Inna Khodorkovskaya v. Jacquelyn Gay ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 18, 2020 Decided July 23, 2021
No. 20-7018
INNA KHODORKOVSKAYA,
APPELLANT
v.
JACQUELYN G. GAY AND KENNETH K. LIN,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-00809)
Charles A. Foster argued the cause for appellant. With
him on the briefs was Eric C. Rowe.
Barbara S. Wahl argued the cause for appellee. With
her on the brief was Michael F. Dearington.
Before: SRINIVASAN, Chief Judge, HENDERSON and
WALKER, Circuit Judges.
Opinion for the Court filed by Chief Judge SRINIVASAN.
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SRINIVASAN, Chief Judge: Inna Khodorkovskaya brings
this action against the director and the playwright of
Kleptocracy, a play that ran for a month in 2019 at the Arena
Stage in Washington, D.C. Inna, who was a character in
Kleptocracy, alleges that the play falsely depicted her as a
prostitute and murderer.
The district court dismissed her complaint. The court
emphasized that Kleptocracy is a fictional play, even if inspired
by historical events, and that the play employed various
dramatic devices underscoring its fictional character. In that
context, the court held, no reasonable audience member would
understand the play to communicate that the real-life Inna was
a prostitute or murderer. We agree with the district court and
affirm its dismissal of her complaint.
I.
Because the district court resolved the case on a motion to
dismiss Inna’s complaint, we draw our facts from her
complaint. Sparrow v. United Air Lines, Inc., 216 F.3d 1111,
1113 (D.C. Cir. 2000). We can also consider the script of
Kleptocracy and a video recording of the play: the defendants
attached the script and video to their motion to dismiss the
complaint, and Inna supported consideration of the script and
video in the district court and does so again in our court.
A.
According to Inna’s complaint, her husband, Mikhail
Khodorkosvky, is a “businessman and philanthropist[] who
was the head of the Russian oil company Yukos from 1996
until his arrest in 2003.” Compl. ¶ 12. Mikhial is a longtime
political opponent of Russian President Vladimir Putin. Id.
¶ 13. Putin’s government persecuted Mikhail because Mikhail
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“sought to promote democracy and fight corruption within the
Russian Federation” and “became a strong critic of Putin’s
undemocratic policies.” Id. ¶¶ 14–15.
Mikhail was tried and convicted of various offenses in
Russia on two occasions, and the European Court of Human
Rights has since found that aspects of the proceedings against
him deprived him of basic human rights. Id. ¶¶ 16, 19–20. In
2013, Mikhail gained his release to Germany following
negotiations between Germany and Russia. Id. ¶¶ 22–23.
In December 2015, Russia asked Interpol to issue a
warrant for Mikhail’s arrest for the 1998 murder of Vladimir
Petukhov, a “Siberian mayor.” Id. ¶¶ 24, 42. Previously, in
2005, two former Yukos employees—former executive Leonid
Nevzlin and former security manager Alexey Pichugin—were
charged with the shooting. Id. ¶ 26. Their trials, too, were
condemned by the European Court of Human Rights. Id. ¶ 34.
In 2015, the Russian government charged Mikhail with having
ordered Petukhov’s murder. Id. ¶ 42. “Interpol refused to issue
the requested arrest warrant due to political motivations behind
the charges against” Mikhail. Id. In 2016, Mikhail obtained
political asylum in the U.K. and moved to London, id. ¶ 23,
where his wife Inna Khodorkovskaya, the plaintiff in this case,
currently resides, id. ¶ 9.
B.
In January 2019, the Arena Stage in Washington, D.C. ran
the play Kleptocracy for approximately one month. See id.
¶ 49. Kleptocracy was written by Kenneth Lin and directed by
Jacquelyn Gay. Id. ¶¶ 46–47. For purposes of this appeal, the
parties accept the characterization of Kleptocracy as a “work
of fiction” and a “fictional play inspired by historical events.”
Appellant’s Br. 20, 34. The historical events that inspired the
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“fictional play” are the political rise and fall of Mikhail
Khodorkovsky in Russia. Vladimir Putin and Inna
Khodorkovskaya are among the play’s other characters.
