MORGAN BANKS, et al., APPELLANTS, v. DAVID H. HOFFMAN, et al., APPELLEES.
No. 20-CV-0318
DISTRICT OF COLUMBIA COURT OF APPEALS
Decided September 7, 2023
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Bonny J. Forrest, of the bars of the States of New York and California, pro hac vice, by special leave of the court, with whom Kirk Jenkins and John B. Williams were on the brief, for appellants L. Morgan Banks, III, Debra L. Dunivin, and Larry C. James.
James C. McKay, Jr., Senior Assistant Attorney General, for appellee District of Columbia. Karl A. Racine, Attorney General for the District of Columbia at the time, Loren L. AliKhan, Solicitor General at the time, Caroline S. Van Zile, Principal Deputy Solicitor General at the time, Carl J. Schifferle, Deputy Solicitor General, and Mark S. Wigley, Assistant Attorney General, were on the brief for appellee District of Columbia.
Barbara S. Wahl, with whom Randall A. Brater and Michael F. Dearington were on the brief, for appellee American Psychological Association.
Thomas G. Hentoff, with whom John K. Villa, Stephen J. Fuzesi, Krystal C. Durham and Matthew J. Greer were on the brief, for appellees David H. Hoffman, Sidley Austin, LLP, and Sidley Austin (DC), LLP.
Before BLACKBURNE-RIGSBY, Chief Judge, HOWARD, Associate Judge, and THOMPSON, Senior Judge.
also vacate the court‘s rulings on the “public official” and “republication” issues discussed below and remand as to those issues as well.
I. Introduction
A. Procedural Background
Plaintiffs/appellants are Col. (Ret.) L. Morgan Banks, III, Col. (Ret.) Debra L. Dunivin, and Col. (Ret.) Larry C. James. All three are retired military psychologists who were mentioned prominently in a report (“the Report“), published in 2015 on the American Psychological Association (“APA“) website, concluding that certain APA officials colluded with the U.S. Department of Defense (“DoD“) “to support the implementation by DoD of the interrogation techniques [directed at persons detained following the events of September 11, 2001] that DoD wanted to implement without substantial constraints from APA” ethical guidelines. The Report identifies each of the appellants by name as a key participant in the alleged collusion. Appellants filed the underlying action for defamation per se, defamation by implication, and false light invasion of privacy in 2017, naming as defendants the APA, which authorized and financed the Report; David H. Hoffman, the lead of a team of lawyers who conducted the underlying
investigation and prepared the Report; and the law firm in which Hoffman is a partner, Sidley Austin LLP, and its affiliated entity Sidley Austin (DC) LLP (together, “Sidley“).3
The APA, Hoffman, and Sidley filed special motions to dismiss the lawsuit pursuant to the D.C. Anti-SLAPP Act. See
is a legislative enactment with respect to Title 11 of the D.C. Code, which is beyond the authority the Home Rule Act conferred on the Council of the District of Columbia (the “Council“), and because the Act‘s special-motion-to-dismiss procedure squarely conflicts with the mandate Congress set out in section 946 of Title 11 (
B. The D.C. Anti-SLAPP Act
The legislative history of the D.C. Anti-SLAPP Act describes a SLAPP—a strategic lawsuit against public participation—as an action “‘filed by one side of a political or public policy debate aimed to punish or prevent the expression of
opposing points of view.‘” Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1226 (D.C. 2016) (quoting Council of the District of Columbia, Report of Comm. on Pub. Safety and the Judiciary on Bill 18-893, at 1 (Nov. 18, 2010) (hereinafter, the “Report on Bill 18-893“)). In enacting the D.C. Anti-SLAPP Act in 2010, the Council joined nearly 40 other jurisdictions that had already adopted or were considering the adoption of anti-SLAPP legislation. Report on Bill 18-893 at 3. In the words of the Committee on Public Safety, the Act “incorporates substantive rights with regard to a defendant‘s ability to fend off” SLAPPs, so as to “allow a defendant to more expeditiously, and more equitably, disp[ose] of a SLAPP.” Id. at 1, 3.
The Anti-SLAPP Act‘s provisions at issue in this case are codified at
(a) A party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim.
(b) If a party filing a special motion to dismiss under this section makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied.
