Yorie Von Kahl v. Bureau of National Affairs

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 2, 2016 Decided May 9, 2017
No. 16-7033
YORIE VON KAHL,
PLAINTIFF-APPELLEE
v.
BUREAU OF NATIONAL AFFAIRS, INC.,
DEFENDANT-APPELLANT
Consolidated with 16-7034
Appeals from the United States District Court
for the District of Columbia
(No. 1:09-cv-00635)
Laura R. Handman argued the cause for defendant-
appellant/cross-appellee. With her on the briefs were Lisa B.
Zycherman and Jay Ward Brown.
Kevin T. Baine, Thomas G. Hentoff, Nicholas G. Gamse,
Charles D. Tobin, Jonathan Hart, Jonathan Donnellan,
Kristina Findikyan, David McCraw, Kurt Wimmer, Bruce D.
Brown, and Gregg P. Leslie were on the brief for amici curiae
Coalition of Media Organizations in support of defendant-
appellant/cross-appellee.
2
Gregory J. Dubinsky, appointed by the court, argued the
cause as amicus curiae in support of plaintiff-appellee/cross-
appellant. With him on the brief was Michael J. Gottlieb.
Yorie Von Kahl, pro se, filed briefs for plaintiff-
appellee/cross-appellant.
Before: ROGERS, KAVANAUGH, and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: The First Amendment
guarantees freedom of speech and freedom of the press.
Costly and time-consuming defamation litigation can threaten
those essential freedoms. To preserve First Amendment
freedoms and give reporters, commentators, bloggers, and
tweeters (among others) the breathing room they need to
pursue the truth, the Supreme Court has directed courts to
expeditiously weed out unmeritorious defamation suits. See
generally Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986); New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
In this case, we follow that Supreme Court directive.
In 1983, Yorie Von Kahl was convicted in federal court
of murdering two U.S. Marshals. Kahl was sentenced to life
in prison. In the ensuing years, Kahl has repeatedly turned to
the courts, the media, and the public in an effort to publicize
his plight and have his conviction overturned and his sentence
vacated.
In June 2005, Kahl filed a mandamus petition in the
Supreme Court. The petition asked for Kahl’s sentence to be
vacated. As part of its regular reporting on the Supreme
3
Court, the Bureau of National Affairs (known as BNA)
summarized Kahl’s mandamus petition in one of BNA’s
publications, Criminal Law Reporter. The report recounted
the “ruling below,” including the sentencing judge’s statement
that Kahl lacked contrition and believed that the murders were
justified by his religious and philosophical beliefs. In fact,
however, those statements had been made at the sentencing
hearing by the prosecutor, not by the judge.
Kahl sued BNA for defamation. Kahl argued that BNA
falsely reported that the sentencing judge (rather than the
prosecutor) had said that Kahl lacked contrition and believed
the murders were justified. BNA moved for summary
judgment, asserting among other things that BNA did not act
with actual malice in failing to identify the correct speaker at
the sentencing hearing. In particular, BNA pointed out that
the excerpted transcript of the sentencing hearing that was
attached as an appendix to Kahl’s mandamus petition did not
identify the prosecutor as the speaker and led BNA’s reporter
to believe that the statements were in fact made by the
sentencing judge.
The District Court denied BNA’s motion for summary
judgment. The District Court concluded that the inaccuracy
of BNA’s report sufficed for Kahl to overcome summary
judgment and obtain a trial on his defamation claim.
Recognizing the importance of the First Amendment issue,
however, the District Court certified the issue for
interlocutory appeal under 28 U.S.C. § 1292(b). On appeal,
BNA argues that the inaccuracy of the report alone does not
constitute sufficient evidence of actual malice for Kahl to
overcome summary judgment. Otherwise, according to BNA,
the actual malice standard would be toothless. BNA further
argues that the remaining evidence in the record does not
suffice for Kahl to overcome summary judgment.
4
We agree with BNA. We therefore reverse the order of
the District Court denying summary judgment and remand
with directions that the District Court grant summary
judgment to BNA on these defamation claims.
I
Yorie Von Kahl and his father, Gordon, were vehemently
opposed to federal taxation and to federal interference in their
lives. They belonged to anti-government groups that shared
those views.
