Opinion for the Court filed by Chief Judge EDWARDS.
Appellant Paul Weyrich appeals from an order of the District Court dismissing his suit for defamation, false light invasion of privacy, and civil conspiracy to defame. Weyrich’s complaint asserts that he was defamed by an article, “Robespierre of the Right — What I Ate at the Revolution,” authored by David Grann and published by The New Republic on October 27, 1997. The article is flowered with anecdotes that reveal Weyrich to be both emotionally volatile and short-tempered, and it depicts him as both a zealoted political extremist and an easily-enraged tyrant of the first order.
Weyrich complains that the article oversteps the bounds of protected political commentary by attributing to him, as its central theme, the diagnosable mental condition of paranoia. He further contends that, in presenting its overall picture of mental instability, the piece relies on false and misleading anecdotes, as well as two defamatory caricatures. The District Court disagreed and granted appellees’ motion to dismiss Weyrich’s complaint in its entirety prior to discovery.
We reject Weyrich’s claim that the article attributes to him a diagnosable mental illness. “Paranoia” is used in the article as a popular, not clinical, term, to embellish the author’s view of Weyrich’s political zealotry and intemperate nature. The author’s musings on these scores are protected political commentary, for, in context, it is clear that his comments are meant only to deride Weyrich’s political foibles and, relatedly, to attack what the author sees as the inability of the conservative movement “to accept the compromising nature of power.” In short, these comments cannot reasonably be understood as verifiably false, and, therefore potentially actionable, assertions of mental derangement.
There are other segments of the article, however, that may extend beyond protected commentary. Accepting the facts as alleged in the complaint, as we must, it appears that some of the anecdotes reported in the article are reasonably capable of defamatory meaning and arguably place Weyrich in a false light that would be highly offensive to a reasonable person. Thus, because we find that some of the article’s contested statements are both verifiable and reasonably capable of defamatory meaning, at least a portion of the complaint is sufficient to survive a Rule 12(b)(6) motion to dismiss. We are therefore constrained to reverse and remand the case for further proceedings.
I. Background
A. The Article
The cover of the October 27, 1997 issue of
The New Republic
carries a caricatured and smiling Paul Weyrich leaning against a guillotine, arms crossed and wearing the square-buckled shoes of a puritan. The disembodied heads of conservative politicians — Newt Gingrich, Fred Thompson,
At the outset of the article, Grann offers a justification for the piece: “If Weyrich were the only conservative purging Republicans, he would be no more than an interesting character — a minor, albeit compelling, player in the history of the conservative movement. Yet, he has become, in many respects, a case study of the conservative mind.” Article, at 20. Grann then dedicates the first part of the article to appellant’s role in the rise of populist conservatives to national prominence in the 1970s. The article catalogs Weyrieh’s various leadership roles in the ideological movement: from founding the Conservative Lunch Club of Capitol Hill, to launching the Heritage Foundation, to establishing the Free Congress Foundation, appellant helped grow the movement at every stage — even coining the term “moral majority.”
The article’s description of appellant takes a decided turn, however, when the story moves to the period beginning with the inauguration of Ronald Reagan: “By 1981, while his friends were still basking in their newfound power, Weyrich began to experience sudden bouts of pessimism and paranoia — early symptoms of the nervous breakdown that afflicts conservatives today.” Article, at 22 (emphasis added). Thereafter, the remainder of the article reveals appellant to be an uncompromising, vengeful, and often tyrannical “symbol” of the conservative movement. He engineers the downfall of John Tower. Id. He accuses Senator Orrin Hatch of having “psychological problems.” Id. at 19. He distances himself from Newt Gingrich, who, he says, “does not have any immutable principles that he would die for,” and Trent Lott, who he describes as “the greatest disappointment of my life.” Id. at 24 (emphasis in original).
