Planet Aid, Inc. v. Reveal

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PLANET AID, INC., A Massachusetts No. 21-15690
Corporation which has its principal
place of business in Howard County, D.C. No.
Maryland; LISBETH THOMSEN, An 3:17-cv-03695-
alien and permanent resident of MMC
Chilangoma, Malawi,
Plaintiffs-Appellants,
OPINION
v.
REVEAL; CENTER FOR
INVESTIGATIVE REPORTING; MATT
SMITH; AMY WALTERS,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Argued and Submitted June 14, 2022
San Francisco, California
Filed August 11, 2022
Before: Sidney R. Thomas, Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge S.R. Thomas
2 PLANET AID V. REVEAL
SUMMARY*
California’s Anti-SLAPP Statute
The panel affirmed the district court’s order granting the
Reporters with the Center for Investigative Reporting
(“CIR”)’s anti-SLAPP motion to strike a complaint alleging
defamation under California law.
Matt Smith and Amy Waters were reporters with CIR
(“Reporters”) and they published stories alleging misuse of
funds by two charitable organizations, Planet Aid, Inc., and
Development Aid from People to People Malawi (“DAPP
Malawi”). In response, Planet Aid and the director of DAPP
Malawi, Lisbeth Thomsen, filed a defamation suit.
In a number of decisions, the U.S. Supreme Court
established that public officials and public figures claiming
defamation must prove that an allegedly defamatory
statement was made with “actual malice.” The Supreme
Court identified two types of public figures: all purpose
public figures and limited-purpose public figures. All-
purpose public figures must prove actual malice for virtually
any subject of defamation, while limited-purpose public
figures, who have assumed prominence on a limited range of
issues, need only prove actual malice for speech touching
upon those issues. In Makaeff v. Trump Univ., LLC, 715 F.3d
242 (9th Cir. 2013), this court articulated a three-prong test to
determine whether an individual or entity is a limited-purpose
figure.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PLANET AID V. REVEAL 3
The panel held that the district court correctly found that
Planet Aid and Thomsen were limited-purpose public figures
and that the Reporters did not act with “actual malice” within
the meaning of New York Times Company v. Sullivan, 376
U.S. 254 (1964). The panel agreed with the district court’s
determination in applying the Makaeff test that: (i) there was
an existing public controversy with respect to Planet Aid and
Lisbeth Thomsen’s use of charitable funds; (ii) the Reporters’
alleged defamation was relevant to this preexisting
controversy; and (iii) the voluntariness requirement—which
examines whether the plaintiff voluntarily injected itself into
the controversy for the purpose of influencing the
controversy’s ultimate resolution—was satisfied. The panel
further agreed with the district court, for the reasons stated by
the district court in its order, that a reasonable factfinder
could not find, by clear and convincing evidence, that the
Reporters acted with actual malice. The panel therefore
affirmed the district court’s grant of the Reporters’ motion to
strike the complaint under California’s anti-SLAPP statute.
COUNSEL
Samuel Rosenthal (argued), Nelson Mullins LLP,
Washington, D.C.; James M. Wagstaffe and Michael von
Loewenfeldt, Wagstaffe von Loewenfeldt Busch & Radwick
LLP, San Francisco, California; for Plaintiffs-Appellants.
Thomas R. Burke (argued), Davis Wright Tremaine LLP, San
Francisco, California; Ambike K. Doran, Davis Wright
Tremaine LLP, Seattle, Washington; Brendan Charney and
Andrew G. Row, Davis Wright Tremaine LLP, Los Angeles,
California; Simon J. Frankel, Alexa Hansen, Alison Wall,
Annie Shi, and Miriam Arghavani, Covington & Burling
4 PLANET AID V. REVEAL
LLP, San Francisco, California; Eric Chung, Covington &
Burling LLP, Washington, D.C.; for Defendants-Appellees.
Deborah J. Dewart, Hubert, North Carolina, for Amicus
Curiae Liberty, Life, and Law Foundation.
Elizabeth M. Locke, Joseph R. Oliveri, and Daniel D. Mauler,
Clare Locke LLP, Alexandria, Virginia, for Amicus Curiae
Clare Locke LLP.
