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Update at 1:45 p.m.: The judge in the case did not rule Wednesday on the motion to dismiss the lawsuit. She said she expects to have a decision within the month.
BOSTON — A legal battle continues Wednesday morning in Suffolk Superior Court between The New York Post and two Boston-area men who are suing the newspaper because they say it falsely portrayed them as suspects in last April's marathon bombing.
The Post wants a judge to dismiss the lawsuit. The newspaper claims it based its story on a legitimate email from a law enforcement source.
Yassine Zaimi, from Malden, and Salaheddin Barhoum, from Revere, were described as "BAG MEN" in a full-page color photo on the cover of the April 18, 2013, issue of The New York Post.
The sub-heading on the cover photo read: "Feds seek these two pictured at Boston Marathon."
In the inside pages, the newspaper printed another photo of Zaimi and Barhoum with red circles around their faces.
"That's not freedom of speech, that's inaccurate reporting," said Zaimi's attorney, Bill Barrett. "We have laws that prevent that, and for good reason."
Barrett says the photos and the headlines were clearly libelous.
"They don't need to specifically give their names in order for this to be a slanderous action," he said. "Their pictures were all over the newspaper, they had headlines over their heads saying essentially, 'These are the guys with the bombs in their bags.' "
Zaimi and Barhoum are both legal permanent U.S. residents from Morocco. Barhoum ran high school track and Zaimi was a running coach. In fact, Zaimi's attorney says the two naively showed up at the finish line on April 15, 2013, because they wanted to run the marathon; they didn't know Boylston Street was the end of the route, and the race required official registration.
A couple of days after the bombing, Zaimi realized his face was popping up on the Internet as a potential suspect and so he voluntarily went to the Malden Police Department to clear his name. Barrett says by the time the Post story was printed, the FBI had already dismissed the idea that Zaimi was a threat.
Barrett says the cover of The New York Post was a tipping point for Zaimi; he felt like the "most hated person in the world," his attorney said.
Attorneys for the Post declined to be interviewed on the record for this story. But the newspaper pointed to the bottom-left corner of the April 18 front page as evidence that it never accused Barhoum and Zaimi of the bombing. In small font it included a disclaimer: "There is no direct evidence linking them to the crime, but authorities want to identify them."
In court filings, attorneys for The New York Post argued that the newspaper never directly accused Barhoum and Zaimi of the attack.
"It is implausible to maintain that anything in the Post's account implied that the plaintiffs were in fact involved in the Boston Marathon bombings," the attorneys wrote. "...[A]ll that plaintiffs ultimately have to say... is that the Post printed a large headline that brought more attention to them than they believe was warranted, and that readers who jump to conclusions might have jumped to a wrong one."
The attorneys also cited an email (below) from a FBI agent in Buffalo, N.Y., that was forwarded to an officer in the Los Angeles Sheriff’s Department, stating: "The attached photos are being circulated in an attempt to identify the individuals highlighted therein."
"That [email] is a far cry from saying ... the FBI has two men in their sights," Barrett said. "That's a very different meaning."
Attorneys for the Post disagree. They argue the newspaper coverage is technically factual.
"In short, one can report that police are trying to identify persons in a photo without being held responsible for accusing those persons of committing a crime," attorneys for the Post wrote in a filing.
Rob Bertsche, a veteran media lawyer with the Boston law firm Prince Lobel, agrees with The New York Post and says the case ought to be dismissed for two primary reasons:
"I think it's important to make a distinction between bad journalism and illegal journalism," Bertsche said. "And many people can say — and they may be correct — that there was some bad journalism going on here, but I think all of us are put in peril if we allow a court to decide issues of the quality of journalism as opposed to whether someone has been defamed by a false statement about them."
Bertsche says it was a "stupid" choice of words and photos, but, nonetheless, the story was based on truth.
For Boston College law professor Mary-Rose Papandrea, the case is more complicated. She says facts alone aren't necessarily an iron-clad defense. Sometimes, it depends on how that information is juxtaposed together, or how misleading the "true" photo seems, she said.
"The judge very well could say, 'Well, it's capable of a defamatory meaning,' " Papandrea said. "People will look at that and think, 'Well, it looks like they're suspects.' That's what the natural reaction would be."
A judge will hear arguments Wednesday morning on whether to throw out the case.
But even if the case moves forward and goes to trial, other questions are bound to pop up.
One key issue that hasn't been discussed yet is that prior to the Post's publication, these photos were already widely circulated on Reddit by vigilante sleuths, so jurors would potentially have to consider how much genuine emotional damage was caused by The New York Post story, versus a social media forum.
This segment aired on February 12, 2014.