Ruth Shalit Barrett’s Defamation Lawsuit Against The Atlantic Survives in Part
From Judge Loren L. AliKhan’s opinion today in Shalit Barrett v. Atlantic Monthly Group LLC:
Ms. Barrett began working as a reporter for The New Republic magazine in the early 1990s after graduating from Princeton University. At that time, she used her maiden name, Ruth Shalit, as her byline. Within her first few years on the job, she published many feature-length stories and was hired to write political stories for The New York Times Magazine and GQ.
In 1994 and 1995, Ms. Barrett came under fire for plagiarism in two articles in The New Republic. First, Ms. Barrett had written a story “in which three sentence[s] of biographical information and a quote” had been taken, without attribution, from a Legal Times article. The second article, a profile of Steve Forbes, “contain[ed] 29 words from a National Journal article” that were also unattributed to the original author…. Also in 1995, a factual error was discovered in an article Ms. Barrett had written for The New Republic about The Washington Post. The error was addressed “using the standard practice of  … a post-publication correction.” Ms. Barrett worked at The New Republic for four more years until she departed in 1999. None of Ms. Barrett’s articles from 1996-1999 were found to contain factual errors and The New Republic did not issue any corrections to her work in this time span.
Twenty years later,
The Atlantic hired Ms. Barrett to write a long-form investigative article detailing the “efforts of affluent parents to use niche sports to give their already-privileged children further advantages in the competitive admissions process at elite colleges and universities.” The eventual article, titled “The Mad, Mad World of Niche Sports Among Ivy League-Obsessed Parents” sparked the controversy that led to this lawsuit.
That controversy chiefly involved the description of a confidential source as having four children rather than three, which was apparently intended to help conceal the source’s identity. That was uncovered and led to public criticism, followed by a retraction that Barrett says was libelous. Here’s the heart of the court’s analysis of the defamation claims:
Ms. Barrett raises four claims of defamation per se based on the following groups of statements: (1) accusations that she acted dishonestly with respect to the article; (2) accusations that she was fired from The New Republic in 1999 for misconduct; (3) statements alleging that she tried to disguise her identity by using “Ruth S. Barrett” in her byline; and (4) statements that she is a dishonest journalist with a history of fabricating facts….
Count One: Accusations that Ms. Barrett acted dishonestly with respect to the article
Ms. Barrett’s first claim alleges defamation per se with respect to the following statements made in the Editor’s Notes and the Peck Memorandum, specifically, that
- Barrett “was complicit with a source in the story … in an effort to deceive The Atlantic and its readers about the makeup of Sloane’s family;” that her “fabrication” had been “confirmed,” and that it was “established” that Ms. Barrett “deceived The Atlantic and its readers”;
- Barrett “lied” to and “misled” the fact-checking department and editors and was “accused of inducing at least one source to lie to our fact-checking department”;
- Sloane’s attorney said “[Ms.] Barrett had first proposed the invention of a son, and encouraged Sloane to deceive The Atlantic as a way to protect her anonymity”; and
- “We have decided to retract this article. We cannot attest to the trustworthiness and credibility of the author, and therefore we cannot attest to the veracity of the article,”
Defendants argue that none of these statements are actionable because the first three are true based on the facts alleged in the complaint and the fourth is a protected statement of opinion. The court agrees ….
Ms. Barrett makes clear in her complaint that she knew before the article’s publication that Sloane did not have a son. Ms. Barrett further alleges that she had pitched magazine editors about including such a masking detail, but they declined; that she knew that Sloane planned to tell fact-checkers this fictitious detail and supported it; and that, after the fabrication about Sloane’s son was added, she was “aware of the inclusion” and believed it to be “fully justified.” This course of events is fully consistent with Defendants’ description of Ms. Barrett as “complicit with a source in the story … in an effort to deceive The Atlantic and its readers about the makeup of Sloane’s family” and related statements. The “gist” of the statement is that Ms. Barrett allowed incorrect information about Sloane
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