Theodore J. Boutrous Jr. and Michael H. Dore, Gibson Dunn
& Crutcher LLP, Los Angeles, California; Katie Townsend,
Sarah S. Matthews, and Charles Hogle, Reporters Committee
for Freedom of the Press, Washington, D.C.; for Amici
Curiae Reporters Committee for Freedom of the Press and
32 Media Organizations.
OPINION
S.R. THOMAS, Circuit Judge:
In this appeal we must determine whether a charity and
the director of a charity are limited-purpose public figures
under the First Amendment. Reporters with the Center for
Investigative Reporting published stories alleging misuse of
funds by two charitable organizations, Planet Aid, Inc.
(“Planet Aid”) and Development Aid from People to People
Malawi (“DAPP Malawi”). In response, Planet Aid and the
director of DAPP Malawi, Lisbeth Thomsen, filed a
defamation suit. The district court granted the Reporters’
motion to strike the complaint under California’s anti-SLAPP
statute, correctly finding that Planet Aid and Thomsen are
limited-purpose public figures and that the reporters did not
PLANET AID V. REVEAL 5
act with “actual malice” within the meaning of New York
Times Company v. Sullivan, 376 U.S. 254 (1964). We affirm.
I
The Center for Investigative Reporting (“CIR”) is a
California-based, nonprofit, investigative news organization.
CIR publishes its reporting on various platforms, including its
news website Reveal (www.revealnews.org), national radio
show, and podcast. Matt Smith and Amy Walters were
reporters with CIR. Between 2014 and 2017, CIR, Smith,
and Walters (collectively, “CIR” or the “Reporters”)
investigated and published a series of articles and podcasts
reporting on the misuse of charitable funds by Planet Aid and
its affiliate organization DAPP Malawi.
A
Planet Aid is a nonprofit charitable organization
headquartered in Maryland with the stated mission of helping
impoverished populations throughout the world. Planet Aid
is recognized by the U.S. Internal Revenue Service (“IRS”)
as a 501(c)(3) tax-exempt charity. It resells used clothing
donated by the public, obtains government grants, and solicits
corporate donations to generate funds. Since its inception in
1997, Planet Aid claims to have provided more than
$100 million to support projects on three continents in the
areas of education, teacher training, nutrition, and agricultural
and economic development.
Planet Aid’s fundraising efforts are highly successful and
recognizable. It fundraises by going door to door to solicit
donations as well as setting up clothing donation bins that
have become nearly ubiquitous across the United States. In
6 PLANET AID V. REVEAL
partnership with schools, business groups, religious
institutions, nonprofits, and various organizations across the
country, Planet Aid placed over 20,000 donation bins
nationwide. Its signature, bright-yellow bins are present in
20 states and have achieved a degree of celebrity in popular
culture. For example, the bins were featured in an episode of
the popular television series “The Big Bang Theory,” which
Planet Aid eagerly promoted on its social media pages.
Planet Aid regularly engages with the press and actively
cultivates a public image. It issues frequent press releases to
generate attention regarding its charitable programs and
activities. For instance, Planet Aid issued numerous press
releases over the years to advertise the environmental benefits
of its efforts to collect and resell donated clothing. Other
examples of Planet Aid’s public self-promotion abound. In
March of 2014, Planet Aid distributed press releases
regarding a teacher training program it helped fund in
Malawi. In June of 2016, it issued press releases regarding
dignitaries’ visits to a nutritional program it was running for
schoolchildren in Mozambique. It has hosted large galas to
celebrate its charitable successes and promoted those galas to
the press. Planet Aid also publicizes itself through social
media. It has a YouTube page featuring videos about its
charitable activities, some of which have thousands of views.
Additionally, it regularly posts on Facebook and Twitter to its
thousands of followers.
