Barr, Bob v. Clinton, William ( 2004 )

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 12, 2004 Decided June 11, 2004
No. 03-7047
THE HONORABLE BOB BARR,
APPELLANT
v.
WILLIAM JEFFERSON CLINTON, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 02cv00437)
Paul J. Orfanedes argued the cause for appellant. With
him on the briefs was Larry E. Klayman.
Suzanne H. Woods argued the cause for appellees. With
her on the brief were David E. Kendall, Roger W. Wilcox Jr.,
and William Alden McDaniel Jr. John G. Perazich and
Paul J. Cambria Jr. entered appearances.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
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Before: EDWARDS, RANDOLPH, and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: In this lawsuit, Congressman Bob
Barr charges that President Clinton and one of his political
advisors unlawfully conspired with Larry Flynt, publisher of
Hustler magazine, to gather and disseminate disparaging
information about Barr in order to retaliate for his role in the
Clinton impeachment proceedings. The district court dis-
missed the complaint, finding it time barred and, alternative-
ly, that it failed to state a claim upon which relief could be
granted. We affirm, but on different grounds. We affirm
the dismissal as to Clinton and his advisor because the
complaint fails to allege that either took any action within the
statute of limitations to further the conspiracy, and as to
Flynt because the complaint fails to allege that the disparag-
ing information was either false or published with reckless or
knowing disregard for its falsity, as required by the First
Amendment.
I.
Because the district court dismissed the complaint pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), we
construe the complaint ‘‘liberally,’’ granting plaintiff ‘‘the
benefit of all inferences that can be derived from the facts
alleged.’’ Kowal v. MCI Communications Corp., 16 F.3d
1271, 1276 (D.C.Cir.1994) (reviewing 12(b)(6) dismissal); ac-
cord Artis v. Greenspan, 158 F.3d 1301, 1305–06 (D.C. Cir.
1998) (reviewing 12(b)(1) dismissal). Viewed through that
lens, the complaint relates the following facts:
Congressman Bob Barr, who represented the seventh dis-
trict of Georgia from 1995 until 2003, ‘‘was the first Congress-
man to call for [an] impeachment inquiry of former President
TTT William Jefferson Clinton.’’ Compl. ¶ 9. Barr ‘‘repeated-
ly and aggressively pressed’’ that position, id., and also
served as a House Manager during the U.S. Senate impeach-
ment trial. Id. ¶ 17.
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On October 4, 1998, Larry Flynt ran an advertisement in
the Washington Post offering one million dollars to anyone
who would admit to having had an affair with a member of
Congress. Id. ¶ 15. Acknowledging that Flynt’s professed
objective was to ‘‘expose the hypocrisy of members of Con-
gress,’’ the complaint alleges that ‘‘[i]n reality,’’ Flynt was
acting ‘‘in concert with [defendants Clinton and James Car-
ville, a senior member of Clinton’s 1992 campaign staff, to]
gather[ ] information from FBI and/or other government files
about TTT Plaintiff Barr, and disseminate[ ] information from
those files to the media in an attempt to intimidate, impede
and/or retaliate against Plaintiff to prevent him from per-
forming his official duties TTT and to harm Plaintiff Barr’s
reputation.’’ Id.
In support of this allegation, the complaint asserts that
Carville maintained files containing information about Barr
which he had obtained from confidential government sources
and ‘‘routinely disseminated this material to the media.’’ Id.
¶ 10. In a January 7, 1999 press conference, Flynt’s es-
tranged daughter ‘‘stated that Flynt had likely been supplied
by Defendant Carville with confidential FBI files to assist
Flynt in his search for ‘dirt’ on Congressmen, including
[Barr], in an on-going effort TTT to prevent them from
performing their official duties.’’ Id. ¶ 19. As to Clinton, the
complaint alleges that he ‘‘approved and ratified’’ Flynt’s
efforts to intimidate Barr. Id. ¶ 18. The complaint cites a
1998 Los Angeles Times article stating: ‘‘[Clinton] laughed
about the fact that Larry Flynt, publisher of Hustler maga-
zine, had become the latest influence on the Washington
political debate TTT [and] regaled his listeners with a descrip-
tion of a letter that Flynt wrote to independent counsel
Kenneth W. Starr TTT congratulating Starr for aiding the
cause of pornography.’’ Elizabeth Shogren, ‘‘Clinton Puts
His Faith in History,’’ L.A. Times, Dec. 22, 1998, at A1.
