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NEWS MEDIA UPDATE   ·   ELEVENTH CIRCUIT   ·   Privacy   ·   May 25, 2005

Identifying informant not invasion of privacy

  • The First Amendment protects a book author from an invasion of privacy lawsuit filed by a confidential federal drug informant identified in the book, the U.S. Court of Appeals ruled.

May 25, 2005  ·   A book identifying a Drug Enforcement Agency informant and describing his activities did not invade his privacy, the U.S. Court of Appeals in Atlanta (11th Cir.) ruled last week in an unpublished and unsigned opinion. A three-judge panel upheld a trial court ruling that the information disclosed in the book was either already available in public court documents or was protected by the First Amendment because it concerned a matter of public interest.

In 2001, former New York City Police Commissioner Bernard B. Kerik published a memoir titled "The Lost Son: A Life in Pursuit of Justice." The book detailed his experiences investigating drug crimes and included references to Paul Lir Alexander, a confidential DEA informant and former agent of Mossad, Israel's intelligence agency, who pleaded guilty in 1993 to conspiracy to import cocaine. He was sentenced to 14 years in prison and is scheduled for early release in June.

Alexander sued Kerik and the book's publisher, HarperCollins, in U.S. District Court in Brunswick, Georgia, alleging negligence and invasion of privacy, and claiming that the revelation of his activities as an informant endangered his life and the lives of his family members.

In March 2004, Judge Anthony Alaimo ruled in favor of Kerik and HarperCollins on the grounds that Alexander's status as a DEA informant had already been disclosed in publicly available court documents and that the First Amendment provides an absolute privilege to publish such information. Alexander's status as a DEA informant and Mossad agent also had previously been published elsewhere, so Kerik's publication of already public information was also not an invasion of privacy, the court ruled.

Alaimo did rule that details of Alexander's informant activities had not previously been made public, but because they concerned a matter of public interest, the First Amendment protected their publication. "Given that Alexander was importing large quantities of illegal drugs during the same time period he was 'assisting' the DEA, the details of Alexander's involvement particularly involve a matter of public interest," Alaimo wrote.

Alexander appealed the ruling, which was affirmed by the Court of Appeals May 18 in a short opinion.

Kerik was nominated by President Bush to be secretary of the Department of Homeland Security in December, but he withdrew his nomination after revealing that he had illegally hired a foreign worker as a nanny and housekeeper.

(Alexander v. HarperCollins Publishers, Media Counsel: Katherine M. Bolger, Hogan & Hartson LLP, New York) -- GP

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