Honest Misinterpretation Did Not Constitute Sufficient Evidence of Actual Malice
This past May 2017, the U.S. Court of Appeals for the District of Columbia Circuit reversed a district court order denying the Bureau of National Affairs' (Bloomberg BNA) motion for summary judgment on a defamation suit filed by a federal inmate. Kahl v. Bureau of Nat'l Affairs, Inc., 856 F.3d 106 (D.C. Cir. 2017). The order affirms that an "honest misinterpretation" alone does not constitute sufficient evidence of actual malice.
The plaintiff, Yorie Von Kahl, convicted in 1983 in connection with the killing of two U.S. marshals and sentenced to life in prison, alleged that he was defamed by a BNA news digest in the Criminal Law Reporter reporting on his petition for writ of mandamus. The publication at issue, a summary report on Kahl's 2005 mandamus petition to the U.S. Supreme Court, mistakenly attributed a statement by the prosecutor to the sentencing judge, stating: "Petitioner, who showed no hint of contrition and made statements to the press that he believed that murders of U.S. marshals in course of their duties were justified by religious and philosophical beliefs, is committed to custody of U.S. Attorney General for imprisonment for life… ." BNA's motions for dismissal of the claim were denied, including denial of BNA's contention that Von Kahl was a libel-proof plaintiff. After discovery, BNA sought summary judgment on several grounds, including asserting that because the plaintiff has been found to be a limited public figure he must, and could not, meet the high hurdle of demonstrating that a reasonable jury could find that BNA acted with actual malice. On cross-motions for summary judgment the U.S. District Court for the District of Columbia concluded that because BNA's description of the plaintiff's mandamus petition was inaccurate, those "discrepancies" were "sufficient to create a genuine dispute of material fact regarding whether BNA acted with reckless disregard with respect to the truth or falsity of the statements in its summary."
D.C. Circuit Opinion
BNA sought and obtained certification for an interlocutory appeal from the district court's denial of summary judgment. The D.C. Circuit issued an opinion agreeing with BNA that the inaccuracy of its publication alone does not constitute sufficient evidence of actual malice for Von Kahl to overcome summary judgment. The court's opinion also emphasizes that BNA's clarification to its initial publication was reasonable and reinforces that falsity and failure to retract are not actual malice. The appeal was supported by a media amicus brief with 39 amici.
Noting that "[c]ostly and time-consuming defamation litigation can threaten …essential" First Amendment freedoms, Judge Kavanaugh, writing for a unanimous court, emphasized that "[t]o preserve First Amendment freedoms and give reporters, commentators, bloggers, and tweeters (among others) the breathing room they need to pursue the truth, the Supreme Court has directed courts to expeditiously weed out unmeritorious defamation suits."
The court affirmed the lower court's ruling that Von Kahl is a limited-purpose public figure, finding that there was a public controversy concerning the 1983 shootout "as well as the underlying issues of taxation and federal government power" that Von Kahl and his father espoused. Relying on the history of media reporting on Von Kahl, the court noted that the press not only covered Von Kahl's trial, but "included discussion of [his] and his father's association with anti-tax and anti-government movements, as well as explorations and discussions of the political and religious ideologies underlying those movements."
The court further found Von Kahl "assumed a public role in the controversy when he used his access to the press to promote his cause," by, for example, giving "extensive interviews for the 1993 documentary, Death and Taxes, where he tied his participation in the shootout (and lack of remorse for his actions) to his 'political and religious ideology,'" as well as publishing a book "about his case and its relationship to the anti-government and anti-tax movement." The court concluded BNA's report was germane to Von Kahl's role in the public controversy because it covered Von Kahl's conviction and his petition to have his sentence vacated and "highlights Kahl's ideology" as well as his "engagement with the press."
Observing the "daunting" nature of the actual malice standard, the D.C. Circuit determined that Von Kahl failed to come forward with sufficient clear and convincing evidence that either BNA's original report, or the clarification it published at Von Kahl's request, were published with knowledge that the challenged statements were false or with reckless disregard of whether they were false or not. Noting that "falsity alone does not equate to actual malice," the court concluded that Von Kahl "has offered insufficient evidence, direct or circumstantial, that any BNA employees had actual malice – that is, that any BNA employee actually knew that the prosecutor made those statements or recklessly disregarded whether the statements were made by the prosecutor rather than by the judge."
In particular, the D.C. Circuit rejected Von Kahl's two arguments to support an inference of actual malice. First, the mistake in the initial report was insufficient to infer actual malice because "BNA's mistake – suggesting that statements were made by the judge rather than the prosecutor – occurred because BNA relied on the excerpted transcript that was attached as an appendix to Kahl's mandamus petition," and "a reasonable reader of the excerpted transcript would have thought it was the sentencing judge speaking throughout." The court concluded, "[i]t was therefore not unreasonable, much less evidence of actual malice, for BNA to read the transcript that way and report it in that fashion."
Second, the D.C. Circuit rejected Von Kahl's contention that the clarification BNA published at his counsel's request was published with actual malice because BNA was aware of the mistaken attribution and the clarification failed to correct the error. The clarification read: "[T]he summary of the sentencing judge's ruling below should have begun: 'Petitioner who was said to have believed that murders were justified… .'"
The court observed that Von Kahl's counsel's letter to the BNA failed to alert the publication that the statement regarding lack of contrition was made by the prosecutor (and not the judge), and that it was reasonable for BNA to conclude, after receiving the letter and reviewing the transcript excerpt appended to Von Kahl's mandamus petition, "that the excerpted transcript quoted the sentencing judge," because "[t]he source of the problem in this case was Kahl's poorly put-together excerpted transcript." Even if BNA "could have connected some dots and suspected that the prosecutor made the statements at issue," an "honest misinterpretation does not amount to actual malice even if the publisher was negligent in failing to read the document carefully."
Since publication of the panel's decision, the court has denied Von Kahl's request for rehearing by the panel and en banc.
This article originally appeared in the MLRC June 2017 Media Law Letter.
Laura R. Handman is partner and co-chair of DWT's appellate practice, based in Washington, D.C., and New York. Lisa B. Zycherman is counsel and based in Washington, D.C.