The DC Circuit has announced that the Farah v. Esquire appeal will be heard on October 3, 2013 before Circuit Judges Rogers and Brown and Senior Circuit Judge Williams. In a separate post, I will summarize the background facts giving rise to the case, the proceedings in the district court and the issues on appeal. For now, however, I thought I would take a quick look at prior defamation/libel/First Amendment decisions involving these judges. As explained below, for two of the judges on the panel, there will be a sense of déjà vu when the argument begins on October 3.
Most notably, Judge Brown was part of the panel in Sherrod v. Breitbart, the only DC Circuit decision to date involving the DC anti-SLAPP statute. Unfortunately we cannot glean anything from that decision about her potential views on the issues in this case because she did not author the court’s opinion (which sidestepped the Erie issue and decided the case on timeliness grounds), nor did she write separately, as did Judge Griffith in concurrence to explain the panel’s decision to decide the merits before ascertaining jurisdiction.
While Judge Brown will be wading into the anti-SLAPP arena for the second time in recent months, Judge Williams might also have flashbacks, as this will be the second time he is involved in a defamation action involving Esquire magazine. In fact, 17 years ago, he authored one of the seminal libel decisions in the DC Circuit: McFarlane v. Esquire.
There, Esquire published an article suggesting that Robert McFarlane, then a Senator’s aide, was involved in a conspiracy to delay the release of the Iranian hostages, so as to harm the reelection efforts of President Carter. McFarlane sued Esquire and the author, alleging that the article falsely conveyed that he was a traitor to the United States. After discovery, the district court granted Esquire summary judgment, finding that no reasonable juror could conclude that it acted with actual malice. (The district court also held that it lacked personal jurisdiction over the author).
On appeal, the DC Circuit, in an opinion authored by Judge Williams, affirmed the district court’s decision in its entirety. The court held that actual malice could not be imputed to Esquire (because the reporter was an independent contractor), and must instead be demonstrated by looking only at the evidence that was available to Esquire, and the conduct of its employees. The court held that, although there was evidence that supported McFarlane’s theory that the critical source for the article was not truthful, the evidence, in the aggregate, did not demonstrate that Esquire acted with actual malice when it published the article.
In fact, all three Farah panel members have been involved in, and authored, significant DC Circuit First Amendment decisions.
In 2007, Judge Rogers authored the court’s decision in Jankovic v. International Crisis Group. There, Milan Jankovic alleged that three documents published by the defendant defamed him. After the district court held that the statute of limitations on the first two publications had expired, and the third was not capable of defamatory meaning, Jankovic appealed the dismissal of his case to the DC Circuit.
The Jankovic I court agreed with the district court that, for two of the publications, DC’s one-year defamation statute of limitations had expired. With respect to the third publication that was not time barred, however, the DC Circuit held that one passage in it was capable of defamation, at least at the motion to dismiss stage. It remanded the case to the district court to consider whether several defenses raised by the defendant nevertheless barred the claim.
On remand, the district court held that the single passage was shielded by the fair report and fair comment privileges and was protected opinion, and again dismissed the complaint. When the case was appealed to the D.C. Circuit for a second time, Judge Williams authored the court’s decision. Jankovic v. International Crisis Group.
The Jankovic II court held that the fair report privilege was not available to the defendant because the challenged publication was not a “fair and accurate” report of the government reports on which it allegedly relied. The Jankovic II court also held that, because the challenged passage was “sufficiently factual to be susceptible of being provided true or false,” it was not protected opinion. Finally, the Jankovic II court held that the defendant was not entitled to the “fair comment” privilege because “a conclusion based on a misstatement of fact is not protected by the privilege.”
Judge Rogers was also on the panel that decided, and she authored the court’s opinion in, one of the most high-profile defamation suits in recent memory: Lohrenz v. Donnelly. There, one of the first two women combat pilots in the United States Navy sued the defendants for repeatedly publishing that women combat pilots, including Lt. Lohrenz, were unqualified and were being accommodated for political reasons. The district court entered summary judgment for the defendants, finding that Lt. Lohrenz was a “limited-purpose public figure, albeit possibly involuntarily” and had not shown that the publications were made with “actual malice.”
After reviewing its own precedent and cases from the US Supreme Court, the DC Circuit agreed that Lt. Lohrenz was a limited-purpose public figure. Given this, it agreed that she needed to present competent evidence showing that the defendants acted with “actual malice,” and agreed with the district court that she had failed to satisfy this burden.
Judge Rogers also authored the panel’s decision in Croixland Properties LP v. Corcoran. There, the owner of a dog racing facility sued certain lobbyists after they made statements suggesting that the owner of the facility had ties to organized crime. The district court held that, because the lobbyists never mentioned the plaintiff by name and there was no indication that a reasonable listener understood the statements to be about the plaintiff, they were not “of and concerning” him and, as a result, the complaint failed to state a claim.
On appeal, the DC Circuit reversed, holding that, because the allegedly defamatory statements mentioned the “owner of the track” being connected to organized crime, they could reasonably be understood to mean the plaintiff, even if the listener did not know him by name.
Finally, Judge Brown was part of the panel in Messina v. Krakower, in which the court held that a lawyer’s pre-suit letter was protected by the judicial proceedings privilege, and was part of the panel in Lee v. Department of Justice, which affirmed a contempt order against four journalists who refused to reveal their confidential sources.