Christiana Tah v. Global Witness Publishing, Inc. ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2020 Decided March 19, 2021
No. 19-7132
CHRISTIANA TAH AND RANDOLPH MCCLAIN,
APPELLANTS
v.
GLOBAL WITNESS PUBLISHING, INC. AND GLOBAL WITNESS,
APPELLEES
Consolidated with 19-7133
Appeals from the United States District Court
for the District of Columbia
(No. 1:18-cv-02109)
Rodney A. Smolla argued the cause for appellants/cross-
appellees. With him on the briefs was Arthur V. Medel.
Chad R. Bowman argued the cause for appellees/cross-
appellants. With him on the briefs were David A. Schulz, Mara
J. Gassmann, and Maxwell S. Mishkin.
Gregory M. Lipper was on the brief for amici curiae Non-
Governmental Organizations in support of appellees/cross-
appellants.
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Bruce D. Brown and Katie Townsend were on the brief for
amici curiae Reporters Committee for Freedom of the Press
and 26 Media Organizations in support of appellees/cross-
appellants.
Before: SRINIVASAN, Chief Judge, TATEL, Circuit Judge,
and SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
Opinion dissenting in part filed by Senior Circuit Judge
SILBERMAN.
TATEL, Circuit Judge: In this defamation action, two
former Liberian officials allege that Global Witness, an
international human rights organization, published a report
falsely implying that they had accepted bribes in connection
with the sale of an oil license for an offshore plot owned by
Liberia. The district court dismissed the complaint for failing
to plausibly allege actual malice. For the reasons set forth in
this opinion, we affirm. The First Amendment provides broad
protections for speech about public figures, and the former
officials have failed to allege that Global Witness exceeded the
bounds of those protections.
I.
Because this appeal comes to us from a dismissal pursuant
to Federal Rule of Civil Procedure 12(b)(6), “[w]e accept facts
alleged in the complaint as true and draw all reasonable
inferences from those facts in the plaintiffs’ favor.” Hancock v.
Urban Outfitters, Inc., 830 F.3d 511, 513–14 (D.C. Cir. 2016).
The dispute in this case traces its roots to an Atlantic
Ocean plot owned by Liberia and thought to have potentially
significant oil reserves. Compl. ¶ 18. The National Oil
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Company of Liberia (NOCAL), responsible under Liberian law
for awarding oil licenses, first issued a license for the plot,
known as “Block 13,” in 2007 to a company called Broadway
Consolidated PLC (BCP). Id. ¶¶ 19–21. That transaction was
marred by “rumors of corruption,” and when BCP failed to
fulfill its obligations under its production sharing contract,
Liberia began arranging to sell Block 13 to a different oil
company. Id. ¶¶ 21–22.
ExxonMobil, a multinational oil company, was interested
in purchasing Block 13 but wary of buying the license directly
from BCP given the rumors of corruption surrounding the 2007
transaction. Accordingly, Exxon got a third-party, Canadian
Overseas Petroleum Limited, to buy the Block 13 license and
resell it to Exxon. In exchange, Exxon paid $120 million, of
which $50 million went directly to Liberia—the most Liberia
had ever received in a single natural resources deal. Id. ¶ 22.
Unlike in the BCP transaction, Liberia was represented in these
negotiations by the Hydrocarbon Technical Committee (HTC),
a six-member government entity created to “superintend []
negotiations” between oil companies and NOCAL. Id. ¶¶ 23–
24. Plaintiffs Christiana Tah and Randolph McClain, Liberia’s
Minister of Justice and NOCAL’s CEO respectively, were
HTC members during the transaction.
After the deal was consummated, the Liberian President
directed NOCAL’s board to pay bonuses to those responsible
for the new agreement as a “reward for exceptionally well-done
service.” Id. ¶¶ 25–26, 28. But before the board determined the
size of the bonuses, McClain “asked two of the HTC members,
the President’s Legal Advisor, Seward Cooper, and Minister of
Justice, Christiana Tah, if payment of such bonuses would be
legally permissible.” Id. ¶ 26. Cooper and Tah “concluded”
that they were legal for “two . . . independent reasons.” Id. ¶ 28.
First, the pertinent Liberian anti-corruption law had “expired
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and was no longer legally operative.” Id. And second, even had
the law remained in force, the bonuses would still pass muster
because they “had come at the initiative of [the] President” and
“[n]o prospective recipient of the bonuses claimed to have
demanded any such bonus payments.” Id.
NOCAL’s board then authorized “approximately
$500,000” worth of bonuses. Id. ¶ 29. Each “member[] of the
HTC, including . . . Tah and . . . McClain, received . . .
$35,000,” and each of “five consultants were . . . sent bonuses
of $15,000.” Id. The rest of the funds were split among the
remaining NOCAL employees, including drivers and custodial
workers. Id. The $35,000 payments to Tah and McClain are the
focus of this case.
According to Global Witness’s report, Catch me if you
can, the organization first learned of Exxon’s Block 13 deal
from the Liberian Extractive Industries Transparency Initiative
(LEITI), a semi-autonomous Liberian agency that publishes
information about payments made by energy companies to the
Liberian government. Because of NOCAL’s “tarnished track
record of corrupt deals, Global Witness saw there was a risk of
bribery and began its investigation.” Catch me if you can
(“Report”) at 9; see also Compl. ¶ 42. Global Witness focused
on Block 13 in order to highlight the “critical information”
provided by section 1504 of the Dodd-Frank Act, see 15 U.S.C.
§ 78m(q), which “[l]ike LEITI, . . . requires all oil, gas, and
mining companies to report the payments they make to
governments.” Report at 9.
Catch me if you can addresses Block 13’s background and
the corruption surrounding the BCP deal. For example, it states
BCP was “likely part-owned by [now-former Liberian]
government officials with the power to influence the award of
oil licenses,” and that the award of Block 13 to BCP therefore
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violated Liberian law. Id. at 12. The report also claims that the
BCP license was approved due to bribery. It then explains how
Exxon structured its transaction to alleviate its concerns about
the BCP deal.
The report principally addresses the $35,000 payments in
a section titled “Monrovia, 2013: Awash in Cash.” Id. at 30–
31. This section discusses what are repeatedly described as
“unusual, large” payments made to HTC members, referencing
Tah and McClain by name. Id. at 30. It states that NOCAL
characterized the payments as “bonuses,” using scare quotes
whenever it repeats the word “bonus,” and claims that the
payments “appear . . . to be linked to the HTC’s signing of
Block 13.” Id.
In support of its claim that the payments were “large” and
“unusual,” the report states that “there is no sign of equivalent
bonuses during” the surrounding years, “except for smaller
yearly bonuses paid shortly before Christmas[;]” that “the
payments represented a 160 percent increase on the reported
highest salary paid to a Liberian minister[;]” and that one HTC
member who was supposedly working for free nonetheless
received a payment. Id. The report then gives the definition of
bribery under Liberian law and references some of the
corruption surrounding the 2007 BCP deal—specifically,
payments NOCAL made to members of the Liberian legislature
to ensure approval of that earlier license, which NOCAL
deemed “lobbying fees,” and which the Liberian Government’s
General Auditing Commission later “classified as bribes.” Id.
A few weeks before Global Witness issued the report, it
sent letters to HTC members informing each that “we believe
that the payment made by NOCAL to you was most likely a
bribe, paid as a reward to ensure that [Block] 13 was negotiated
successfully,” and asking for a response. Compl. ¶¶ 91–92.
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Several HTC members, including Tah, denied that the
payments were bribes, insisting they were bonuses authorized
by NOCAL’s board that were “appropriately earned given the
extraordinary success of the Exxon negotiations,” and pointing
out that all NOCAL employees received bonuses. Id. ¶¶ 93–95.
Global Witness included excerpts from these denials in the
report. Report at 30.
The report also discusses Exxon’s relationship to these
payments. It characterizes them as evidence of Exxon’s
possible “complicit[y]” in “Liberia’s corrupt oil sector,”
declaring that “Exxon should have known better.” Id. at 32–33.
According to the report, “Exxon . . . knew it was buying a
license with illegal origins” and the payments were “in effect
. . . likely made with Exxon’s money.” Id. Although stating that
“Global Witness believes that Exxon should have considered it
possible that money the company provided to NOCAL could
have been used as bribes in connection with Exxon’s Block 13
deal,” the report acknowledges that “Global Witness has no
evidence that Exxon directed NOCAL to pay Liberian officials,
nor that Exxon knew such payments were occurring.” Id. at 31–
32.