In 1977, Gordon was convicted of failing to file income
tax returns. In 1980, Gordon did not appear in court after he
was charged with a probation violation. Although the court
issued an arrest warrant, Gordon repeatedly evaded arrest.
In 1983, U.S. Marshals received word that Kahl family
members – including Gordon and Yorie – might be attending
a meeting in Medina, North Dakota. The Marshals went to
arrest Gordon. But the Marshals soon found themselves in a
shoot-out with Kahl family members. During this shoot-out,
two U.S. Marshals were shot and killed.
Yorie Von Kahl was subsequently convicted in federal
court of two counts of second-degree murder and sentenced to
two concurrent life terms. See United States v. Faul, 748 F.2d
1204, 1207-08 (8th Cir. 1984). Kahl’s convictions and
sentences were upheld on direct appeal and collateral review.
See id. at 1223 (direct appeal); Von Kahl v. United States, 242
F.3d 783, 793 (8th Cir. 2001) (affirming denial of motion to
vacate sentence under 28 U.S.C. § 2255); Von Kahl v. United
States, 321 F. App’x 724, 732 (10th Cir. 2009) (affirming
dismissal of habeas petition under 28 U.S.C. § 2241).
5
The trial attracted regular press coverage. See BNA App.
53-102. In the ensuing years, moreover, Kahl continued to
publicize his opposition to federal taxation. He gave an
extensive on-camera interview for the documentary Death
and Taxes. See id. at 103-04, 160. During the interview, he
said that the shooting “stemmed from our political and
religious ideology” and that the Marshals “needed to be shot.”
Id. at 160. He also published a book about his case. Id. at
127-28. And he maintained a website defending his cause
and advocating for his release from prison. Id. at 160.
Kahl has also continued to press his case in the courts. In
2005, he petitioned the Supreme Court for a writ of
mandamus that would vacate his sentences. Kahl’s
mandamus petition included an appendix with an excerpted
transcript from his sentencing hearing. Id. at 209-11. The
excerpted transcript did not expressly identify who was
speaking at the hearing. The excerpted transcript opened with
a statement that Kahl showed “not even a hint of contrition.
The man refused to even talk to the probation officer. We
have the statements at trial and those issued to the press and
whatnot that this man honestly believes that these murders,
cold blooded calculated murders were justified by some sort
of a perverted religious philosophical belief.” Id. at 209-10.
Two paragraphs later in the excerpted transcript, the
sentencing judge announces Kahl’s sentence.
A summary of Kahl’s mandamus petition was later
published by the Bureau of National Affairs in its Criminal
Law Reporter. The Criminal Law Reporter includes a “Cases
Docketed” section where BNA summarizes petitions
submitted to the Supreme Court. On August 17, 2005, the
Cases Docketed section summarized Kahl’s mandamus
petition. BNA employee Alisa Johnson prepared the report of
6
Kahl’s petition based on her review of the petition and the
attached appendix. Johnson Decl. ¶ 5 (BNA App. 284). The
report stated the following, with the key parts bolded for ease
of reference:
Homicide—Murder of U.S. marshals—Jury
instructions—Sentencing.
Ruling below (D. N.D., 6/24/83):
Petitioner, who showed no hint of contrition
and made statements to press that he believed
that murders of U.S. marshals in course of their
duties were justified by religious and
philosophical beliefs, is committed to custody of
U.S. Attorney General for imprisonment for life
based on his convictions on two counts of violating
18 U.S.C. §§ 1111, 1114, and 2, terms to run
concurrently; for 10-year term of imprisonment on
each of four counts on which he was convicted of
violating 18 U.S.C. §§ 111, 1114 and 2, which
terms will run concurrently but consecutively to life
term; to five-year term of imprisonment for
violating 18 U.S.C. §§ 1071 and 2, term to run
consecutively to 10-year term and life term; and to
five-year term of imprisonment on his conviction
for violating 18 U.S.C. § 371, term to run
concurrently to five-year, 10-year, and life terms.
