Afrasiabi v. United Press International

561 F.Supp.3d 1

Kaveh AFRASIABI, Plaintiff,

v.UNITED PRESS INTERNATIONAL and Struan Stevenson, Defendants.

Civil Action No. 21-cv-10562-ADB

United States District Court, D. Massachusetts.

Signed September 22, 2021

William Keefe, Law Office of William Keefe, Boston, MA, for Plaintiff.

Brendan P. Slean, John Mark Dickison, Lawson & Weitzen, LLP, Boston, MA, for Defendant United Press International.

MEMORANDUM AND ORDER ON UPI'S MOTION FOR JUDGMENT ON THE PLEADINGS

BURROUGHS, D.J.

Plaintiff Dr. Kaveh Afrasiabi alleges that Defendants United Press International ("UPI") and Struan Stevenson (together with UPI, "Defendants") defamed him in a February 2021 article. [ECF No. 1 ("Compl.")]. Currently before the Court is UPI's motion for judgment on the pleadings. [ECF No. 8]. For the reasons set forth below, UPI's motion is GRANTED.

I. BACKGROUND

A. Factual Background

A motion for judgment on the pleadings is treated much like a Rule 12(b)(6) motion to dismiss. Because [a Rule 12(c)] motion calls for an assessment of the merits of the case at an embryonic stage, the court must view the facts contained in the pleadings in the light most favorable to the nonmovant and draw all reasonable inferences therefrom ....

Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008) (alteration in original) (citations and internal quotation marks omitted). Additionally, "[i]n reviewing a motion under Rule 12(c) ... [the Court] may consider ‘documents the authenticity of which are not disputed by the parties; ... documents central to plaintiffs’ claim; [and] documents sufficiently referred to in the complaint.’ " Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007) (third alteration in original) (quoting Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) ). The Court provides the following background consistent with this standard.

Dr. Afrasiabi is a political scientist with expertise in Iran and U.S.-Iran relations. [Compl. ¶ 6]. Among his academic pursuits, he obtained a PhD in political science. [Id. ¶ 7]. He has also authored several books on a variety of topics—including, but not limited to, Iran—and articles in dozens of prominent journals and newspapers. [Id. ¶¶ 8–9]. In addition to writing, Dr. Afrasiabi taught political science at various universities, served as a consultant to the United Nations, appeared on television as an expert on the Middle East, and is the founder and director of a non-governmental organization dedicated to advocating for and facilitating interfaith dialogue and peacekeeping. [Id. ¶¶ 10–12]. Given his accomplishments, he "has enjoyed a stellar reputation in the community of academics, political scientists and leaders in the field of international relations ...." [Id. ¶ 13].

On January 15, 2021, the United States Attorney's Office for the Eastern District of New York charged Dr. Afrasiabi with violating (and conspiring to violate) the Foreign Agent Registration Act ("FARA"), 22 U.S.C. § 611 et seq.¹ [Compl. ¶ 14]. He was arrested in Boston and had his initial appearance, pursuant to Federal Rule of Criminal Procedure 5(c)(3), before a Magistrate Judge in this District on January 19, 2021. [Id. ]. On February 10, 2021, after the case had been transferred to the Eastern District of New York, Dr. Afrasiabi pleaded not guilty.² [Id. ¶ 15].

After Dr. Afrasiabi's arrest, but before his plea, UPI published an article, written by Mr. Stevenson, about Dr. Afrasiabi's arrest and pending criminal charges (the "Article"). [Compl. ¶ 18]. The Article's headline read: "Iranian spy arrested by FBI was wolf in sheep's clothing." [Id. ]; see [ECF No. 10-1 at 2–4 (Article)]. In the Article, Mr. Stevenson wrote the following about Dr. Afrasiabi:

When the FBI arrested Kaveh Lotfolah Afrasiabi, a prominent political scientist and self-styled expert on Iran, it should have sent shockwaves through Western media circles.

[Dr.] Afrasiabi had spent the past 13 years proclaiming the virtues of the Islamic Republic to U.S. lawmakers and media outlets. He was a skilled and trusted lobbyist, at least until the FBI uncovered the fact that he had been paid more than $265,000 through Iran's Permanent Mission to the United Nations in New York, in flagrant breach of the [FARA]. A press release from the U.S. Justice Department set out the charges now faced by [Dr.] Afrasiabi for "conspiring to act as an unregistered agent of the government of the Islamic Republic of Iran."