Lastly, Global Witness called on the Liberian government
to investigate the payments and, in the event such investigation
uncovers unlawful behavior, urged the U.S. Department of
Justice “to determine if the company violated the [Foreign
Corrupt Practices Act].” Id. at 32. Global Witness sent copies
of the report to the U.S. Attorney General and the Chairman of
the Securities and Exchange Commission. Compl. ¶¶ 100–02.
Following the report’s publication, the Liberian
government investigated the payments and concluded that they
did not “constitute[] bribe[s] within the context of [Liberian]
law” and were not “made so [the HTC] could undertake [an]
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official act.” Id. ¶ 81 (internal quotation marks omitted). The
Liberian government nonetheless recommended that the HTC
members return the payments. Id. ¶ 83. Tah and McClain
refused, asserting that the payments were above-board bonuses
for a job well done. Id.
Believing that Catch me if you can falsely impugns their
integrity and reputations, Tah and McClain sued Global
Witness for defamation and false light invasion of privacy.
They dispute none of the facts contained in the report but argue
that Global Witness falsely “communicated [through
implication] . . . that . . . each took a bribe in exchange for their
roles in the Exxon purchase of Block 13.” Id. ¶ 31 (emphasis
omitted).
Global Witness responded with a special motion to dismiss
under the District of Columbia’s anti-SLAPP (strategic
lawsuits against public participation) statute, which seeks to
protect speakers from lawsuits “filed by one side of a political
or public policy debate aimed to punish or prevent the
expression of opposing points of view.” Competitive
Enterprise Institute v. Mann, 150 A.3d 1213, 1226 (D.C. 2016)
(internal quotation marks omitted). To defeat such a motion,
the plaintiff must “demonstrate[] that the claim is likely to
succeed on the merits,” even as the act severely limits
discovery. D.C. Code § 16-5502(b). A prevailing defendant
may seek an award of attorney’s fees. Id. § 16-5504(a). Global
Witness also filed a motion to dismiss for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6), arguing
that the complaint failed to plead defamation by implication,
that any defamatory implication was protected opinion, and
that, in any event, the complaint failed to plead actual malice
as required under the First Amendment.
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The district court denied Global Witness’s special motion
because, in its view, the D.C. anti-SLAPP statute did not apply
in federal court. Tah v. Global Witness Publishing, Inc., No.
18-cv-2109 (D.D.C. June 19, 2019). The court, however,
granted Global Witness’s Rule 12(b)(6) motion, finding that
“the contents of the report are protected speech under the First
Amendment and cannot sustain a defamation claim.” Tah v.
Global Witness Publishing, Inc., 413 F. Supp. 3d 1, 3–4
(D.D.C. 2019).
Tah and McClain appeal, arguing, as they did in the district
court, that their allegations are sufficient to state a plausible
case of actual malice because Global Witness (1) began its
investigation with a preconceived story line, (2) received
denials from some of those involved, (3) harbored ill-will
toward Exxon, and (4) omitted Seward Cooper from the list of
payment recipients. Global Witness cross-appeals, arguing that
the anti-SLAPP statute applies in federal court and that the
district court’s denial of the special motion to dismiss deprived
it of the ability “to recover the expenses it has incurred in
defending against this meritless attack.” Appellees’ Br. 67.
Like the district court, we begin with the anti-SLAPP issue.
II.
Under the Supreme Court’s decision in Shady Grove
Orthopedic Associates., P.A. v. Allstate Insurance Co., to
decide whether a state (or district) law or rule—in this case the
D.C. anti-SLAPP statute—applies in a federal court exercising
diversity jurisdiction, we “first determine whether [a federal
rule of civil procedure] answers the question in dispute.” 559
U.S. 393, 398 (2010). If it does, the federal rule “governs . . .
unless it exceeds statutory authorization or Congress’s
rulemaking power.” Id.9
Applying the Shady Grove test, our court held in Abbas v.
Foreign Policy Group, LLC that the D.C. anti-SLAPP act does
not apply in federal court. 783 F.3d 1328, 1334–37 (D.C. Cir.
2015). Without controlling guidance from the D.C. Court of
Appeals—at the time that court had yet to interpret the anti-
SLAPP act—we construed the statute’s “likely to succeed on
the merits” standard literally, finding that it “is different from
and more difficult for plaintiffs to meet than the standards
imposed by Federal Rules 12 and 56.” Id. at 1335. Accordingly,
we concluded that the D.C. anti-SLAPP statute impermissibly
“conflicts with the Federal Rules by setting up an additional
hurdle a plaintiff must jump over to get to trial.” Id. at 1334.
Global Witness argues that the D.C. Court of Appeals’s
subsequent decision in Competitive Enterprise Institute v.
Mann effectively abrogates Abbas. There, interpreting the anti-
SLAPP statute’s special motion to dismiss provision for the
first time, the Court of Appeals held, contrary to Abbas, that
the “D.C. Anti-SLAPP Act’s likelihood of success standard . . .
simply mirror[s] the standards imposed by Federal Rule 56,”
and that to decide a special motion to dismiss, the court “must
assess the legal sufficiency of the evidence” as it currently
stands at the time of the motion. Mann, 150 A.3d at 1236, 1238
n.32 (internal quotation marks omitted).
Even with this development, however, Abbas remains
circuit law and controls this case. The reason comes from Mann
itself, in which the Court of Appeals “agree[d] with Abbas that
the special motion to dismiss is different from summary
judgment” in two respects. Id. at 1238 n.32.
First, the special motion to dismiss “imposes the burden
on plaintiffs.” Id. Once a defendant makes a prima facie
showing that the lawsuit in question qualifies as a SLAPP, the
burden shifts to the plaintiff to defeat the special motion to
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dismiss. Id. at 1237. By contrast, even a “movant” defendant
on a Federal Rule 56 summary judgment motion retains some
initial “burden of showing that there is no genuine issue of
fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986).
Second, the Court of Appeals observed that, unlike a
summary judgment motion, a special motion to dismiss will
usually be decided “before discovery is completed.” Mann, 150
A.3d at 1238 n.32. By contrast, under Federal Rule 56,
summary judgment is typically “premature unless all parties
have had a full opportunity to conduct discovery.”
Convertino v. DOJ, 684 F.3d 93, 99 (D.C. Cir. 2012) (internal
quotation marks omitted). According to Global Witness,
however, the allowance for discovery under the anti-SLAPP
statute is identical to that under Federal Rule 56. The D.C.
Court of Appeals’s recent decision in Fridman v. Orbis
Business Intelligence Ltd., 229 A.3d 494 (D.C. 2020),
forecloses this argument. There, the court addressed the
provision of the anti-SLAPP act that stays discovery whenever
a special motion to dismiss is filed, except for “[w]hen it
appears likely that targeted discovery will enable the plaintiff
to defeat the motion and that the discovery will not be unduly
burdensome.” D.C. Code § 16-5502(c)(2). That standard, the
court explained, “is difficult to meet,” because the party
requesting discovery must show that it is actually “likely” that
“targeted discovery will enable him to defeat the special
motion to dismiss.” Fridman, 229 A.3d at 512–13. Thus,
“discovery normally will not be allowed.” Id. at 512. This
differs from Federal Rule 56, under which full discovery is the
norm, not the exception.
Although Mann may undermine some of Abbas’s
reasoning, the bottom line remains: the federal rules and the
anti-SLAPP law “answer the same question about the
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circumstances under which a court must dismiss a case before
trial . . . differently,” and the anti-SLAPP law still “conflicts
with the Federal Rules by setting up an additional hurdle a
plaintiff must jump over to get to trial.” Abbas, 783 F.3d at
1333–34 (internal quotation marks omitted). Accordingly, the
district court properly applied Abbas to this case and denied the
special motion.
III.
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “We assume the truth of all well-
pleaded factual allegations and construe reasonable inferences
from those allegations in a plaintiff’s favor.” Nurriddin v.
Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016). “Threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
In a defamation by implication case under D.C. law, “the
courts are charged with the responsibility of determining
whether a challenged statement is capable of conveying a
defamatory meaning.” White v. Fraternal Order of Police, 909
F.2d 512, 518 (D.C. Cir. 1990) (internal quotation marks
omitted). A plaintiff must show first that the “communication,
viewed in its entire context, . . . conveys materially true facts
from which a defamatory inference can reasonably be drawn,”
and second, that “the communication, by the particular manner
or language in which the true facts are conveyed, supplies
additional, affirmative evidence suggesting that the defendant
intends or endorses the defamatory inference.” Armstrong v.