Questions presented: (1) Must this Court issue
writ of mandamus where federal court lacked
authority to sentence petitioner upon offenses for
which jury returned general verdicts of acquittal and
for which jury additionally returned special verdicts
for offenses clearly beyond those permitted by
constitution and relevant statute; by its plain
language—offense that always was and remains
exclusive state and nonfederal offense? (2) Must
7
this Court issue writ of mandamus to enforce
petitioner’s right to trial by jury where, as here, (1)
district court ignored general acquittals for killing
U.S. marshals while engaged in performance of
their official duties, (2) relied upon verdict for
offense punishable only in special maritime and
territorial jurisdiction of United States by adding
elements from acquitted counts and from outside
record to sustain jurisdiction to impose sentence
otherwise clearly and patently illegal?
Petition for mandamus filed 6/17/05, by Carl
Nadler, and Heller, Ehrman, White & McAuliffe,
both of Washington, D.C., and Barry A. Bachrach,
and Bowditch & Dewey LLP, both of Worcester,
Mass.
BNA App. 274 (emphasis added).
Johnson’s supervisor at BNA, Michael Moore, reviewed
the report and approved it for publication. Moore Decl. ¶ 4
(BNA App. 266). Both Johnson and Moore stated that they
believed the report accurately represented the petition and
appendix. Johnson Decl. ¶ 11 (BNA App. 285); Moore Decl.
¶ 5 (BNA App. 266).
In 2007, nearly two years later, Kahl’s attorney sent BNA
a letter objecting to the report. According to Kahl’s attorney,
the report falsely stated that Kahl had shown no hint of
contrition and that Kahl believed the murders were justified.
But the letter did not say that the prosecutor – rather than the
sentencing judge – had made those statements at the
sentencing hearing. Kahl’s attorney requested a retraction,
correction, and apology. See BNA App. 251-53.
8
After receiving the letter, Moore reviewed the petition,
the appendix, and BNA’s report of those documents. Moore
Decl. ¶ 7 (BNA App. 266-67). Although he “continued to
believe that the summary published in August 2005 accurately
represented the contents of Mr. Von Kahl’s own petition,”
Moore nonetheless published a clarification. Id. The
clarification, published July 18, 2007, read in full:
In a Summaries of Recently Filed Cases entry that
ran at 77 CrL 2127, concerning U.S. Supreme Court
petition No. 04-1717, the summary of the
sentencing judge’s ruling below should have
begun: “Petitioner who was said to have believed
that murders were justified, . . . .”
BNA App. 281 (emphasis added). The result of this
clarification was in effect to change the relevant portion of the
original report from “Ruling below (D. N.D., 6/24/83):
Petitioner, who showed no hint of contrition and made
statements to press that he believed that murders of U.S.
marshals in course of their duties were justified by religious
and philosophical beliefs, is committed to custody of U.S.
Attorney General for imprisonment for life” to “Ruling below
(D. N.D., 6/24/83): Petitioner who was said to have
believed that murders were justified, is committed to custody
of U.S. Attorney General for imprisonment for life.” So the
clarification indicated that the sentencing judge in his ruling
had referenced some other unspecified person who in turn had
said that Kahl believed the murders were justified.
Kahl was still unhappy. Several months later, Kahl
himself sent BNA another letter. BNA App. 259-60. In that
letter, Kahl for the first time said that the relevant portion of
his excerpted transcript quoted statements from the sentencing
hearing that had been made by the prosecutor, not by the
9
sentencing judge. According to Kahl, the published
clarification still falsely attributed the statements to the
sentencing judge rather than to the prosecutor. Kahl
demanded another clarification.
This time, BNA declined. BNA determined that the first
clarification – with its general passive-voice statement,
“Petitioner who was said to have believed . . .” – adequately
addressed Kahl’s concerns. See Moore Decl. ¶ 10 (BNA App.
267).
Kahl sued BNA in the U.S. District Court. For purposes
of the two sets of claims relevant here – the alleged error in
the original report and the alleged error in the clarification –
the court found that Kahl was a limited-purpose public figure.
See Von Kahl v. Bureau of National Affairs, Inc., 934 F. Supp.
2d 204, 217-18 (D.D.C. 2013). As a result, in order to prevail
on his claims, Kahl had to demonstrate that BNA acted with
actual malice when it falsely attributed the challenged
statements to the sentencing judge.
After discovery, BNA moved for summary judgment.
The District Court denied the motion. Based on the alleged
falsity of BNA’s report, the District Court concluded that
Kahl produced sufficient evidence of BNA’s actual malice.