(c)
(1) Except as provided in paragraph (2) of this subsection, upon the filing of a special motion to dismiss, discovery proceedings on the claim shall be stayed until the motion has been disposed of.
(2) When it appears likely that targeted discovery will enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome, the court may order that specified discovery be conducted. Such an order may be conditioned upon the plaintiff paying any expenses incurred by the defendant in responding to such discovery.
(d) The court shall hold an expedited hearing on the special motion to dismiss, and issue a ruling as soon as practicable after the hearing. If the special motion to dismiss is granted, dismissal shall be with prejudice.
Construing the “likely to succeed on the merits” standard of
[Rule 56] summary judgment in that it imposes the burden on plaintiffs and requires the court to consider the legal sufficiency of the evidence presented before discovery is completed,” id., and because, under
weighing of evidence and permissible inferences by the jury.” Mann, 150 A.3d at 1236 (emphasis in the original).
reasonable attorney‘s fees may be awarded.” Doe v. Burke, 133 A.3d 569, 575 (D.C. 2016).
C. Factual Background
In late 2004, the New York Times and other media outlets published articles about the abuse of detainees captured by the United States as part of its global war on terror. These articles, and the reports underlying them, directly implicated psychologists as assisting in the carrying out of abusive interrogations of detainees. Amidst growing public scrutiny, the APA—a professional organization of over 117,500 members across the United States—convened a task force, known as the Psychological Ethics and National Security Task Force (the “PENS Task Force” or the “Task Force“) to “explore the ethical dimensions of psychology‘s involvement and the use of psychology in national security-related investigations.” Appellants Banks and James were among the ten individuals selected to be on the Task Force, and they were two of the Task Force‘s three members who were military officers at the time. Appellant Dunivin, who was also a military officer at the time, was not a member of the Task Force, but she proposed members for it (and, according to the Report, influenced its composition).
The PENS Task Force met for three days in June 2005 and, at the conclusion of the meetings, issued a set of guidelines
In the years that followed issuance of the PENS guidelines, the APA was publicly criticized for allowing psychologists to consult on national security interrogations. In 2014, nine years after the issuance of the PENS Guidelines, New York Times Reporter James Risen published a book entitled Pay Any Price: Greed, Power and Endless War, which charged that the APA had colluded with the U.S. government to support torture. In response, the APA commissioned Sidley to conduct “an independent review” to determine “whether APA officials [had] colluded with DoD, CIA, or other government officials to ‘support torture.‘” The review culminated in the 541-page Report, entitled “Independent Review Relating
to APA Ethics Guidelines, National Security Interrogations, and Torture.”5 The APA published the Report on its website in July 2015.
Under a section of the Report entitled “Summary of the Investigation‘s Conclusions,” the Report notes that its “principal findings relate to the 2005 [PENS] [T]ask [F]orce.” The first of the “principal findings” is that “key APA officials . . . colluded with important DoD officials to have APA issue loose, high-level ethical guidelines that did not constrain DoD in any greater fashion than existing DoD interrogation guidelines.”6 The Report identified appellant Banks as “the key DoD official” with whom the APA partnered and appellant Dunivin as “the other DoD official who was significantly involved in the confidential coordination effort.” The Report states as its next “principal finding” that “in the three years following the adoption of the 2005 PENS Task Force report as APA policy, appellants and APA officials engaged in a pattern of secret collaboration with DoD officials to defeat efforts by the APA Council of Representatives tо
introduce and pass resolutions that would have definitively prohibited psychologists from participating in interrogations at Guantanamo Bay and other U.S. detention centers abroad.” In an additional “principal finding,” the Report states that “ethics complaints against prominent national security psychologists w[ere] handled in an improper fashion, in an attempt to protect these psychologists from censure.” Appellant James is one of the psychologists who allegedly was “shielded” from censure.
