Misidentifications Past and Present: Terror, Suspicion & the Media

The DMLP blog has been on an unplanned break for a while as a result of the Boston Marathon bombings and subsequent manhunt. Like many in the Boston-Cambridge-Watertown area, we have had our past two weeks disrupted both with our personal attempts to come to terms with this senseless act of violence and by last Friday's "shelter-in-place" request by law enforcement.

There has been outstanding coverage and analysis of these events already by both mainstream and independent media, but one particular aspect which has stood out for many commentators was the role played by social media. For many in the Boston area, platforms such as Twitter and Reddit became a key way for the community to share its experiences and reactions, anger, fear, and prayers. Last Friday in the Watertown area, social media took on another aspect as the way in which many of us who sat locked in our houses reached out to one another for news and support.

However, there was also controversy around social media, in particular concerns about "witch hunts" among social media users while the suspects were still unknown. While these problems were not limited to social media platforms, there has been significant commentary about how social media either helped or hindered law enforcement efforts and public understanding in a crisis situation.

As we all try to gain perspective on the events of last week, it is helpful to remember that this far from the first time that reporting on acts of terror has generated mistakes and misidentifications. To the contrary, the natural impulse to identify the perpetrators of horrific acts as quickly as possible has often led to reporting of law enforcement efforts that swept up individuals later cleared of any wrongdoing. Examination of these situations, and the legal cases that resulted, may reveal whether there are unique issues that can be laid at the feet of social media or if these issues appear generally in reporting after terrorist attacks.

Three Case Studies

The Lockerbie Bombing: Schafer v. Time, Inc., 142 F.3d 1361 (11th Cir. 1998)

On December 21, 1988, an explosive device detonated on Pan Am Flight 103 over Lockerbie, Scotland, resulting in the deaths of all passengers and crew, as well as others on the ground being killed by falling wreckage. On January 31, 2001, a Libyan intelligence officer was convicted and imprisoned for the bombing. During the intervening twelve years, there was widespread discussion and speculation about who might be responsible for the bombing, with the government of Libya being at the center of the leading theory, but with many alternative theories advanced.

One such alternative theory was published in a cover story in Time magazine in April 1992, suggesting that the bombing had been the work of a Palestinian group seeking to eliminate U.S. counterterrorism agents on the flight. According to the article, the Palestinian group identified the flight carrying the U.S. agents with the assistance of a U.S./Iranian double agent named David Lovejoy. Time also ran a photograph purporting to be of Lovejoy, which it obtained from an affidavit filed by an attorney for Pan Am in a civil lawsuit related to the bombing. The affidavit claimed that an unnamed source had identified Lovejoy as the man in the photograph.

In fact, the picture was of another man, Michael Schafer. As the U.S. Court of Appeals for the Eleventh Circuit would later describe the mistake, "Time's article, therefore, erroneously identified Schafer, then working in his family's janitorial business in Austell, Georgia, both as a traitor to the United States government and a player in the bombing of Pan Am 103." Schafer demanded a retraction from Time, which the magazine published more than a month later. He also sued Time, Inc., for defamation in federal district court in Georgia.

The jury returned a verdict for Time in less than an hour. Schafer appealed the ruling, and the Eleventh Circuit reversed, granting a new trial because it found that the jury instructions issued by the district court were confusing. Specifically, the instructions were vague as to the question of whether Schafer needed merely to prove that Time was negligent in checking its facts (the proper standard for liability), as opposed to some level of intent to injure or constitutional "actual malice." However, the Eleventh Circuit held that Time would be allowed to argue in the next trial that it was not negligent in relying on the attorney affidavit.

Time settled the case with Schafer before retrial.

The Centennial Olympic Park Bombing: Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348 (S.D.N.Y. 1998);