The article relays the following notable episode:
By the 1988 presidential campaign, Weyrich was even more disillusioned. When the Bush camp refused to meet with a group of Afghani resistance fighters, Weyrich conspired to hide them in an adjoining room when Dan Quayle turned up for a luncheon hosted by the Free Congress Foundation; the plan was to spring them on the unsuspecting Quayle. But at the last minute, Bill Pascoe, Bush’s liaison to the Beltway conservatives, leaked the plot, and Weyrich snapped. “Suddenly there was a volcano of screaming,” recalls one lobbyist in the room. “Weyrich was calling Bill a traitor. He was spitting and frothing at the mouth. We were ready to get him a room right next to Hinck-ley.” When the yelling stopped, Wey-rich dispatched a letter to Pascoe’s fian-cée, questioning Pascoe’s loyalty and implying that he was unfit for marriage.
Id.
at 22. On the page opposite this vignette, there appears a second caricature, this time depicting appellant in a tie and suspenders, feeding on a skewer of charred bodies. Its portrayal of appellant echoes Grann’s comparison of appellant to conservatives generally: “Since taking power in 1994, conservatives have gorged even by their standards. They have savaged Dole, ravaged Gingrich, plumped up and then devoured Lott. They have shut
Grann then details appellant’s latest project, a conservative cable channel known as National Empowerment Television (“NET”): “Launched in 1993 with a budget of roughly $10 million, it was supposed to be Weyrich’s masterwork: the first ideologically driven public affairs network in America, a kind of third-wave Pravda.” Id. at 23. The article describes the network as a 24-hour vehicle, both on and off screen, for Weyrich’s conservatism. Not only did he host many of the shows, he “even imposed ideological litmus tests on stagehands and secretaries. The result, staffers say, was sound technicians who could spout the pro-life line but not plug in the microphone.” Id. Grann notes that “[o]ne reporter says he was nearly fired for getting a response from the Clinton administration about a scandal; he recalls how, when a guest blurted out on air that he was gay, Weyrich became apoplectic. ‘Why should I be ashamed?’ Weyrich says. T want people on a mission.’ ” According to the article, appellant eventually transformed the station into a self-contained fiefdom:
More and more isolated, Weyrich now surrounds himself with a coterie of sycophants who, aides say, have little understanding of television and who patrol the corridors maintaining ideological discipline. His inner circle consists mainly of family members who receive handsome salaries for their services: one son is in charge of coalition luncheons; another produces “Morning View” on NET; his daughter is vice president for development.
Weyrich also increasingly relies on Bill Lind, a kind of minister of culture who hosts “Next Revolution” each week, always wearing what appears to be the same black turtleneck. Lind’s own Manichaean ideology has only encouraged Weyrich.
Id. at 24.
“As they had back home in Wisconsin,” the article reports, “people in Washington soon crossed to the other side of the street when they saw Weyrich coming. Gingrich, who had anchored two shows, declined to sign another contract. Lott revoked the special Senate parking privileges Weyrich had gotten after a car accident. GOP Senator John McCain of Arizona refused even to talk to him. ‘We know,’ says Senator Orrin Hatch, ‘who has the psychological problems.’ ” Id. By 1996, the network had run into financial trouble. Too much conservative competition on the national networks and mainstream cable channels meant that Weyrich needed to “shout louder just to be heard. On one recent evening, when Republican Congressman Joe Barton left an NET broadcast early in order to cast a vote, Weyrich lost it. He blastfaxed his remarks to the media under the headline: ‘Congressman walks out on NET live interview.’ “You wonder why they break their word on these big things,’ he fumed. ‘They can’t even keep their word on little things.’ ” Id.
The article closes with Grann interviewing appellant at the Monocle, a famed insider Washington restaurant, “where JFK sent a limo from the White House to pick up his favorite sandwich.”
Id.
Grann notices that appellant appears uncomfortable with his surroundings, that “[h]e seems conscious of being mistaken for the people around him.... When [Grann] ask[s] him what to order, he says he doesn’t eat here enough to know. Yet, judging by the staffs reaction to him, he seems to be a regular — a fact the manager later confirms.”
