Thinking through the legal and ethical issues raised by Kash Patel’s libel case against The Atlantic

FBI Director Kash Patel’s $250 million libel suit against The Atlantic may prove to be nothing more than bluster. Nevertheless, it’s already raised some interesting issues about ethics and defamation law, and I thought it would be useful to walk through some of them here.

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Patel sued after Sarah Fitzpatrick reported Friday that Patel’s tenure at the FBI has been marred by excessive drinking, lapses in judgment and a shocking lack of discipline. The story, she writes, was based on “more than two dozen people I interviewed about Patel’s conduct, including current and former FBI officials, staff at law-enforcement and intelligence agencies, hospitality-industry workers, members of Congress, political operatives, lobbyists, and former advisers.” There are no named sources who say they’ve had first-hand knowledge of Patel’s alleged misbehavior. Still, that’s a lot of sources.

There are three broad areas that I want to address: the “actual malice” standard that governs libel suits brought by public officials and public figures; Fitzpatrick’s reliance on anonymous sources; and an allegation in Patel’s lawsuit that The Atlantic did not give him sufficient time to respond before publication. Let’s take them one at a time.

Actual malice and the truth

In 1964, the Supreme Court issued its landmark Times v. Sullivan ruling, which was aimed at stopping the racist white power structure in the South from weaponizing libel law in order to prevent the press from reporting on its violent suppression of the Civil Rights Movement. The ruling found that in order for public officials to win libel suits, they had to prove that an offending statement was not merely false and defamatory but was also published with the knowledge that it was either false or probably false. That latter standard was described as “reckless disregard of the truth.”

After Patel filed his lawsuit, a number of media commentators pointed out that he would have to prove actual malice in order to prevail.  Just two examples: “Of course, Patel must prove The Atlantic acted with actual malice — a high bar for a public official to clear,” wrote Oliver Darcy (sub. req.) of the media-news site Status. Added Brian Stelter of CNN, “Actual malice is the very high legal standard that public figures have to prove in order to win a defamation suit. They have to prove that The Atlantic knew these claims were false or had a reckless disregard for the truth” (via Tom Jones of Poynter).

Darcy and Stelter are correct, but it should be kept in mind that actual malice is a second-order defense. The Atlantic’s first-order defense is to argue that what Fitzpatrick wrote was true. A bedrock principle of libel law is that truth is an absolute defense. In a statement reported by Katie Robertson of The New York Times, The Atlantic said: “We will vigorously defend The Atlantic and our journalists against this meritless lawsuit.”

No doubt The Atlantic will throw actual malice into its defense, but I expect its main argument will be that the story is true and therefore there’s no need to move on to actual malice.

Now, there have been some cases when actual malice has figured into high-visibility libel cases.

For instance, Republican political figure Sarah Palin lost her suit against the Times over an editorial that suggested an ad published by her political action committee had helped inspire the mass shooter who injured former U.S. Rep. Gabby Giffords and killed six even though what the Times published was false and defamatory. Why? Because James Bennet, who was the editorial-page editor who oversaw it, testified in court that he had made a mistake and that he and others acted to correct it as quickly as possible. So no actual malice.

On the other hand, Fox News settled a libel suit brought by the Dominion voting-machine company for $787.5 million because pre-trial discovery revealed that people inside Fox were well aware they were reporting falsehoods when they claimed that the machines had been used to rig the 2020 presidential election for Joe Biden. That’s the very definition of actual malice.

But what about the Supreme Court? Might the right-wing majority loosen actual-malice restrictions? My guess is probably not. Last year, the court declined to take up a case that was essentially an invitation for it to revisit Times v. Sullivan, meaning that no more than three of the nine were interested. Publicly, Justice Clarence Thomas has said he would repeal Sullivan in its entirety, while Justice Neil Gorsuch has mused about weakening it. So far, at least, there’s no indication that sentiment has spread any further.

Nameless accusers

We might all express reservations about stories based entirely on anonymous sources, as The Atlantic’s is. That’s going to raise suspicions among supporters of Donald Trump and defenders of Patel. But it doesn’t make the story any less true. This is more of an ethical than a legal question (but wait!); still, generally speaking, news organizations will run with an investigative report based on anonymous sources if they believe it serves the greater public interest.

