                           PUBLISHED
                                            Filed: October 18, 2005

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


STEVEN J. HATFILL,                      
                 Plaintiff-Appellant,
                  v.
THE NEW YORK TIMES COMPANY,
             Defendant-Appellee,                 No. 04-2561

                 and
NICHOLAS KRISTOF,
                           Defendant.
                                        

                              ORDER


  Appellee filed a petition for rehearing and/or rehearing en banc.
Appellant filed a response to the petition.

   A member of the Court requested a poll on the petition for rehear-
ing en banc. The poll failed to produce a majority of judges in active
service in favor of rehearing en banc. Chief Judge Wilkins and Judges
Widener, Luttig, Traxler, Shedd, and Duncan voted to deny the peti-
tion. Judges Wilkinson, Niemeyer, Michael, Motz, King, and Gregory
voted to grant the petition. Judge Williams did not participate in this
case.

  The Court denies the petition.

   Judge Wilkinson filed a dissenting opinion from the order denying
rehearing en banc, in which Judge Michael and Judge King joined.

  Entered at the direction of Judge Shedd for the Court.
2                    HATFILL v. NEW YORK TIMES
                                   For the Court - By Direction

                                   /s/ Patricia S. Connor
                                           Clerk

WILKINSON, Circuit Judge, dissenting from the denial of rehearing
en banc:

   The panel’s decision in this case will restrict speech on a matter of
vital public concern. The columns at issue urged government action
on a question of grave national import and life-or-death consequence.
It is unclear, to say the least, that Virginia law would ever find these
columns to be defamatory, and the panel pushes state law in a direc-
tion that not only portends liability for valuable public commentary
but aggravates, rather than alleviates, the constitutional tensions
inherent in the defamation field.

   It is worth remembering the context in which the columns at issue
were published. In the aftermath of the September 11 attacks, the
nation was alerted to the fact that someone was sending letters laced
with anthrax through the mails. The letters were not simply directed
at public officials but apparently at private individuals as well. Those
who handled mail on a regular basis were concerned for their safety,
and even ordinary residents were advised to take special precautions
when opening their mail. At least five people died from anthrax expo-
sure. There was, in addition, worry that law enforcement was ineffec-
tual in locating the source of the anthrax production and distribution.
In other words, both the problem and the steps necessary to resolve
it were matters of public, indeed national, concern.

   In the spring and summer of 2002, Nicholas Kristof, a columnist
for the New York Times, published a series of pieces urging the fed-
eral government to step up its investigative and preventive efforts and
take control of the situation. The columns appeared in the Times on
five different dates: May 24, July 2, July 12, July 19, and August 13.
They included descriptions first of a "Mr. Z," later identified in one
column as Dr. Steven Hatfill, whom circumstantial evidence sug-
gested was a person of interest in the anthrax investigations. In plain-
tiff’s view, these discussions contained serious factual errors and
unfairly implicated him as the perpetrator. In defendant’s view, the
                     HATFILL v. NEW YORK TIMES                        3
columns repeatedly disavowed any such conclusion and urged that the
government conduct a thorough inquiry that would either inculpate
plaintiff or exonerate him.

   As a result of these events, this action for defamation and inten-
tional infliction of emotional distress ensued. The district court dis-
missed it because, inter alia, it found that the columns were not
actionable under state law. A divided panel of this court reversed.
Hatfill v. New York Times, 416 F.3d 320 (2005). The majority found
that the columns were fairly read as accusing plaintiff of the anthrax
murders, and therefore held that defendant could face state tort liabil-
ity for publishing them. Id. at 337. Judge Niemeyer dissented, "find[-
ing] nothing in the letter or spirit of the columns that amount[ed] to
such an accusation." Id.

   The panel’s opinion appeared to downplay the importance of any
First Amendment concerns in two important ways. First, it noted that
the case was before the court on a motion to dismiss under Federal
Rule 12(b)(6). E.g., id. at 334. Second, it characterized the case as
wholly one of state law. E.g., id. at 330. I shall address in turn why
these two rationales were not proper bases for reversing the district
court. And I shall lastly take up what I regard as the deeply unfortu-
nate free speech implications of the panel’s ruling.

                                   I.

   The panel viewed its inquiry as limited to consideration of whether
plaintiff had "adequately pled the elements of his claims under Vir-
ginia law." 416 F.3d at 324. This, I think, is much too simple. The
procedural posture of this case — a motion to dismiss for failure to
state a claim under state law — should not obscure its constitutional
importance.

