The District of Columbia Court of Appeals issued a ruling this morning upholding the dismissal of a defamation lawsuit filed against the American Israel Public Affairs Committee (AIPAC) by former employee Steven Rosen, who was fired following his arrest on espionage charges in 2005.
The charges were later dismissed, but Rosen sued AIPAC in District of Columbia Superior Court in 2009, claiming that statements AIPAC made to the press about him were defamatory; AIPAC had said that Rosen's behavior didn't comport with standards the lobbying group expected of employees. A trial judge granted AIPAC summary judgment in early 2011, and Rosen appealed.
In today's opinion (PDF), a three-judge appeals panel agreed with Superior Court Judge Erik Christian's finding that AIPAC's statements weren’t based on facts that could be verified objectively, and as a result couldn’t be "provably false," a standard for defamation claims.
Rosen’s attorney, David Shapiro of Washington’s Swick & Shapiro, could not immediately be reached for comment this morning. AIPAC and its lead attorney, Thomas McCally of Carr Maloney, also could not immediately be reached.
According to court filings, Rosen had worked with AIPAC for nearly 23 years, serving before his firing as director of foreign policy issues. In August 2004, a U.S. Department of Justice investigation into whether Rosen and another employee had received classified information was made public, and AIPAC put Rosen on involuntary leave in February 2005. He was fired the following month.
Rosen was indicted by a federal grand jury on espionage charges in August 2005. The indictment was dismissed with prejudice in May 2009.
At issue in Rosen’s lawsuit were statements an AIPAC spokesman gave to the New York Times, first in 2005 and then in 2008. In 2005, an AIPAC spokesman was quoted as saying Rosen was fired because his actions didn’t meet “the standards that AIPAC expects from its employees.” A 2008 article repeated that statement, and added that an AIPAC spokesman had said more recently that the organization “still held that view of [Rosen and another employee’s] behavior.”
The District of Columbia’s statute of limitations for defamation claims is one year, meaning Rosen’s 2009 lawsuit was limited to AIPAC’s 2008 statement. Rosen, in his brief, argued that AIPAC’s claim that Rosen was fired because he didn’t meet AIPAC’s standards was false because the organization “had no such standards.”
Senior Judge John Ferren, writing for the court, noted that Rosen was correct that AIPAC had no written standards for employee behavior at the time he was fired. However, AIPAC argued that there were unwritten standards assuming employees would obey the law, and also follow the advice of AIPAC’s lawyers and communicate with the organization with “total candor.”
Ferren wrote that it wasn’t clear what “standards” AIPAC was referring to in its comments to the New York Times. Case law holds that a defamation claim can’t succeed where there are multiple interpretations, Ferren wrote, because it’s impossible to prove that the remarks in question are false.
In 2008, Ferren wrote that AIPAC not only knew about the charges against Rosen, but also that Rosen hadn’t met immediately with AIPAC’s general counsel after learning about the investigation – as he was asked – and that Rosen hadn’t disclosed to his superiors at AIPAC the full extent of his relationship with a person at the U.S. Department of Defense (the alleged source of the confidential information).
As a result, it wasn’t clear what behavior AIPAC was referring to when it told the New York Times in 2008 that it still believed that Rosen’s behavior “did not comport with standards that AIPAC expects of its employees.”
“In sum, no genuine issue of material fact remained for trial, and, for the reasons elaborated in this opinion, AIPAC is entitled to judgment as a matter of law,” Ferren wrote.
Chief Judge Eric Washington and Associate Judge Anna Blackburne-Rigsby also heard the case.