From its inception, Planet Aid has drawn public attention
and comment. For decades, the global press has reported on
its relationship with a controversial web of charitable
organizations accused of misusing funds and its association
with a Danish cult. In 1993, a few years before Planet Aid
was incorporated, the Edmonton Journal reported that “an
PLANET AID V. REVEAL 7
international organization that specializes in collecting used
clothes for southern Africa,” was “attracting criticism from
Denmark to the Arctic Circle” because many “Europeans who
donate their old [clothes] don’t know the garments end up
being sold at market prices in Africa—with much of the profit
filtered into what seem less than altruistic causes.” This
organization, known as “Humana” was reportedly affiliated
with the Development Aid People to People (“DAPP”)
network. According to the article, “[t]hrough a complex web
of financial interests, the Humana/DAPP network runs a
financial system out of the Cayman Islands” that includes
“holding companies,” “Caribbean fruit plantations,” and “a
yacht dealership.” The article further alleged that Humana
and DAPP began as a group of radical Danish school teachers
in the early 1970s, called “Tvind.”
Then, according to a Danish newspaper, “after the Danish
government fund slammed the door on subsidies,” Tvind
“beg[an] an unprecedented, mammoth expansion drive in the
USA and Canada to raise millions for its international
activities,” including “found[ing] the organization Planet
Aid.” In 2001, Tvind’s founder, Mogens Amdi Petersen, was
prosecuted by Danish authorities for “using his control of
Tvind and its related [organizations] to divert funds that were
supposedly intended for charitable and other public
purposes.”
Multiple major news organizations in the United States
and overseas reported on the trial and raised concerns about
Planet Aid’s connection to Tvind and its use of charitable
funds. In 2002, the Boston Globe linked Planet Aid to
Petersen, who faced “charges of tax fraud and embezzlement
of millions of dollars from a vast international network of
charities,” and reported that “only about 6 percent of the
8 PLANET AID V. REVEAL
money [Planet Aid] raises is spent on charity.” Several other
publications reported that the American Institute of
Philanthropy and the Better Business Bureau were critical of
Planet Aid’s use of funds. These concerns reverberated from
The Washington Post (May 2003 article), to the Chicago
Tribune (Feb. 2004 and May 2011 articles), to the Los
Angeles Times (Aug. 2015 article).1 Several international
publications also covered the controversy.
B
Lisbeth Thomsen is the director of DAPP Malawi, a
nonprofit charitable organization based in Malawi. Thomsen
has worked in Malawi for nearly three decades and has
worked specifically for DAPP Malawi for over two decades.
Thomsen helped lead the organization’s poverty reduction
and humanitarian efforts, establishing pre-schools, teacher
training colleges, HIV/AIDs counseling centers, door-to-door
educational campaigns, and other initiatives.
As the director of DAPP Malawi, Thomsen was its
spokesperson. When DAPP Malawi opened a school or
unveiled a new charitable program, she spoke at public
gatherings before local officials and community members to
promote the initiative. Thomsen regularly spoke to the press
1
In addition to the above articles, numerous other U.S. news
organizations have also reported on this controversy, including the
following: The Wisconsin State Journal (Apr. 2002); The Brattleboro
Reformer in Vermont (Apr. 2005); The Sacramento Bee (Nov. 2006);
Lancaster Online in Pennsylvania (Jul. 2007); the Rochester Democrat
and Chronicle in New York (Sep. 2007); Citizens’ Voice in Pennsylvania
(Dec. 2007); The Times-Tribune in Pennsylvania (Dec. 2007); The
Lebanon Daily News in Pennsylvania (Jan. 2008); The Burlington Free
Press in Vermont (Oct. 2008); The Philadelphia Inquirer (Dec. 2012).
PLANET AID V. REVEAL 9
to generate attention regarding the successes of DAPP
Malawi’s programs. She was featured regularly on DAPP
Malawi’s Facebook and Twitter pages and appeared in
promotional YouTube videos about DAPP Malawi’s work.
Thomsen employed a public relations team, which helped her
seek out positive press coverage and public appearances, and
develop responses to negative publicity.