   A defamation case does not putter along as a state law case in its
earliest stages, only to suddenly acquire First Amendment implica-
tions upon the tender of an affirmative defense. Defamation actions
by their very nature seek to punish past speech and raise the specter
of chilling future speech. For this reason, the Supreme Court has
waged a lengthy "struggle to define the proper accommodation
between the law of defamation and the freedoms of speech and
4                     HATFILL v. NEW YORK TIMES
press." Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 768 (1986)
(internal quotation marks and alterations omitted). In New York Times
Co. v. Sullivan, 376 U.S. 254 (1964), and its progeny, the Court
infused the state common law of defamation with a constitutional
dimension, creating not only procedural protections but also limiting
"the type of speech which may be the subject of state defamation
actions." Milkovich v. Lorain Journal Co., 497 U.S. 1, 16 (1990)
(emphasis omitted).

   The Constitution provides states some latitude to protect a citizen’s
good name and reputation, but that leeway is limited by the Founders’
injunction that law shall not "abridg[e] the freedom of speech, or of
the press." U.S. Const. amend. I. It makes little sense to acknowledge
the special sensitivity of speech to defamation actions and then to say
that speech interests matter little or not at all because of the proce-
dural posture of the action. While a heightened pleading standard in
defamation cases may be inappropriate, see, e.g., Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 514-15 (2002) (rejecting a heightened
standard in employment discrimination cases), there is no reason why
an action of this kind cannot frequently be resolved on a motion to
dismiss. The most critical part of the record — the speech itself —
is available prior to any discovery. Whether the statements are defam-
atory as a matter of law will therefore be ripe for decision.

   The panel majority in this case has read Virginia law aggressively
to permit a wide array of defamation suits against news organizations.
A court that reads state law so expansively when deciding a motion
to dismiss creates a "threat . . . of pecuniary liability" that "may
impair the unfettered exercise of . . . First Amendment freedoms."
Greenbelt Coop. Publishing Ass’n v. Bresler, 398 U.S. 6, 12 (1970).

   Even if liability is defeated down the road, the damage has been
done. The defendant in this case may well possess the resources nec-
essary for protracted litigation, but smaller dailies and weeklies in our
circuit most assuredly do not. The prospect of legal bills, court
appearances, and settlement conferences means that all but the most
fearless will pull their punches even where robust comment might
check the worst impulses of government and serve the community
well. To allow litigation to impose large costs will dull democracy at
the local level, because the monetary impacts of litigation for all but
                      HATFILL v. NEW YORK TIMES                        5
the largest media organizations will prove unacceptably high. Federal
courts must maintain fidelity to state law, but here a federal court sit-
ting in diversity has created constitutional problems by pushing state
defamation law in new directions without unambiguous direction
from the state courts or legislature. This has compounded the sort of
constitutional tensions which the exercise of judicial restraint has long
sought to avoid. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288,
348 (1936)(Brandeis, J., concurring).

                                   II.

  In allowing actions for defamation per se and intentional infliction
of emotional distress to proceed, the panel’s decision stretches the
bounds of liability beyond where the state courts have placed them.

                                   A.

   The first two counts of plaintiff’s complaint state claims for com-
mon law defamation. In the first, plaintiff alleges that Kristof’s col-
umns were defamatory because they amounted to "identification of
[plaintiff] with the anthrax mailer." Compl. ¶ 42. In the second, he
alleges that various individual statements contained within the col-
umns are independently defamatory, because even in isolation they
"would tend to incriminate [plaintiff]." Id. ¶ 43. The panel agreed
with plaintiff’s theory, finding that the columns and most of the state-
ments "imputed to [plaintiff] the commission of a crime involving
moral turpitude," 416 F.3d at 334, 335, and were therefore defamation
per se under Virginia law, see Food Lion, Inc. v. Melton, 458 S.E.2d
580, 584 (Va. 1995).

   That conclusion is both factually and legally incorrect. From a fac-
tual standpoint, even giving plaintiff the full benefit of Federal Rule
12(b)(6), the panel misinterprets the language of the statements and
columns. The Supreme Court of Virginia instructs us that "[a] state-
ment imputes the commission of a crime when it refers to matters that
would naturally and presumably be understood by those [reading]
them as charging a crime." Id. In other words, the statements and col-
umns are not defamatory per se unless they can fairly be read to actu-
ally accuse plaintiff of being a criminal. I agree with both Judge
6                     HATFILL v. NEW YORK TIMES
Niemeyer and with the district court that the statements and columns
at issue here make no such accusation.