Kleptocracy opens with a man, later identified as Putin,
reciting a Russian absurdist poem. The audience is then
introduced to a young Mikhail. He pursues Inna, who is
initially reluctant but ultimately warms to him. Many years
later, when Mikhail and Inna are married, Mikhail receives
news that his oil company has been awarded a lucrative
government contract. But Leonid Nevzlin informs him that
Petukhov, a mayor in Russia, poses a problem to their oil
operation. Nevzlin and Inna both seem to urge Mikhail to kill
Petukhov, and the play seems to imply that he does.
Over the course of the play, Putin becomes a more central
character, ultimately arresting Mikhail on false charges
because Mikhail championed economic freedom in Russia.
Many of Putin’s monologues feature him interacting with a
Siberian tiger, represented in the live show by a large stuffed
animal. While in jail, Mikhail reads letters from Petukhov, and
Petukhov—who, by this point in the play, has already been
murdered—appears in Mikhail’s cell as something of an
apparition, reciting the text of the letters. Inna also visits
Mikhail in jail and ultimately urges him to flee Russia with her.
Mikhail refuses to flee until later, and he meets Putin one last
time before leaving. At that meeting, Putin again recites parts
of the Russian absurdist poem he introduced in the play’s
opening.
C.
In March 2019, Inna Khodorkovskaya filed a complaint in
the district court against Gay and Lin, asserting diversity
jurisdiction under 28 U.S.C. § 1332. The complaint contains
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two counts under District of Columbia law, one of false light
invasion of privacy and one of intentional infliction of
emotional distress. Both arise out of Inna’s claim that
Kleptocracy falsely portrayed her as a prostitute and murderer.
The defendants moved to dismiss the complaint for failure
to state a claim. See Fed. R. Civ. P. 12(b)(6). Of particular
salience, they contended that no reasonable audience member
would have understood the challenged portrayals of Inna to be
assertions of actual fact.
The district court granted the motion to dismiss the
complaint. The court explained that “First Amendment
protections apply to false-light and intentional infliction of
emotional distress claims.” Hearing Tr. 35:10–11, J.A. 418.
One such protection is that, “[f]or liability to arise under the
First Amendment, a representation must at minimum express
or imply a verifiably false fact about an individual.” Id. at
35:19–21. Here, the court held, even assuming “that
Kleptocracy portrays the plaintiff as a prostitute and a
murderer, these representations cannot reasonably be seen as
communicating or implying actual facts.” Id. at 38:11–13, J.A.
421. In reaching that conclusion, the court emphasized that
“Kleptocracy is a theatrical play that, by custom and
convention, signals to viewers that the events portrayed involve
dramatizations rather than factual depictions of historical
events.” Id. at 37:13–16, J.A. 420.
II.
The central question raised by this appeal is whether the
play’s alleged depictions of its character Inna as a prostitute or
murderer would have been reasonably understood by the
audience to communicate actual facts about the real-life Inna.
The district court answered that question no, and we do as well.
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We review the district court’s dismissal of the complaint
de novo, and we treat the complaint’s factual allegations as
true. W. Org. of Res. Councils v. Zinke, 892 F.3d 1234, 1240
(D.C. Cir. 2018). A court can, at the motion-to-dismiss stage,
conclude that challenged speech could not reasonably be
understood to communicate actual facts about a person. See
Weyrich v. New Republic, Inc., 235 F.3d 617, 623–24 (D.C.
Cir. 2001); cf. Trudeau v. FTC, 456 F.3d 178, 193–94 (D.C.
Cir. 2006); Browning v. Clinton, 292 F.3d 235, 247–48 (D.C.
Cir. 2002). In conducting that analysis, a court can consider
the allegations in the complaint together with any materials
properly brought before the court as attachments. See Trudeau,
456 F.3d at 193. We thus consider the script and video
recording of Kleptocracy, which, as noted, both parties urge us
to examine.
A.
