Abbas ‘Defamation By Implication’ Suit Tossed

(CN) - The D.C. Circuit threw out a $10 million defamation claim brought by the son of Palestinian president Mahmoud Abbas against Foreign Policy magazine for questioning the source of his wealth.

In 2012, Foreign Policy published an article on its website about Yasser Abbas and his brother Tarek. It posed two questions: "Are the sons of the Palestinian president growing rich off their father's system?" and "Have they enriched themselves at the expense of regular Palestinians - and even U.S. taxpayers?"

The article continues by describing the brothers' conspicuous wealth, recounts allegations of corruption that a former economic advisor to Yasir Arafat made against Mahmoud Abbas, and suggests that Abbas's "lineage is his most important credential."

In response, Abbas filed suit in D.C. Federal Court for defamation, but a district court judge dismissed the case under the D.C. Anti-Strategic Lawsuits Against Public Participation Act (Anti-SLAPP) which requires courts to dismiss a defamation suit targeting political advocacy unless the plaintiff shows a likelihood of success on the merits.

On appeal, the D.C. Circuit ruled that the Anti-SLAPP Act does not apply. Rather, Abba's allegations do not suffice to make a defamation claim under D.C. law, the court found.

"Abbas's defamation claim focuses not on statements made in the article but rather on two questions posed in the article," U.S. Circuit Judge Brett Kavanaugh said, writing for the three-judge panel.

"Those questions are not factual representations. The article does not say, for example, that the 'sons of the Palestinian president are growing rich off their father's system' and 'have enriched themselves at the expense of regular Palestinians and U.S. taxpayers.'"

While the asking of a question may cast a shadow on the reputation of a person about whom the question is asked, a genuine attempt to seek information cannot be considered defamatory, the opinion states.

"Just imagine the severe infringement on free speech that would ensue in the alternative universe envisioned by Abbas. Is the Mayor a thief? Is the quarterback a cheater? Did the Governor accept bribes? Did the CEO pay her taxes? Did the baseball star take steroids? Questions like that appear all the time in news reports and on blogs, in tweets and on cable shows. And all such questions could be actionable under Abbas's novel defamation theory," Kavanaugh said.

Journalists may unfairly use such questions to cast doubts on a person's character, the opinion acknowledged.

But Abbas's theory would leave no divide between questions that provoke rigorous public debate, and questions actionable as defamation by implication, the panel said.

"Abbas's theory would thus necessarily ensnare a substantial amount of speech that is essential to the marketplace of ideas and would dramatically chill the freedom of speech in the District of Columbia. We will not usher D.C. law down such a new and uncertain road," the court concluded.

Abbas's attorney Louis Adolfsen with Melito & Adolfsen disagreed with the court's characterization of the article in an interview with Courthouse News.

"Our view of it was that even though it was posed as a question, it answered itself," Adolfsen said. "Anyone who wrote about the matter assumed that it was true. My clients certainly feels that's the way to look at it."

Defense attorney Kevin Baine with Williams & Connelly did not immediately respond to a request for comment.

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