Like Planet Aid, DAPP Malawi was long embroiled in the
Tvind controversy. The press repeatedly linked DAPP
Malawi to the Danish cult leader who was prosecuted for
charity fraud. Additionally, several articles in Malawi
newspapers raised concerns or made allegations about DAPP
Malawi’s misuse of charitable funds under the leadership of
Lisbeth Thomsen. In 2002, the Malawi News linked Tvind,
Humana, and DAPP Malawi, reporting allegations that “Dapp
Malawi uses its second hand clothes shops to raise funds
which are later transferred back to Denmark through . . . a
dubious scholarship scheme.” In 2003, The Chronicle
Newspaper reported that “[i]n Malawi, government is now
probing activities of DAPP Malawi, following . . .
[accusations that] scholarships and other funds meant for
Malawian students allegedly have been channeled to
Denmark.” In 2011, the Nyasa Times reported that
“employees at [DAPP Malawi] have turned against their
employers, accusing them of secretly swindling money for
unknown activities.”
C
In June of 2005, the U.S. Department of Agriculture
(“UDSA”) awarded Planet Aid a grant through its “Food for
Progress” program. The grant gave Planet Aid approximately
$23 million to administer poverty reduction programs in
10 PLANET AID V. REVEAL
Malawi including building, staffing, and operating schools to
train teachers in Malawi; educating the Malawian population
about risks associated with HIV and AIDs; teaching farmers
about agricultural techniques to improve crop yields; and
educating the population about nutrition. Planet Aid asked
Thomsen to help administer the USDA grant in her role as
director of DAPP Malawi.
In 2014, reporters at CIR began to investigate Planet Aid
and DAPP Malawi’s use of the USDA grant funds. Between
March and May 2016, they published a podcast, along with
several news articles and social media posts, alleging that
Planet Aid, DAPP Malawi, and Lisbeth Thomsen misused the
funds. The publications alleged that Planet Aid and Lisbeth
Thomsen stole USDA funds by diverting funds from their
intended recipients, falsifying invoices, failing to provide
livestock and agricultural inputs to local farmers, and
extracting kickbacks from the salaries of DAPP Malawi
employees.
In August of 2016, Planet Aid and Lisbeth Thomsen filed
a defamation suit against the Reporters. In July of 2018, the
Reporters moved under California’s anti-SLAPP law,
California Code of Civil Procedure § 425.16, to strike the
defamation claim.2 After significant discovery was
conducted, in March of 2021, the district court granted the
motion to strike. The district court found that several
statements by the Reporters were false, but recognized that
Planet Aid and Thomsen are limited-purpose public figures
2
Planet Aid and Lisbeth Thomsen forfeited any argument that
California’s anti-SLAPP statute may not be applied in federal court by
failing to specifically and distinctly argue this issue in their opening brief.
See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).
PLANET AID V. REVEAL 11
in connection with their use of charitable funds and that the
Reporters did not act with “actual malice.” N.Y. Times,
376 U.S. at 280.
II
“California law provides for the pre-trial dismissal of
certain actions, known as Strategic Lawsuits Against Public
Participation, or SLAPPs, that masquerade as ordinary
lawsuits but are intended to deter ordinary people from
exercising their political or legal rights or to punish them for
doing so.” Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261
(9th Cir. 2013) (citations and quotation marks omitted); see
also Wilcox v. Super. Ct., 33 Cal. Rptr. 2d 446, 450 (Cal. Ct.
App. 1994). We have jurisdiction to review the district
court’s grant of the Reporters’ anti-SLAPP motion under
28 U.S.C. § 1291. Because the motion challenges the factual
sufficiency of Planet Aid and Thomsen’s defamation claim,
“the motion must be treated as though it were a motion for
summary judgment.” Planned Parenthood Fed’n of Am., Inc.
v. Ctr. for Med. Progress, 890 F.3d 828, 833 (9th Cir. 2018)
(citation omitted).
We review de novo whether summary judgment was
properly entered. L.F. v. Lake Wash. Sch. Dist. #414,
947 F.3d 621, 625 (9th Cir. 2020). Whether a plaintiff is a
public figure is a legal question to be reviewed de novo.
Manzari v. Associated Newspapers Ltd., 830 F.3d 881, 888
(9th Cir. 2016). Moreover, we “must make an independent
examination of the whole record, so as to assure ourselves
that the judgment does not constitute a forbidden intrusion on
the field of free expression.” Suzuki Motor Corp. v.
