline characterizing him as a spy.
The plaintiff, political scientist Kaveh Afrasiabi, was allegedly paid by the Iranian government to advocate for pro-Iranian positions in his books, articles and television appearances.
In February 2021, shortly after Afrasiabi was arrested and accused of violating the federal Foreign Agent Registration Act, defendant United Press International published an article in the opinion section of its website under the headline “Iranian spy arrested by FBI was a wolf in sheep’s clothing.”
Afrasiabi argued that labeling him a “spy” in the headline constituted a defamatory statement, given that he was not charged with espionage.
But Judge Allison D. Burroughs disagreed.
“Even if one sets aside the fact that the Article is, as a whole, an opinion piece, the fact that the allegedly defamatory statement is contained in the headline reinforces the notion that it is non-actionable,” Burroughs wrote in granting UPI’s motion for judgment on the pleadings.
“Media outlets, like UPI, are afforded additional latitude when publishing headlines because a ‘reasonable reader would not expect [a headline] to include nuanced phrasing,’” Burroughs continued, quoting another decision from the District of Massachusetts, Scholz v. Delp, issued in 2015.
The 12-page decision is Afrasiabi v. United Press International, et al., Lawyers Weekly No. 02-278-21. The full text of the ruling can be found here.
‘Stars have to align’
Defense counsel J. Mark Dickison of Boston characterized the decision as an easy one for the judge to make, given that the plaintiff’s complaint focused entirely on the headline without making any allegations that statements in the body of the article were defamatory.
“That allowed the court to focus solely on the headline, recognizing a line of precedent that headlines can be attention-grabbing and giving a lot of deference to the entire context of the article and its placement on the website,” Dickison said. “The court correctly took all this into account, particularly where it was really an opinion piece focused on the premise that there are others like Mr. Afrasiabi out there who portray themselves as objective academics who may be on the payroll of some undisclosed entity.”
Boston attorney William J. Keefe, who represented the plaintiff, did not respond to requests for comment.
But Matthew J. Fogelman, a Newton Center trial attorney who has represented plaintiffs in defamation cases, said the ruling reinforces the notion that defamation cases are difficult and that the “stars have to align the right way” in order to have a solid one.
“This is a good example of how you really have to perform a careful analysis before bringing one of these claims,” Fogelman said. “You try and do that in any kind of case, but with these — given all the minefields, including whether it’s news or opinion, what section it’s in, whether it’s a headline, or whether we’re talking about a public or private figure, which the judge didn’t even get into here — you really want to be mindful as a practitioner in making sure you can check all the boxes you need to check.”
Jeffrey S. Robbins of Boston, who also handles defamation cases, said the decision serves as a “primer” for some of the most important principles of defamation law, particularly its emphasis that language in headlines frequently serves as shorthand and not a strict assertion of fact.
“As the court pointed out, the word ‘spy’ was shorthand for someone acting on behalf of a foreign government, which is, after all, what the plaintiff was charged with,” Robbins said.
As for the phrase “wolf in sheep’s clothing,” Robbins said Burroughs pointed out “in a terrific footnote that this is classically something that cannot be verified as true or false.”
Still, Richard J. Peltz-Steele, a media law professor at the University of Massachusetts School of Law in Dartmouth, cautioned that Burroughs’ decision should not be read to imply that headlines are immune from liability.
“I rate ‘spy’ here as sloppy and risky, even if non-defamatory,” Peltz-Steele said. “What does ‘spy’ mean without the [Foreign Agent Registration Act] context? It means espionage to me, and I think I’m a reasonable reader. So I fear that the court’s conclusion sends the wrong message. An implication of duplicity, in the abstract, is potentially defamatory.”
In fact, Peltz-Steele said, the U.S. Supreme Court held actionable an implication of duplicity, specifically the allegation of lying in a public hearing, in Milkovich v. Lorain Journal Co., the 1990 decision that articulated the modern fact/opinion dichotomy.
“In the abstract, the headline here comes awfully close to Milkovich,” he said.
Afrasiabi, a political scientist with expertise in Iran and U.S.-Iranian relations, has taught political science at various universities, consulted with the United Nations, appeared on television as a Middle East expert, and authored books and articles on multiple topics including Iran.
On Jan. 15, 2021, Afrasiabi was charged in the Eastern District of New York with violating the Foreign Agent Registration Act, which requires agents of foreign nations to file registration papers with the government disclosing who they represent, what they are doing for them, and who is paying them.
He was subsequently arrested in Boston and appeared before a magistrate judge several days later. On Feb. 10, 2021, he pleaded not guilty.
Between Afrasiabi’s arrest and his plea, UPI published an article written by defendant Struan Stevenson, coordinator of the Campaign for Iran Change, headlined “Iranian spy arrested by FBI was wolf in sheep’s clothing.”
The article itself, published in the opinion section of UPI’s website, described the Foreign Agent Registration Act violations Afrasiabi was accused of, referenced purported efforts of Afrasiabi and Iran to “deceive the West,” and concluded that the arrest should be a “wake-up call” for western nations.
THE ISSUE: Could a Boston University professor who was arrested for failing to register as a foreign agent bring a defamation suit against a wire service for a headline characterizing him as a spy?
DECISION: No (U.S. District Court)
LAWYERS: William J. Keefe of Boston (plaintiff)
J. Mark Dickison and Brendan P. Slean, of Lawson & Weitzen, Boston (defense)
Afrasiabi, alleging that the article tarnished his reputation and caused him emotional distress, brought a defamation complaint in U.S. District Court against UPI and Stevenson, specifically asserting that the headline was defamatory.
The defendants moved for judgment on the pleadings.
‘Opinion, not fact’
In granting the defendants’ motion, Burroughs first looked to the article’s context.
“Here, context makes clear that the headline is opinion, not fact,” the judge said. “It is undisputed that the Article was posted in the section of UPI’s site dedicated to opinion pieces. That fact alone suggests that anyone reading the Article was (or reasonably should have been) doing so with an understanding that the Article, as a whole, was subjective.”
Even if the article had not appeared in the opinion section, Burroughs continued, its language made clear that its author was expressing a subjective view.
For example, instead of simply reporting on how people actually responded to events like Afrasiabi’s arrest, Stevenson wrote about how individuals should be responding, she said.
Meanwhile, the article reflected that Stevenson was pushing a specific agenda based on personal views.
“To boot, the short blurb about Mr. Stevenson at the end of the Article notes that he is ‘the coordinator of the Campaign for Iran Change,’ which confirms that he was writing with a subjective voice and advocating for a particular position,” Burroughs said.
Additionally, the fact that the allegedly defamatory statement appeared in a headline strengthened the case that it was non-actionable, she said, pointing out that media outlets get “additional latitude” when publishing headlines because readers do not expect them to included nuanced phrasing.
Even the headline itself made clear that it was opinion because though the term “spy” could be proven false, the phrase “wolf in sheep’s clothing” could not, Burroughs said.
Finally, because the article provided factual bases for the author’s opinion that Afrasiabi was a spy and a “wolf in sheep’s clothing,” the defendants were immunized from liability, the judge stated.
Thus, Burroughs concluded, “the uncontested and properly considered facts conclusively established that UPI was entitled to a favorable judgment.”