President Joe Biden’s nominee for the U.S. Supreme Court, Judge Ketanji Brown Jackson, is no stranger to the intersection of sports and the law.
Until her ascension to the U.S. Court of Appeals for the D.C. Circuit in 2021, Jackson was the presiding district court judge in the ongoing federal defamation lawsuit brought by retired Washington Nationals first baseman Ryan Zimmerman and retired Philadelphia Phillies first baseman Ryan Howard against Al Jazeera America and parent Al Jazeera Media Network.
Judge Jackson’s skepticism of the medium—and not just the messenger—may prove informative for those who could appear before her at the Supreme Court.
Six years ago, Zimmerman and Howard sued for defamation and false light over claims made in the 2015 documentary, The Dark Side: Secrets of the Sports Dopers. The 49-minute documentary asserted that a group of players, including Zimmerman and Howard as well as NFLers Peyton Manning and Julius Peppers, used the hormonal drug Delta-2 or Human Growth Hormone to boost their performance.
Al Jazeera relied on taped confessions and hidden camera footage to expose connections between PED distributors, including physicians and chiropractors, and the athletes they allegedly supplied. During the documentary, pharmacist Charlie Sly implicates Zimmerman and Howard. Sly is also shown recanting his allegation.
The case has remained on the docket, with the most recent filing on Feb. 23. Judge Jia Cobb is now the presiding judge.
During the litigation, Judge Jackson made several key rulings. Of greatest impact, she denied a motion to dismiss the lawsuit in 2017. Al Jazeera had argued that it was Sly, not the media company, who made the accusations, and that Al Jazeera hadn’t endorsed or validated Sly’s claims.
Judge Jackson wasn’t convinced.
In the court’s view, she wrote, “the argument that the challenged statements are not capable of conveying a defamatory meaning because the film establishes that Sly is the messenger, and that Al Jazeera and Davies are merely reporting that message, is unpersuasive.” She added that “a reasonable viewer could certainly have understood the documentary as a whole to be an endorsement of Sly’s claims.”
To that point, Judge Jackson wrote in detail about what viewers witnessed. “It is readily apparent,” she concluded, “that the film includes many scenes that are capable of communicating not only that Sly made the disputed allegations, but also that Sly’s statements are credible and should be believed.” Jackson cited the documentary’s narration. Viewers, she stressed, were told Al Jazeera producers tested Sly’s doping expertise and actual connections to athletes. The narrator confirms that Sly “proved his link to one sportsman very quickly.”
In other words, as Judge Jackson saw it, Al Jazeera hadn’t just relayed what Sly claimed. It also gave viewers a reason to believe he was “credentialed and trustworthy, and that his statements—including those regarding Plaintiffs’ use of illegal PEDs—are true.”
Last January, as reported by Sportico, Al Jazeera attorneys claimed in a memorandum to Judge Jackson that they possess “sealed evidence” which contains invoices and email exchanges supporting the documentary’s contentions. The exchanges allegedly include those between Zimmerman and Sly.
Judge Jackson, 51, is a graduate of Harvard College and Harvard Law School, where she was an editor on the Harvard Law Review. Between attending college and law school, Jackson was a staff reporter for Time magazine. If confirmed by the U.S. Senate, she would become the first black woman to serve on the Supreme Court. Jackson would fill the vacancy left by retiring Justice Stephen Breyer, for whom Jackson clerked between 1999 and 2000.