D. The Particulars of the Complaint and the Superior Court‘s Rulings
Appellants’ August 2017 Complaint and February 2019 Supplemental Complaint allege that the Report had “an overarching false and defamatory narrative: [that] from 2005 to 2014, [p]laintiffs and others ‘colluded’ to block the APA from taking any effective steps to prevent psychologists’
with reckless disregard for their truth or falsity; purposely avoided information that they knew would contradict their preconceived narrative; relied on sources they knew were biased or unreliable; failed to adhere to proper investigative practices; and refused to correct or retract defamatory statements despite receiving additional evidence of their falsity. As to the APA, appellants assert that the APA Board hastily reviewed the Report and published it despite knowledge of its errors. The complaint alleges in addition that an APA email referencing the Report and changes made to the APA‘s website in August 2018 constituted a republication of the Report. An Exhibit to the complaint identifies 219 (allegedly) defamatory statements made in the Report.8
In a January 23, 2020, order, the Superior Court rejected appellants’ argument that the Anti-SLAPP Act is invalid, and the court granted appellees’ special motions to dismiss in a March 12, 2020, order. In the latter order, the Superior Court determined that appellees had made a prima facie showing that appellants’ claims “ar[ose] from an act in furtherance of the right of advocacy on issues of public interest” within the meaning of the Anti-SLAPP Act (a determination that appellants do not challenge in this appeal) and thus that, under
APA did not republish the Report in August 2018. This appeal followed. Appellants seek a remand for full discovery and trial.
II. Analysis
A. The Validity of the Anti-SLAPP Act‘s Provisions
1. Whether the Anti-SLAPP Act‘s Special-Motion-to-Dismiss Procedure Contravenes the Home Rule Act
We turn first to appellants’ contention that the D.C. Anti-SLAPP Act is void under the Home Rule Act. We note that the issue of the validity of the D.C. Anti-SLAPP Act in light of
investigators had received prior to the interviews leading them to focus their inquiry.”
Appellants’ claim is based on the Home Rule Act provision that states, in relevant part, that “[t]he Council shall have no authority to . . . [e]nact any act, resolution, or rule with respect to any provision of Title 11 (relating to organization and jurisdiction of the District of Columbia Courts).”
according to the Federal Rules of Civil Procedure . . . unless it prescribes or adopts rules which modify those Rules.”
Appellants argue that the Anti-SLAPP Act violates the Home Rule Act because it is legislation “with respect to [a] provision of Title 11,” which in particular “intrudes . . . on [Title 11, § 946] by imposing rules on the Superior Court that modify the Federal Rules but have not been approved by the D.C. Court of Appeals.” Appellants
The District of Columbia argues that the Home Rule Act limitation on the Council‘s authority set out in
money, time, and legal resources’ that defendants named in [SLAPP] lawsuits must expend” by “creat[ing] substantive rights which accelerate the often lengthy рrocesses of civil litigation“).
The foregoing statements about the Council‘s intent notwithstanding, our case law forecloses the notion that the Act‘s special-motion-to-dismiss provisions are not rules of procedure. We have observed that the Act‘s special motion to dismiss is in essence an expedited summary judgment motion, “albeit with procedural differences.” Am. Stud. Ass‘n v. Bronner, 259 A.3d 728, 740-41 (D.C. 2021).15 We have further acknowledged that the Act “creates a distinct procedural tool to be used to combat certain lawsuits,” Saudi Am. Pub. Rels. Affs. Comm. v. Inst. for Gulf Affs., 242 A.3d 602, 609 (D.C. 2020) (emphasis added), and provides SLAPP defendants “with procedural tools to protect themselves from ‘meritless’ litigation,” Close It! Title Servs., Inc. v. Nadel, 248 A.3d 132, 142 (D.C. 2021). Of particular note is the Act‘s provision (in
That discovery-limiting provision, like other “rules governing pretrial discovery,” is a rule “addressed to procedure.” Passmore v. Baylor Health Care Sys., 823 F.3d 292, 299 (5th Cir. 2016) (quoting Shady Grove, 559 U.S. at 404 (making that observation about both “rules governing summary judgment” and rules governing “pretrial discovery“)). That the D.C. Anti-SLAPP Act‘s discovery-limiting provisions were intended to provide substantive protections does not diminish their procedural nature because “most procedural rules do” “affect[] a litigant‘s substantive rights.” Shady Grove, 559 U.S. at 407.