On January 11, 1999, Flynt appeared on a television news
program and, according to the complaint, divulged informa-
tion from the government files, including that Barr ‘‘had not
told the truth, under oath, in divorce proceedings, and that he
had pressured his former wife into having an abortion.’’
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Compl. ¶ 21. During a Salon.com interview on February 23,
1999, Flynt not only repeated those accusations, but also
announced that he intended to publish a one-time issue called
The Flynt Report, which would contain additional improperly
obtained information about Barr and other officials. Id.
¶ ¶ 29–30.
On several occasions during the impeachment proceedings,
Barr expressed his concern about defendants’ alleged efforts
to gather and disseminate negative information about him.
He wrote to President Clinton on March 30, 1998, seeking
access to all White House documents relating to him. Id.
¶ 13. On March 3 and April 2, 1999, he also wrote to
Attorney General Janet Reno. Alleging that the attacks and
threatened attacks by Carville, Flynt, and others amounted to
‘‘a deliberate and concerted effort to impede’’ the impeach-
ment process, Barr requested a formal Justice Department
investigation. Id. ¶ ¶ 32, 34. In response, the Justice De-
partment informed Barr that it had reviewed the matter and
determined that an investigation was unwarranted. Id.
¶ ¶ 33, 35.
Finally, on April 5, 1999, Flynt and L.F.P., Inc., his pub-
lishing company, released The Flynt Report. Id. ¶ 31. At-
tached to the complaint, the report states, among other
things, that Barr ‘‘failed to tell the truth about adulterous sex
while under oath in a 1986 deposition,’’ and that, in contrast
to his ‘‘public opposition to abortion,’’ he ‘‘drove [his wife] to
the clinic to have [an] abortion performed [and l]ater he
returned to the facility to pick her up and paid for the
procedure.’’ The Flynt Report 20–24 (L.F.P., Inc. 1999).
On March 7, 2002, Barr filed suit in the United States
District Court for the District of Columbia against defendants
Clinton, Carville, Flynt, and L.F.P., Inc. In the only count at
issue in this appeal, Barr claimed that the defendants violated
42 U.S.C. § 1985(1) by conspiring to prevent him from per-
forming his official duties. Section 1985(1) makes it unlawful
for ‘‘two or more persons TTT [to] conspire to prevent, by
force, intimidation, or threat, any person TTT from discharg-
ing any duties [of public office]; TTT or to injure him in his
person or property on account of his lawful discharge of the
5
duties of his office.’’ 42 U.S.C. § 1985(1) (2000). Among
other things, section 1985 plaintiffs must allege the elements
of civil conspiracy, including: ‘‘an agreement to take part in
an unlawful action or a lawful action in an unlawful manner.’’
Hall v. Clinton, 285 F.3d 74, 83 (D.C. Cir. 2002). Seeking
damages in excess of $30 million, see Compl. ¶ 41, Barr
alleged that defendants:
tacitly or explicitly agreed, in violation of 42 U.S.C.
§ 1985(1), to participate in a common scheme and
unlawful on-going conspiracy TTT in furtherance [of
which they] recommended, agreed to, and participat-
ed in obtaining information from Plaintiff’s confiden-
tial FBI and/or other government files, in violation
of [federal law], then disclosing that information to
the public TTT [such that] Plaintiff was hindered in
the lawful discharge of his duties TTT and suffered
substantial damages, including, but not limited to
loss of reputation and emotional distress.
Id. ¶ ¶ 38–40.