Id.
Asked whether he had not become “a kind of K Street Robespierre— a man who once devoted his life to building a movement and who now profits by de
“I defy anybody to tell me any privilege that I have as a result of what I’m doing,” Weyrieh says, turning red. “I just think that is a bogus charge.” Though he makes at least $280,000 a year for all his operations, and was driven to the restaurant in a chauffeured sedan, [Grann doesn’t] say anything. “If the good Lord wants me to do something else then I’ll be gone tomorrow,” he continues, his voice rising. “Every year I have been in this city, I find it more sinful. And I have prayed many times for the opportunity to do something else. And so far the answer keeps coming back: ‘Keep doing what you’re doing.’ ”
Id.
B. The Present Action
Less than one year after the disputed publication, appellant filed suit against ap-pellees The Nexv Republic, Grann, and others in Florida state court for defamation, civil conspiracy to defame, and false light invasion of privacy. See Complaint, Weyrich v. The New Republic, Inc., No. 098-7628 (Fla. Cir. Ct. Sept. 22, 1998) (hereinafter “Complaint”), reprinted in Joint Appendix (“J.A.”) at 5. Appellees removed the case on diversity grounds to the United States District Court for the Middle District of Florida, which then transferred it to the District Court for the District of Columbia. The District Court dismissed the complaint on August 13, 1999 in response to appellees’ Rule 12(b)(6) motion. The instant appeal followed.
The complaint alleges that the article “contains false, misleading, disparaging and defamatory statements about Mr. Weyrieh that wrongfully portray him as mentally unsound and paranoid. Persons who read this Article understood it to have such meaning.” Complaint ¶ 12. As examples, it cites both the above-quoted reference to “bouts of pessimism and paranoia,” and a pair of sentences from the first page of the piece: “The habits of suspicion, pessimism, and antagonism run too deep. And nowhere do they run deeper than in Paul Weyrieh.” Id. ¶ 13 (quoting Article, at 20, but failing to finish the quoted sentence: “ — a man trying his hardest to destroy the very Republican establishment he spent his life building”). In addition to these direct “attributions” of paranoia, the complaint identifies a number of the article’s anecdotal vignettes, including most of the above-quoted passages, which “further wrongfully depict Mr. Weyrieh as mentally unsound and paranoid ... [and] that wrongfully portray Mr. Weyrieh as isolated, tyrannical and violent.” Id. ¶¶ 14-15. Finally, it alleges that the two caricatures contribute to the article’s portrait of appellant as “mentally unsound and paranoid.” Id. ¶¶ 16-17.
II. Analysis
We review the District Court’s grant of appellees’ Rule 12(b)(6) motion to dismiss
de novo. Taylor v. FDIC,
A. Verifiable Statements under Milko-vich, Moldea I, and Moldea II
For a statement to be actionable under the First Amendment, it must at a minimum express or imply a verifiably false fact about appellant.
Milkovich v. Lorain Journal Co.,
With these principles in mind, we reject appellant’s claim that, by stating that he “began to suffer bouts of pessimism and paranoia” following the 1981 election, the article actually attributes to appellant a “debilitating psychological condition.” Appellant’s Br. at 15. The article’s single reference to “paranoia” is certainly pejorative, but the author deploys it in its popular, not clinical, sense to describe and criticize what he sees as “early symptoms of the nervous breakdown that afflicts conservatives today.” Article, at 22. Appellees rightly point out that the definitive, clinical term “paranoia” has taken on a less-than-definitive popular meaning, as have “crazy” and “nutty.”
Appellant argues that the present case is indistinguishable from
Goldwater v. Ginzburg,
The holding in
Goldwater
is both unremarkable and inapposite. The defendants in that case had published a fraudulent diagnosis, which was itself verifiable. Here, references to “bouts of pessimism and paranoia,” “habits of suspicion, pessimism, and antagonism,” and the fact that other conservatives have acted “as nutty as Weyrich,” cannot be so understood.