As to the District‘s argument that the parenthetical in
In addition,
The District implies that the Anti-SLAPP Act does not contravene the Home Rule Act because it does not amend Title 11 itself, but the Act‘s discovery-limiting provisions do just that: they effectively amend and modify
Further, it cannot reasonably be thought inadvertent that the limitation on the Council‘s authority extends to every provision of Title 11. As we described in Woodroof, “a draft version of the [Home Rule] statute permitted the Council to ‘pass acts affecting all aspects of [the District of Columbia] courts’ after an ‘eighteen-month period following . . . the date of enactment of [the Home Rule] Act.‘” Woodroof, 147 A.3d at 783 (emphasis and second alteration supplied in Woodroof) (quoting H. Comm. on the District of Columbia, 93d Cong., 2d Sess., Home Rule for the District of Columbia 942 (Comm. Print 1974) (“Home Rule Print“)). But the proposal raised concerns among the bench and bar that the legislation could “completely alter” the District‘s new court system, which had only recently been established through the 1970 Court Reorganization Act, before it had time to mature and gain experience and also could threaten the independence of the judiciary. See id.; Hessey v. Burden, 584 A.2d 1, 7 (D.C. 1990). And of particular note, the judiciary expressed the concern that it was “unclear whether and the extent to which provisions [of the Court Reorganization Act] relating to . . . [the courts‘] authority to adopt court rules . . . would survive the enactment of [the draft Home Rule legislation, H.R. 9056].” Home Rule Print at 1422.
Congress went on to reject H.R. 9056 as well as a “proposed amendment,” id., that would have provided that “[e]xcept as otherwise provided in this Act, the organization and jurisdiction of the District of Columbia courts shall be governed by [T]itle 11.” Id. at 1423-24 (italics added). Congress determined to “freez[e] . . . current law,” id. at 1425, mandating that the District of Columbia court system “shall continue as provided under the . . . Court Reorganization Act,” “subject to . . . [D.C. Code]
It is true, as the District reminds us, that this court has repeatedly said that our interpretation of
The District argues that in employing that flexibility, this court has “construed [s]ection
Moreover, we are not presented here with a possibility, similar to ones we have been presented with in some of our earlier cases, of adopting a broad or fluid interpretation of a term or phrase used in Title 11 or in the Home Rule Act in a way that enables us to give deference to the Council‘s intent. Cf. Woodroof, 147 A.3d at 780, 785, 787 (holding that a provision of the Revised Uniform Arbitration Act allowing immediate appeal to this court of an order granting a motion to compel arbitration did not violate
To be sure, we have said that Council legislation that has a mere “incidental” impact on the Superior Court‘s exercise of its jurisdiction under Title 11 does not contravene the Home Rule Act
We think it important to note that recognizing the
In any event, as we said in Woodroof, it is only “[w]hen the Council‘s actions do not run directly contrary to the terms of Title 11” that we have construed section Title 11 in a flexible manner. 147 A.3d at 784. That is not the situation here. As we elaborate below, the Act‘s disсovery-limiting special-motion-to-dismiss procedure is directly contrary to
[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition [to a motion for summary judgment], the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.
As noted above, this court recognized in Mann that the D.C. Anti-SLAPP Act special-motion-to-dismiss provision effectively functions as a Rule 56 motion for summary judgment. Mann, 150 A.3d at 1238 n.32. But unlike
In short, because of the discovery-limiting aspects of
Most of the other federal courts of appeals that have ruled on the issue have similarly held that State anti-SLAPP statutes will not be applied fully (if at all) in
good cause [to allow discovery] under the Maine statute,” id. at 91,25 and on the additional rationale that the Maine anti-SLAPP statute “provides substantive legal defenses to defendants and alters what plaintiffs must prove to prevail,” neither of which is the “province of . . . Rule 56,” id. at 89 (noting that the Maine anti-SLAPP statute “substantively alters the type of harm actionable” by requiring the plaintiff to “show the defendant‘s conduct resulted in actual injury to the plaintiff” and further
In sum, the discovery-limiting aspects of the D.C. Anti-SLAPP Act‘s special-motion-to-dismiss procedure conflict with
Here, in seeking to persuade the Superior Court to allow them an opportunity for discovery, appellants filed declarations detailing the targeted discovery they sought. The Superior Court granted them answers to four interrogatories and a physical copy of a computer hard drive. But of the 148 witness-interview notes appellants requested, they were granted interview notes for only 18 individuals (excluding their own interview statements). In addition, while the Superior Court initially said it would allow appellants to take three depositions, the court subsequently sua sponte denied appellants an opportunity to take any depositions.
