Zimmerman v. Al Jazeera America, LLC ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
RYAN W. ZIMMERMAN, et al., )
)
Plaintiffs, )
)
v. ) No. 16–cv–0013 (KBJ)
)
AL JAZEERA AMERICA, LLC, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
In any lawsuit claiming defamation of character, the status of the individual who
was allegedly defamed is one key determinant of the applicable legal standard.
Whereas a private individual can maintain a suit for defamation if the publisher of the
allegedly false and defamatory statement has acted negligently in disseminating the
falsehood, public figure plaintiffs must demonstrate that the allegedly false and
defamatory statement was made with “actual malice.” New York Times Co. v. Sullivan,
376 U.S. 254, 27980 (1964); see Gertz v. Robert Welch, Inc., 418 U.S. 323, 345
(1974). In this case, there is no dispute that the plaintiffs—two Major League Baseball
(“MLB”) players—are public figures. The question is whether their complaint contains
allegations of fact that, if true, are sufficient to permit a reasonable jury to conclude
that the named defendants—a major media conglomerate, one of the company’s news
producers, and an independent consultant—published a false and defamatory statement
about these plaintiffs, and did so with the requisite intent.
The allegedly false and defamatory statements at issue here are expressed in a
documentary film called “The Dark Side,” which purports to investigate the supply
chain of illicit performance-enhancing drugs (“PEDs”) that exists for elite athletes.
(See First Am. Compl. (“Compl.”), ECF No. 9, ¶ 37.) Plaintiffs Ryan Zimmerman and
Ryan Howard claim that the film’s producers (Al Jazeera 1 and Deborah Davies), and
also Liam Collins, one of the individuals who is featured prominently in the
documentary (collectively, “Defendants”), are liable for defamation and the related tort
of false light invasion of privacy because of allegedly false PED-related representations
that are made about Plaintiffs in the film. Specifically, the complaint alleges that
Defendants elicited from an alleged supplier of steroids false and defamatory statements
about Zimmerman’s and Howard’s use of PEDs, captured those statements on video via
a hidden camera, and then incorporated the supplier’s false allegations into “The Dark
Side[,]” despite Defendants’ knowledge of facts that cast doubt on the truthfulness of
the supplier’s representations, including the fact that the supplier had recanted the
allegedly defamatory accusations prior to the film’s release. (See Compl. ¶¶ 1, 73;
Howard Compl., Dkt. No. 10, in Civ. Action No. 16 -cv-0014, ¶ 1.)
Before this Court at present are two motions to dismiss: one that Al Jazeera and
Davies have filed jointly (see Defs. Al Jazeera and Davies’ Mot. to Dismiss (“Defs.’
Mot.”), ECF No. 26), and another that Collins has submitted on his own behalf (see
Def. Collins’s Mot. to Dismiss (“Def. Collins’s Mot.”), ECF No. 24) . 2 Al Jazeera and
Davies argue that “The Dark Side” does not contain actionable defamatory statements
1
Three Al Jazeera-related corporate entities are named as defendants in this action: (1) Al Jazeera
America, which is a U.S.-based news channel that ceased operations a s of January 2016; (2) Al Jazeera
Media Network, which is the parent company of Al Jazeera America; and (3) Al Jazeera International,
which is a U.S.-based subsidiary of Al Jazeera Media Network. (See Compl. ¶¶ 35.) For ease of
reference, the Court refers to these three corporate entities collectively as “Al Jazeera.”
2
Page-number citations to documents the parties have filed refer to the page numbers that the Court’s
electronic filing system assigns.
2
about Zimmerman or Howard, because the pertinent representations are not reasonably
capable of conveying a defamatory meaning, and in any event, the complaint fails to
plead facts that would support an inference of actual m alice. (See Defs. Al Jazeera and
Davies’ Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), ECF No. 26 -1, at 2645.) 3
Collins—who is not an Al Jazeera employee—incorporates the arguments that Al
Jazeera and Davies make into his motion by reference, and he further contends that the
complaint does not adequately allege that he has published any defamatory statements
at all, much less that he acted with actual malice pertaining to any such publication.
(See Def. Collins’s Mem. in Supp. of Def. Collins’s Mot. (“Def. Collins’s Mem.”), ECF
No. 24-1, at 6 n.1, 1219.) Zimmerman and Howard oppose Defendants’ motions,
arguing that a reasonable viewer could have understood “The Dark Side” to convey the
message that Plaintiffs have used PEDs (see Pls.’ Consolidated Opp’n to Defs.’ Mot.
and Def. Collins’s Mot. (“Pls.’ Opp’n”), ECF No. 30, at 18–21), and they further
maintain that Defendants’ knowledge of the supplier’s recantation supports the
inference that all three Defendants published the statements with actual malice (see id.
at 2127).
For the reasons explained below, this Court concludes that the complaint that
Zimmerman and Howard have filed contains sufficient allegations to state defamation
and false light claims against Al Jazeera and Davies, but only with respect to the
statements contained in the film; the statements made in the accompanying news article
do not convey a defamatory meaning. The Court further finds that the complaint does
3
Notably, in defamation cases, “actual malice” is a term of art that “focuses on what the defendan t
knew about the veracity of the statements,” and should not “be confused with . . . ill will or ‘malice’ in
the ordinary sense of the term.” Montgomery v. Risen, 197 F. Supp. 3d 219, 259 (D.D.C. 2016), appeal
docketed, No. 16-7096 (D.C. Cir. Aug. 15, 2016).