Consumers Union of U.S., Inc., 330 F.3d 1110, 1113 (9th Cir.
12 PLANET AID V. REVEAL
2003) (citing N.Y. Times, 376 U.S. at 284 (internal quotation
marks omitted)).
III
The Supreme Court has long enshrined “a profound
national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open and that
it may well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public
officials,” N.Y. Times, 376 U.S. at 270, as well as “public
figures,” Curtis Publ’g Co. v. Butts, 388 U.S. 130, 154
(1967). Thus, an action for defamation can be maintained
only to the extent it does not interfere with First Amendment
rights of free expression.
In the landmark decisions of New York Times Company
v. Sullivan, and Curtis Publishing Company v. Butts, the
Supreme Court established that public officials and public
figures claiming defamation must prove that the allegedly
defamatory statement was made with “actual malice”—that
is, “with knowledge that it was false or with reckless
disregard of whether it was false or not.” N.Y. Times,
376 U.S. at 280; Curtis Publ’g Co., 388 U.S. at 134. The
Court recognized that actual malice standard would bar some
plaintiffs from recovering damages for erroneous and
injurious statements. N.Y. Times, 376 U.S. at 270–72.
Nevertheless, the Court concluded that the law of defamation
must provide a degree of “breathing space” to avoid chilling
constitutionally valuable speech. Id. at 271–72.
Subsequently, in Gertz v. Robert Welch, Inc., the Supreme
Court identified two types of public figures: (1) all-purpose
public figures, who occupy “positions of such persuasive
PLANET AID V. REVEAL 13
power and influence that they are deemed public figures for
all purposes,” and (2) limited-purpose public figures, who
achieve their status by “thrust[ing] themselves to the forefront
of particular public controversies in order to influence the
resolution of the issues involved.” 418 U.S. 323, 345 (1974).
Both categories of public figures, the Court noted, “have
assumed roles of especial prominence in the affairs of
society” and “invite[d] attention and comment.” Id. All-
purpose public figures must prove actual malice for virtually
any subject of defamation. Limited-purpose public figures,
who have assumed prominence on a limited range of issues,
need only prove actual malice for speech touching upon those
issues.
The Court articulated two justifications for requiring
public figures to show actual malice. The first was self-help.
Public figures enjoy “greater access to the channels of
effective communication” than private individuals and are
therefore better able to “contradict the lie or correct the
error.” Id. at 344. The second and “[m]ore important”
justification was the notion of assumption of risk. Id. Public
figures, who have thrust themselves into the public eye,
“must accept certain necessary consequences” of that
conduct, including “the risk of closer public scrutiny than
might otherwise be the case.” Id. at 344–45. The Gertz
Court also emphasized the critical importance of “lay[ing]
down broad rules of general application” in order to avoid
“unpredictable results and uncertain expectations,” which
might discourage freedom of expression. Id. at 343–44;
Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657,
686 (1989) (“Uncertainty as to the scope of the constitutional
protection can only dissuade protected speech—the more
elusive the standard, the less protection it affords.”).
14 PLANET AID V. REVEAL
A
In Makaeff v. Trump University, drawing from Gertz and
other case law, we articulated a three-prong test to determine
whether an individual or entity is a limited-purpose public
figure:
In undertaking this inquiry, we consider
whether (i) a public controversy existed when
the statements were made, (ii) whether the
alleged defamation is related to the plaintiff’s
participation in the controversy, and
(iii) whether the plaintiff voluntarily injected
itself into the controversy for the purpose of
influencing the controversy’s ultimate
resolution.
Makaeff, 715 F.3d at 266 (citing Gilbert v. Sykes, 53 Cal.
Rptr. 3d 752, 762 (Cal. Ct. App. 2007)). In its decision
below, applying Makaeff, the district court determined (i) that
there was an existing public controversy with respect to
Planet Aid and Lisbeth Thomsen’s use of charitable funds;
(ii) that the Reporters’ alleged defamation was related to this
preexisting controversy; and (iii) that the voluntariness
requirement was satisfied. We agree.