The District Court recognized, however, that there was
substantial ground for difference of opinion on that question.
The District Court therefore certified the order for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b). We
review the District Court’s denial of BNA’s summary
judgment motion de novo. Jankovic v. International Crisis
Group, 822 F.3d 576, 584 (D.C. Cir. 2016).
10
II
Kahl has sued BNA under D.C. law for defamation.
Defamation is the act of making false statements about
someone and damaging his or her reputation. See Beeton v.
District of Columbia, 779 A.2d 918, 923 (D.C. 2001).
Defamation cases often trigger serious First Amendment
issues. As the Supreme Court has explained, the First
Amendment was intended to ensure “unfettered interchange
of ideas for the bringing about of political and social changes
desired by the people.” New York Times Co. v. Sullivan, 376
U.S. 254, 269 (1964) (internal quotation mark omitted).
Defamation cases can hinder that unfettered interchange.
To encourage and facilitate debate over matters of public
concern, the Supreme Court has held that the First
Amendment protects, among other things, discussion about
public officials and public figures. To that end, the Court
requires public officials and public figures bringing
defamation claims to meet a high burden of proof to prevail.
Specifically, public officials and public figures must
demonstrate that the publisher of the statement acted with
“actual malice.” Id. at 280; see also Harte-Hanks
Communications, Inc. v. Connaughton, 491 U.S. 657, 666
(1989). In other words, a public-official or public-figure
plaintiff must demonstrate that a publisher either actually
knew that a published statement was false, or recklessly
disregarded whether it might be false. New York Times, 376
U.S. at 280.
Here, we must determine (i) whether Kahl is a public
figure for these First Amendment purposes; and (ii) if so,
whether he has produced sufficient evidence of actual malice
by BNA to overcome summary judgment.
11
A
We first consider whether Kahl is a public figure.1
Public figures are those who have “thrust themselves to
the forefront of particular public controversies in order to
influence the resolution of the issues involved.” Gertz v.
Robert Welch, Inc., 418 U.S. 323, 345 (1974). Because of the
prominent role that those individuals have sought for
themselves on certain issues, their “views and actions with
respect to public issues and events are often of as much
concern to the citizen” as those of public officials. Curtis
Publishing Co. v. Butts, 388 U.S. 130, 162 (1967) (Warren, J.,
concurring in the judgment). Few people “occupy positions”
of such “power and influence that they are deemed public
figures for all purposes.” Gertz, 418 U.S. at 345. More
commonly, public figures exercise that degree of power and
influence on a limited range of topics or issues and are
therefore known as “limited-purpose public figures.” See,
e.g., Jankovic v. International Crisis Group, 822 F.3d 576,
584 (D.C. Cir. 2016). The law treats those persons as public
figures, but only when it comes to the particular public
controversies with which they are associated.
Whether Kahl is a limited-purpose public figure is a
“matter of law for the court to decide.” Tavoulareas v. Piro,
817 F.2d 762, 772 (D.C. Cir. 1987) (en banc). This Court
applies a three-part test to determine whether a plaintiff is a
1
The District Court concluded that Kahl is a limited-purpose
public figure, but did so in an earlier ruling, not in the order
certified for interlocutory review. We still have jurisdiction over
the public-figure question, however, because the question of
whether Kahl is a limited-purpose public figure is “logically
interwoven” with the actual malice question. United States v.
Phillip Morris USA Inc., 396 F.3d 1190, 1196 (D.C. Cir. 2005).
12
public figure. “First, the court must identify the relevant
controversy and determine whether it is a public controversy.
Second, the plaintiff must have played a significant role in
that controversy. Third, the defamatory statement must be
germane to the plaintiff’s participation in the controversy.”
Jankovic, 822 F.3d at 585 (internal citations omitted).
Under that three-part test, Kahl is a limited-purpose
public figure.
Public Controversy. An issue is a public controversy if it
is “being debated publicly” and has “foreseeable and
substantial ramifications for nonparticipants.” Waldbaum v.
Fairchild Publications, Inc., 627 F.2d 1287, 1297 (D.C. Cir.
1980). In determining whether there is a public controversy, a
court examines whether “the press was covering the debate,
reporting what people were saying and uncovering facts and
theories to help the public formulate some judgment.” Id.
