Ali Akbar, funded by GOP donor Foster Friess, never had a legal claim against me--and this law proves it

Ali Akbar

Ali A. Akbar, president of the right-wing National Bloggers Club, has threatened a defamation lawsuit against me and the Legal Schnauzer blog, but he has no case. Anyone who has studied communications law should know that--including Montgomery, Alabama, attorney Baron Coleman, who sent me a threatening letter on Akbar's behalf.

Coleman claims in his missive, which you can read at the end of this post, that I defamed Akbar by reporting on a letter that Alabama lawyer Jill Simpson wrote to Robert Bauer, counsel for President Barack Obama's 2012 re-election campaign. Simpson wrote the letter in response to a bizarre rant from GOP election guru Karl Rove on a Fox News program.

Rove took an unrelated question and turned it into an attack on Simpson, Bauer, and former Alabama Governor Don Siegelman. So Simpson stated in her letter to Bauer that she thought Rove became unhinged because he feared she was about to reveal damaging information about his personal life. In fact, Simpson wrote, she did have damaging information because her research had turned up evidence that Rove and Akbar had a sexual relationship at some point.

Are Simpson's statements true? She doesn't provide extensive details in the letter, but she does note that Akbar had placed an ad at the Grindr gay-sex Web site, stating that he "was looking for bisexual sex with men who were Republican, political, and loved to discuss politics and philosophy and just wanted to hang out and chill with them." (We will have more about the Akbar ad, and his rather extensive criminal history, in an upcoming post.)

Simpson is an attorney who has testified under oath before Congress about the Siegelman prosecution. She has come under regular attack from political figures on the right, but I'm not aware of anyone who has been able to prove that her sworn statements about the Siegelman matter were false.

I took her statements in the Bauer letter seriously and reported on them accurately, in a straightforward fashion, That means my work was protected by the "neutral reportage privilege," which has grown from a long line of First Amendment cases that date at least to the early 1970s.

The Alabama Supreme Court adopted the neutral reportage privilege in a case styled Wilson v. Birmingham Post Co., 482 So. 2d 1209 (1986). In Wilson, the state high court cited Edwards v. National Audubon Society, 556 F. 2d 113 (2nd Cir., 1977). (Ironically, Wilson involved two people I worked with at the now-defunct Birmingham Post-Herald--Editor Angus McEachran and reporter Kathy Biele.)

Edwards, perhaps the best-known case on the neutral reportage privilege, grew from a New York Times article on statements from an Audubon Society editor about scientists who supported the continued use of the insecticide DDT. Such scientists, the Audubon editor wrote, often make false statements about the society's bird-count totals, leading to the editor's conclusion that they are "paid to lie."

Times journalist John Devlin wrote an accurate, straightforward article about the editor's statements, and the scientists wound up suing the newspaper. A trial court found for the scientists, but the appellate court reversed, finding that Devlin's reporting was protected by the neutral reportage privilege. From the Edwards ruling:

At stake in this case is a fundamental principle. Succinctly stated, when a responsible, prominent organization like the National Audubon Society makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter's private views regarding their validity. See Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971); Medina v. Time, Inc., 439 F.2d 1129 (1st Cir. 1971). What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation. Cf. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974). The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.

The contours of the press's right of neutral reportage are, of course, defined by the principle that gives life to it. Literal accuracy is not a prerequisite: if we are to enjoy the blessings of a robust and unintimidated press, we must provide immunity from defamation suits where the journalist believes, reasonably and in good faith, that his report accurately conveys the charges made. Time, Inc. v. Pape, supra. . . .

It is clear here, that Devlin reported Audubon's charges fairly and accurately. He did not in any way espouse the Society's accusations: indeed, Devlin published the maligned scientists' outraged reactions in the same article that contained the Society's attack. The Times article, in short, was the exemplar of fair and dispassionate reporting of an unfortunate but newsworthy contretemps. Accordingly, we hold that it was privileged under the First Amendment.

A 1996 article from Fordham Law Review, borrowing from the Edwards ruling, sums up the elements of the neutral reportage privilege as follows:

First, the media must report the charges neutrally and accurately. Second, the charges must have been made by a responsible and prominent speaker. Third, the subjects of the accusations must be public figures. Finally, the charges must be newsworthy.

Let's briefly review these four elements in the context of my report on Simpson's letter:

(1) My report on the Simpson letter can be read here. I quote directly from the letter, and a full copy of the letter is embedded in the post. My reporting clearly was an accurate portrayal of her charges, and there is nothing in the post to suggest that my work was anything but neutral.

(2) Simpson is a prominent and knowledgeable speaker, who once served as a Republican operative under Rove. Her willingness to testify under oath before Congress goes to her history of responsible conduct.

(3) Rove, Akbar, and Bauer--by virtue of their deep involvement in political activities--unquestionably are public figures.

(4) At the core of Simpson's letter is this question: Why did Karl Rove use an appearance on Fox News to attack her and a key member of President Obama's re-election campaign? What were Rove's motivations? Rove helped George W. Bush get elected president twice (2000 and 2004), and he raised record numbers of campaign dollars for the 2012 Mitt Romney campaign against Obama. Anything involving Karl Rove's motivations clearly is newsworthy--it's hard to imagine that Rove himself would deny that.

In summary, my post meets all four elements of the neutral reportage privilege. That means it is protected from a defamation lawsuit, and Ali Akbar had no case. Perhaps he knows that because he never followed up Baron Coleman's threatening letter with a lawsuit.

Foster Friess (center), with Ali Akbar
and right-wing blogger Robert Stacy McCain

Our research indicates Akbar never threatened a lawsuit against Jill Simpson, with whom the alleged defamatory statements originated. That indicates Akbar has no interest in a court tussle with Simpson. Is that because the burden of proof to show the statements are false would rest with him--and he knows he can't meet that burden?

Maybe Akbar and his allies decided it would be best to go after Simpson in some sort of deceptive fashion--rather than going the straightforward (but likely baseless) lawsuit route?

Does Foster Friess, the devout Christian conservative businessman who helped bankroll Akbar's bloggers club, endorse this sort of shady, underhanded thuggery? Does Friess, who claims on his Web site that the private sector is the answer to most of America's challenges, endorse abusive use of the justice system?

This much is clear: If Ali Akbar is engaging in underhanded tactics now, it would not be his first experience with such activities.


(To be continued)

Ali Akbar Lawsuit Threat by Roger Shuler