Inna’s complaint asserts two causes of action under
District of Columbia law, one for false light invasion of privacy
and one for intentional infliction of emotional distress. In the
context of those claims, the First Amendment protects—i.e.,
renders immune from suit—“statements that cannot
‘reasonably [be] interpreted as stating actual facts’ about an
individual.” Milkovich v. Lorain J. Co., 497 U.S. 1, 20 (1990)
(alteration in original) (quoting Hustler Mag. v. Falwell, 485
U.S. 46, 50 (1988)); Weyrich, 235 F.3d at 624. So if a
challenged statement cannot reasonably be understood to
communicate actual facts about the plaintiff, it is protected by
the First Amendment and is non-actionable. That principle,
which we will refer to as the Milkovich rule, “provides
assurance that public debate will not suffer for lack of
‘imaginative expression’ or the ‘rhetorical hyperbole’ which
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has traditionally added much to the discourse of our Nation.”
Weyrich, 235 F.3d at 624 (quoting Milkovich, 497 U.S. at 20).
While the Milkovich rule came into being in defamation
cases, the parties assume that it equally applies in actions for
false light invasion of privacy and intentional infliction of
emotional distress. In that connection, we have explained that,
“[t]hough invasion of privacy false light is distinct from the tort
of defamation, the same First Amendment protections apply.”
Weyrich, 235 F.3d at 627. And “a plaintiff may not avoid the
strictures of the burdens of proof associated with defamation
by resorting to a claim of false light invasion.” Moldea v. N.Y.
Times Co. (Moldea II), 22 F.3d 310, 319 (D.C. Cir. 1994)
(quoting Moldea v. N.Y. Times Co., 15 F.3d 1137, 1151 (D.C.
Cir. 1994) (Moldea I)); see also Hustler, 485 U.S. 46 (applying
actual-malice standard originally recognized in libel cases to
claims of intentional infliction of emotional distress).
B.
Applying the Milkovich rule to the particular production at
issue in this case, we conclude that Kleptocracy’s depictions of
its character Inna could not reasonably be understood to
communicate actual facts about the real-life Inna. As our
decisions stress, “the First Amendment demands that we place
[challenged works] in their proper context.” Weyrich, 235 F.3d
at 625. And the “‘[c]ontext’ includes not only the immediate
context of the disputed statements, but also the type of
publication” and “the genre of writing.” Farah v. Esquire
Mag., 736 F.3d 528, 535 (D.C. Cir. 2013). Understanding the
context “is critical because ‘it is in part the settings of the
speech in question that makes [its] . . . nature apparent, and
which helps determine the way in which the intended audience
will receive [it].’” Id. (omission in original) (quoting Moldea
II, 22 F.3d at 314). “Some types of writing or speech by custom
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or convention signal to readers or listeners that what is being
read or heard is likely to be opinion” or fiction, “not fact.”
Ollman v. Evans, 750 F.2d 970, 983 (D.C. Cir. 1984). That is
so here.
Kleptocracy is not journalism; it is theater. It is, in
particular, a theatrical production for a live audience, a genre
in which drama and dramatic license are generally the coin of
the realm. That is why the defendants are a playwright and a
theatrical director, not journalists or documentarians. In fact,
Inna, as noted, affirmatively accepts “the fact that the play is a
work of fiction.” Appellant’s Br. 20. To be sure, even if
Kleptocracy is a fictional play, Inna assumes it is a “fictional
play inspired by historical events.” Id. at 34. But a fictional
play, even if inspired by historical events, by definition is not—
and does not purport to be—a historical documentary: a
documentary by nature is a work of non-fiction.
None of this is necessarily to say that a theatrical
production, or even a fictional play, is categorically incapable
of communicating actual facts about a person, regardless of the
circumstances of a particular production or of what may be said
or imparted to the audience in a specific situation. The
defendants here assume that “no categorical immunity from
defamation exists for theatrical productions,” Appellees’ Br.
30, and we need not adopt any kind of blanket rule for purposes
of deciding this case. But our decisions emphasize that the
genre matters when assessing whether challenged speech is
reasonably understood to communicate actual facts about a
person. We have held, for instance, that the genre of a book
review is one in which “[t]here is a long and rich history in our
cultural and legal tradition of affording reviewers latitude to
comment.” Moldea II, 22 F.3d at 315. The “First
Amendment,” we said, “requires that the courts allow latitude.”