   The columns do present a list of circumstantial evidence against
plaintiff, and plaintiff claims that several pieces of this evidence are
false. But none of the supposedly false statements identified by plain-
tiff is sufficient to suggest that plaintiff is the anthrax murderer. See
416 F.3d at 338 (Niemeyer, J., dissenting) ("Reporting suspicion of
criminal conduct — even elaborately and sometimes inaccurately —
does not amount to an accusation of criminal conduct as necessary to
support Dr. Hatfill’s claim."). Stating that plaintiff had access to an
isolated residence where visitors received anthrax vaccinations, or
reporting that his own vaccinations were up to date, is a far cry from
suggesting that he killed innocents by sending the anthrax virus
through the mail. And where it is directly preceded by reminders that
plaintiff should be presumed innocent and that "[t]here is not a shred
of traditional physical evidence linking him to the attacks," the claim
that he failed polygraph tests of an unspecified nature should not
cause a reasonable reader to infer that he is in fact guilty. Finally,
placing plaintiff among a "handful of individuals who had the ability,
access and motive to send the anthrax" suggests only that he ought to
be one of multiple suspects; it hardly points the finger at plaintiff
alone.

   Viewed as a whole, the columns do not pin guilt on plaintiff, but
instead urge the investigation of an undeniable public threat. The col-
umns involve pointed criticism of the Executive branch, primarily tar-
geting the FBI for its purported "lackadaisical ineptitude in pursuing
the anthrax killer." The first column opines that "[o]ne of the first
steps we can take to reduce our vulnerability [to a biological attack]
is to light a fire under the F.B.I. in its investigation," and the remain-
ing columns seek to light that fire. They recount alleged facts suggest-
ing why plaintiff is a suspect; they do so, however, not to cast him
as the murderer, but to illustrate the unfortunate effects of government
inaction not only upon an anxious nation but also upon a man who
finds himself at the center of a dawdling investigation.

  The columns expressly avoid premature accusation by repeatedly
reminding readers that the burden of the government’s failure falls not
only upon the public, who seek the safety of identifying the true cul-
                      HATFILL v. NEW YORK TIMES                         7
prit, but also upon plaintiff, who deserves an end to the "unseemly
limbo" of being a suspect. Kristof makes plain his belief that "the pre-
sumption of innocence has already been maimed since 9/11 for for-
eign Muslims, and it should not be similarly cheapened with respect
to [plaintiff]." Thus, "[i]t must be a genuine assumption that [plaintiff]
is an innocent man caught in a nightmare," particularly considering
the complete lack of physical evidence against him. The columns
report further that plaintiff "denies any wrongdoing, and his friends
are heartsick at suspicions directed against a man they regard as a
patriot." While one reason to pursue the investigation vigorously is to
arrest plaintiff if further evidence shows him to be the culprit, another
major reason is to "exculpate him and remove [the] cloud of suspi-
cion" if it does not. In view of their overall purpose and in light of
their repeated disclaimers, these columns cannot "naturally and pre-
sumably be understood . . . as charging a crime." Food Lion, 458
S.E.2d at 584.

   From a legal standpoint, the panel majority extends liability for
defamation per se beyond the two Virginia cases on which it relies.
The statements that the Virginia Supreme Court found to be defama-
tory in Carwile v. Richmond Newspapers, Inc., 82 S.E.2d 588 (Va.
1954), and Schnupp v. Smith, 457 S.E.2d 42 (Va. 1995), were far
more accusatory than those at issue here.

   The defendant in Carwile published an article stating that public
officials had the discretion to seek the plaintiff’s disbarment, neces-
sarily implying that the plaintiff "could and should be subjected to
disbarment proceedings." 82 S.E.2d at 592; see also id. at 589-90. In
contrast, the columns here did not suggest that the FBI "could and
should" indict plaintiff. Indeed, the problem they identify is the lack
of sufficient information with which to either charge or exonerate
him.

   The defamation in Schupp involved a description of the plaintiff
committing the alleged criminal offense itself, stating that he acted as
the driver for someone engaged in what could reasonably be inferred
as a drug purchase. 457 S.E.2d at 45; see also id. at 46. The columns
here, however, do not describe plaintiff taking direct actions — e.g.,
placing mysterious powder into envelopes — that might reasonably
8                     HATFILL v. NEW YORK TIMES
be inferred as criminal in and of themselves. In fact, their central
thrust is the government’s failure to uncover any such evidence.

   Moreover, in neither Carwile nor Schupp was the allegedly defam-
atory language tempered by express disclaimers of prejudgment like
those that pervade the columns at issue in this case. Taken together,
these differences suggest that the columns here fall outside the previ-
ously defined scope of defamation per se in Virginia. At a minimum,
these precedents do not provide the type of unambiguous support nec-
essary to impose liability under constitutionally tense circumstances.

                                   B.

