Dershowitz vs Turley On The New York Times's "Dog Libel"

Via The Times of Israel:

A week after a university commencement speaker was canceled because of a tweet claiming that Israel trains dogs to rape Palestinian prisoners, the allegation leapt into the pages of The New York Times.

The columnist Nicholas Kristof included the claim in a column alleging widespread sexual abuse against Palestinian prisoners in Israeli prisons.

Detailing the account of an unnamed Gaza journalist who says guards summoned a dog when he was imprisoned in 2024, Kristof writes, “He tried to dislodge the dog, he said, but it penetrated him.” Linking to a range of pro-Palestinian sources, he notes that other prisoners had recounted similar experiences elsewhere.

Elsewhere,

The article drew widespread reactions around the world, including protests and calls to cancel subscriptions. On Thursday, Prime Minister Benjamin Netanyahu and Foreign Minister Gideon Sa’ar threatened to file a defamation lawsuit against the newspaper for libel against the State of Israel. Israeli officials and the Israel Prison Service have completely denied the claims, and Netanyahu called them baseless.

Alan Dershowitz gave a summary of the legal issues in the YouTube interview embedded above. At 3:40

In those countries that allow nations and groups to bring lawsuits for defamation, it seems to me that it's a very, very strong case. Not in the United States, Israel can't bring a lawsuit. The Ministry of Foreign Affairs can't bring a lawsuit. Only individuals or corporations, etc, can be defamed. But there's no doubt in my mind that defamation has occurred, and under the law of probably Great Britain, Canada, maybe Australia, maybe Israel, these claims can be tested in a court of law. So, no, not in the United States, but yes, in other states that permit defamation actions for hate speech.

. . . [In London], there used to be what was called "tourism defamation", that is, people would purposely sue in London, even though they didn't have any connections to London. The courts are very concerned there about that. The problem with Israel, of course, is that you can bring lawsuits in Israel, and you can win, but you're going to collect almost nothing. So the issue with Israel is to bring the lawsuit and get a determination. Now, it won't have the same credibility that a lawsuit in another country might have, and they won't collect a lot of money, but the issue is not collecting a lot of money from the New York Times, it's discrediting it.

. . . it's getting discovery, and sitting down with the lawyers from the New York Times,and with Kristof and others, and putting them under deposition, and questioning them about who their sources are.

Jonathan Turley suggests we don't know enough yet about the lawsuit:

The Israelis allege that the column was intentionally posted ahead of the release of an independent Israeli report that found Hamas had systematically used sexual violence in the onslaught of October 7, 2023.

It is unclear whether the lawsuit will be filed on behalf of individuals, groups, or the nation as a whole. Regardless of the framing, the defamation action could allow Israel to delve into the paper’s journalistic practices and alleged bias.

Under the higher “actual malice standard,” Israeli counsel would likely need to prove that Kristof and the Times acted with knowledge of the allegation’s falsity or in reckless disregard of the truth.

. . . The newspaper has been repeatedly called out for slanted and sometimes false reporting on the Israeli-Palestinian conflicts. For example, after Israel attacked Gaza in response to the October 7th massacre, the Times reported on an alleged Israeli strike that destroyed part of the Al-Ahli hospital. The Times seemed to rush to get the allegation into print, with little supporting evidence.

The story was based on sources associated with the terrorist group Hamas, which is notorious for disseminating propaganda and false stories. It took a week before the Times retracted the claim. (It turned out to be a misfired Palestinian rocket that hit a parking lot).

. . . The Times has had to sever ties with antisemitic writers, or stringers, including one who said “the Jews are sons of the dogs, and I am in favor of killing them and burning them like Hitler did to them.”

These past controversies are potentially admissible in a defamation trial to show malice and a history of reckless reporting about Israel.

So far, the Times stands by the story. At the second link above,

New York Times spokeswoman Danielle Rhoades Ha said the legal threat was part of "a well-worn political playbook that aims to undermine independent reporting and stifle journalism that does not fit a specific narrative." She added that "any such legal claim would be without merit." Another Times spokesman, Charlie Stadtlander, defended the reporting, saying the testimonies were corroborated where possible with other witnesses and subjected to rigorous fact-checking against human rights research and testimony presented at the United Nations.

To judge from Dershowitz's interview, no matter where the lawsuit is filed, the aim is to discredit the Times once and for all. But the challenge may not be just legal. The story here continues,

Despite the official backing given to the two-time Pulitzer Prize winner, many newsroom journalists have expressed significant distrust with the facts presented. According to an extensive report in Puck, later echoed by the New York Post, newsroom reporters suspect the sources behind the allegations would not have met their own professional standards.

A source at The New York Times told ynet: “We feel the opinion section is hurting the credibility of the entire brand and repeatedly lowering the professional standard for all of us.” The remarks join testimony from another journalist who told Puck, “I am sick of being embarrassed by the Opinion section.” Other reporters are frustrated by damage to the paper’s reputation from decisions by a department they say is not subject to the same strict standards, and by opinion writers “invading” their areas of coverage.

The story gives another perspective on the chances of any lawsuit, brought either in the US or Israel:

But any legal action against The New York Times in the United States, which would most likely be heard in New York state, would face a significant hurdle that would make winning the case extremely difficult. The main obstacle is the U.S. Supreme Court precedent in New York Times v. Sullivan, which sets a high bar for lawsuits involving public figures. Under that ruling, it is not enough to prove that Kristof’s column was offensive, distorted, hostile or even wrong. To survive dismissal, plaintiffs would have to prove that the newspaper or columnist acted with "actual malice" — publishing a false factual claim while knowing it was false, or consciously disregarding serious doubts about its truth.

In addition, U.S. federal free speech laws mean that even if Israel won a defamation case in an Israeli court, enforcing the judgment on American soil would be nearly impossible.

This legal complexity was reflected in Ariel Sharon’s lawsuit against Time magazine in the 1980s. A New York jury found at the time that the article was false and defamatory, but Sharon did not receive damages because he failed to prove actual malice or reckless disregard by the magazine, as required under the Sullivan standard.