George S. BOLEY, Plaintiff, v. ATLANTIC MONTHLY GROUP, and Jeffrey Goldberg, Defendants.
Civil Action No. 13-89(RBW)
United States District Court, District of Columbia.
June 25, 2013
950 F. Supp. 2d 249
REGGIE B. WALTON, District Judge.
Constance Morrow Pendleton, Laura Rose Handman, Micah J. Ratner, Davis, Wright & Tremaine, LLP, Washington, DC, for Defendants.
MEMORANDUM OPINION
REGGIE B. WALTON, District Judge.
Plaintiff George S. Boley, proceeding pro se, brings this defamation action against the Atlantic Monthly Group, Inc. (the “Atlantic Group“) and one of its employees, Jeffrey Goldberg. See Complaint (“Compl.“) ¶¶ 20-32. Currently before the Court is the defendants’ motion to dismiss pursuant to
I. Background
Boley was formerly a public official in the Republic of Liberia, where he held positions including “Minister of State, Minister of Education and Minister of Post and Telecommunications.” Compl. ¶ 4. He also served as chairman of the Liberia Peace Council during the Liberian Civil War in the early 1990s, a group which Boley claims sought “to find an amicable end to the civil war.” Id. ¶¶ 16, 18.
The Atlantic Group publishes a monthly magazine, The Atlantic, which is widely distributed in print and online. Id. ¶ 15. Goldberg is a national correspondent for The Atlantic. Id. ¶ 16.
Goldberg made comments about Boley in two separate articles published on The Atlantic‘s website on January 27, 2010, and February 11, 2010. See id. ¶¶ 20-21. Boley‘s complaint excerpts the following passage from the January 27, 2010 article:
Some news out of New York. George Boley, a warlord I first met when covering the Liberian civil war in the mid-90s, and who later moved to New York, was arrested January 15th by U.S. Immigration and Customs and is now sitting in a jail cell in upstate Batavia. So far, he‘s being charged administratively, with lying in order to gain entry into the U.S., and with committing extrajudicial killings while in another country. Other branches of Homeland Security, I‘ve been told, are looking at charging him with actual war crimes, which is a good thing, because he belongs in the Hague with his fellow warlord, Charles Taylor. . . . I knew, from firsthand observation, that his organization, the grossly-misnamed Liberian Peace Council, recruited and armed child soldiers; fed them drugs; and ordered them to rape and kill.
Id. ¶ 20 (citing Jeffrey Goldberg, George Boley, Liberian Warlord, Is Finally Under Arrest, The Atlantic (Jan. 27, 2010), http://www.theatlantic.com/international/archive/2010/01/george-boley-liberian-warlord-is-finally-under-arrest/34330/ (last visited June 11, 2013) (“January 27, 2010 article“)). The complaint also excerpts the following passage from Goldberg‘s February 11, 2010 article, in which Goldberg commented on a separate story discussing an alleged relationship between a controversial Liberian figure, Charles Taylor, and Reverend Pat Robertson:
You should pardon the expression, but, Christ. Charles Taylor is an evil man, more evil than my own personal Liberian warlord, George Boley.2 I suppose I shouldn‘t be surprised by Pat Robertson, but this is fairly unbelievable.
Id. ¶ 21 (citing Jeffrey Goldberg, Pat Robertson, Friend of Warlords, The Atlantic
The defendants have now filed a motion to dismiss under
II. Special Motion to Dismiss under the Anti-SLAPP Act
A. Applicability of the Anti-SLAPP Act in Federal Diversity Actions
As a threshold matter, Boley argues that the Anti-SLAPP Act‘s special motion to dismiss provisions do not apply in federal proceedings where, as here, the court‘s jurisdiction is based on diversity. Pl.‘s Opp‘n at 22; see Compl. ¶ 1 (invoking the Court‘s diversity jurisdiction). He relies exclusively on 3M Co. v. Boulter, 842 F.Supp.2d 85, 102 (D.D.C.2012) (Wilkins, J.), in which another member of this Court held that the Anti-SLAPP Act “squarely attempts to answer the same question that [
While thoroughly reasoned, 3M Co. conflicts with the weight of authority. Indeed, three federal circuit courts have deemed it necessary to enforce state anti-SLAPP laws in diversity actions, finding no conflict between those statutes’ special motion to dismiss provisions and
B. The Anti-SLAPP Act
The subsection of the Anti-SLAPP Act governing special motions to dismiss provides in pertinent part:
(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.