1
Under the first Makaeff prong, we consider whether “a
public controversy existed when the [allegedly defamatory]
statements were made.” Makaeff, 715 F.3d at 266 (citation
omitted). Public interest or attention alone is not sufficient to
create a public a controversy. Time, Inc. v. Firestone,
424 U.S. 448, 454–55 (1976). A public controversy must be
PLANET AID V. REVEAL 15
“a real dispute, the outcome of which affects the general
public or some segment of it.” Makaeff, 715 F.3d at 267
(quoting Waldbaum v. Fairchild Publ’ns, Inc., 627 F.2d 1287,
1296 (D.C. Cir. 1980)); see also Waldbaum, 627 F.2d at 1297(“If the issue was being debated publicly and if it had
foreseeable and substantial ramifications for nonparticipants,
it was a public controversy.”).
We have little difficulty in concluding that genuine public
controversies existed at the time the Reporters published their
statements about Planet Aid and Lisbeth Thomsen. Long
before the Reporters published any articles about Planet Aid,
countless news outlets published articles questioning Planet
Aid’s integrity and examining the extent to which its
charitable funds were being used for their intended purposes.
Planet Aid was repeatedly linked by the press to the founder
of a Danish charity who was prosecuted for illegally diverting
charitable funds. Additionally, Planet Aid raised over a
$100 million in charitable funds. It received tax exemptions
from the U.S. government to help the poor. This was a
genuine public controversy; the extent to which Planet Aid’s
funds were being used for their intended purposes has
ramifications both for American taxpayers and for the
advertised recipients of those charitable funds. See Makaeff,
715 F.3d at 267; Waldbaum, 627 F.2d at 1297.
Additionally, before CIR’s reporting on Lisbeth Thomsen,
numerous articles had been published about DAPP Malawi’s
use of charitable funds under Thomsen’s leadership. DAPP
Malawi was linked by the press to the Danish criminal
prosecution. Various articles questioned its integrity, the
extent to which it was using its funds to aid the poor, and the
extent to which it was channeling funds towards controversial
organizations known for misusing charitable funds. Like
16 PLANET AID V. REVEAL
Planet Aid, DAPP Malawi received donations and grants to
aid impoverished communities in Malawi. This too was a
genuine public controversy. See Makaeff, 715 F.3d at 267;
Waldbaum, 627 F.2d at 1297.
2
Makaeff also asks us to consider “whether the plaintiff
voluntarily injected itself into the controversy for the purpose
of influencing the controversy’s ultimate resolution.”
715 F.3d at 266. This voluntariness requirement has been
interpreted broadly, both by Makaeff and by other courts.
Voluntariness is not confined to those who seek to influence
the resolution of a single issue. Rather, voluntariness can also
be satisfied by a showing that a person or entity engaged in a
course of conduct that foreseeably put themselves at risk of
public scrutiny with respect to a limited range of issues.
In Makaeff, we deemed Trump University a limited-
purpose public figure for issues arising from its advertising
efforts. Trump University had long been engaged in an
“aggressive advertising campaign,” promoting its educational
products and services on “social media, local and national
newspaper, [and the] radio.” Id. at 268–69. After a
disgruntled former customer disparaged Trump University
and sued it for deceptive business practices, it filed a
defamation counterclaim. Id. at 267. In classifying Trump
University a limited-purpose public figure, we held that
“large scale, aggressive advertising can inject a person or
entity into a public controversy that arises from the subject of
that advertising.” Id. at 267. Because Trump University’s
“extensive advertising efforts ‘invited public attention,
comment, and criticism,’” the voluntariness requirement was
satisfied with respect to issues related to those advertising
PLANET AID V. REVEAL 17
efforts. Id. at 269 (quoting Steaks Unlimited, Inc. v. Deaner,
623 F.2d 264, 274 (3d Cir. 1980)).
Other circuits have also interpreted the voluntariness
requirement broadly. For example, the Third Circuit deemed
an architect-engineer a limited-purpose public figure with
respect to his participation in controversial public building
projects. McDowell v. Paiewonsky, 769 F.2d 942, 944 (3d
Cir. 1985). McDowell regularly contracted with the
government of the Virgin Islands to build public projects. Id.
at 945. Subsequently, McDowell was criticized by the media
for his performance on several projects and possible conflicts
of interests involved in his being awarded various contracts.
