From The Massachusetts Lawyers Weekly
Published: 7:55 am Thu, June 6, 2013
By David E. Frank
School student and a Malden man have filed a defamation suit against the New York Post for falsely identifying them as suspects in the April 15 Boston Marathon bombing.
Plaintiffs Salaheddin Barhoum, 16, and Yassine Zaimi, 24, are seeking damages against the tabloid for misidentifying them as suspects in an April 18 front-page story that included their photo at the race finish line alongside the headline, “BAG MEN: Feds seek these two pictured at Boston Marathon.”
Barhoum’s lawyer, Max D. Stern of Stern, Shapiro, Weissberg & Garin in Boston, said the newspaper essentially identified the plaintiffs as perpetrators of the crime.
“They said that these guys were suspects of the FBI, and they were likely the people carrying the bombs and setting them off,” Stern said. “All this was completely untrue.”
On the day the story was published, Stern said, the FBI had already identified two other men as the perpetrators. In an effort to reduce the risk that media outlets disseminated false information, the FBI issued a press release instructing reporters to verify their information before publishing it.
“This has changed his life, and his family’s as well,” Stern said. “He’s just a kid making his way through high school, trying to make it as an athlete and student, and all of a sudden he’s public enemy number one.”
According to the complaint, filed on June 4 in Suffolk Superior Court, the words “Bag Men” referred to previous reports that the bombs were believed to be transported to the Marathon finish line in backpacks or duffel bags.
“The plaintiffs were not suspects and were not being sought by law enforcement,” the complaint states. “The Post had no basis whatsoever to suggest that they were, especially in light of a warning on [April 17] to news media, by federal authorities, to exercise caution in reporting about this very matter. In fact, law enforcement authorities had then focused their investigation on two suspects who were not the plaintiffs.”
The plaintiffs are avid runners who went to the finish line to watch the race.
While their lawyers are not commenting on the amount of damages being sought, it is believed that a finding of liability would result in a significant monetary award, given that the plaintiffs had nothing to do with the bombing.
“The Front Page unambiguously stated or implied that federal authorities were actively seeking them in connection with the crime,” the suit says. “This was false.”
The plaintiffs also allege that the paper implied that federal authorities were circulating their photo in an effort to identify them.
“On the basis of all available information, this was false as well,” the complaint reads. “The Front Page would lead a reasonable reader to believe that plaintiffs had bombs in their bags (backpacks), that they were involved in causing the Boston Marathon bombing, that federal authorities considered them suspects in connection with the crime, that federal authorities were actively seeking them in connection with the crime, and that federal authorities were circulating their photo in an effort to find them.”
Even when it became clear that the pair had no involvement in the bombings, Post editor Col Allan continued to stand by the story. “The image was emailed to law enforcement agencies … seeking information about these men, as our story reported,” he told reporters in April. “We did not identify them as suspects.”
Zaimi’s attorneys are C. William Barrett and Michael E. Mone Jr., of Esdaile, Barrett, Jacobs & Mone in Boston.
“What the Post said in that story was that these are two guys with the bombs in their bag,” Barrett said. “It was just as bad on the next page when it says that the feds have two men in their sights, with pictures of the plaintiffs. It was patently incorrect, wrong and misleading.”
David H. Rich of Boston’s Todd & Weld said the issue will come down to how a reasonable reader of the newspaper would interpret the headline and photograph. Even if the story made it clear that the plaintiffs were not suspects within the body of the article, the law cannot assume that a member of the public reads the entire piece, he said.
“People who are riding on the train and see a picture and headline may not take the time to go through the entire story and read every word of it,” Rich said. “The fear is that all they will do is associate the headline with the photograph and draw their own conclusion that the person depicted in it did something wrong.”
Rich, who has represented plaintiffs in numerous libel suits, said the 1st U.S. Circuit Court of Appeals addressed a similar issue in its 2006 Stanton v. Metro Corp. decision.
In Stanton, the 1st Circuit reversed U.S. District Court Judge F. Dennis Saylor’s dismissal of a New Hampshire woman’s lawsuit alleging that Boston Magazine libeled her by running a photo of her and others with an article on “The Mating Habits of the Suburban High School Teenager.”
Saylor granted a motion to dismiss, finding the article contained a disclaimer that stated: “The individuals pictured are unrelated to the people or events described in this story.”
But the 1st Circuit ruled that the woman’s allegations “sufficiently state a defamation claim based on the theory that [the magazine] negligently used the plaintiff’s photograph to illustrate a story describing teenagers as sexually promiscuous without realizing that the publication might therefore be reasonably understood to mean that she was sexually promiscuous.”
Rich said Stanton means any attempts by the Post to move for a dismissal likely will fail.
“It is for a jury to decide whether a reasonable reader would’ve concluded that a person identified in a photograph is either the subject matter of the story or the headline,” he said. “It’s not going to be an easy case for the Post to defend.”