Just in time for Major League Baseball’s opening day, a federal judge in the nation’s capital is allowing hometown favorite Ryan Zimmerman as well as Ryan Howard to move forward in their defamation lawsuit against Al Jazeera over The Dark Side: Secrets of the Sports Dopers.
That documentary film aired on Al Jazeera America on Dec. 27, 2015. About a week later, the lawsuits came, and within days thereafter, it was then announced that the network would be shut down. Nevertheless, the Qatari-owned news company survives at large and so do the claims made by Zimmerman and Howard that their reputations were unfairly tarnished by the doping report.
Deborah Davies was the main reporter for Dark Side along with Liam Collins, a British hurdler who went undercover. Perhaps most controversially, the report cited the word of Charlie Sly, identified as a pharmacist at the Guyer Institute in Indianapolis. Before Dark Side came out, however, Sly had rescinded his remarks. The producers were put on notice.
In a detailed memorandum opinion (read here) released on Friday, U.S. District Court Judge Ketanji Brown Jackson rules that the film is capable of defamatory meaning and rejects Al Jazeera’s argument that the baseball players can’t establish actual malice.
The defendants (including Davies and Collins) attempted to argue that there was no direct accusation that Zimmerman and Howard were using PEDs. They wanted to shift the blame to Sly — as it was his express allegations — and further wanted the judge to believe that reasonable viewers would understand who was saying what.
“In this Court’s view, the argument that the challenged statements are not capable of conveying a defamatory meaning because the film establishes that Sly is the messenger, and that Al Jazeera and Davies are merely reporting that message, is unpersuasive, because a reasonable viewer could certainly have understood the documentary as a whole to be an endorsement of Sly’s claims,” writes Jackson. “When the Court looks beyond ‘the immediate context of the disputed statements,’ it is readily apparent that the film includes many scenes that are capable of communicating not only that Sly made the disputed allegations, but also that Sly’s statements are credible and should be believed.”
The judge continues by saying that the film did more than just report third-party allegations. According to her opinion, the allegations are woven into a broader narrative about doping in sports while burnishing the credentials of those like Sly.
When the film came out, Al Jazeera also accompanied it with a news article for its site. Jackson notes in contrast the careful or ambiguous language of the news article in dismissing that portion of the lawsuit. The judge also says the MLB stars can’t carry a claim against Collins.
Nevertheless, the bulk of the lawsuit focuses on the film — and not only does the judge believe it is susceptible to defamatory meaning, but she also remarks that the public figure plaintiffs can overcome the “daunting” First Amendment standard of actual malice.
In reaching this conclusion, Jackson says inferences can be drawn in the plaintiffs’ favor that “Al Jazeera and Davies entertained serious doubts as to Sly’s claims and failed to investigate these claims adequately, which, together, suffice to support a plausible finding of actual malice.”
The judge also highlights how it’s not clear if The Dark Side clearly communicated Sly’s repudiations, while adding, “[E]ven if the documentary clearly communicates Sly’s subsequent recantation, the inclusion of references to the statements of denial by Zimmerman, Howard, and Sly does not unequivocally absolve Al Jazeera and Davies of liability for defamation.”
Jackson says this could be a rebuttal point, but suggests a jury may ultimately decide.