The “broad” protections afforded by the Act “follow[] ‘the lead of other jurisdic-
SLAPPs . . . have been increasingly utilized over the past two decades as a means to muzzle speech or efforts to petition the government on issues of public interest. Such cases are often without merit, but achieve their filer‘s intention of publishing or preventing opposing points of view, resulting in a chilling effect on the exercise of constitutionally protected rights. Further, defendants of a SLAPP must dedicate a substantial[] amount of money, time, and legal resources. The impact is not limited to named defendants[‘] willingness to speak out, but prevents others from voicing concerns as well.
Comm. Report at 1. The Anti-SLAPP Act seeks to address these concerns “by incorporating substantive rights that allow a defendant to more expeditiously, and more equitably, dispense of a SLAPP.” Id.
In construing the Anti-SLAPP Act, this Court unfortunately has no guidance from the D.C. Court of Appeals, which, to date, has not issued a published opinion interpreting the statute. Where, as here, “the substantive law of the forum state is uncertain or ambiguous, the job of the federal courts is carefully to predict how the highest court of the forum state would resolve the uncertainty or ambiguity.” Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir.1994). With this principle in mind, the Court deems it noteworthy that the Committee Report prepared in connection with the Anti-SLAPP Act emphasizes that the law was designed to “follow[] the model set forth in a number of other jurisdictions,” Comm. Report at 1, and that the D.C. Court of Appeals often accords significant weight to such reports, see, e.g., Dist. of Columbia v. Place, 892 A.2d 1108, 1113-15 (D.C.2006). Where appropriate, then, the Court will look to decisions from other jurisdictions (particularly those from California, which has a well-developed body of anti-SLAPP jurisprudence) for guidance in predicting how the D.C. Court of Appeals would interpret its own anti-SLAPP law.
C. Merits of the Defendants’ Motion
1. Prima Facie Showing of Protected Activity
For the defendants’ motion to prevail, they must initially make 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.”
(A) Any written or oral statement made:
(i) In connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or
(ii) In a place open to the public or a public forum in connection with an issue of public interest; or
(B) Any other expression or expressive conduct that involves petitioning the government or communicating views to members of the public in connection with an issue of public interest.
Here, the defendants have made a prima facie showing that Goldberg‘s allegedly defamatory statements are protected under several provisions of the Anti-SLAPP Act. See Defs.’ Mem. at 23-24. To begin with, all of Goldberg‘s statements about Boley qualify as “written . . . statement[s] made . . . [i]n a place open to the public or a public forum in connection with an issue of public interest.”
same reasons, all of Goldberg‘s statements about Boley—including his comments that Boley is an “evil” “warlord” who “belongs in the Hague“—also qualify for protection as “other expression . . . communicating views to members of the public in connection with an issue of public interest.”
In addition, Goldberg‘s statements regarding ICE‘s arrest, investigation, and administrative charging of Boley plainly qualify as “written . . . statement[s] made . . . [i]n connection with an issue under consideration or review by [an] . . . executive . . . body.”
2. Likelihood of Success on the Merits
Because the defendants have made a prima facie showing that Boley‘s defamation claim “arises from an act in furtherance of the right of advocacy on issues of public interest,” the burden now shifts to Boley “to demonstrate[] that the claim is likely to succeed on the merits.”
To prevail on a defamation claim under District of Columbia law, a plaintiff must prove four elements: (1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant‘s fault in publishing the statement amounted to at least negligence; and (4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm. Oparaugo v. Watts, 884 A.2d 63, 76 (D.C.2005) (quotation marks and citation omitted). “Normally the issue of privilege antecedes the question whether a communication is capable of defamatory meaning.” White v. Fraternal Order of Police, 909 F.2d 512, 527 (D.C.Cir.1990). Accordingly, the Court first considers whether Goldberg‘s allegedly defamatory statements are privileged.
i. Privilege
The defendants contend that Goldberg‘s statements are protected by the fair report privilege. Defs.’ Mem. at 11. “There is no question that, as a matter of District of Columbia law, publications do enjoy a conditional fair report privilege,” which shields “fair and accurate reports of official proceedings.” Dameron v. Wash. Mag., Inc., 779 F.2d 736, 739 (D.C.Cir.1985). “The basis of the privilege is the interest of the public in having information made available to it as to what occurs in official proceedings and public meetings.” Id. (citation omitted). “Under applicable District of Columbia law, a defendant must ‘clear[] two major hurdles’ to qualify for the fair report privilege.” Jankovic v. Int‘l Crisis Grp., 593 F.3d 22, 26 (D.C.Cir.2010) (quoting Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 89 (D.C.1980)). A defendant “must show, first, that [the] publication was a ‘fair and accurate report’ of a qualified government source, and, second, that the publication properly attributed the statement to the official source.” Id.
