Tuesday, May 9, 2017

BNA Gets Summary Judgment In Defamation Claim

The United States Court of Appeals for the District of Columbia Circuit reversed the district court and directed summary judgment in favor of defendant BNA in a defamation action

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 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. 

Kahl is a "limited-purpose public figure"

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 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...

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.

No actual malice

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...

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.

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.

Circuit Judge Kavanaugh authored the opinion. (Mike Frisch)


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