Id. at 948. The court designated McDowell a limited-purpose
public figure for the purpose of his defamation claim. Id.
at 949. By repeatedly working on high-profile, controversial
public building projects, the court explained, McDowell “can
be considered to have voluntarily assumed a position that
invited attention.” Id. at 950. This was “sufficient to
transform him into a public figure for the limited purpose of
his work on publicly financed building projects.” Id.The Fifth Circuit likewise deemed Louis Rosanova a
limited-purpose public figure in the context of his connection
to organized crime. Rosanova, 411 F. Supp. at 440, aff’d,
580 F.2d at 862. Rosanova had longstanding relationships
with various members of organized crime as well as with the
Teamsters union and its president. Id. at 444. Rosanova filed
a defamation suit after being characterized as a “California
mobster” in a magazine article. The court classified
Rosanova as a limited-purpose public figure, rejecting his
argument that he had not thrust himself into the vortex of any
single public issue. Id. at 445. By associating with organized
crime, the court explained, “Rosanova voluntarily engaged in
18 PLANET AID V. REVEAL
a course [of conduct] that was bound to invite attention and
comment” with respect to those relationships. Id.; 580 F.2d
at 862; see also Clyburn v. News World Commc’ns, Inc.,
903 F.2d 29, 33 (D.C. Cir. 1990) (finding that plaintiff,
Clyburn, satisfied the voluntariness requirement in part by
“hobnob[ing] with high officials”).
Under this “course of conduct” approach to the
voluntariness requirement reflected in McDowell, Rosanova,
and the other cases identified above, it is quite clear both
Planet Aid and Lisbeth Thomsen actively engaged in conduct
that invited public comment and attention. Planet Aid
regularly engages with the press in an effort to cultivate a
public image, including by issuing press releases, hosting
galas, and publicizing itself to thousands of followers through
social media. Additionally, Planet Aid aggressively solicits
donations from the public. Nat’l Found. for Cancer Rsch.,
Inc. v. Council of Better Bus. Bureaus, Inc., 705 F.2d 98, 101
(4th Cir. 1983) (finding that a charity “thrust itself into the
public eye” by soliciting donations from the public). It is
clear from the record that Planet Aid “attempted, through
various means at its disposal, to put itself and its methods
before the public.” Id. at 102; see also Ampex Corp. v.
Cargle, 27 Cal. Rptr. 3d 863, 870 (Cal. Ct. App. 2005) (“[I]t
is sufficient that the plaintiff attempts to thrust him or herself
into the public eye.”). Thus, by inviting public attention
regarding its charitable activities and charitable funds, Planet
Aid satisfied the voluntariness requirement for those limited
purposes.
Similarly, as the director of DAPP Malawi, Thomsen
served as its spokesperson. She spoke at public gatherings to
promote DAPP Malawi’s programs and initiatives, she spoke
to the press to generate attention regarding its programs, and
PLANET AID V. REVEAL 19
she employed public relations staff to cultivate her public
image. Like Planet Aid, DAPP Malawi also solicited
donations and grants. By taking on the role of DAPP
Malawi’s spokesperson and regularly engaging in public-
facing and attention-generating activities, Thomsen invited
public scrutiny, thereby satisfying the voluntariness
requirement.
Classifying Planet Aid and Lisbeth Thomsen as limited-
purpose public figures through a course of conduct that
invites public attention is consistent with the rationales
articulated in Gertz. By actively seeking attention from the
press, promoting themselves through social media, employing
public relations staff, and soliciting donations and grants,
Planet Aid and Thomsen assumed a risk of public scrutiny.