All defendants filed motions to dismiss under rules 12(b)(1)
and 12(b)(6). See Fed. R. Civ. P. 12(b)(1) (lack of subject
matter jurisdiction); 12(b)(6) (failure to state a claim). They
argued that the complaint was barred by the three-year
statute of limitations applicable to section 1985 claims. Alter-
natively, they argued that the complaint failed to state a claim
for relief because (1) it pleaded insufficient facts to support
the allegation that the defendants had entered an agreement
and (2) it nowhere alleged that the information about Barr
was either false or published with knowing or reckless disre-
gard for its falsity, as required by the First Amendment.
The district court granted the defendants’ motions, ruling
that the suit was untimely, and, in the alternative, that Barr
failed to state a claim because the complaint insufficiently
alleged the agreement element of conspiracy. See Barr v.
Clinton, No. 02–437 (D.D.C. March 19, 2003).
Barr now appeals. Because the district court dismissed the
complaint pursuant to rules 12(b)(1) and 12(b)(6), our review
6
is de novo. See Hall, 285 F.3d at 81; Browning v. Clinton,
292 F.3d 235, 242 (D.C. Cir. 2002).
II.
We begin with the district court’s dismissal of the com-
plaint on the basis of the statute of limitations. As mentioned
above, ‘‘the relevant statute of limitations for a section 1985(1)
violation in this jurisdiction is three years.’’ Hall, 285 F.3d at
82. In Lawrence v. Acree, 665 F.2d 1319 (D.C. Cir. 1981), we
explained that ‘‘the statute of limitations in a civil damages
action for conspiracy runs separately from each overt act that
is alleged to cause damage to the plaintiff.’’ Id. at 1324.
Because Barr filed his complaint on March 7, 2002, every
alleged act that occurred prior to March 7, 1999 is time-
barred. Although acknowledging that the April 5, 1999 publi-
cation of The Flynt Report occurred within the limitations
period, the district court nonetheless dismissed the entire
complaint as untimely, relying largely on our statement in
Hall v. Clinton that the three-year period begins ‘‘when the
plaintiff has sufficient notice of the conduct TTT which is now
asserted as the basis for [his] lawsuit.’’ 285 F.3d at 82(omission in original) (internal quotation marks omitted). Ap-
plying that rule, the district court concluded that Barr had
sufficient prior notice of the report’s publication, pointing to
Flynt’s February statements to Salon.com announcing that
the report would be published and to Barr’s March 3 letter to
the Attorney General requesting an investigation of Flynt.
We cannot agree with the district court’s analysis. In Hall,
all allegedly unlawful conduct occurred outside the statute of
limitations, and the question was whether the case could
nevertheless go forward because the plaintiff filed suit within
three years of discovering the allegedly unlawful conduct. Id.Here, by contrast, the allegedly unlawful conduct—The Flynt
Report’s publication—occurred inside the three-year period.
To be sure, Barr had prior notice of Flynt’s intent to publish
the report, but Flynt’s threat to do so gave Barr no knowl-
edge of exactly what the report would contain, to whom it
would be distributed, or even whether it would ever be
7
published. The complaint, moreover, alleges that publication
of The Flynt Report represented a separate and distinct overt
act in furtherance of the conspiracy—an act that, under
Lawrence, triggered a new three-year limitations period. As
Barr points out, dismissing his suit just because he had prior
notice would be ‘‘the same as finding that a threat to assault
someone, occurring outside the limitations period, would bar
an action for a subsequent actual assault that occurred within
the limitations period.’’ Appellant’s Br. at 15.