Appellants seek a remand “for full discovery,” arguing that “[d]efamation plaintiffs inevitably need substantial discovery from third parties about what defendants should have known, as well as from defendants themselves about [what] they knew,” what they avoided learning, “and what documents they had when they published the challenged statements.” Appellants emphasize that, in giving effect to the Act‘s special-motion-to-dismiss provision, the Superior Court “severely limit[ed] discovery in a case where evidence in [d]efendants’ possession was critical to address issues of malice” and “a crucial step in demonstrating actual malice.”29 Appellants assert that they “cannot adequately rebut [the Report‘s] claims without access to” witness statements, interview notes, and other documents that appellees have withheld.
As we noted in the introductory pages of this opinion and as we discuss further infra, appellants dispute that they are public officials whose defamation claims are entirely subject to the actual-malice fault standard. It appеars, however, that since appellants seek an award of punitive damages, the parties and their discovery efforts must focus on the question of actual malice even if appellants are not public officials.30 See infra note 38. We are persuaded that regardless of which standard applies — actual malice or negligence31 — appellants were entitled to discovery under the Superior Court counterparts to the Federal Rules of Civil Procedure before the Superior Court ruled on what was in effect appellees’ motion for summary judgment. But, giving effect to the Act‘s limited-discovery provision, the Superior Court denied appellants the opportunity for full discovery. We therefore reverse the judgment of dismissal and remand for further proceedings.
2. Appellants’ Constitutional Claims
Appellants contend that the D.C. Anti-SLAPP Act is invalid on the additional ground that it unconstitutionally burdens their First Amendment right to petition the government to seek redress for harm to their reputations and
livelihoods. In the context of this claim, too, appellants emphasize the Act‘s impairment of their right to discovery, an impediment they particularly decry since it applies even without proof that they filed suit with an abusive purpose. They complain that the possibility that they may be “saddled with the defendants’ attorneys’ fees” likewise burdens their right to petition.
Appellants also deride the Act‘s “reverse burden on the non-moving party.” This is a reference to what we have called the Act‘s “reversal of the allocation of burdens . . . for summary judgment[.]” Mann, 150 A.3d at 1237. We cannot agree that the Act‘s burden-shifting provision infringes on appellants’ constitutional right to petition. The Supreme Court has explained that “the right [of access to the courts] is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court.” Christopher v. Harbury, 536 U.S. 403, 415 (2002); see also McDonald v. Smith, 472 U.S. 479, 484 (1985) (“’ [B]aseless litigation is not immunized by the First Amendment right to petition.‘” (quoting Bill Johnson‘s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983))). The burden-shifting provision imposes on SLAPP plaintiffs the burden of showing that the complaint rests on more than “unsupported claims that do not meet established legal standards,” Mann, 150 A.3d at 1239, and of successfully rebutting any argument that the plaintiff “could not prevail as a matter of law, . . . after allowing for the weighing of evidence and permissible inferences by the jury,” id. at 1236 (emphasis omitted). A plaintiff who is shut out of court because it cannot meet that burden has not been denied its constitutional right to petition the courts.
What remains of appellants’ constitutional argument is the claim that the Act impermissibly burdens the First Amendment right to petition for redress by deterring plaintiffs whose lawsuits are not grounded on the types of abusive motives — the intent to punish or prevent expression — the Act was intended to stem. Appellants rely on cases from other jurisdictions in which courts have held that there must be a required showing of such
For the foregoing reasons, we reject appellants’ constitutional claims.
* * *
Appellants ask us to strike down the Act in its entirety. But in light of all the foregoing discussion, we see no basis for doing so in the absence of any argument by appellants that the discovery-limiting provisions of the Act are not severable. See Hooks v. United States, 191 A.3d 1141, 1145 (D.C. 2018) (“Even without a severability provision, there is always a presumption of severability whenever the remaining provisions, standing alone, are fully operative as a law.” (internal quotation marks and citation omitted)). Our decision today precludes the Superior Court from giving effect to
B. The “Public Official” Issue
“To succeed on a claim for defаmation, a plaintiff must prove: ‘(1) that the defendant made a false and defamatory
Appellants argue that the Superior Court erred in determining that they were public officials and in scrutinizing their evidence and likelihood of prevailing with an actual-malice lens. In their complaint and accompanying affidavits, appellants characterize themselves as “mid-level employee[s]” who were not in a position to formulate DoD or military policy. They contend that their role was to execute the policy directives of their superiors and emphasize that they did not have authority to speak on bеhalf of DoD. The Superior Court reasoned that the Report “clearly addresses [appellants‘] performance of their official duties,” but appellants assert that they did their work on the PENS Task Force during their free time as volunteers and private individuals who were members of the APA‘s military psychologists division, not in their capacity as military officers. In asserting in their special motions to dismiss that appellants are public officials, appellees relied in large part on appellants’ ranks and titles40 as well as on excerpts from appellants’ descriptions (in the complaint) of their positions and responsibilities.
