The DC Circuit has announced that the Abbas v. Foreign Policy Group appeal will be heard on October 20, 2014 before Circuit Judges Kavanaugh, Srinivasan, and Senior Circuit Judge Edwards. For the background facts giving rise to the case, the proceedings in the district court and the issues on appeal, see my posts here, here, here, here, and here. For now, however, I thought I would take a quick look at prior defamation/libel/First Amendment decisions involving these judges.
I did not find any reported First Amendment decisions in which Judge Srinivasan sat on the panel, which is not surprising given that he is a relatively recent addition to the DC Circuit.
Judge Kavanaugh was part of the panel in Jankovic v. International Crisis Group. There, 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 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, 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.
Judge Kavanaugh was also on the panel that decided Teltschik v. Williams & Jensen, PLLC earlier this year. There, the DC Circuit, in a decision authored by Judge Kavanaugh, affirmed the district court’s decision that allegedly libelous statements in a “conciliation agreement” between the plaintiff’s employer and the Federal Election Commission were encompassed by the judicial privilege, and that the plaintiff could not avoid this consequence by pleading his claim in negligence.
Judge Edwards authored the court’s decision in Moldea v. New York Times Company (Moldea I). There, Moldea alleged that the New York Times’ review of his book, and specifically its statement that it consisted of “sloppy journalism,” was false and defamatory. The district court granted the Times’ motion for summary judgment, which was filed before any discovery occurred, holding that the challenged statements were unverifiable statements of opinion.
On appeal, the DC Circuit held that the district court erred in holding that this was unverifiable opinion because the term implied provable facts: “[a]lthough ‘sloppy’ in a vacuum may be difficult to quantify, the term has obvious, measurable aspects when applied to the field of investigative journalism.” The Moldea I court also rejected the assertion that the statements were the type of opinion expected in a book review.
Three months later, the court modified its prior opinion and affirmed the trial court’s summary judgment order, with Judge Edwards authoring the rehearing opinion. According to the Moldea II court, the prior opinion failed to take into account that the challenged statements appeared in a book review, a genre in which one expects critiques that they understand to be the reviewer’s assessment and opinion. The Moldea II court held that, because the challenged statements appeared in a book review, and were evaluations of the literary work (as opposed to attacks on the author), they were not actionable.
Judge Edwards also authored the court’s opinion in Weyrich v. New Republic. There, Weyrich alleged that an article published by The New Republic defamed him “by attributing to him, as its central theme, the diagnosable mental condition of paranoia” and by including false and defamatory anecdotes as support for its theme. The district court granted The New Republic’s motion to dismiss.
On appeal, the DC Circuit held that the inclusion of the term” paranoia,” in the context of the article, was “rhetorical sophistry, not a verifiably false attribution in fact of a ‘debilitating mental condition.’” However, it held that some of the anecdotes included in the article, which Weyrich alleged were false, might support a defamation claim if, in fact, they were materially false. In other words, if Weyrich could show that some of the anecdotes were materially false, as he maintained, the DC Circuit held that the trial court could decide they were defamatory (by making Weyrich appear odious, infamous or ridiculous). It remanded the case for the district court to make this determination and to decide if the statements were published with actual malice.
Judge Edwards was also on the panels that decided White v. Fraternal Order of Police and Liberty Lobby, Inc. v. Dow Jones & Company, although he did not author those decisions. In White, the court held that news reports about a police officer’s initial positive test for marijuana were substantially true or privileged.
And in Liberty Lobby, the court affirmed the trial court’s dismissal of the libel complaint, holding that the challenged statements were either substantially true or not made with actual malice. It is noteworthy that the court’s opinion there includes a statement that might resonate with the Abbas panel:
[t]his suit epitomizes one of the most troubling aspects of modern libel litigation: the use of the libel complaint as a weapon to harass [citing five separate libel actions brought by Liberty Lobby]. Despite the patent insufficiency of a number of appellant’s claims, it has managed to embroil a media defendant in over three years of costly and contentious litigation. The message to this defendant and the press at large is clear: discussion of Liberty Lobby is expensive. However well-documented a story, however unimpeachable a reporter’s source, he or she will have to think twice about publishing where litigation, even to a successful motion for summary judgment, can be very expensive if not crippling.
This is the exact reason why the DC Council passed the DC anti-SLAPP statute. And, indeed, that the defendants have accused Abbas him of being a serial libel litigator.
One final note. The DC Attorney General filed an unopposed motion, asking for five minutes at oral argument “to present its distinct perspective as amicus” on “whether the free speech rights-implementing provisions of the District of Columbia Anti-SLAPP Act of 2010, D.C. Code § 16-5501 et seq., apply in federal diversity cases.” The motion was denied by the DC Circuit.