John C. Demers, assistant attorney general for national security, said: "For over a decade, [Dr.] Afrasiabi pitched himself to Congress, journalists and the American public as a neutral and objective expert on Iran. However, all the while, [Dr.] Afrasiabi was actually a secret employee of the government of Iran and the permanent mission of the Islamic Republic of Iran to the United Nations, who was being paid to spread their propaganda. In doing so, he intentionally avoided registering with the Department of Justice as the [FARA] required. He likewise evaded his obligation to disclose who was sponsoring his views. We now begin to hold him responsible for those deeds."

The revelation that an Iranian spy was embedded in the heart of the U.S. democratic process certainly came as no surprise to representatives of the National Council of Resistance of Iran and the Mojahedin e-Khalq (PMOI/MEK), the main opposition movement to the theocratic fascist regime in Iran. The NCRI and MEK have long been the target of a campaign of misinformation and demonization by Tehran.

Frequent egregious newspaper articles and TV and radio documentaries have appeared over the years, trumpeting slurs and fabrications that have clearly been sourced directly from Tehran. Generally, an Iranian "expert" like [Dr.] Afrasiabi can be found, who has briefed the journalists concerned. There has even been evidence of Western journalists, newspapers and politicians being directly paid by the Iranian regime.

....

Attacks on the NCRI and MEK in the United States and EU media usually contain blatantly false allegations that can be traced back directly to the Iranian Ministry of Intelligence and Security. Quite frequently, such attacks can be found to have been conveyed through a familiar handful of pro-Iran lobbyists and supposed academics whose work is all but indistinguishable from [Dr.] Afrasiabi, who faces up to 10 years jail in America.

Sadly, years of appeasement of the tyrannical Iranian regime have emboldened its efforts to deceive the West, while indulging in grave violations of human rights at home and aggressive military expansionism and the export of terrorism abroad. The arrest of [Dr.] Afrasiabi and the trial of Assadi should surely be a wake-up call for the West.

[ECF No. 10-1 at 2–4].³

Notwithstanding the Article's characterization of him, Dr. Afrasiabi maintains that he is not a "spy" or "a wolf in sheep's clothing" and has never engaged in any espionage against the United States. [Compl. ¶¶ 24–25]. He further avers that the Article tarnished his reputation and has caused him emotional distress. [Id. ¶ 32].

B. Procedural Background

On April 2, 2021, Dr. Afrasiabi filed his one-count complaint alleging defamation. [Compl.]. Specifically, Dr. Afrasiabi contends that the Article's headline—"Iranian spy arrested by FBI was wolf in sheep's clothing"—was defamatory. [Id. ¶¶ 18, 25]. UPI answered, [ECF No. 4], and then moved for judgment on the pleadings, [ECF No. 8].⁴ Dr. Afrasiabi opposed UPI's motion, [ECF No. 11], and UPI filed a reply, [ECF No. 14].

II. LEGAL STANDARD

"After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). Courts considering motions for judgment on the pleadings use a standard similar to the one used for motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), except that a " Rule 12(c) motion, unlike a Rule 12(b)(6) motion, implicates the pleadings as a whole." Aponte-Torres v. Univ. Of P.R., 445 F.3d 50, 54–55 (1st Cir. 2006). "Judgment on the pleadings is proper ‘only if the uncontested and properly considered facts conclusively establish the movant's entitlement to a favorable judgment.’ " Zipperer v. Raytheon Co., 493 F.3d 50, 53 (1st Cir. 2007) (quoting Aponte-Torres, 445 F.3d at 54 ).

III. DISCUSSION

Dr. Afrasiabi objects to the Article's headline: "Iranian spy arrested by FBI was wolf in sheep's clothing." See [Compl. ¶¶ 18, 25]. UPI responds that the headline is a non-actionable opinion which, as a matter of law, cannot support a defamation claim.⁵ See [ECF No. 9 at 16–17].

The Supreme Court has recognized constitutional limits on the type of speech which may be the subject of state defamation actions. Because defamation requires a false statement at its core, opinions typically do not give rise to liability since they are not susceptible of being proved true or false. As Massachusetts case law observes, [i]n the defamation context, an expression of pure opinion is not actionable. Thus, a statement cannot be defamatory if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts.

Merely couching a statement as an opinion, however, will not automatically shield the speaker from liability where the statement implies the existence of underlying defamatory facts. Nonetheless, defamation cannot arise where the speaker communicates the non-defamatory facts that undergird his opinion. Thus, the speaker can immunize his statement from defamation liability by fully disclosing the non-defamatory facts on which his opinion is based.

Put together, the relevant question is not whether challenged language may be described as an opinion, but whether it reasonably would be understood to declare or imply provable assertions of fact. Whether a statement is a verifiable fact or an opinion can be decided by the court as a matter of law. This task requires an examination of the totality of

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