Thompson, 80 A.3d 177, 184 (D.C. 2013) (emphasis omitted)
(quoting White, 909 F.2d at 520). Where, as here, plaintiffs
qualify as public officials—as Tah and McClain concede they
12
do—the First Amendment requires that they also allege that the
defamatory statement “was made with actual malice.” New
York Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964)
(internal quotation marks omitted). The First Amendment, the
Supreme Court long ago observed, enshrines “a profound
national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open.” Id. at
270. The actual malice standard reflects the cornerstone First
Amendment principle that “speech relating to public officials
and public figures, as distinct from private persons, enjoys
greater protection.” Jankovic v. International Crisis Group
(Jankovic III), 822 F.3d 576, 584 (D.C. Cir. 2016).
The actual malice standard is famously “daunting.”
McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308 (D.C.
Cir. 1996). A plaintiff must prove by “clear and convincing
evidence” that the speaker made the statement “with
knowledge that it was false or with reckless disregard of
whether it was false or not.” Jankovic III, 822 F.3d at 589–90
(second part quoting New York Times Co., 376 U.S. at 279–80).
“[A]lthough the concept of reckless disregard cannot be fully
encompassed in one infallible definition,” the Supreme Court
has “made clear that the defendant must have made the false
publication with a high degree of awareness of probable
falsity,” or “must have entertained serious doubts as to the truth
of his publication.” Harte-Hanks Communications, Inc. v.
Connaughton, 491 U.S. 657, 667 (1989) (alteration omitted)
(internal quotation marks omitted); see also id. at 688 (using
these formulations interchangeably). The speaker’s failure to
meet an objective standard of reasonableness is insufficient;
rather the speaker must have actually “harbored subjective
doubt.” Jankovic III, 822 F.3d at 589.
The dissent thinks this is an easy case. “In Global
Witness’s story,” the dissent asserts, “Exxon was the briber,”
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Dissenting Op. at 1, yet the report admits that “Global Witness
ha[d] no evidence that Exxon directed NOCAL to pay Liberian
officials, nor that Exxon knew such payments were occurring,”
Report at 31.
Critically, however, neither Tah nor McClain advances
this theory—in their briefing to us, they never even mention the
sentence on which the dissent relies. They make four specific
arguments in support of their claim that Global Witness
possessed actual malice, supra at 8, not one of which is that
Global Witness had no evidence that Exxon was the briber, and
for good reason. At most, the report implies that NOCAL, not
Exxon, was the briber, thus rendering any lack of evidence as
to Exxon’s direction or knowledge of the payments totally
irrelevant. See Report at 32 (stating that Exxon “knew the risk”
and “should have considered it possible that money the
company provided to NOCAL could have been used as bribes
in connection with Exxon’s Block 13 deal” (emphasis added));
id. (noting that Global Witness asked Exxon for comment on
any “safeguards the company may have put in place to prevent
the possible misuse of its funds by NOCAL” (emphasis added)).
Contrary to the dissent, see Dissenting Op. at 6, a generic
statement accusing someone of acting with reckless
disregard—here, Tah and McClain’s claim that “Global
Witness subjectively knew that it had not been able to
determine whether the payments of $35,000 to Christiana Tah
and Randolph McClain were corrupt bribery payments,”
Appellants’ Br. 36—simply cannot be read to shoehorn in
every conceivable actual malice theory. Indeed, when our
dissenting colleague surfaced his theory at oral argument, it
was so foreign to appellants’ counsel that our colleague had to
spoon-feed him after he failed to get the initial hint. See Oral
Arg. Tr. at 10 (“Well, no, it’s worse. Isn’t it stronger than that,
counsel? We have no evidence.”). As our dissenting colleague
himself has made clear, “we do not consider arguments not
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presented to us.” Diamond Walnut Growers, Inc. v. NLRB, 113
F.3d 1259, 1263 (D.C. Cir. 1997) (en banc). Or put another
way, “appellate courts do not sit as self-directed boards of legal
inquiry and research, but essentially as arbiters of legal
questions presented and argued by the parties before them.”
Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).
We turn, then, to the “legal questions presented and
argued” by Tah and McClain. They advance what the district
court described as “several interlocking theories to support the
allegation of actual malice.” Tah, 413 F. Supp. 3d at 12. We
agree with the district court that these theories fail to support a
plausible claim that Global Witness acted with actual malice.
Tah and McClain first allege that Global Witness began
their investigation with “a preconceived story line” that they
argue “is plainly probative of actual malice.” Appellants’ Br.
19 (emphasis omitted). In support, they point out that the letters
in which Global Witness asked for comment state that the
$35,000 payments were “most likely” bribes. Compl. ¶¶ 91–
92.
Our court, however, has made clear that “preconceived
notions” or “suspicion[s]” usually do “little to show actual
malice.” Jankovic III, 822 F.3d at 597. After all, virtually any
work of investigative journalism begins with some measure of
suspicion. Thus, “concoct[ing] a pre-conceived storyline” by
itself is “not antithetical to the truthful presentation of facts.”
Id. at 597 (internal quotation marks omitted). Moreover,
because Global Witness sent the letters toward the end of its
investigative process and just a few weeks before publication,
the letters provide no support at all for the notion that Global
Witness’s conclusion was preconceived. As the district court
correctly observed, “[t]hat Global Witness had arrived at its
conclusion, right or wrong, by the time it reached out for
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comment and shortly before publication is commonplace and
no surprise.” Tah, 413 F. Supp. 3d at 13. Finally, seeking
comment in advance of publication is a standard journalistic
practice. See, e.g., Responses, Associated Press,
http://www.ap.org/about/news-values-and-principles/telling-
the-story/responses (“We must make significant efforts to
reach anyone who may be portrayed in a negative way in our
stories, and we must give them a reasonable amount of time to
get back to us before we move the story.”). Drawing a
pernicious inference from adherence to such professional
standards would turn First Amendment case law on its head. In
any event, even an “extreme departure from professional
standards” is insufficient to prove actual malice on its own.
Harte-Hanks, 491 U.S. at 665.
Next, Tah and McClain seek to draw an inference of actual
malice from Global Witness’s failure to credit their denials.
This too finds no support in our First Amendment case law. A
publisher “need not accept ‘denials, however vehement; such
denials are so commonplace in the world of polemical charge
and countercharge that, in themselves, they hardly alert the
conscientious reporter to the likelihood of error.’” Lohrenz v.
Donnelly, 350 F.3d 1272, 1285 (D.C. Cir. 2003) (quoting
Harte-Hanks, 491 U.S. at 691 n.37). Although consistent with
each other, the denials contain no “evidence that could be
readily verified” of the sort that would provide “obvious
reasons to doubt the veracity of [Global Witness’s]
publication.” Id. (internal quotation marks omitted). As the
district court pointed out, the denials “fail” even to “contest the
facts that are [stated] in the Report.” Tah, 413 F. Supp. 3d at
13.
According to the dissent, our description of the law is
“obviously fallacious,” Dissenting Op. at 10, an odd accusation
given that we have done nothing more than quote from our
16
court’s decision in Lohrenz. Undaunted, the dissent attempts to
distinguish Lohrenz on the ground that Global Witness “had
‘no evidence’—and no witnesses—to contradict the six
denials.” Id. at 11 (quoting Report at 31). But that quotation
comes from the same sentence in Catch me if you can that the
dissent relies on for the proposition—irrelevant to the
arguments made by Tah and McClain, see supra at 13—that
Global Witness had no evidence that Exxon had paid bribes.
Contrary to the dissent, moreover, nothing in the six
denials comes close to the kind of “readily verifi[able]”
evidence, Lohrenz 350 F.3d at 1285, needed to support a
plausible—and we emphasize the word plausible—case that
Global Witness published with a “high degree of awareness of
probable falsity,” Harte-Hanks, 491 U.S. at 688 (alteration
omitted) (internal quotation marks omitted). See Dissenting
Op. at 12. To be sure, as the dissent points out, the denials state
that more than 140 others, such as NOCAL drivers and janitors,
also received bonuses. But as the report explains, “the vast
majority of these payments were smaller . . . by two orders of
magnitude” and “were not made to people who signed the
Exxon deal.” Report at 32. Indeed, the denials themselves
characterized the payments the HTC received as rewards for
those “who performed exceptionally in conducting the
negotiations on the Exxon Contract,” a rationale obviously
inapplicable to payments to other company employees. Compl.