That said, our decision in Lawrence nevertheless requires
affirmance of the district court’s dismissal of the claims
against two defendants—Clinton and Carville. In Lawrence,
as here, all but one of the acts alleged in furtherance of a
section 1985(1) conspiracy occurred outside the limitations
period. 665 F.2d at 1323. Because the period runs separate-
ly from each overt act, we held that the statute of limitations
‘‘confine[d] our focus, for purposes of considering damages’’ to
the single overt act within the limitations period, in that case,
a negative performance evaluation. Id. at 1324. We there-
fore dismissed the claim with respect to two defendants who
had not participated in the evaluation because ‘‘[t]here [wa]s
no allegation that [they] furthered the conspiracy against’’ the
plaintiff at any time during the statute of limitations. Id.Lawrence is indistinguishable from this case. The com-
plaint here alleges that only ‘‘Flynt and L.F.P. published The
Flynt Report.’’ Compl. ¶ 31. It does not allege that either
Clinton or Carville participated in the report’s publication or
in any other act in furtherance of the conspiracy within the
limitations period; Clinton’s alleged approval rests on com-
ments he made in 1998, and Carville’s alleged disclosure of
secret files to Flynt occurred sometime before January or
February 1999.
Because the statute of limitations bars the claim against
both Clinton and Carville, we confine our review of the
district court’s alternative basis for dismissing the complaint
to the single overt act not barred by the statute of limita-
tions—Flynt’s and L.F.P.’s publication of The Flynt Report.
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III.
We affirm a district court’s dismissal under Rule 12(b)(6)
only if the ‘‘plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.’’ Browning, 292 F.3d
at 242. In this case, the district court granted the Rule
12(b)(6) motion because ‘‘Congressman Barr’s allegations as-
sociated with The Flynt Report are bereft of any details
substantiating the principal and essential element of a con-
spiracy, a ‘meeting of the minds’ between Defendants.’’
Barr, slip op. at 17. Challenging that ruling, Barr insists that
his allegations meet the minimal notice pleading standards of
Federal Rule of Civil Procedure 8. See Fed. R. Civ. P. 8(a)(2)
(requiring only a ‘‘short and plain statement of the claim’’);
see also Swierkiewicz v. Sorema, 534 U.S. 506, 512 (2002)
(‘‘Such a statement must simply give the defendant fair notice
of what the plaintiff’s claim is and the grounds upon which it
rests.’’ (internal quotation marks omitted)).
We need not resolve this question, however, for Flynt
persuasively argues that the relief Barr seeks is precluded by
the First Amendment. See EEOC v. Aramark Corp., 208
F.3d 266, 268 (D.C. Cir. 2000) (‘‘[B]ecause we review the
district court’s judgment, not its reasoning, we may affirm on
any ground properly raised.’’). In New York Times Co. v.
Sullivan, 376 U.S. 254 (1964), the Supreme Court held that
under the First Amendment, public officials claiming defama-
tion must allege that the published information was both false
and published with actual malice, i.e., with knowing or reck-
less disregard for its falsity. See id. at 279–80. Flynt argues
that the New York Times standards apply to Barr’s section
1985(1) claim insofar as it seeks damages for loss of reputa-
tion and emotional distress resulting from the actual publica-
tion of The Flynt Report. Barr responds only that he need
not allege that the report was defamatory in order to state a
section 1985(1) claim.
Although Barr is correct, see Lawrence, 665 F.2d at 1324(section 1985(1) plaintiff is not required to allege that ‘‘each
overt act TTT [is] independently actionable’’), the fact that his
9
complaint alleges something other than a traditional defama-
tion action does not mean that First Amendment protections
are inapplicable. Both the Supreme Court and this court
have made clear that the constitutional protections available
to defendants charged with defaming public officials may
extend to other civil actions alleging reputational or emotional
harm from the publication of protected speech. In Hustler
Magazine v. Falwell, 485 U.S. 46 (1988), where a public figure
plaintiff sought damages for intentional infliction of emotional
distress against the publisher (also Larry Flynt) of a lewd
cartoon parody of the plaintiff, the Supreme Court extended
the New York Times standards to the intentional infliction
claim, finding such safeguards ‘‘necessary to give adequate
‘breathing space’ to the freedoms protected by the First
Amendment.’’ Id. at 56; cf. Cohen v. Cowles Media Co., 501
U.S. 663, 671 (1991) (holding that New York Times does not
apply to a promissory estoppel claim seeking damages for
economic rather than emotional or reputational harm). We
followed a similar path in Moldea v. New York Times Co., 22
F.3d 310 (D.C. Cir. 1994), where an author sued a newspaper
for the publication of a negative book review, alleging defama-
tion and false light invasion of privacy. We held that because
the plaintiff had failed to meet the burdens of proof associat-
ed with his defamation claim, the ‘‘related claim for false light
invasion of privacy must also fail.’’ Id. at 319. As we
explained, ‘‘a plaintiff may not use related causes of action to
avoid the constitutional requisites of a defamation claim.’’ Id.at 319–20.