Id. The case for latitude is all the more evident when the genre
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is art in the form of a fictional theatrical production, including
one inspired by historical events.
History has long been a muse for art. Several of
Shakespeare’s plays—think Richard III, for instance—are
prominent examples of historical fiction. But historical fiction,
while inspired by history, is, at bottom, fiction. And a
reasonable viewer of historical fiction understands that what
she is watching is not an actual rendering of historical events
as they in fact occurred. The Supreme Court thus has explained
that “an acknowledgment that [a] work is so-called docudrama
or historical fiction . . . might indicate that . . . quotations
should not be interpreted as the actual statements of the speaker
to whom they are attributed.” Masson v. New Yorker Mag.,
Inc., 501 U.S. 496, 512–13 (1991).
The Ninth Circuit, considering a made-for-television
movie about a prominent murder case from the 1970s, observed
that “[d]ocudramas, as their names suggest[], often rely heavily
upon dramatic interpretations of events and dialogue filled with
rhetorical flourishes in order to capture and maintain the
interest of their audience.” Partington v. Bugliosi, 56 F.3d
1147, 1155 (9th Cir. 1995). The court “believe[d] that viewers
in this case would be sufficiently familiar with this genre to
avoid assuming that all statements within them represent
assertions of verifiable facts. To the contrary, most of them are
aware by now that parts of such programs are more fiction than
fact.” Id. And as of the present day, viewers are “generally
familiar with dramatized, fact-based movies and miniseries in
which scenes, conversations, and even characters are
fictionalized and imagined.” De Havilland v. FX Networks,
LLC, 230 Cal. Rptr. 3d 625, 643 (Cal. Ct. App. 2018).
Several features of Kleptocracy fortify the sense that,
within the somewhat fluid categories of historical fiction or
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docudrama, a reasonable audience member would be
particularly unlikely to conclude that the play’s depictions are
meant to communicate actual facts about a person. In certain
respects, in fact, Kleptocracy verges on historical fantasy more
than historical fiction.
First, the play depicts a Siberian tiger in a number of
scenes as the companion of an often-comical Vladimir Putin.
The tiger’s circumstances seem to mimic Mikhail’s throughout
the play. When Mikhail is arrested, the next scene shows Putin
sitting on the sleeping tiger (played by a larger-than-life-sized
stuffed animal). On two occasions in which Mikhail is attacked
in prison, the ensuing scenes feature Putin apparently
butchering a tiger and then laying a tiger skin on his office
floor, respectively. The fictional and metaphorical tiger
reinforces to the reasonable audience member that the play’s
contents cannot be taken literally.
Second, and similarly, the play depicts the ghost of the
Siberian mayor Petukhov as visible to Mikhail. Petukhov—
whose murder Mikhail seems to have authorized, and who is
deceased by this point in the play—appears in Mikhail’s prison
cell, drinks tea with him, and recites the letters that he wrote to
Mikhail before his death. Mikhail responds to Petukhov in
between the lines of Petukhov’s letter, remarking that he
“should have come to visit” Petukhov’s region and “should
have responded” to his criticisms. J.A. 261. Mikhail’s vision
of the deceased Petukhov, or the apparition of Petukhov, is a
fantastical device used for dramatic effect. It confirms to any
reasonable viewer that the play is fictional, even if inspired by
historical events. No reasonable viewer could conclude that
the scene intends to convey historical fact.
Third, at the beginning, middle, and end of Kleptocracy,
Vladimir Putin’s character recites a Russian absurdist poem
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entitled How a Man Crumbled. The poem concerns a man who
proclaims his love for “voluptuous tarts,” then grows
immensely tall and “crumble[s] into a thousand tiny pieces.”