¶ 93 (quoting Tah’s denial); see also id. ¶ 94 (quoting
McClain’s denial, which stated “[a]ny bonus given by our
superiors was in acknowledgement of the Team’s
extraordinary work after the completion of the landmark
Contract”). It is also true that the denials explain, as does the
report, that the pot of money used to make the payments was
“negotiated” as part of the larger Exxon deal, Dissenting Op. at
12; Report at 32, but we fail to see how that contradicts the idea
that the payments were bribes from NOCAL. The dissent refers
17
to the NOCAL board resolution approving the payments,
presumably because the denials claim that the payments were
“authorized by NOCAL’s Board of Directors.” Compl. ¶ 93
(quoting Tah’s denial). But according to the report, Global
Witness “requested, but had not yet received” a copy of the
board resolution, and the complaint alleges nothing to the
contrary. Report at 31.
Tah and McClain next argue that Global Witness harbored
ill-will and desired “to catch Exxon and [CEO Rex] Tillerson
in scandal.” Appellants’ Br. 25. In support, they rely on the fact
that the report is critical of Exxon and that Global Witness
subsequently sent letters reiterating the report’s conclusions to
the Department of Justice and the Securities and Exchange
Commission. Our court, however, has made clear that evidence
of ill will “is insufficient by itself to support a finding of actual
malice.” Tavoulareas v. Piro, 817 F.2d 762, 795 (D.C. Cir.
1987) (en banc); see also Harte-Hanks, 491 U.S. at 665(“Petitioner is plainly correct in recognizing . . . that a
newspaper’s motive in publishing a story . . . cannot provide a
sufficient basis for finding actual malice.”). Regardless, neither
the report’s critical nature nor the letters sent to the Attorney
General and the SEC plausibly supports an ill-will theory. As
the district court aptly put it, the report’s “conclusion is not
evidence of its conception.” Tah, 413 F. Supp. 3d at 13.
The implications of Tah and McClain’s theory are
breathtaking: they would find support for an inference of actual
malice in a wide swath of investigative journalism that turns
out to be critical of its subject. “It would be sadly ironic for
judges in our adversarial system to conclude . . . that the mere
taking of an adversarial stance is antithetical to the truthful
presentation of facts.” Tavoulareas, 817 F.2d at 795.
18
Finally, Tah and McClain argue that “the stunning failure
of Global Witness to include . . . Seward Cooper, as among the
[HTC] members who received a $35,000 bonus” reveals actual
malice because Cooper, along with Tah, determined that the
payments were legal. Appellants’ Br. 34. We do not see how
this omission shows awareness of falsity or reckless disregard
for the truth. If anything, that one of the lawyers responsible
for conducting a legal analysis of the payments was himself in
line to receive one makes the payments even more suspicious.
For all these reasons, Tah and McClain have failed to
plausibly allege that Global Witness acted with actual malice.
This deficiency proves fatal not only to their defamation claims
but to their false light claims as well. See Farah v. Esquire
Magazine, 736 F.3d 528, 540 (D.C. Cir. 2013) (explaining that
a “plaintiff may not use related causes of action to avoid the
constitutional requisites of a defamation claim” and that “[t]he
First Amendment considerations that apply to defamation
therefore apply also to [plaintiffs’] counts for false light”
(internal quotation marks omitted)).
IV.
We affirm the district court’s dismissal of the complaint,
as well as its denial of the anti-SLAPP motion.
So ordered.
SILBERMAN, Senior Circuit Judge, dissenting in part:
Global Witness (Appellee) falsely insinuated that former
Liberian officials (Appellants) took bribes from Exxon. It
admitted that it had no evidence that Exxon had contacted
Appellants, directly or indirectly, with respect to the alleged
payments. And the evidence Global Witness did have
suggested the payments at issue were proper staff bonuses, not
bribes. Nevertheless, the Majority creates a whole new theory
of the case—one not advanced by any Party—that the
Appellants were bribed not by Exxon, but by their own
principal, the National Oil Company. According to the
Majority, its new narrative is so unassailable that, even at the
12(b)(6) stage, it precludes an inference that Global Witness
harbored subjective doubts as to the implied accusation of
bribery.
I
As Global Witness explained, “this is a story of
bribery.” J.A. 58. Bribery, as it is commonly understood,
involves a quid pro quo. See McDonnell v. United States, 136
S. Ct. 2355, 2372 (2016); accord J.A. 82 (“[A] payment given
so a public servant will undertake an official act.”). As such,
bribery has three necessary components: A briber, a bribee,
and an exchange. In Global Witness’s story, it seems obvious
that Exxon was the briber, Appellants were the bribees, and the
trade was $35,000 to ensure the deal goes through. Without
one element, there is obviously no bribery. In other words, if
no briber—or no bribe—then no bribee.
In its cross-appeal, Global Witness contends that its
Report was not even defamatory—it simply raised questions.
Of course, Appellants disagree, claiming that the Report, Catch
me if you can, falsely insinuated that they took bribes from
Exxon to approve the Block 13 deal.
The district court easily determined that Global
Witness’s story contained the defamatory implication that
2
Appellants took bribes from Exxon. Tah v. Glob. Witness
Publ’g, Inc., 413 F. Supp. 3d 1, 10 (D.D.C. 2019) (“[T]he
import of the Report [is] that there was bribery—either by [the
National Oil Company], Exxon, or both—in connection with
the post-negotiation payments to Liberia’s chief
representatives.”); id. at 9 (Global Witness’s Report “literally
[drew] a line between Exxon’s money, the bonuses, and the sale
of the license for Block 13”); accord Appellant Br. 15 (“The
story was that Exxon . . . brazenly engineered a Liberian oil
purchase through bribery.”). According to Global Witness,
Exxon’s payment to the National Oil Company and the
subsequent bonuses were “unusual” and “suspicious.” J.A. 82,
83, 85. Exxon, as Global Witness saw it, “was under no
obligation to pay most of the money” it transferred to the
National Oil Company; “$4 million of its $5 million payment
was characterized as a ‘bonus.’” J.A. 84 (emphasis in original).
And, as Global Witness reminds its readers, the National Oil
Company has a record of bribing officials on behalf of oil
companies. The “bonuses” then paid to the officials were,
Global Witness wrote, “unusual, large payments to officials
who signed the Exxon deal.” J.A. 85. Global Witness further
noted that these individual “bonuses” were likely derived from
the same bank account into which Exxon paid the initial $4
million “bonus” to the National Oil Company.
The court explained how Global Witness “tied
ExxonMobil’s payments [to the National Oil Company] for the
acquisition of rights in Block 13 with how [the Company]
shared some of that money with its negotiators, including
Plaintiffs.” Tah, 413 F. Supp. 3d at 9. One chart in the Report
tracked payments from Exxon to the National Oil Company to
members of the Hydrocarbon Technical Committee, including
Appellants Christiana Tah and Randolph McClain. The district
court noted that this chart, listing the amount of each official’s
bonus, “had the effect of literally drawing a line between
Exxon’s money, the bonuses, and the sale of the license for
Block 13.” Id.
3
The Report also connected Exxon to the bribes by
making repeated parallels to the 2003 transaction. In that deal,
Global Witness asserted that the National Oil Company paid
bribes to legislators on behalf of the Broadway Consolidated
oil company to secure ratification of its purchase. J.A. 68; see
also J.A. 84 (noting that the National Oil Company had also
paid bribes on behalf of Oranto Petroleum). And now, Exxon
was stepping into Broadway’s shoes. As the district court
explained, “a reasonable reader easily could have understood
the Report to imply that the [earlier legislative] bribes and the
2013 [Technical Committee] bonuses were of a piece.” Tah,
413 F. Supp. 3d at 9. And, the district judge noted, “[i]f that
were not the case, the Report would have no reason to advocate
for an investigation” (since there is no direct evidence of
bribery). Id. at 10 (emphasis added).
The court also rejected the Appellee’s argument that its
story actually negated any inference of bribery because it
expressly stated that “Global Witness has no evidence that
Exxon directed [the National Oil Company] to pay Liberian
officials, nor that Exxon knew such payments were occurring.”
Id. (quoting J.A. 83). After the Report repeatedly insinuated
bribery, this disclaimer “did not negate the inference that
ExxonMobil’s money was, in part, paid as bribes to [Company]
representatives who signed the lease agreement.” Id. This
statement merely “admit[ed] that the Global Witness
suspicions and calls for investigations of ExxonMobil and [the
National Oil Company] lacked any evidence that the former
had involvement in monies paid to employees of the latter.” Id.
(emphasis in original).
II
My disagreement with the district court is limited to the
actual malice question (my disagreement with the Majority is
much broader). In New York Times Co. v. Sullivan, 376 U.S.
254 (1964), the Supreme Court set forth the well-known rule
that, to hold a defendant liable for defaming a public figure, a
4
plaintiff must prove the defendant acted with “actual malice.”
