The Case of the Day is Alharbi v. The Blaze, Inc. (D. Mass. 2016). Foreign readers may not be familiar with Glenn Beck. He is one of the group that I like to call the carnival barkers: unserious, pseudo-intellectual commentators from whom many right-wing partisans get their news. (I’m sure there are carnival barkers of the left, too, but I’m not writing about them today). After the 2013 Boston Marathon bombing, Beck identified an injured bystander, Abdulrahman Alharbi, “as an active participant in the bombing, even after the authorities had publicly exonerated him.” He also told listeners that Alharbi, a Saudi Arabian student living in Massachusetts, “was involved in recruiting the Tsarnaev brothers, gave the ‘go order’ for the bombing, and was the ‘money man’ who funded the attacks.” Alharbi brought a defamation action.
Beck’s defense was that the statements were true. In the reality-based world, that was laughable:
On April 23, 2013, then-Secretary of Homeland Security Janet Napolitano testified before Congress at a Senate Judiciary Committee hearing on comprehensive immigration reform. As part of her testimony, she discussed the Boston Marathon bombing. In response to a question from Senator Grassley about “a Saudi student who reportedly was on a terrorist watch list,” Secretary Napolitano replied: “He was not on a watch list. What happened is this student was—really, when you back (ph) it (ph), he was in the wrong place at the wrong time. He was never a subject. He was never even really a person of interest. Because
he was interviewed, he was at that point put on a watch list. And then, when it was quickly determined he had nothing to do with the bombing, the watch listing status was removed.”
But Beck claimed that Napolitano had lied, “based on conversations [the defendants] had with confidential sources, including congressional staff.”
On April 24, after Secretary Napolitano testified before Congress, Beck continued to say that Alharbi was involved in the Boston Marathon bombing. He referred to Alharbi as “the worst of the worst,” again due to the § 212(a)(3)(B) designation. On April 25, Beck appeared on the Bill O’Reilly Show on Fox News, and reiterated that Alharbi was designated as a terrorist, who was “armed and dangerous,” according to government documents he received from confidential sources.
Two journalists working with Beck claimed to have several Homeland Security and congressional sources for the assertions Beck made. But their testimony “about what the confidential sources told them, and when, is vague and often contradictory.” One of the two “could not recall specifically what the confidential sources told him about the nature of the plaintiff’s involvement.” There were no notes of the conversations. So Alharbi had a real need for the the identities of the sources, as there was no less-invasive way to get at the evidence that is relevant to Beck’s defense of truth. The judge applied the First Circuit’s balancing test and held that the plaintiff’s need outweighed the concerns that favored confidentiality. None of the documents the judge had previously ordered the government to produce supported the notion that, as Beck had claimed, Alharbi was the “money man” behind the attack.
Long-time readers know I am no fan of the so-called reporter’s privilege in criminal cases. This isn’t really a privilege case at all: it’s an application of the First Amendment’s balancing test, which give some significance to First Amendment issues without elevating the rule protecting confidential sources to the status of a privilege. Moreover, the First Amendment considerations have more weight in a civil case than in a criminal case. So I am not insensitive to the policies in favor of Beck’s arguments. But it seems to me that Beck’s claims were extraordinarily weak. What kind of journalist airs such allegations based on anonymous sources and has no notes, particularly after a cabinet secretary asserts under oath that the story you are about to publish is false? I would have ruled the same way.