Goldberg‘s statements describing ICE‘s arrest, investigation, and administrative charging of Boley, see Compl. ¶ 20, are protected by the fair report privilege. First, these statements concerned a “governmental proceeding” to which the privilege applies. See White, 909 F.2d at 527 (privilege applies broadly to “reports of any official proceeding or action taken by any officer or agency of government” (quoting Phillips, 424 A.2d at 88) (emphasis omitted)). Second, official ICE documents filed in a habeas action instituted by Boley challenging his detention (the authenticity of which Boley does not dispute) reveal that Goldberg‘s statements were a “fair and accurate report” of the ICE removal proceeding. Compare Compl. ¶ 20 (citing as defamatory Goldberg‘s state-
The Court next turns to Goldberg‘s statement that he “knew, from firsthand observation, that [Boley‘s] organization, the grossly-misnamed Liberian Peace Council, recruited and armed child soldiers; fed them drugs; and ordered them to rape and kill.” Compl. ¶ 20. Boley asserts that this statement “cannot be attributed to any official source.” Pl.‘s Opp‘n at 18. Boley‘s argument might be convincing based solely on the excerpt provided in his complaint, which depicts Goldberg‘s statement as presenting “historical fact[s] without any indication that the statement[ was] intended as a summary of an official [proceeding or] document.” White, 909 F.2d at 528; see Dameron, 779 F.2d at 740.
But the complaint misleadingly takes Goldberg‘s statement out of context. The excerpt highlighted by Boley is cherry-picked from the following passage from Goldberg‘s article:
I‘ve been involved with Boley‘s case for a little while. I was subpoenaed by a human rights group in Minnesota, the Advocates for Human Rights, to testify against Boley in a defamation lawsuit that he himself filed against the group (the definition of chutzpah, by the way). I eventually provided a sworn affidavit in the case, in which I detailed what I knew of Boley‘s activities in the civil war, which is a lot—I knew, from firsthand observation, that his organization, the grossly-misnamed Liberian Peace Council, recruited and armed child soldiers; fed them drugs; and ordered them to rape and kill. For starters. (The lawsuit, unsurprisingly, was dismissed earlier this month.)
January 27, 2010 article. Viewed in context, then, Goldberg‘s allegedly defamatory statement merely described an affidavit he submitted in an official proceeding, i.e., a civil lawsuit filed by Boley. The fair re-
Goldberg also opined that the government‘s investigation and potential charging of Boley for war crimes was a “good thing[] because he belongs in the Hague.” Compl. ¶ 20. This comment, while exceeding the bounds of the fair report privilege, falls within the scope of a separate, “freestanding doctrine under District of Columbia law“: the “fair comment” privilege. Jankovic, 593 F.3d at 29. This “long recognized” doctrine “accord[s] the media the privilege of fair comment on matters of public interest,” so long as the opinions expressed are based on true facts. Phillips, 424 A.2d at 88; see Jankovic, 593 F.3d at 29; Wash. Times Co. v. Bonner, 86 F.2d 836, 841 n. 4 (D.C.Cir.1936). Such statements are not actionable in defamation “[b]ecause the reader understands that such supported opinions represent the writer‘s interpretation of the facts presented, and because the reader is free to draw his or her own conclusions based upon those facts.” Moldea v. New York Times Co., 15 F.3d 1137, 1145 (D.C.Cir.1994) (”Moldea I“), rev‘d in part on reh‘g, 22 F.3d 310 (D.C.Cir.1994) (”Moldea II“). Here, Goldberg‘s statement expressed his personal opinion on a matter of public concern, and was based on a fact that is undisputed as true in this case, i.e., that the federal government was investigating Boley in January 2010 for committing war crimes abroad. The statement is accordingly protected as fair comment.
Other aspects of Goldberg‘s allegedly defamatory statements do not appear to be within the scope of any privilege—namely his characterizations of Boley as “evil” and a “warlord.” Compl. ¶¶ 20-21. Nevertheless, as explained below, these statements do not give rise to a meritorious defamation claim.
ii. Goldberg‘s Characterization of Boley as “Evil”
When evaluating the merits of a defamation claim, courts must address two threshold questions of law: “whether the disputed [publication] (1) contains express or implied verifiably false statements of fact, which (2) are reasonably capable of defamatory meaning or otherwise place [the plaintiff] in an offensive false light.” Weyrich v. New Republic, Inc., 235 F.3d 617, 623 (D.C.Cir.2001); Moldea II, 22 F.3d at 316-17. Regarding this first requirement, the Circuit has explained that a statement must “at a minimum express or imply a verifiably false fact about” the plaintiff in order to be “actionable under the First Amendment.” Weyrich, 235 F.3d at 624. This principle seeks to assure that “public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990)
As the defendants point out, Defs.’ Reply at 5, Goldberg‘s characterization of Boley as “evil” is not a verifiable statement of fact, see Underwager v. Channel 9 Australia, 69 F.3d 361, 367 (9th Cir.1995) (statement that plaintiff was “intrinsically evil” was not “not capable of verification” and thus was not actionable). This is precisely the sort of “imaginative expression” and “rhetorical hyperbole” that the First Amendment protects. Consequently, the statement is not actionable in defamation.
