In May, 2013, a nonprofit corporation called “American Coalition Against Nuclear Iran” a/k/a “United Against Nuclear Iran” (“UANI”) wrote a public letter to Mr. Victor Restis alleging that Mr. Restis and his shipping company illegally participated in exporting “Iranian oil in violation of international sanctions.” Next, the Coalition united to write and disseminate press releases, and “postings on social media” including its Facebook page “and on UANI’s website,” all repeating the alleged libel that Mr. Restis and his shipping company participated in these illegal actions. Victor Restis v. American Coalition Against Nuclear Iran, Inc., No. 13 Civ 5032 (ER), Doc. 316, Opinion and Order filed March 23, 2015, at pp. 2-3 (S.D.N.Y.). Later in 2013, Mr. Restis and his company filed suit. Download Victor Restis v. American Coalition Against Nuclear Iran, Doc. 316, Filed 03.23.15 (S.D.N.Y. No. 13 Civ. 5032 (ER)).
In 2014, an unknown, unnamed agency of the Federal Government requested and received permission to intervene in the civil defamation case. The Federal Government demanded that the lawsuit had to be dismissed because of “the state secrets privilege.” (The agency is unknown because the Federal Judge did not name it on the ground of national security.)
The Federal Judge explained the states secret privilege after he had two ex parte meetings with unknown, unidentified Federal agents. As the Federal Judge explained the states secret privilege, it “is a common law evidentiary rule that allows the government to withhold information from discovery when disclosure would be inimical to national security.” Victor Restis v. American Coalition Against Nuclear Iran, Inc., No. 13 Civ 5032 (ER), Doc. 316, Opinion and Order filed March 23, 2015, at p. 4 (S.D.N.Y.). (The Federal Judge’s admission to the two ex parte meetings with the unidentified Federal agents is on page 7 of his Opinion and Order.)
The Federal Judge’s Opinion and Order in this civil case went beyond “a common law evidentiary rule that allows the government to withhold information from discovery,” however. In it, the Federal Judge ordered that the private plaintiffs’ defamation claim be dismissed because the state secrets privilege required dismissal here. The Federal Judge explained his ruling of dismissal on the basis that Federal Courts have ordered that claims must be dismissed where evidence as to claims or defenses necessarily carried an inherent and unacceptable risk of exposing state secrets. That this was the first dismissal of a civil case involving purely private litigants in which the Federal Government had demanded dismissal, did not change the view of this case in the Federal Judge’s eyes. “[T]he Court is convinced,” he wrote, “that further litigation of this action would impose an unjustifiable risk of disclosing state secrets.” This was so even if the case were tried in his chambers. Victor Restis v. American Coalition Against Nuclear Iran, Inc., No. 13 Civ 5032 (ER), Doc. 316, Opinion and Order filed March 23, 2015, at pp. 12-13 (S.D.N.Y.).
In sum, even if the plaintiffs could prove actionable defamation in this case without using the “state secrets” but only putting on non-privileged evidence available in the public domain, still this case presented an “unacceptable risk,” an “unjustifiable risk,” of exposing state secrets. Accordingly, the Federal Government’s demand had to be followed and this civil defamation case was dismissed.
Since the plaintiffs no longer have a pending prosecution of their defamation claim in suit at the present time, what if the plaintiffs pursue their claim against the defendants without a lawsuit. (The defendants in the civil defamation suit included not just the nonprofit corporation but also individuals associated both with that company and with the alleged defamation.) If the plaintiffs pursue their claim without their defamation lawsuit, the question becomes whether the defendants’ insurance companies, if any, can now deny coverage on the ground that to allow the claim to proceed against their policyholders would necessarily pose an “unacceptable risk” and an “unjustifiable risk” of exposing state secrets?
Another question arises, too, of course: Can defendants, whether operating through nonprofit corporations or otherwise, raise the shield of “state secrets” every time they allegedly libel or slander someone?
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