The present case fits comfortably within the well-guarded
Bresler-Letter Carriers
line of decisions, the vitality of which the Supreme Court recently reaffirmed in
Milkovich,
As used in the present case, the term “paranoia” animates the author’s critique of what he sees as appellant’s (and other conservatives’) unwavering and, ultimately, self-defeating political dogmatism. The difficulty in the present case, if there is one, stems from the author’s decision to interweave examples of appellant’s political extremism with examples of his behavioral extremism. In one episode, the article reports appellant as having “snapped” and “frothed at the mouth,” erupting in anger so irrationally that onlookers were “ready to get him a room right next to Hinckley.” Article, at 22. In another, he becomes “apoplectic” after a guest admits his homosexuality on the air. Id. at 23. Former colleagues no longer speak to him; Orrin Hatch has implied that he has “psychological problems.” Id. at 24. Appellant has withdrawn, “[m]ore and more isolated,” surrounding himself with “a coterie of sycophants,” including Bill Lind, whose “Manichaean ideology has only encouraged [appellant].” Id. Appellant argues that these episodes and anecdotes provide as much context for the phrase “bouts of ... paranoia” as does the general political commentary, and a reasonable reader might therefore regard the article as actually asserting that appellant suffers from, or has been diagnosed with, a psychological ailment.
Admittedly, the article paints an unflattering picture of appellant. Indeed, it uses examples of his “famous temper” to shade the line between political extremism and personal extremism, suggesting that the alleged irrationality of the conservative right runs deeper than mere ideology. But the article’s suggestion that appellant’s behavior exhibited “paranoia” is rhetorical sophistry, not a verifiably false attribution
in fact
of a “debilitating mental condition” as was the case in
Goldwater.
Never does the article claim to make a psychological pronouncement, nor would a reasonable reader understand it to do so.
The New Republic
is itself well-known to be a magazine of political commentary, a self-described “Weekly Journal of Opinion.” Presented in such a loose manner, in such a well-understood context, the article’s reference to “bouts of ... paranoia” is neither verifiable nor does it imply specific defamatory facts about appellant. Likewise, the caricatures, though biting, are not actionable.
See Hustler Magazine,
These findings do not end our analysis, however. The fact that the use of the term “paranoia” constitutes protected, unverifiable comment in the present case does not insulate the otherwise verifiable anecdotes reported by the author in support of his assertions that Weyrich is “nutty” and notable for his “famous temper.” In other words, an article’s political “context” does not indiscriminately immunize every statement contained therein.
The complaint asserts that appellees have published a number of false anecdotes, suggesting to the average reader that appellant is not only a political reactionary, but emotionally volatile, perhaps even mentally unsound, and otherwise unfit for his profession. For example, the article includes some historical vignettes which, alone and in concert, offer the reader a glimpse of appellant’s “famous temper.”
Article,
at 24. Unlike the two caricatures, nothing in the common parlance of political criticism would alert a reasonable reader that the article’s anecdotes about Weyrich are other than verifiable facts. Indeed, in a number of instances, the author utilizes quotations, some purportedly from appellant, to further reinforce the impression that the stories are in fact true.
See Masson v. New Yorker Magazine, Inc.,
The line separating a fabricated narrative and hyperbolic description of an actual event is sometimes fuzzy. The First Amendment protects a reporter’s “rational interpretation” of events or factual statements when relying on ambiguous sources.
Masson,
B. Reasonably Capable of Defamatory Meaning
Because this is a diversity action, we must first decide the proper law of defamation and false light invasion of privacy to apply. This court looks to the choice of law rules prevailing in the District of Columbia, see
Klaxon Co. v. Stentor Elec. Mfg. Co.,
A statement is actionable in defamation under District of Columbia law if it is both false and defamatory.