In 2019, my Northeastern colleague Matt Carroll, an investigative-reporting legend during his years at The Boston Globe, outlined the standards for when it’s acceptable to base a story on anonymous sources. “If someone gives you a tip anonymously, you have to try to confirm it through other means, and sometimes get documents, sometimes talk to officials or other people who might be involved in the story,” he told Northeastern Global News.

In Fitzpatrick’s case, she was apparently unable to leverage her anonymous sources into on-the-record interviews. Still, she had a lot of sources providing her with information about Patel.

During Trump’s first term, we became accustomed to seeing deep investigative reports based entirely on anonymous sources. Here are three examples that I found this week:

• “Trump Campaign Aides Had Repeated Contacts With Russian Intelligence,” The New York Times, Feb. 14, 2017.
• “Trump revealed highly classified information to Russian foreign minister and ambassador,” The Washington Post, May 15, 2017.
• “Trump Repeatedly Pressed Ukraine President to Investigate Biden’s Son,” The Wall Street Journal, Sept. 21, 2019.

Now, even though I regard the use of anonymous sources as more of an ethical than a legal concern, there are circumstances under which the law could come into play. For instance, when journalists report national-security secrets on the basis of anonymous sources, they can be hauled into court and ordered to identify those sources. They never do, and some have gone to jail.

In the context of a libel suit, the defendant — in this case, The Atlantic — could be ordered to identify its sources so that Patel and his lawyers have a fair chance at proving their case. It’s unlikely that Patel’s suit will ever get that far, but if it does, that would present the magazine with a dilemma.

Let’s be clear: The Atlantic is not going to give up its sources. But a high price can be paid for standing on principle. In 2005, the Massachusetts Supreme Judicial Court upheld a $2 million libel verdict against The Boston Globe and reporter Richard Knox because they had refused to identify a source in a libel suit brought by Dr. Lois Ayash. The case involved the Globe’s reporting on the death of one of its own reporters, Betsy Lehman, from an accidental overdose of chemotherapy drugs.

A fair chance to respond

In his lawsuit, Patel claims that The Atlantic did not provide him with a fair opportunity to respond to the allegations that it was planning to report. CNN’s Stelter writes: “The lawsuit says The Atlantic sent the FBI a ‘request for comment’ and asked for a response in less than two hours, then ‘refused to honor’ a request for more time. The magazine published the article online later the same afternoon.” Stelter adds Patel wrote on Twitter/X that the lack of time to respond would enhance his actual-malice claim, and he could be right in the unlikely event that the story turns out to be false.

We don’t yet know whether it’s actually the case that The Atlantic gave Patel less than two hours to respond. We do know that Fitzpatrick’s story includes defenses of Patel from White House spokeswoman Karoline Leavitt and Acting Attorney General Todd Blanche, though neither addresses the specific allegations, even though Fitzpatrick writes that she had given Leavitt “a detailed list of 19 questions.” The story also includes a statement from Patel that was given to the magazine by the FBI: “Print it, all false, I’ll see you in court — bring your checkbook.”

There are two reasons that journalists give targets of critical reporting a fair chance to respond. One is basic fair play. The other is you might learn something that casts your reporting in a different light.

In Rolling Stone’s monumentally flawed investigation of an alleged campus rape at the University of Virginia, published in 2014, one of the multiple mistakes that reporter Sabrina Erdely made was that she had given the fraternity Phi Kappa Psi little time and virtually no information about her plans to report on PKP’s complicity — that is, complicity in an alleged rape for which no credible evidence ever emerged. A post-mortem conducted by the Columbia Journalism School found that if Erdely had provided fraternity officials with “the full details” instead of “asking simply for comment,” it’s likely that PKP would have conducted its own investigation.

There are sometimes reasons to limit a target’s opportunity to respond. A news organization might believe its reporting is airtight and decide that it doesn’t want to give the subject an opportunity plead their case to other media before publication. I was involved in one such situation at The Boston Phoenix a number of years ago with a target who had numerous friends in the national media. We were not concerned that we’d be proven wrong, and it turned out that we made the right call.

In the end, The Atlantic story and the lawsuit may have bought Patel a bit more time. Trump was reported to be losing patience with him, but he’s probably not going to fire him until the controversy calms down. Patel has also manufactured content for Fox News, always an important consideration in Trumpworld.

Still, it’s hard to believe that Fitzpatrick’s reporting won’t hold up. The Atlantic is one of our great news organizations, with layers of editors and fact-checkers. I can’t imagine this story isn’t nailed down.