In this case, there was public controversy concerning the
1983 shootout, as well as about the underlying issues of
taxation and federal government power. The press
extensively covered the shootout and all stages of Kahl’s trial.
The press coverage extended beyond the trial itself to include
discussion of Kahl’s and his father’s association with anti-tax
and anti-government movements, as well as explorations and
discussions of the political and religious ideologies
underlying those movements. See, e.g., Joan Hanauer,
Review: In the Line of Duty, UNITED PRESS INTERNATIONAL,
May 10, 1991 (review of TV movie on Kahl’s father’s
political views and the shootout) (BNA App. 53-55); The
Posse Comitatus: What Is It?, U.S. NEWS & WORLD REPORT,
Aug. 8, 1983 (BNA App. 60-61); Wayne King, Link Seen
Among Heavily Armed Rightist Groups, N.Y. TIMES, June 11,
1983 (BNA App. 91-96). The public discussion of these
13
issues has continued. See, e.g., New Evidence in 1983 Kahl
Case: Recently Discovered Medical Records Prove Officer
Lied; Was Shot by Another Officer—Not Defendant, IDAHO
OBSERVER, Feb. 2006 (BNA App. 107-08); Victor Thorn,
Yorie Kahl’s Fight for Freedom, AMERICANFREEPRESS.NET,
Jan. 17, 2010 (BNA App. 109-13). This case involves a
public controversy.
Role in Controversy. Limited-purpose public figures
have “thrust themselves to the forefront” of a public
controversy “in order to influence the resolution of the issues
involved.” Gertz, 418 U.S. at 345. To resolve that question,
this Court considers “the plaintiff’s past conduct, the extent of
press coverage, and the public reaction to his conduct or
statements.” Lohrenz v. Donnelly, 350 F.3d 1272, 1279 (D.C.
Cir. 2003).
Kahl assumed a public role in the controversy when he
used his access to the press to promote his cause. For
example, he gave extensive interviews for the 1993
documentary, Death and Taxes, where he tied his
participation in the shootout (and lack of remorse for his
actions) to his “political and religious ideology.” BNA App.
160; see also id. at 103-04 (Amazon.com page for Death and
Taxes). In 2004, moreover, Kahl published a book about his
case and its relationship to the anti-government and anti-tax
movement. See id. at 127-28. He also maintained a personal
website where he criticized his conviction and promoted his
political views. On that website, he described his case as one
of “terrorism and murder committed by federal agents.” Id. at
160. He further described his trial as “an attack upon this
nation and our law by the ‘cultural communists’ who found
themselves desperate to extinguish kindled feelings of
awareness.” Id. Various media outlets continue to highlight
and plead Kahl’s case to the public. See, e.g., New Evidence
14
in 1983 Kahl Case: Recently Discovered Medical Records
Prove Officer Lied; Was Shot by Another Officer—Not
Defendant, IDAHO OBSERVER, Feb. 2006 (BNA App. 107-08);
see also Victor Thorn, Yorie Kahl’s Fight for Freedom,
AMERICANFREEPRESS.NET, Jan. 17, 2010 (BNA App. 109-
13).
In short, Kahl has thrust himself to the forefront of the
controversy and has worked to maintain his place in the
spotlight.
Germaneness. “The purpose of the germaneness inquiry
is to ensure that the allegedly defamatory statement—whether
true or not—is related to the plaintiff’s role in the relevant
public controversy. This ensures that publishers cannot use
an individual’s prominence in one area of public life to justify
publishing negligent falsehoods about an unrelated aspect of
the plaintiff’s life.” Jankovic, 822 F.3d at 589. BNA’s report
relates to Kahl’s role in the controversy. The report covers
Kahl’s conviction for his role in the shootout and his petition
to have his sentence vacated. It highlights Kahl’s ideology.
And it cites Kahl’s engagement with the press.
In sum, Kahl’s active role in the controversy concerning
the shootout and in the debate over taxes and the federal
government means that he is a limited-purpose public figure
in this case.
B
We next consider whether Kahl produced sufficient
evidence of BNA’s actual malice to overcome summary
judgment.