iii. Goldberg‘s Characterization of Boley as a “Warlord”
Goldberg repeatedly referred to Boley as a “warlord” in his two Atlantic articles. See Compl. ¶¶ 20-21. The defendants do not appear to dispute that this term expresses a verifiable statement of fact that is capable of defamatory meaning. However, assuming without deciding that these threshold requirements are satisfied, the Court concludes that Boley‘s defamation claim based on Goldberg calling him a “warlord” is not likely to succeed on the merits because there is no indication that the statement was false or made with actual malice.
Reflecting our “national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” the First Amendment sets a high bar for “public figures” to recover for defamation. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Specifically, a public figure may prevail in a defamation suit6 only if he can produce “clear and convincing evidence” that the challenged publication was made with “actual malice“—i.e., with “knowledge that it was false or with reckless disregard of whether it was false or not.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991).
“The Supreme Court has identified two classes of public figures in addition to government officials: general purpose and limited purpose public figures.” Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C.Cir.1987) (en banc). “A person becomes a general purpose public figure only if he or she is ‘a well-known celebrity, his name a household word.‘” Id. (citation omitted). “Few people,” however, “attain the general notoriety that would make them public figures for all purposes.” Waldbaum v. Fairchild Publn‘s, Inc., 627 F.2d 1287, 1296 (D.C.Cir.1980). Much more common are “public figures for the more limited purpose of certain issues or situations.” Tavoulareas, 817 F.2d at 772. “Whether (and to what extent) a person is a public figure is a matter of law for the court to decide.” Id.
Here, Boley has not achieved the level of notoriety necessary to qualify as a general purpose public figure, so the Court will consider whether he is a limited purpose public figure.
a. Limited Purpose Public Figure
In Waldbaum, the Circuit “formulated a three-part test for identifying a limited-purpose public figure, requiring (1) that there have been a public controversy; (2) that the plaintiff have played a suffi-
First, there was a public controversy concerning the Liberian Civil War. The issue garnered attention from the United States Department of State, which published a detailed report describing the “flagrant disregard for human rights by the 40,000 to 60,000 fighters in the major factions” involved in the war. Defs.’ Mem., Ratner Decl., Ex. 1 (March 1996 Department of State Report entitled “Liberia Human Rights Practices, 1995” (“State Department Report“)) at 2. It has also received substantial press coverage internationally, and became the subject of at least one widely-published book. See Stephen Ellis, The Mask of Anarchy: The Destruction of Liberia and the Religious Dimension of an African Civil War (1999). Thus, “persons actually were discussing [the] specific question,” and “the press was covering” it. Waldbaum, 627 F.2d at 1297. And certainly a national civil war involving widespread reported abuses of human rights is no isolated matter. Such events instead have “foreseeable and substantial ramifications” for both participants and nonparticipants alike. See id.
Second, Boley played a sufficiently central role in the controversy. Boley acknowledges that during the Liberian Civil War he was chairman of the “Liberia Peace Council,” which he claims sought to find an “amicable end to the civil war” through peaceful negotiation. Compl. ¶¶ 16, 18. As Boley himself stated, he felt compelled to become involved because, “[a]s a prominent Liberian,” he could “not sit on the sidelines and allow the carnage to continue.” Id. ¶ 15. “[B]y purposely trying to influence the outcome” of the Liberian Civil War, Boley thrust himself into the forefront of the controversy. See Waldbaum, 627 F.2d at 1297. At the very least, Boley “could realistically have been expected, because of his position in the controversy, to have an impact on its resolution.” See id. Indeed, that is precisely what Boley states he attempted to do: impact the resolution of the civil war through his stature as a prominent Liberian.