Id. at 279–80. That is, with knowledge that the statement was
false or with reckless disregard for the truth. Id. at 280. As the
Supreme Court saw it, this scienter requirement appropriately
balanced (as a policy matter) the vindication of reputational
harms with the need to protect unintentional falsehoods that
inevitably arise as part of vibrant debate. Id. at 271–72. The
actual-malice rule makes the speaker’s state of mind the
constitutional gravamen in any defamation case brought by a
public figure.
The Majority emphasizes that actual malice is a
subjective test. Majority Op. 12 (citing Jankovic v. Int’l Crisis
Grp., 822 F.3d 576, 589 (D.C. Cir. 2016)). But it is important
not to confuse what a plaintiff must ultimately show with the
kind of evidence he may use to make that showing. It is the
rare case in which a defendant will confess his state of mind
and thus allow the plaintiff to prove actual malice with direct
evidence. Accordingly, as the Appellee concedes, actual
malice “is ordinarily inferred from objective facts.”
Washington Post Co. v. Keogh, 365 F.2d 965, 967 (D.C. Cir.
1966); accord Appellee Br. 50.
In St. Amant v. Thompson, the Supreme Court listed
three examples of objective circumstances that permit a
subjective inference of actual malice: (1) “where a story is
fabricated by the defendant . . . or is based wholly on an
unverified anonymous telephone call;” (2) “when the
publisher’s allegations are so inherently improbable that only a
reckless man would have put them in circulation;” and (3)
“where there are obvious reasons to doubt” the basis for the
story. 390 U.S. 727, 732 (1968); see also Tavoulareas v. Piro,
817 F.2d 762, 790 (D.C. Cir. 1987) (en banc). So even in the
absence of contradictory evidence, a story may be so facially
implausible or factually flimsy that the jury may infer that it
must have been published with reckless disregard for the truth.
See Hunt v. Liberty Lobby, 720 F.2d 631, 646 (11th Cir. 1983).
And even assuming a plausible story, the question remains
5
whether “the cumulative force of the evidence to the contrary”
should give the publisher obvious reasons for doubt.
McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1514
(D.C. Cir. 1996); see Jankovic, 822 F.3d at 597. If the publisher
moves forward without reasonably dispelling his doubts, actual
malice may be inferred. Lohrenz v. Donnelly, 350 F.3d 1272,
1284 (D.C. Cir. 2003).
St. Amant’s examples thus suggest a straightforward
framework for evaluating contentions of actual malice. We
first assess the inherent plausibility of a defendant’s story as
well as the facts in support. And if we find the story objectively
plausible, we then ask whether evidence to the contrary creates
obvious reasons for doubt.
* * *
I turn to whether Global Witness’s accusation that
Exxon bribed the Appellants—the case before us—is facially
plausible. Appellants claim that Global Witness knew it lacked
any support for insinuating that the payments to Tah and
McClain were bribes. Thus, a jury could infer that Global
Witness subjectively doubted the truth of its Report.
I agree. In my view, because Global Witness’s story is
obviously missing (at least) one necessary component of
bribery, it is inherently improbable. Although it accused
Appellants of taking bribes from Exxon, Global Witness admits
that it had “no evidence that Exxon directed the [National Oil
Company] to pay Liberian officials, nor that Exxon knew such
payments were occurring.” J.A. 83 (emphasis added). In other
words, despite all its investigating, Global Witness uncovered
nothing to demonstrate that Exxon was the briber and nothing
to even suggest there was an agreed upon exchange. Accord
Tah, 413 F. Supp. 3d at 10 (“Global Witness’s suspicions and
calls for investigations of ExxonMobil and [the National Oil
Company] lacked any evidence that the former had
involvement in monies paid to employees of the latter.”)
6
(emphasis in original). And with no privity between Exxon and
the Technical Committee members, it is bizarre to accuse
Appellants of taking a bribe. As St. Amant teaches, it is
sufficient to infer—on this basis alone—that Appellee acted
with knowing disregard for the veracity of its publication.
The Majority’s assertion that this argument was never
made by the Appellants leads me to wonder whether we
received the same briefs. In my copy, Appellants argue that
“Global Witness subjectively knew that it had not been able to
determine whether the payments of $35,000 to Christiana Tah
and Randolph McClain were corrupt bribery payments.
Yet . . . Global Witness proceeded to present to readers the
defamatory message that in fact [] Tah and [] McClain had
taken bribes.” Appellant Br. 36 (emphasis in original). That
sounds to me a whole lot like accusing Global Witness of
publishing its story with no evidence to back it up. The
Majority, moreover, faults me for assessing the inherent
(im)plausibility of Global Witness’s story, without a specific
request from Tah and McClain to do so. But (as discussed)
“inherently implausible” is a legal standard by which we assess
Appellants’ arguments—not an argument to be advanced. See
Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); cf.
Eldred v. Ashcroft, 255 F.3d 849, 853 (D.C. Cir. 2001)
(Sentelle, J., dissenting) (“Merely because the parties fail to
advance the proper legal theory underlying their claim does
not—indeed cannot—prevent a court from arriving at the
proper legal disposition.”).
To be sure, Appellants did not quote the “no evidence”
paragraph in their brief; it was “the Court” at oral argument that
focused on this damning language. But it is hardly a new
argument; it is only evidence—although powerful evidence—
supporting Appellants’ argument. Apparently, the Majority
also recognizes the significance of the passage and wishes to
rule it out of order. But the Appellee itself injected this
statement into the controversy when it brandished it as
supposedly exculpatory evidence. Appellee Br. 19, 35.
7
Global Witness points to other facts that support its
story, but none amount to a hill of beans. It emphasizes the
obvious point: Payments were made to Appellants. Then it
notes these payments were “likely” sent from the same account
where Exxon deposited its $4 million “bonus” to the National
Oil Company itself. Although a sly suggestion of wrongdoing,
when you think about it, it’s a non sequitur. If that were support
for a bribe, any investment banker’s commission could be
illegal.
Next, Global Witness justifies its story based on a past
“history” of bribery by the National Oil Company. The
Company had previously, in connection with the 2003 bid, paid
out bribes to legislators on behalf of another oil company in
order to ratify a transaction. Our situation is quite different; in
this case, the recipients of the “bribes” were the National Oil
Company’s own agents and employees. And connecting
bribery to the 2013 circumstances from the wholly separate
2003 bid—in which Tah and McClain were not even
involved—is a grossly unfair inference. Global Witness
attempts to tar the conduct of two parties to a transaction with
the prior bad acts of entirely different people. That is entirely
illegitimate.
It is significant, moreover, that the National Oil
Company paid out bonuses to all those involved in the
negotiations—including American consultants—as well as
low-ranking employees. Yet the story focuses on members of
the Technical Committee as if they were special transgressors.
But for Global Witness’s story to be true, Exxon was somehow
spreading bribes left and right like Johnny Appleseed. The
much more obvious explanation is that the “bonuses” were in
fact bonuses paid for outstanding performance. Certainly at the
12(b)(6) stage, Appellants are entitled to that inference (Global
Witness is not entitled to its speculative inference to the
contrary). See Palin v. New York Times Co., 940 F.3d 804, 815
(2d Cir. 2019).
8
The timing and manner of the payments are further
indications of bonuses, not bribes. Recall that in connection
with Broadway’s 2003 bid for Block 13, Global Witness
explained that the National Oil Company supposedly paid most
of Broadway’s bribes to legislators before approval of the deal.
In contrast, the 2013 payments from the National Oil Company
to its own negotiators, staff, and consultants occurred after the
deal was completed. J.A. 67. The latter payments—as Global
Witness knew—were only initiated after the approval of a
board resolution authorizing up to $500,000 in bonuses. And,
as Global Witness also acknowledges, the board had the full
legal authority to take this action. These payments, openly
made, are also indicia of proper bonuses; bribes, which are
illegal everywhere, are typically made in the dark. See DiBella
v. Hopkins, 403 F.3d 102, 117 (2d Cir. 2005) (defendant knew
that payments to plaintiff were not surreptitious, which
supported the jury’s conclusion that the defendant made a
bribery accusation with actual malice).
For all these reasons, I consider Global Witness’s
Report inherently improbable. On its face, it’s a house of cards:
With “no evidence” supporting Exxon as a briber, Tah and
McClain could not be Exxon’s bribees. Nor is there any
evidence—not a shred—that the bonuses paid by the National
Oil Company to Appellants were themselves bribes. There is
no indication that the National Oil Company had a corrupt
motive, nor that Appellants were asked to perform an illegal or
improper task. I would therefore conclude, based on the
foregoing alone, that it is sufficient to infer actual malice at the
12(b)(6) stage since the story is inherently improbable.