   The third count of plaintiff’s complaint states a cause of action for
intentional infliction of emotional distress. He alleges that the "inten-
tional public identification of [plaintiff] with the anthrax murders . . .
was unconscionable, malicious, intentional, and calculated to inflict
grievous emotional distress." Compl. ¶ 44.

   In permitting this claim to proceed, the panel again commits errors
of both fact and law. The panel errs factually when it concludes that
"[a]ccepting [plaintiff’s] allegations as true, [defendant] intentionally
published false charges accusing him of being responsible for anthrax
mailings that resulted in five deaths." 416 F.3d at 336. As the above
analysis of the columns demonstrates, defendant did no such thing.
The columns neither "accuse" plaintiff of being the anthrax killer nor
level "charges" of murder against him.

   The panel errs legally when it concludes that defendant’s actions
meet the narrow conditions under which an action for intentional
infliction of emotional distress may lie. That tort is "not favored" in
Virginia law. See Ruth v. Fletcher, 377 S.E.2d 412, 415 (Va. 1989)
(internal quotation marks omitted). It applies only in the most extreme
of circumstances: where a defendant’s conduct is "so outrageous in
character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intol-
erable in a civilized community." Russo v. White, 400 S.E.2d 160, 162
(Va. 1991) (internal quotation marks omitted).
                      HATFILL v. NEW YORK TIMES                         9
   I am quite at a loss to see how publication of these columns "go[es]
beyond all possible bounds of decency." They report on a matter of
unquestioned public interest with urgent national security implica-
tions. The First Amendment expressly specifies that the "civilized
community" in which we live is one that encourages public commen-
tary of this type. Even assuming the columns contain the asserted fac-
tual errors, their publication is neither "intolerable" nor "atrocious."
The panel offers no decision from Virginia or any other state that
holds a news report on a subject of unquestioned public interest to be
an intentional infliction of emotional distress. Its action is unprece-
dented.

                                   III.

   The consequences of this decision for the First Amendment run
deep. If one purpose of public commentary is to assess the function-
ing of government, these columns were surely in that vein. In fact, the
anthrax mailings and the government’s response to them lie at the
heart of legitimate public inquiry. It is true that Kristof’s columns
conveyed an unmistakable sense of urgency, but it is often the job of
a commentator to prod officials to take action. It is also true that Kris-
tof repeated his calls for an investigation, but multiple iterations are
sometimes necessary to get the attention of anyone in charge.

   Surely it is open to a columnist to comment — and comment vigor-
ously — on whether law enforcement is properly carrying out those
responsibilities with which it is charged. Bureaucracies have been
known to be both sluggish and inept, and it is not only the preroga-
tive, but the duty, of news organizations to insist that those agencies
get off the dime. The costs of inaction can be, as here, to leave some-
one in the prolonged limbo of suspicion and to jeopardize public
safety by leaving the wrongdoer — whomever he may be — at large.

   The perils of inaction and of overzealous action on the part of law
enforcement are alike proper subjects for a free press. In fact, if there
is any area that merits public scrutiny, it would seem to be the work-
ings of our criminal justice system. Both in its investigative and judi-
cial aspects, that system is capable of serious malfunction.

  Our criminal justice system does not suddenly reveal itself the day
a verdict is announced. Rather, it undergoes public scrutiny as it
10                    HATFILL v. NEW YORK TIMES
unfolds. It is often difficult, if not impossible, to cover the long con-
tinuum of justice in John Doe fashion without the use of a suspect’s
identity or name, as daily media reports on criminal activity make
clear. It is the obligation of news media not to fasten guilt upon those
who have not been tried, but it is equally their obligation not to
deprive the public of a meaningful report. These columns were hard-
hitting, to be sure, but they did not forsake the essential balance that
our law requires.

   In short, I believe that defendant was simply doing its job. It is a
job that the Constitution protects, and I would not construe gray areas
of Virginia law to punish it and deter others from performing it. It is
tempting, I recognize, to view the press’s assertions of its freedoms
as something of a self-interested wail. But before succumbing too
fully to this impulse, we might ask who else will do the job of calling
bureaucratic judgments to account. The public’s right to know in this
case was not a matter of voyeurism, titillation, or idle curiosity. The
bioterrorism presaged by these anthrax mailings was no small matter,
and it may one day pose a threat on a very large scale. Let us hope
that on that day, reluctance to take issue with authority has not
become our norm. "[T]he pall of fear and timidity imposed upon
those who would give voice to public criticism is an atmosphere in
which the First Amendment freedoms cannot survive." Sullivan, 376
U.S. at 278.

     Judge Michael and Judge King join me in this dissent.