J.A. 170. In the opening scene of the play, the audience does
not yet know Putin’s identity, and the actor recites the poem
directly to them, evoking the chorus in a Greek tragedy. In the
middle of the play, Putin recites the poem to Mikhail before
arresting him. And at the end of the play, Putin repeats
fragments of the poem into different telephones as he answers
them and simultaneously blesses Mikhail’s release from
prison. No reasonable audience member would infer that the
real-life Vladimir Putin in fact recited the absurdist poem in
any forum. To the contrary, any reasonable audience member
would appreciate the use of the poem as a dramatic, artistic
device, underscoring the fictional, even fantastical—and
decidedly non-documentary—nature of the play.
The specific scenes ostensibly depicting the character Inna
as a prostitute and murderer must be considered against that
backdrop. Nothing in those scenes marks a break from the
play’s genre as a theatrical work of historical fiction or from
the dramatic elements reinforcing that character. Indeed, the
scenes are fully in keeping with the attributes of the genre.
Inna posits that the depiction of her as a prostitute centers
largely around the first scene in the play in which her character
appears. That scene immediately follows Putin’s recitation of
the absurdist poem at the outset of the production. The scene
contains a conversation between Inna and Mikhail at the start
of their relationship. Inna arrives with another man and goes
up to her apartment with him, and when she returns to the
street, she and Mikhail discuss his ambitions and why he wants
Inna with him. Inna claims that the scene, particularly in light
of Putin’s preceding recitation of a poem referring to
“voluptuous tarts,” depicts her as a prostitute, and we assume
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it does for present purposes. Even so, the scene could not
reasonably be understood to convey actual facts about the real-
life Inna. The scene takes place directly in the wake of Putin’s
character reciting an absurdist poem to the live audience, and
would be viewed by them in the immediate light of that
pronounced example of dramatic license and fictional device.
Inna’s contention that Kleptocracy depicts her as a
murderer stems from another scene that takes place towards the
beginning of the play. In that scene, Mikhail has been told by
Nevzlin that the Siberian mayor Petukhov is speaking out
against Mikhail and Yukos Oil. Nevzlin seems to suggest
killing Petukhov before Inna re-enters the room. Inna “sees
Petukhov,” who appears onstage with the characters even
though he could not in fact be present with the characters at the
time. J.A. 191. Inna asks, “What are we going to do?” and
agrees that they can show no weakness. She tells Mikhail,
“You know what you’re supposed to do.” J.A. 192. When
Mikhail says he needs to think, Inna “grabs him by the shirt,
roughly,” and “looks him in the eye.” Id. She says, “Don’t
think! Want! Want! And the rest will follow.” Id. Mikhail
finally agrees. As Inna encourages everyone to open presents
for Mikhail’s birthday, two assassins “rush on to the stage and
shoot Petukhov dead and drag his body away. Blood sprays on
everyone, but only Mikhail sees it.” Id. Inna kisses Mikhail to
wish him a happy birthday, “blood and all.” J.A. 193.
The scene is replete with fantastical elements: the murder
victim, although plainly not in fact present, is killed in the same
place (and at essentially the same time) that the decision to kill
him is made, all during Mikhail’s birthday celebration. One
character in the scene somehow sees it happen even though it
happens elsewhere, and although the rest appear not to, they
end up with the victim’s blood splattered on them. Also, Inna’s
lines evoke the familiar trope of a trusted confidante or partner
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strong-arming a leader or protagonist into committing bad
acts—e.g., Lady Macbeth convincing Macbeth to kill King
Duncan. (Indeed, like Lady Macbeth, Inna later helps Mikhail
figure out how to handle the fallout from committing murder.)
Of course, a reasonable viewer need not recognize the parallels
between Inna and Lady Macbeth. But the viewer can readily
see Inna’s influence over Mikhail in the scene as a dramatic
device in a concededly fictional play, rather than as somehow
an expression of actual fact about the real-life Inna amidst
various self-evidently counterfactual elements.
In sum, in a play acknowledged to be a work of fiction and
exhibiting a series of dramatic devices reinforcing its fictional
character, the ostensible depictions of the on-stage Inna as a
prostitute and murderer cannot reasonably be understood to
communicate actual facts about the real-life Inna.
* * * * *
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.