15
As relevant here, Kahl asserts two categories of
defamation claims: one related to BNA’s original report and
one related to BNA’s clarification. As a limited-purpose
public figure, Kahl must establish that BNA published the
allegedly defamatory statements with actual malice. New
York Times, 376 U.S. at 279-80. A statement is made with
actual malice if the statement is made with “knowledge that it
was false or with reckless disregard of whether it was false or
not.” Id. at 280. Actual malice may be inferred through
circumstantial evidence, including “the defendant’s own
actions or statements, the dubious nature of his sources, [or]
the inherent improbability of the story.” Liberty Lobby, Inc.
v. Dow Jones & Co., Inc., 838 F.2d 1287, 1293 (D.C. Cir.
1988). Whatever proof is offered, that proof must show that
“the defendant in fact entertained serious doubts as to the
truth of his publication.” St. Amant v. Thompson, 390 U.S.
727, 731 (1968) (emphasis added).
The Supreme Court and this Court have emphasized that
a public-figure plaintiff faces a “daunting” summary
judgment standard. Jankovic, 822 F.3d at 590; see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986).
The standard is “significantly more onerous than the usual
preponderance of the evidence standard.” Tavoulareas, 817
F.2d at 776. To survive a motion for summary judgment, a
plaintiff who is a public figure must present “clear and
convincing evidence” of actual malice. Anderson, 477 U.S. at
256. That heightened summary judgment standard helps
“prevent persons from being discouraged in the full and free
exercise of their First Amendment rights.” Washington Post
Co. v. Keogh, 365 F.2d 965, 968 (D.C. Cir. 1966). Summary
proceedings “are essential in the First Amendment area
because if a suit entails ‘long and expensive litigation,’ then
the protective purpose of the First Amendment is thwarted
even if the defendant ultimately prevails.” Farah v. Esquire
16
Magazine, 736 F.3d 528, 534 (D.C. Cir. 2013) (quoting
Keogh, 365 F.2d at 968).
Kahl argues that BNA’s report and clarification are false
because they attribute certain sentencing statements to the
sentencing judge, rather than to the prosecutor. But falsity
alone does not equate to actual malice. And Kahl has offered
insufficient evidence, direct or circumstantial, that any BNA
employees had actual malice – that is, that any BNA
employee actually knew that the prosecutor made those
statements or recklessly disregarded whether the statements
were made by the prosecutor rather than by the judge.
To begin with, the BNA author and her supervisor both
stated that they believed that the initial BNA report was true
when it identified the sentencing judge as the author of those
statements. And the supervisor who prepared the clarification
stated that he believed that the clarification was true. Of
course, actual malice “rarely is admitted.” Dalbec v.
Gentleman’s Companion, Inc., 828 F.2d 921, 927 (2d Cir.
1987). Kahl therefore advances two arguments to support an
inference of actual malice.
First, Kahl says that he presented sufficient evidence that
BNA’s initial report was made with actual malice. We
disagree.
The BNA report includes a summary of the sentencing
judge’s “ruling.” The BNA report indicates that the
sentencing judge stated that Kahl lacked contrition and
believed the murders were justified. Of course, we now know
that it was the prosecutor, not the judge, who actually made
those statements at sentencing about Kahl’s lack of contrition
and belief that the murders were justified. But BNA’s
mistake – suggesting that statements were made by the judge
17
rather than the prosecutor – occurred because BNA relied on
the excerpted transcript that was attached as an appendix to
Kahl’s mandamus petition. The excerpted transcript contains
excerpts from the sentencing hearing. The only name on the
excerpted transcript is that of the sentencing judge. The only
speaker identified in the transcript is the judge. And the
transcript included the excerpts of the judge announcing the
sentence. The excerpted transcript does not contain any
reference to the prosecutor speaking. So a reasonable reader
of the excerpted transcript would have thought it was the
sentencing judge speaking throughout. It was therefore not
unreasonable, much less evidence of actual malice, for BNA
to read the transcript that way and report it in that fashion.