* * *
There is more: Global Witness had additional, “obvious
reasons” to doubt its Report, which would also support an
inference of actual malice. St. Amant, 390 U.S. at 732 (example
three). All the eyewitnesses to the transaction that responded
to Global Witness explained precisely why it was wrong. And
9
Global Witness had no facts that would cause it to discount
these explanations.
Six individuals—four members of the Technical
Committee and two consultants—responded to Global
Witness’s accusations of bribery. Each denied that bribery
occurred. At least four offered specific, fact-based
explanations as to why Global Witness was wrong. Christiana
Tah (a Yale Law School graduate)1 explained that bonus
payments were made to all National Oil Company staff after
the Exxon deal was concluded. Robert Sirleaf, a Technical
Committee member and chair of the Company’s Board of
Directors, similarly explained that bonuses were paid to the
entire company after the Parties concluded the contract and
exchanged consideration. And, he added, a bonus was called
for: Liberia received a signing payment fifteen times larger
than in any prior transaction. Natty Davis, another Committee
member and the Chair of the National Investment Commission,
added that the decision to pay the bonuses was approved by a
formal resolution of the Company’s board. Randolph McClain
noted that the Exxon contract was “extraordinary enough to be
used as a model for all future contracts of this nature.” J.A. 44.
Two American consultants—not mentioned by the
Majority and not targeted by Global Witness’s story—also told
Global Witness that its Report was false. Each received
$15,000 bonuses. One consultant, Jeff Wood, explained that
Exxon’s payment to the National Oil Company was not
“voluntary” as Global Witness reported—it was negotiated as
part of the transaction. J.A. 45. Moreover, Wood noted, it
made no sense to equate legislative bribes paid following
Broadway’s 2003 bid to the National Oil Company’s 2013
payments to its own staff. Wood again explained that all the
employees of the National Oil Company received payments,
not just those that signed the deal. Last, Wood wrote that it was
1
That surely is not inculpatory.
10
absurd to infer bribery because no similar bonuses had been
paid in recent years. Since no other deals had been concluded,
there was no success to reward.
The Majority, however, asserts that a publisher “need
not accept denials, however vehement” as a matter of law.
Majority Op. 15 (quoting Lohrenz, 350 F.3d at 1285); see also
Appellee Br. 54 (“[D]enials do not and cannot constitute
‘evidence’ as a matter of law.”). This proposition is obviously
fallacious.2 It of course depends on the substance and context
of the denial. If denials were legally irrelevant, then any
response of the target could be ignored.3 Indeed, the Supreme
Court—even while professing in dicta that the mere existence
of a denial need not be considered—has evaluated the contents
of denials to determine whether a publisher acted with actual
malice. See Harte-Hanks Commc’ns, Inc. v. Connaughton, 491
U.S. 657, 691–92 (1989). And it has noted that certain key
denials should reasonably be expected to kill stories. Id. at 682.
To be sure, we discounted the probative value of the
denials in Lohrenz v. Donnelly. 350 F.3d 1272. Lohrenz
involved a publication that questioned the competence of a
2
The Majority protests that it has “done nothing more than
quote” from Lohrenz. Majority Op. 15–16. But those quotations
(strung together out of order) do not give an accurate impression of
our holding in that case. In Lohrenz, we held at the summary
judgment stage that “[u]nlike evidence that could be readily verified,
the Navy’s denials did not give [the defendant] ‘obvious reasons’ to
doubt the veracity of her publication.” 350 F.3d at 1285 (emphasis
added and internal citations omitted). This was because, as we
explained, those denials were mere assertions contradicted by other
evidence. Id.3
Suppose a reporter plans to accuse X of robbery in New
York City on December 1st. But X denies the allegation, explaining
that he was in Los Angeles on that date. Obviously, this denial would
need to be considered and verified by a responsible reporter.
11
female fighter pilot. According to the story, the pilot was
substandard, should not be flying, and was only assigned to the
F-14 program on account of a “politically driven policy.” Id.
at 1284. The publisher’s source was one of the pilot’s former
training officers, who we characterized as “a knowledgeable,
non-anonymous source.” Id. Furthermore, the publisher had
obtained additional information from the Navy that confirmed
the training officer’s claims—namely, that the pilot had
received a number of accommodations during training, which
other officers agreed were “excessive.” J.A. 1285.
Nevertheless, the Navy denied the story, and officials told the
publisher that its conclusions were inaccurate.
But as we explained, the fact of a denial, in itself,
“hardly alert[s] the conscientious reporter to the likelihood of
error.” Lohrenz, 350 F.3d at 1285 (quoting Harte-Hanks, 491
U.S. at 691 n.37). Rather, the specific content of a denial may
well give the publisher obvious reasons to doubt the veracity of
the publication. See id.; Montgomery v. Risen, 197 F. Supp. 3d
219, 263 (D.D.C. 2016), aff’d, 875 F.3d 709 (D.C. Cir. 2017).
So in Lohrenz, we reasoned that the Navy’s denials were
contradicted by the publisher’s interview with the flight
instructor. 350 F.3d at 1285. In light of the evidence on both
sides of the question, the Lohrenz publisher did not have any
obvious reason to doubt its story.
Global Witness, however, did not have evidence on
both sides of the issue. It had “no evidence”—and no
witnesses—to contradict the six denials. The cumulative
balance of the evidence thus gives Global Witness obvious
reasons for doubt. See McFarlane, 91 F.3d at 1514.
I am dumbfounded by the Majority’s assertion that the
denials in our case contain “no readily verifiable
information . . . that would provide ‘obvious reasons to
doubt.’” Majority Op. 15. The denials were specific, and it
was within Global Witness’s power to easily inquire into
whether other employees received bonuses, the content of the
12
Board’s resolution approving the bonuses, and whether the $4
million to the National Oil Company was negotiated as part of
the purchase price (etc.).
The Majority discounts these facts by weighing the
evidence and drawing inferences against Tah and McClain. See
Majority Op. 17 (“[T]he dissent refers to the NOCAL board
resolution approving the payments . . . . But . . . Global Witness
‘requested, but had not yet received’ a copy . . . and the
complaint alleged nothing to the contrary.”) (emphases added);
id. at 16 (discounting the fact that bonuses were paid to all
employees because the largest bonuses were paid to the
Technical Committee). Such weighing of the evidence is, of
course, impermissible at the 12(b)(6) stage. As the Second
Circuit recently reiterated in another defamation case, “[I]t is
not the [] court’s province to dismiss a plausible complaint
because it is not as plausible as the defendant’s theory.” Palin,
940 F.3d at 815.
* * *
In sum, the dramatic indication of actual malice is the
statement in Global Witness’s story to which we have
previously referred. J.A. 83 (Global Witness had “no evidence
that Exxon directed the [National Oil Company] to pay
Liberian officials, nor that Exxon knew such payments were
occurring.”).4 As we noted, Global Witness raised this point
itself in a futile effort to rebut defamation. But Global Witness
is hoist on its own petard. As I have explained, rarely does he
4
Perhaps the lack of evidence explains why the district court
was confused as to whether the bribes came from Exxon—which is
the obvious import of the story—or the National Oil Company—
which makes no sense. See Tah, 413 F. Supp. 3d at 10 (“[T]he import
of the Report [was] that there was bribery—either by [the National
Oil Company], Exxon, or both—in connection with the post-
negotiation payments to Liberia’s chief representatives.”). Of
course, “both” implies that even though the National Oil Company
may have paid out the bribes, it did so on Exxon’s behalf.
13
who defames another actually admit doubts as to the truth of
the accusation. This statement comes as close as it gets to such
a concession. In light of that admission, Global Witness’s story
is not just implausible, it’s ridiculous.
Circumventing the devastating impact of this statement,
the Majority creates a new narrative: The Global Witness
Report accused only the National Oil Company—not Exxon—
of paying bribes. With all due respect, the Majority is
employing judicial jiu-jitsu. At no time did the Appellee even
hint—in its briefs or oral argument—that was its defense. The
Appellee argues the district court erred in finding the Report
defamatory for only three reasons: because (1) it calls for
investigations, Appellee Br. 31–34; (2) it includes a disclaimer
that Global Witness had not determined the payments were
improper, Appellee Br. 34–35; and (3) the Report never uses
the word “bribe” to describe the payments, Appellee Br. 35–36.
The Majority’s judicial refashioning of the defamatory
implication is entirely illegitimate. See Diamond Walnut
Growers, Inc. v. NLRB, 113 F.3d 1259, 1263 (D.C. Cir. 1997)
(en banc).