The Supreme Court has not precisely defined the term “public official,” and the case law reflects difficult-to-reconcile determinations about particular public employees who have been determined to be, or not to be, public officials. See generally SACK, § 5:2.1 at 5-7 and 5-10 to 5-20 (collecting cases). The term “eludes precise definition.” Mandel v. Bos. Phoenix, Inc., 456 F.3d 198, 202 (1st Cir. 2006). The Supreme Court has instructed, however, that not every public employee is a public official for libel-law purposes. See Hutchinson v. Proxmire, 443 U.S. 111, 119 n.8 (1979). The term “applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Rosenblatt, 383 U.S. at 85. But “[t]he employee‘s position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.” Id. at 86 n.13.41 A public-official position is one with “such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance
This court‘s case law establishes that a government employee‘s position may be of “apparent importance” by virtue of, for example, control over policy, direct interaction with the public, or supervisory authority over other employees. Beeton v. District of Columbia, 779 A.2d 918, 921, 924 (D.C. 2001) (corrections officer was public official); Thompson v. Armstrong, 134 A.3d 305, 308, 312 (D.C. 2016) (special agent with Treasury Inspector General was public official). In considering a plaintiff‘s public-official status, we have echoed the Supreme Court‘s reasoning that “public officials, with superior access to the media, usually are better able than ordinary individuals to affect the outcome of those issues and to counteract the effects of negative publicity.” Moss, 580 A.2d at 1029 (citing Rosenblatt, 383 U.S. at 85-86); see also Gertz, 418 U.S. at 344 (“Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.“). See generally 1 RODNEY A. SMOLLA, LAW OF DEFAMATION § 2:108 (2d ed. 2023) (“[C]ourts have begun to emphasize the degree of policy-making authority wielded by the plaintiff in his or her official position, as well as the plaintiff‘s level of access to the media, as factors to be weighed in making the public official determination.“).
In determining that appellants are public officials, the Superior Court relied in part on appellants’ positions, which it found “comfortably fit within the hierarchy of public officials as provided in Rosenblatt.” The court also relied on apрellants’ allegations in the complaint that they drafted, created, implemented, and helped put in place policies, procedures, and training relating to interrogations and interview techniques; investigated interrogation abuses; and, in the case of appellant Banks, provided technical oversight of Army Special Operations psychologists and became an author of an Army Inspector General Report on detainee operations. The court did not give explicit consideration to appellants’ access vel non to the media. Appellants contend that this was error and argue that appellees failed to present evidence that would have supported a legal determination that each of the appellants is a public official.
Appellants argue in particular that the issue of their status as public officials is one that appellees raised as an affirmative defense and for which appellees accordingly bore — but failed to meet — the burden of proof. They cite the precedent of courts in California,43 which
And, in any event, as regards questions of law such as whether a defamation plaintiff is a public official, see Thompson, 134 A.3d at 312, “burdens of proof have no place,” Rogers v. Home Shopping Network, Inc., 57 F. Supp. 2d 973, 983 & n.5 (C.D. Cal. 1999) (explaining that “[b]urdens are relevant when evidence is ambiguous or evenly balanced,” but that “the issue of who bears the ‘burden of proof’ . . . cannot affect the legal question“). See Marinelarena v. Barr, 930 F.3d 1039, 1049 (9th Cir. 2019) (“[A] pure question
We conclude that we should rеmand the issue of appellants’ public-official status for the Superior Court to make the determination in the first instance, based on applying all of the relevant considerations and on a more fully developed record. Appellants emphasized at oral argument that some facts bearing on their status as public officials vel non is not in the record. They also suggest that the truth or falsity of some of the Report‘s content (such as insinuations that appellants’ “private deliberations about APA policies . . . had [an] effect on governmental policies“) is relevant to resolution of the public-official issue.