Boley suggests that his actions in Liberia did not make him a public figure in the United States. See Pl.‘s Opp‘n at 4. But this argument overlooks that a limited purpose public figure is defined “not in terms of geography but in terms of the controversy that he has stepped into.” Lluberes v. Uncommon Prods., LLC, 663 F.3d 6, 20 (1st Cir.2011) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974); Tavoulareas, 817 F.2d at 772). As indicated, the controversy at issue here—the Liberian Civil War—stretched beyond that country‘s borders, garnering attention from the United States government and the global press. Because Boley admittedly “exposed [himself] to increased risk of injury from defamation” on the topic of the Liberian Civil War and its attendant human rights abuses, see Lohrenz v. Donnelly, 350 F.3d 1272, 1280 (D.C.Cir.2003), the second Waldbaum requirement is satisfied.7
Accordingly, the Court concludes that the Waldbaum criteria are satisfied and that Boley qualifies as a limited purpose public figure.
b. Falsity and Actual Malice
“Where a public figure . . . pursues a libel action, first amendment requirements supplant . . . the common law of defamation . . . in several respects.” Liberty Lobby, Inc., 838 F.2d at 1292. “First, such a plaintiff must demonstrate by at least a fair preponderance of the evidence that the allegedly defamatory statement is false.” Id. In considering the element of falsity, the Court must be mindful that “‘substantial truth’ . . . is generally regarded as a defense to defamation.” Moldea I, 15 F.3d at 1150. Thus, “[i]t is not necessary to establish the literal truth of the precise statement made. Slight inaccuracies of expression are immaterial provided that the defamatory charge is true in substance.” Liberty Lobby, Inc., 838 F.2d at 1296 (citation omitted).
Second, the plaintiff must prove that the defendants “acted with actual malice, and not merely ordinary negligence, in publishing [the] allegedly defamatory statements about” him. Lohrenz, 350 F.3d at 1282-83. To meet this burden, Boley “must show, by clear and convincing evidence, that when the defendants published the alleged defamations they were subjectively aware that it was highly probable that the story was ‘(1) fabricated; (2) so inherently improbable that only a reckless person would have put [it] in circulation; or (3) based wholly on an unverified anonymous telephone call or some other source that appellees had obvious reasons to doubt.‘” Id. at 1283 (citation omitted). Courts serve an important function in assessing actual malice. As the Supreme Court has explained, “[t]he question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact.” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 511 (1984). “Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of ‘actual malice.‘” Id.
Because Goldberg characterized Boley as a warlord based on his own purported observations of him in Liberia, this is not a case where actual malice can be shown through a journalist‘s reckless reliance on an unreliable third-party source; rather, the question is whether Goldberg fabricated the story. See St. Amant v. Thompson, 390 U.S. 727, 732 (1968) (actual malice may be established by proof that the “story [was] fabricated by the defendant, or [was] the product of his imagination“). And Boley “cannot show actual malice in the abstract; [he] must demonstrate actual malice in conjunction with a false defamatory statement.” Tavoulareas, 817 F.2d at 794. Furthermore, with respect both to falsity and actual malice, Boley must
Boley has failed to make this showing. Although his complaint makes blanket denials of Goldberg‘s statements and denies having committed any war crimes, Compl. ¶ 23, Boley does not specifically deny that he was a “warlord” as that term is commonly defined,8 nor does he explain why Goldberg‘s characterization of him as a warlord was false. See Vogel v. Felice, 127 Cal.App.4th 1006, 26 Cal.Rptr.3d 350, 363 (2005) (in responding to anti-SLAPP motion, plaintiff “tacitly admitted the substantial truth of” allegedly defamatory statement where he merely “described . . . characterization as false, but never stated the true facts to which the statement would have to be compared in order to establish its substantial falsity“). More important, in opposing the defendants’ Anti-SLAPP motion, Boley has adduced no facts indicating that the “warlord” statements were false or made with actual malice, offering only broad and conclusory denials of Goldberg‘s comments. The defendants, meanwhile, have pointed to evidence corroborating Boley‘s status as a former warlord, including the State Department Report and the findings of the ICE removal proceeding, see Defs.’ Mem., Ratner Decl., Ex. 1 (State Department Report) at 3; id., Ex. 6 (March 30, 2012 ICE News Release) (referring to Boley as a “former warlord“), all of which suggests that Goldberg‘s statements were substantially true and made in good faith. The Court therefore concludes that Boley has
failed to make a prima facie showing of facts that Goldberg‘s statements were false, let alone “fabrications” that support an inference of actual malice.
III. conclusion
For the foregoing reasons, the Court concludes that the defendants have made a prima facie showing that Boley‘s defamation claim arises from an act in furtherance of the right of advocacy on issues of public interest, and that Boley has failed to demonstrate that his defamation claim is likely to succeed on the merits. Moreover, it does not appear to the Court that limited discovery would allow Boley to defeat the defendants’ motion. See
SO ORDERED this 25th day of June, 2013.9
REGGIE B. WALTON
United States District Judge