The Majority cloaks its improper fashioning of a wholly
new argument by accusing me of doing the same. But if I’m
misreading Global Witness’s Report to imply that Exxon
bribed Appellants, I’m in quite good company. After all, the
district court endorsed my reading. Tah, 413 F. Supp. 3d at 10.
So did the Appellant. Appellant Br. 15, 23–24. And the
Liberian government. See J.A. 42. Even the Appellee assumes
that if the Report contains a defamatory implication, it would
be that Exxon bribed Tah and McClain. Otherwise, the
Appellee would not have argued its disclaimer, that “Global
Witness has no evidence that Exxon directed [the National Oil
Company] to pay Liberian officials,” is somehow exculpatory.
Appellee Br. 34–35. As the Majority recognizes, this statement
is irrelevant if one assumes that the National Oil Company was
the briber. In sum, the Majority’s theory not only falls out of
the clear blue sky, but it is also a sub silento overruling of the
14
district judge. After all, Exxon looms over the whole story. It
is impossible to visualize the article without Exxon playing the
part of the evil genius, orchestrating the implied corruption.
The Majority’s theory is not just a new argument—it’s a new
case.
Perhaps the Majority’s theory is not advanced by any
Party because the theory makes even less sense than if Exxon
were the briber. In the revisionist view, the National Oil
Company bribed its own agents and employees to do their jobs.
Tellingly, the Majority offers no motive for a bribe. After all,
the Liberian government ordered the sale of the Block 13
license for failure to make any progress in developing potential
oil reserves. J.A. 69. So there is no reason to think that the
Appellants had the authority to hold up the transaction. Nor is
there a reason to believe the National Oil Company would have
benefitted from the delay.
In any event, the Majority’s narrative is procedurally
inappropriate. At the 12(b)(6) stage, we accept all reasonable
defamatory readings of the Report advanced by the plaintiff.
See Weyrich v. New Republic, Inc., 235 F.3d 617, 627 (D.C.
Cir. 2001). As the district court ably explained, there can be no
doubt that one defamatory implication of the Report is that
Exxon bribed Appellants. That allegation—actually pressed by
Tah and McClain—must be analyzed for actual malice.
* * *
The Majority’s opinion creates a profoundly troubling
precedent. By fashioning a different defamatory implication on
its own, the Majority embraces a telling example of judicial
“creativity.” Still, its approach seems sui generis; I rather
doubt we will ever see its like again. On the other hand, the
Majority’s misunderstanding of the doctrinal framework of
New York Times v. Sullivan’s actual malice concept is
profoundly erroneous. And that will distort our libel law. But
perhaps most troublesome is the conflict it creates with the
15
Second Circuit (not to mention the Supreme Court) concerning
the role of a court when applying Rule 12(b)(6) in the libel
context. “The test is whether the complaint is plausible, not
whether it is less plausible than an alternative explanation.”
Palin, 940 F.3d at 815.
III
After observing my colleagues’ efforts to stretch the
actual malice rule like a rubber band, I am prompted to urge the
overruling of New York Times v. Sullivan. Justice Thomas has
already persuasively demonstrated that New York Times was a
policy-driven decision masquerading as constitutional law. See
McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring
in denial of certiorari). The holding has no relation to the text,
history, or structure of the Constitution, and it baldly
constitutionalized an area of law refined over centuries of
common law adjudication. See also Gertz v. Robert Welch,
Inc., 418 U.S. 323, 380–88 (1974) (White, J., dissenting). As
with the rest of the opinion, the actual malice requirement was
simply cut from whole cloth. New York Times should be
overruled on these grounds alone.
Nevertheless, I recognize how difficult it will be to
persuade the Supreme Court to overrule such a “landmark”
decision. After all, doing so would incur the wrath of press and
media. See Martin Tolchin, Press is Condemned by a Federal
Judge for Court Coverage, New York Times A13 (June 15,
1992) (discussing the “Greenhouse effect”). But new
considerations have arisen over the last 50 years that make the
New York Times decision (which I believe I have faithfully
applied in my dissent) a threat to American Democracy. It must
go.
Twenty-five years ago, I urged the overruling of a
similarly illegitimate constitutional decision, Monroe v. Pape,
365 U.S. 167 (1961). Our court was confronted with the vexing
question of whether qualified immunity shielded government
16
officials accused of constitutional torts from discovery into
their motivations. See Crawford-El v. Britton, 93 F.3d 813, 815
(D.C. Cir. 1996) (en banc), vacated, 523 U.S. 574 (1998). In a
concurring opinion, I suggested a solution to accommodate
Pape: When a defendant offers a proper motive, we should
allow an objective inquiry into only whether the proffered
motive is pretextual. Id. at 834–35; cf. Halperin v. Kissinger,
807 F.2d 180, 188 (D.C. Cir. 1986). When Crawford-El
reached the Supreme Court, four Justices agreed with my
approach. 523 U.S. at 602 (Rehnquist, C.J., dissenting); id. at
612 (Scalia, J., dissenting).
But I went even further in my concurrence: I urged the
Supreme Court to overrule Pape (and, while they’re at it,
Bivens5 as well). 93 F.3d at 832. Justices Scalia and Thomas
agreed with me. Crawford-El, 523 U.S. at 612 (Scalia, J.
dissenting). Both Pape and Bivens are prime examples of rank
policymaking by the High Court, not legitimate exercises of
constitutional interpretation. See also Hernandez v. Mesa, 140
S. Ct. 735, 752 (2020) (Thomas, J., concurring) (continuing to
call for the Court to abandon Bivens).
I recognized, however, that convincing the Court to
overrule these precedents would be an uphill battle. As I wrote,
the Court has committed itself to a constitutional Brezhnev
doctrine.6 That is, once the Court has “constitutionalized” a
new area of the law, it will never willingly retreat. The long-
5
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
6
“When forces that are hostile to socialism try to turn the
development of some socialist country towards capitalism, it
becomes not only a problem of the country concerned, but a common
problem and concern of all socialist countries.” Leonid Brezhnev,
Remarks to the Fifth Congress of the Polish United Workers’ Party
(Nov. 13, 1968). Thus, once a country has turned communist, it can
never be allowed to go back.
17
term consequence of this policy is obvious: An ever-expanding
sphere of influence for the Judiciary at the expense of the
policymaking branches.
In a short concurring opinion, Justice Kennedy
lamented my criticism. He warned that “[w]e must guard
against disdain for the judicial system,” i.e., the Supreme Court.
Crawford-El, 523 U.S. at 601. In his view, criticism of the
Court is tantamount to an attack on the Constitution. He
cautioned, “if the Constitution is to endure, it must from age to
age retain ‘th[e] veneration which time bestows.’” Id. (quoting
The Federalist No. 49, at 314 (Madison) (C. Rossiter ed.,
1961)). Apparently, maintaining a veneer of infallibility is
more important than correcting fundamental missteps.
To the charge of disdain, I plead guilty. I readily admit
that I have little regard for holdings of the Court that dress up
policymaking in constitutional garb. That is the real attack on
the Constitution, in which—it should go without saying—the
Framers chose to allocate political power to the political
branches. The notion that the Court should somehow act in a
policy role as a Council of Revision is illegitimate. See 1 The
Records of the Federal Convention of 1787, at 138, 140 (Max
Farrand ed., 1911). It will be recalled that maintaining the
Brezhnev doctrine strained the resources and legitimacy of the
Soviet Union until it could no longer be sustained.
Admittedly, the context of the Times opinion made the
Court’s decision attractive as a policy matter. The case
centered on a full-page advertisement soliciting donations for
the civil rights movement and legal defense of Dr. Martin
Luther King, Jr. 376 U.S. at 256–57. The advertisement
claimed that civil rights proponents faced an “unprecedented
wave of terror” from “Southern violators” denying
constitutional guarantees to African Americans. Id. at 256. It
described “truckloads of police armed with shotguns and tear-
gas” that “ringed” a college campus in Montgomery, Alabama.
Id. at 257. It further asserted that state authorities padlocked
18
the dining hall “in an attempt to starve [the students] into
submission.” Id. Various claims in the ad were inaccurate, and
The Times eventually published a retraction. Id. at 261.
Sullivan sued, alleging the advertisement’s false
statements libeled him because, as commissioner of public
affairs, he supervised the police department. Id. at 256, 262.
After just two hours and twenty minutes of deliberation, an
Alabama jury awarded Sullivan $500,000 (the largest libel
judgment in Alabama history), and the state Supreme Court
affirmed. Anthony Lewis, Make No Law: The Sullivan Case
and the First Amendment 33, 45 (1991).