Moldea I,
Although we do not here dissect each verifiable statement to provide an exhaustive list for the District Court, potential candidates include the author’s observation that appellant, in response to Bill Pascoe’s perceived betrayal, “snapped,” erupted in a “volcano of screaming,” “froth[ed] at the mouth,” and “dispatched a letter to Pascoe’s fiancée, questioning Pascoe’s loyalty and implying that he was unfit for marriage.” Article, at 22. If indeed the story is fabricated, we cannot say that it is not reasonably capable of any defamatory meaning — it arguably makes appellant appear highly volatile, irrational, unsound and otherwise “odious, infamous, or ridiculous.”
Not all of the verifiably false anecdotes relied upon by appellant are reasonably capable of defamatory meaning. For example, at the hearing on the motion to dismiss in the District Court, counsel for appellant protested vigorously that the author had defamed appellant by falsely asserting that Newt Gingrich had refused to sign another NET anchor contract, that Trent Lott had revoked appellant’s capítol parking privileges, and that John McCain will not talk with him. Transcript of Hearing, at 8-9 (Aug. 13, 1999),
reprinted in
J.A. at 33. We agree with the District Court that, even if false, these facially innocuous statements are not themselves defamatory and, as such, should have no bearing on the resolution of appellant’s claims on remand. They certainly do not, on their face, suggest anything untoward about appellant. On remand, the District Court must decide which of the verifiably false statements cited by appellant are reasonably capable of defamatory meaning. We emphasize again that, to be actionable, the story must be materially false. If the author has merely hyperbol-ized, provided colorful rhetorical description of appellant’s anger, that will not suffice. Restatement (Seoond) of ToRts § 581A cmt. f (1977) (“Slight inaccuracies of expression are immaterial provided that the defamatory charge is true in substance.”);
see also Masson,
C. False Light Invasion of Privacy
We pause only briefly over appellant’s related false light invasion of privacy claim. Though invasion of privacy false light is distinct from the tort of defamation, the same First Amendment protections apply.
See Moldea I,
To prevail on a false light claim under District of Columbia law, appellant must show that (a) the published material places appellant in a false light which “would be highly offensive to a reasonable person,” and (b) “the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”
Id.
at 1150-51 (quoting Restatement (Second) of ToRts § 652E). The second element tracks the First Amendment’s intent requirement for defamation claims brought by public figures,
see New York Times Co. v. Sullivan,
III. Conclusion
Political commentary can be brutal, and the brutality of that commentary alone does not render protected speech unprotected. But neither does the label “political commentary” insulate the reporting of verifiable and arguably defamatory facts. There is no doubt that a reasonable person, reading the article’s repeated tale of appellant’s volatile temper and apparent emotional instability, could very well conclude that appellant is an emotionally unstable individual unfit for his trade or profession. One or more of the anecdotes arguably make appellant appear personally odious, infamous, or ridiculous. On remand, the District Court must take pains to distinguish those anecdotes that are both verifiably false and reasonably capable of defamatory meaning from those that are not.
In remanding this case, we do not in any way suggest the proper outcome on the merits. Appellant must still clear a number of difficult hurdles. He must show that the potentially defamatory statements are indeed materially false. Because appellant is a public figure and the offending statements speak to his capabilities and credibility as a political actor, he must also “demonstrate by clear and convincing evidence that [appellees] published the defamatory falsehood with ‘actual malice,’ that is, with ‘knowledge that it was false or with reckless disregard of whether it was false or not.’”
Liberty Lobby,
We are mindful that trial courts are understandably wary of allowing unnecessary discovery where First Amendment values might be threatened. As we have suggested on previous occasions, the District Court may in its discretion limit discovery to the threshold issue of falsity, thereby delaying and possibly eliminating the more burdensome discovery surrounding evidence of “actual malice.”
McBride v. Merrell Dow & Pharm., Inc.,
So ordered.