Kahl says, however, that actual malice can be inferred
because one sentence on page 5 of his 28-page mandamus
petition suggested that some statements in the excerpted
transcript were made by the prosecutor. According to Kahl,
that one sentence should have alerted BNA that the prosecutor
was also the speaker with regard to the statements at issue in
this case. But the one sentence in the mandamus petition does
not indicate that the statements at issue in this case were made
by the prosecutor, rather than the sentencing judge. On the
contrary, a reasonable reader who read the petition and the
appendix still would have thought it was the judge who made
the statements at issue in this case. And it certainly was not
actual malice for BNA to read the transcript that way. At
most, Kahl has demonstrated that BNA, upon a more careful
reading of the appendix in conjunction with the petition, could
have connected some dots and suspected that the prosecutor
made the statements at issue in this case. But an “honest
misinterpretation does not amount to actual malice even if the
publisher was negligent in failing to read the document
carefully.” Jankovic, 822 F.3d at 594; see also Time, Inc. v.
Pape, 401 U.S. 279, 290, 292 (1971); New York Times, 376
18
U.S. at 286, 288. In short, Kahl has provided insufficient
evidence that BNA acted with actual malice in publishing its
initial report.
Second, in the wake of Kahl’s letter complaining about
the initial report, BNA published a clarification. The
clarification still summarized the “ruling below” and still
recounted the sentencing judge saying that Kahl believed the
murders were justified. Kahl argues that the clarification
should have attributed to the prosecutor the statements that
Kahl believed the murders were justified. But Kahl’s letter to
BNA did not say that it was the prosecutor speaking. Kahl’s
letter merely said that it was not Kahl speaking. After
receiving the letter, BNA again reviewed the excerpted
transcript and again reasonably concluded that the excerpted
transcript quoted the sentencing judge. Under those
circumstances, it was not actual malice for BNA to continue
to attribute the statements to the sentencing judge. See
Lohrenz, 350 F.3d at 1284 (publishers are expected to “act
reasonably in dispelling” doubts about the accuracy of their
publication that might arise during the publishing process). In
short, Kahl has provided insufficient evidence that BNA acted
with actual malice in publishing the clarification.
Let’s take a step back. The source of the problem in this
case was Kahl’s poorly put-together excerpted transcript that
was attached to his mandamus petition. The excerpted
transcript included comments of the prosecutor and
sentencing judge at the sentencing hearing, but it appeared to
be only the sentencing judge who was speaking throughout
the excerpted transcript. Based on the excerpted transcript, it
was therefore entirely reasonable for BNA to think it was the
sentencing judge who was speaking throughout. And it
certainly was far from actual malice for BNA to report that
the sentencing judge made the statements in question.
19
Moreover, the initial letter from Kahl’s attorney did not
correct the misimpression created by the excerpted transcript.
So it was far from actual malice for BNA’s clarification to
continue to say that the sentencing judge made the statements
in question. Also, given that BNA reasonably relied on the
excerpted transcript prepared by Kahl, it was not reckless for
BNA to fail to obtain the full transcript of the 1983 sentencing
hearing (assuming it was actually available).
It is true that after BNA published the clarification, Kahl
sent yet another letter to BNA that finally said that it was the
prosecutor who made the statements at the sentencing
hearing. At that point, BNA did not publish a retraction. But
we know of no authority that would require a retraction. See
McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501,
1515 (D.C. Cir. 1996). It is often said that a failure to retract
“may support actual malice, but it does not necessarily prove
actual malice, because it does not prove a wrongful state of
knowledge at the time of initial publication.” 1 SACK ON
DEFAMATION § 5:5.2, at 5–113 (4th ed. 2016) (internal
quotation marks omitted). The actual malice inquiry focuses
on the defendant’s state of mind at the time of publication.
Here, therefore, the question is whether BNA acted with
actual malice when the initial report and clarification
attributed the statements to the sentencing judge. Given the
way the excerpted transcript appeared in the appendix to the
mandamus petition, given that Kahl’s first letter did not
reference the prosecutor, given that BNA acted reasonably in
reviewing its report and the excerpted transcript after
receiving Kahl’s first letter, and given that BNA acted
reasonably in publishing the clarification, the answer is no.
20
* * *
We reverse the order of the District Court denying
summary judgment and remand with directions that the
District Court grant summary judgment to BNA on these
defamation claims.2
So ordered.
2
In an earlier order in this case, the District Court also
dismissed a separate libel per se claim asserted by Kahl. But as
BNA notes, that District Court order was not certified for
interlocutory review and is not logically interwoven with the issue
that was certified for interlocutory review. We therefore lack
jurisdiction to consider the libel per se issue. See 28 U.S.C.
§ 1292(b).