By regularly providing statements to the press, Planet Aid and
Thomsen both demonstrate a greater access to channels of
effective communication than private individuals, and
therefore an ability to counteract false statements through
self-help.3
3
Planet Aid and Thomsen, relying on Hutchinson v. Proxmire,
443 U.S. 111 (1979), seek to portray themselves as victims of the
Reporters’ attempt to create a defense from defamation by turning the
plaintiffs into public figures. There are two major distinguishing factors
between Hutchinson and the present case. First, in Hutchinson, the
plaintiff was a relatively obscure scientist prior to the allegedly
defamatory statements. By contrast, in this present case, Planet Aid and
Thomsen were the subject of significant public notoriety and scrutiny well
before the allegedly defamatory publications. Second, unlike the plaintiff
in Hutchinson, Planet Aid and Thomsen did not unwittingly become the
subject of publicity with respect to its charitable activities and use of
funds. To the contrary, they both actively thrust themselves into the
public eye.
20 PLANET AID V. REVEAL
3
Finally, under Makaeff, we consider “whether the alleged
defamation is related to the plaintiff’s participation in the
controversy.” Id. at 266; see also Waldbaum, 627 F.2d
at 1298 (“Misstatements wholly unrelated to the controversy
. . . do not receive the New York Times protection.”). Here,
there was a preexisting public controversy about Planet Aid
and Lisbeth Thomsen’s misuse of charitable funds generally.
CIR subsequently reported on their misuse of a particular
grant from the USDA. Moreover, Planet Aid and Lisbeth
Thomsen invited public attention regarding their use of
charitable funds through press releases, promotion of
charitable programs, soliciting donations from the public, and
other activities. Thus, the alleged defamation is related to
Planet Aid and Thomsen’s participation in the controversy.4
In sum, the district court correctly designated Planet Aid
and Thomsen as limited-purpose public figures with respect
to their use of charitable funds.
4
In an attempt to defeat the relatedness requirement, Planet Aid and
Thomsen advocate for narrow definitions of the relevant public
controversies under the first prong of Makaeff. They argue that the
preexisting controversies concerned “the use of recycling bins for used
clothing” and “charges brought against Peterson in Denmark.” They
further argue that the Reporters’ defamatory publications concerned only
“USDA funding” and, therefore, that the prior controversies and the
defamation are unrelated. This argument is unpersuasive and unsupported
by the law. The preexisting public controversy need not be narrowly
defined or limited to the exact factual contours of the alleged defamation.
The “narrow controversy” about Planet Aid and Lisbeth Thomsen’s
misuse of USDA funding is “a phase of another, broader” controversy
about their practice of misusing of charitable funding generally. Jankovic
v. Int’l Crisis Grp., 822 F.3d 576, 586 (D.C. Cir. 2016); see also id.(“Indeed, courts often define the public controversy in expansive terms.”).
PLANET AID V. REVEAL 21
B
Because Planet Aid and Thomsen are limited-purpose
public figures, their defamation claim can survive an anti-
SLAPP or summary judgment motion “only if the evidence
in the record would permit a reasonable finder of fact, by
clear and convincing evidence, to conclude that [the
Reporters] published a defamatory statement with actual
malice.” Masson v. New Yorker Mag., Inc., 501 U.S. 496, 508
(1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255–256 (1986). Actual malice is a subjective test; it
means that the Reporters must have published a statement
with “knowledge that it was false” or “reckless disregard of
whether it was false or not.” N.Y. Times, 376 U.S. at 280.
Reckless disregard, in turn, means that the Reporters “in fact
entertained serious doubts as to the truth” of the statement in
question. St. Amant v. Thompson, 390 U.S. 727, 731 (1968).
The district court undertook a thorough and detailed analysis
of the actual malice assertions. The record supports the
district court’s conclusion. Therefore, we agree with the
district court that, for the reasons stated by the district court
in its order, a reasonable fact finder could not find, by clear
and convincing evidence, that the Reporters acted with actual
malice.
IV
Planet Aid and Lisbeth Thomsen are public figures for the
limited purpose of the public controversy surrounding their
use of charitable funds. The district court correctly concluded
that a reasonable fact finder could not find, by clear and
convincing evidence, that the Reporters acted with actual
malice in publishing the allegedly defamatory statements.
We therefore affirm the district court’s grant of the Reporters’
22 PLANET AID V. REVEAL
motion to strike the complaint under California’s anti-SLAPP
statute.
AFFIRMED.