When the Supreme Court reversed, its decision was
seen as a “triumph for civil rights and racial equality.” E.g.,
Geoffrey Stone, New York Times Co. v. Sullivan, in The Oxford
Companion to the Supreme Court of the United States 586–87
(1992). The point of these suits had less to do with repairing
reputations and more to do with deterring the northern press
from covering civil rights abuses. Southern officials, as
Anthony Lewis succinctly explains, had thus twisted “the
traditional libel action . . . into a state political weapon to
intimidate the press”:
The aim was to discourage not false but true
accounts of libel under a system of white
supremacy: stories about men being lynched
for trying to vote, about cynical judges using
the law to suppress constitutional rights,
about police chiefs turning attack dogs on
men and women who wanted to drink a Coke
at a department-store lunch counter. It was
to scare the national press—newspapers,
magazines, the television networks—off the
civil rights story.
Lewis, Make no Law at 35.
19
Indeed, the day after the Alabama court’s verdict, the
Alabama Journal (a Montgomery paper) celebrated the result.
An editorial trumpeted that the case would cause the “reckless
publishers of the North . . . to make a re-survey of their habit of
permitting anything detrimental to the South and its people to
appear in their columns.” Id. at 34. “The Times was
summoned more than a thousand miles to Montgomery to
answer for its offense. Other newspapers and magazines face
the same prospect.” Id. Even before the Supreme Court issued
the Times decision, a second suit filed by a mayor—based on
the same ad—had already resulted in another $500,000 verdict
against The Times. Id. at 35. And three additional suits
remained pending. Id. CBS had similarly been sued for $1.5
million over a televised program that depicted the difficulties
of African Americans in registering to vote. Id. at 36. By 1964,
southern officials had filed almost $300 million in libel suits
against the northern press. Id.
One can understand, if not approve, the Supreme
Court’s policy-driven decision.7 There can be no doubt that the
New York Times case has increased the power of the media.
Although the institutional press, it could be argued, needed that
protection to cover the civil rights movement, that power is now
abused. In light of today’s very different challenges, I doubt
the Court would invent the same rule.
As the case has subsequently been interpreted, it allows
the press to cast false aspersions on public figures with near
7
It should be noted that precisely what should have been
done is a matter of debate. See, e.g., Richard A. Epstein, Was New
York Times v. Sullivan Wrong, 53 U. CHI. L. REV. 782, 791 (1986);
see also Lewis Green, The New York Times Rule: Judicial Overkill
12 VILLANOVA L. REV. 725, 735 (1967).
20
impunity.8 It would be one thing if this were a two-sided
phenomenon. Cf. New York Times, 376 U.S. at 305 (Goldberg,
J., concurring) (reasoning that the press will publish the
responses of public officials to reports or accusations). But see
Suzanne Garment, The Culture of Mistrust in American Politics
74–75, 81–82 (1992) (noting that the press more often
manufactures scandals involving political conservatives). The
increased power of the press is so dangerous today because we
are very close to one-party control of these institutions. Our
court was once concerned about the institutional consolidation
of the press leading to a “bland and homogenous” marketplace
of ideas. See Hale v. FCC, 425 F.2d 556, 562 (D.C. Cir. 1970)
(Tamm, J., concurring). It turns out that ideological
consolidation of the press (helped along by economic
consolidation) is the far greater threat.9
8
See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
472 U.S. 749, 769 (1985) (White, J., concurring):
The New York Times rule thus countenances two
evils: first, the stream of information about
public officials and public affairs is polluted and
often remains polluted by false information; and
second, the reputation and professional life of the
defeated plaintiff may be destroyed by
falsehoods that might have been avoided with a
reasonable effort to investigate the facts. In
terms of the First Amendment and reputational
interests at stake, these seem grossly perverse
results.
9
We once explained why major American cities lost their
second mainframe papers due to market forces. See generally
Michigan Citizens for an Indep. Press v. Thornburgh, 868 F.2d 1285,
1288 (D.C. Cir.), aff’d, 493 U.S. 38 (1989). That second paper was
sometimes right of center, e.g., The New York Herald Tribune and
The Washington Star, leaving the residual paper in a local monopoly
position. As large American cities became heavily Democratic Party
21
Although the bias against the Republican Party—not
just controversial individuals—is rather shocking today, this is
not new; it is a long-term, secular trend going back at least to
the ’70s.10 (I do not mean to defend or criticize the behavior of
any particular politician). Two of the three most influential
papers (at least historically), The New York Times and The
Washington Post, are virtually Democratic Party broadsheets.
And the news section of The Wall Street Journal leans in the
same direction. The orientation of these three papers is
followed by The Associated Press and most large papers across
the country (such as the Los Angeles Times, Miami Herald, and
Boston Globe). Nearly all television—network and cable—is
a Democratic Party trumpet. Even the government-supported
National Public Radio follows along.
As has become apparent, Silicon Valley also has an
enormous influence over the distribution of news. And it
similarly filters news delivery in ways favorable to the
Democratic Party. See Kaitlyn Tiffany, Twitter Goofed It, The
Atlantic (2020) (“Within a few hours, Facebook announced that
it would limit [a New York Post] story’s spread on its platform
while its third-party fact-checkers somehow investigated the
information. Soon after, Twitter took an even more dramatic
bastions, so too did the local dominant paper. See Gentzkow and
Shapiro, What Drives Media Slant? Evidence from U.S. Daily
Newspapers, 78 ECONOMETRICA 35 (Jan. 2010).
10
Who can forget Candy Crowley’s debate moderation? See,
e.g., Noah Rothman, Candy Crowley’s Debate Moderation
Exemplifies Why Americans Do Not Trust Their Media, Mediaite
(Oct. 17, 2012); Dylan Byers, Crowley fact-checks Mitt, Politico
(Oct. 17, 2012).
22
stance: Without immediate public explanation, it completely
banned users from posting the link to the story.”).11
It is well-accepted that viewpoint discrimination “raises
the specter that the Government may effectively drive certain
ideas or viewpoints from the marketplace.” R.A.V. v. City of St.
Paul, Minn., 505 U.S. 377, 387 (1992). But ideological
homogeneity in the media—or in the channels of information
distribution—risks repressing certain ideas from the public
consciousness just as surely as if access were restricted by the
government.
To be sure, there are a few notable exceptions to
Democratic Party ideological control: Fox News, The New
York Post, and The Wall Street Journal’s editorial page.12 It
should be sobering for those concerned about news bias that
these institutions are controlled by a single man and his son.
Will a lone holdout remain in what is otherwise a frighteningly
orthodox media culture? After all, there are serious efforts to
muzzle Fox News. And although upstart (mainly online)
conservative networks have emerged in recent years, their
11
Of course, I do not take a position on the legality of big
tech’s behavior. Some emphasize these companies are private and
therefore not subject to the First Amendment. Yet—even if correct—
it is not an adequate excuse for big tech’s bias. The First Amendment
is more than just a legal provision: It embodies the most important
value of American Democracy. Repression of political speech by
large institutions with market power therefore is—I say this
advisedly—fundamentally un-American. As one who lived through
the McCarthy era, it is hard to fathom how honorable men and
women can support such actions. One would hope that someone, in
any institution, would emulate Margaret Chase Smith.
12
Admittedly, a number of Fox’s commentators lean as far
to the right as the commentators and reporters of the mainstream
outlets lean to the left.
23
visibility has been decidedly curtailed by Social Media, either
by direct bans or content-based censorship.
There can be little question that the overwhelming
uniformity of news bias in the United States has an enormous
political impact.13 That was empirically and persuasively
demonstrated in Tim Groseclose’s insightful book, Left Turn:
How Liberal Media Bias Distorts the American Mind (2011).
Professor Groseclose showed that media bias is significantly to
the left. Id. at 192–197; see also id. at 169–77. And this
distorted market has the effect, according to Groseclose, of
aiding Democratic Party candidates by 8–10% in the typical
election. Id. at ix, 201–33. And now, a decade after this book’s
publication, the press and media do not even pretend to be
neutral news services.
It should be borne in mind that the first step taken by
any potential authoritarian or dictatorial regime is to gain
control of communications, particularly the delivery of news.
It is fair to conclude, therefore, that one-party control of the
press and media is a threat to a viable democracy. It may even
give rise to countervailing extremism. The First Amendment
guarantees a free press to foster a vibrant trade in ideas. But a
biased press can distort the marketplace. And when the media
has proven its willingness—if not eagerness—to so distort, it is
a profound mistake to stand by unjustified legal rules that serve
only to enhance the press’ power.
13
The reasons for press bias are too complicated to address
here. But they surely relate to bias at academic institutions.