Although we have not previously addressed the First
Amendment issue in the section 1985(1) context, the Sixth
Circuit, in Windsor v. The Tennessean, 719 F.2d 155 (6th Cir.
1983), recognized that ‘‘the New York Times case dealt with
state tort law,’’ but saw ‘‘no reason not to apply that [constitu-
tional] test to [a] section 1985(1) action[ ]’’ alleging conspiracy
to injure a public official through the publication of disparag-
ing newspaper articles. Id. at 162. In this circuit, District
Judge Kollar–Kotelly reached the same conclusion in Sculim-
brene v. Reno, 158 F. Supp. 2d 8 (D.D.C. 2001), explaining
that ‘‘[l]ike the libel statute at issue in New York Times v.
10
Sullivan and the Sedition Act of 1789, Section 1985 of Title 42
carries the potential to infringe upon a speaker’s First
Amendment right if certain safeguards are not imposed.’’ Id.
at 18. Judge Kollar–Kotelly concluded that ‘‘the constitution-
al considerations and protections afforded to defendants in a
defamation action seem equally applicable’’ to a section 1985
claim alleging that defendants conspired to publish informa-
tion injuring a plaintiff’s reputation. Id.Persuaded by the reasoning of the Sixth Circuit and Judge
Kollar–Kotelly, we hold that First Amendment protections
apply to section 1985 claims like the one presented here.
Barr’s cause of action rests entirely on his claim that Flynt’s
conspiratorial publication of The Flynt Report injured his
reputation and mental state. Indeed, ruling otherwise would
allow public officials to recast defamation claims barred by
New York Times as section 1985(1) conspiracies, thus choking
off the ‘‘breathing space’’ necessary to safeguard ‘‘the free-
doms protected by the First Amendment.’’ Hustler, 485 U.S.
at 56. Because Barr’s complaint alleges neither that the
information in The Flynt Report is false nor that the report
was published with actual malice, Barr cannot obtain damages
for the report’s publication.
In affirming the district court’s 12(b)(6) ruling on this
ground, we emphasize that we have not reached an issue that
arose at oral argument in response to questions from the
court, i.e., whether or how Flynt’s First Amendment defense
might be affected by the complaint’s allegation that he partic-
ipated in illegally obtaining the published materials. Cf.
Bartnicki v. Vopper, 532 U.S. 514, 528–29 (2001) (leaving open
the question of whether the First Amendment would permit
the punishment of the publication of truthful information
obtained unlawfully); Fla. Star v. B.J.F., 491 U.S. 524, 535
n.8 (1989) (same). Barr neither raised this issue in response
to Flynt’s First Amendment arguments nor cited any of the
relevant authority either before the district court or here.
Indeed, nothing in Barr’s appellate briefs can arguably be
read as encompassing the issue. Because Barr failed to raise
the issue and because Flynt has had no opportunity to
respond, we will not address it. See Carducci v. Regan, 714
11
F.2d 171, 177 (D.C. Cir. 1983) (‘‘[A]ppellate courts do not sit
as self-directed boards of legal inquiry and research, but
essentially as arbiters of legal questions presented and ar-
gued by the parties before themTTTT [W]here counsel has
made no attempt to address the issue, we will not remedy the
defect, especially where, as here, important questions of far-
reaching significance are involved.’’ (internal quotation marks
omitted)).
The district court’s judgment is affirmed.
So ordered.