Further, the present record affords us no insight into matters such as whether appellants’ policy-drafting efforts were types of tasks inherent in their roles as military officers, or whether they were assigned or undertook their efforts, alleged in the complaint or discussed in the Report, based on their “particular proclivities.” Mandel, 456 F.3d at 205-06 (explaining how “the factual record, at the summary judgment stage, was too uncertain to warrant a legal conclusion either way” about the public-official status of the plaintiff assistant state‘s attorney). No discovery was conducted to assist in resolution of whether any or all of the appellants had “substantial responsibility for or control over the conduct of governmental affairs” by virtue of their positions (or whether, as they assert, they merely “executed the policy decisions of their superiors“); or whether appellants had access to the media to defend their reputations.47 We have not overlooked that appellants’ request for discovery does not appеar to have been directed at obtaining information relevant to the public-official issue, but we are also mindful that appellants were describing the targeted discovery they wanted the court to permit, and they understandably focused on materials they thought would enable them to prove actual malice.
We acknowledge that an early resolution of the public-official issue is preferable so that the parties “will know what case they are preparing and may be expected to try” and to enable them to avoid “unnecessary time, effort, and expense of preparing two cases.” SACK, § 5:4.2 at 5-84 (advocating for resolution of the public-figure issue “at the earliest opportunity that the state of the record will permit“); see also Miller v. Transam. Press, Inc., 621 F.2d 721, 724 (5th Cir. 1980) (advising that the question of public-figure status should “be answered as soon as possible“). “It does not follow, however, that the issue should always be decided as a preliminary matter,” because “[t]here are cases in which the pretrial record is simply inadequate for proper determination of the issue.” SACK, § 5:4.2 at 5-84; see also Mandel, 456 F.3d at 204 (“[T]here are cases in which it may not be possible to resolve the [public-official or public-figure] issue until trial.” (internal quotation marks and citation omitted)). We think this is such a case.
In sum, as to the public-official issue, we conclude, again, that appellants were entitled to discovery in an effort to meet their evidentiary burden to show a likelihood of prevailing against appellees’ asserted defenses and privileges. We therefore decline to resolve the issue of their public-official
C. Republication
Appellants’ republication claim (Count 11 of the Supplemental Complaint) alleges that on August 21, 2018, the APA‘s General Counsel sent an email to the APA Council of Representatives listserv, which includes persons who are not APA Council members, containing a link to an online APA Timeline page that in turn contains a link to the Report (as well as over 170 links to other documents, including some documents critical of the Report). Appellants assert that the email “constituted a separate communication of the defamatory Report to both the same persons and new persons”48 and, along with some changes the APA made to its website, constituted a republication by all of the appellees (including Sidley and Hoffman, based on the claimed “foreseeab[ility]” of the putative republication).
The Superior Court concluded as a matter of law that there was no republication on August 21, 2018.49 The court relied on the record evidence that the APA General Counsel‘s email did not contain a direct link to the Report50 Further, the court reasoned that “there is no evidence that Defendant APA intended to, or actually did, reach a new audience” and remarked that appellants’ contention that the APA sought a new audience by sending the email “exaggerates the available evidence.”
This court — which, at least for statute-of-limitations purposes, has adopted
III. Conclusion
For the reasons discussed above, we reverse the judgment of the Superior Court dismissing appellants’ complaint and remand for further proceedings consistent with this opinion.
So ordered.
Notes
March 12, 2020, Order at 11.Whether the publisher of a defamatory statement may be liable for republication dеpends on whether the publisher “edits and retransmits the defamatory material or redistributes the material with the goal of reaching a new audience.” See Eramo v. Rolling Stone, LLC, 209 F. Supp. 3d 862, 880 (W.D. Va. 2016) (internal citations omitted). “In the context of internet articles . . . courts have held that ‘a statement on a website is not republished unless the statement itself is substantively altered or added to, or the website is directed to a new audience.‘” Id. (internal citations omitted) (emphasis added). Thus, the relevant inquiry focuses on whether there has been a change in the content of the defamatory statement or whether the publisher actively sought a new audience.