3
not state a defamation claim or a false light claim against Collins, because the
complaint does not contain facts from which a reasonable jury might conclude that
Collins published a false and defamatory statement about Zimmerman or Howard.
Accordingly, Al Jazeera’s and Davies’s motion will be GRANTED IN PART and
DENIED IN PART, and Collins’s motion will be GRANTED in full. A separate Order
consistent with this Memorandum Opinion shall follow.
I. BACKGROUND
Plaintiffs’ complaints, and the exhibits attached to them, allege pertinent
background facts, which are described briefly below. Notably, although Zimmerman
and Howard initially filed two separate legal actions, this Court has consolidated the
cases with the parties’ consent, and the instant Memorandum Opinion primarily
analyzes the complaint and motions that have been filed in Zimmerman’s case. 4
A. The Making Of “The Dark Side”
“The Dark Side: Secrets of the Sports Dopers” is a 49-minute documentary that
Al Jazeera produced in 2015. (See “The Dark Side: Secrets of the Sports Dopers”
(“Film”), Ex. L to Compl., ECF No. 9-12; see also Tr. of “The Dark Side: Secrets of the
4
The complaints that Zimmerman and Howard have filed are substantively identical and differ only
with respect to the factual allegations regarding each Plaintiff’s personal background ( compare Compl.,
ECF No. 9, ¶ 2 (“Zimmerman is a citizen and resident of Virginia, and a first baseman for the
Washington Nationals MLB team.”), with Howard Compl., Dkt. No. 10, in Civ. Action No. 16 -cv-0014,
¶ 2 (“Howard is a citizen and resident of Florida, and the starting first baseman for the Philadelphia
Phillies MLB team.”)), and the specific defamatory statements at issue ( compare Compl. ¶ 44
(recounting accusation that Zimmerman has used performance -enhancing drugs), with Howard Compl.,
¶ 47 (recounting accusation that Howard has used performance -enhancing drugs)). Likewise,
Defendants filed substantively identical motions to dismiss and replies thereto across both actions,
which Plaintiffs responded to by filing materially identical oppositions. Thus, while there are
technically two separate complaints and four pending motions to dismiss—two filed in Zimmerman’s
case, and two initially filed in Howard’s case —this Court has concluded that it can properly evaluate
the complaints and the motions together in the context of the now -consolidated action.
4
Sports Dopers” (“Film Tr.”), Ex. A to Defs.’ Mot., ECF No. 26-4.) 5 “The Dark Side”
purports to reveal little-known facts about the supply chain of elicit performance-
enhancing drugs in professional sports (see Film. Tr. at 2), and the film features an
undercover investigation that Al Jazeera producers allegedly conducted over a period of
eight months (see id.). Using a combination of taped confessionals and hidden camera
footage that is intended to “capture what athletes call the dark side[; i.e.,] the secret
world of doping” (id.), the film primarily details and displays the producers’ efforts to
“catch” on film individuals who purport to distribute PEDs to athletes—people such as
“[d]octors, chemists, [and] chiropractors”—as they talk about the substances and “the
players” they “claim[] [they’ve] doped to fame” (id.).
Deborah Davies, a British reporter employed in Al Jazeera’s Investigative Unit,
served as the lead reporter of the investigation that is featured in the film (see Compl. ¶
33) and is also the principal narrator in the documentary (see generally Film Tr.).
Although much of “The Dark Side” consists of hidden camera footage of secretly-
record discussions with various alleged medical professionals, it is Davies’s voice-
overs that help to explain the contours of the undercover investigation; consequently,
her remarks provide the context for the photos, video clips, and statements in the film
that expressly link certain professional athletes to the underground world of
5
Plaintiffs attached to their complaint a copy of the documentary at issue (see Film), and Al Jazeera
and Davies attached to their motion a detailed transcript of this film ( see Film Tr.), the accuracy of
which is not in dispute. For the purpose of the pending moti ons to dismiss, this Court considers both
exhibits as incorporated into the complaint. See Farah v. Esquire Magazine, 736 F.3d 528, 534 (D.C.
Cir. 2013) (“[I]n determining whether a complaint states a claim, the court may consider the facts
alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it
may take judicial notice.” (internal quotation marks and citation omitted)); see also Bogie v.
Rosenberg, 705 F.3d 603, 60809 (7th Cir. 2013) (noting that district court reviewing motion to
dismiss properly considered video recording incorporated by reference, and physically attached to,
amended complaint). Finally, in the interest of providing more precise citations, the Court will cite
primarily to the transcript.
5
performance-enhancing drugs. (See, e.g., Film Tr. at 3 (during a scene depicting fans at
a professional football game, Davies suggests that the investigation seeks to explore
“extraordinary claims that raise questions” about whether a particular “American
sporting hero”—who she mentions by name—is “linked” to PEDs).)
At the outset of the film, Davies asserts that “[t]he best way to understand the
dark side of sport is to meet an athlete who’s been there—and back.” (Id.) Davies then
introduces the audience to a former track star who had been banned from his sport for
using PEDs, and who claims that he first obtained PEDs from a particular Bahamian
doctor. (Id. at 45.) In order to investigate this claim, Al Jazeera’s producers decided
to “[w]ork[] with a British athlete” to “infiltrate a network [of suppliers] who claim
their scientific expertise can cheat the system.” (Id. at 2.) Plaintiffs’ complaint alleges
that the athlete Al Jazeera and Davies enlisted—Liam Collins—is “a former hurdler,
would-be bobsledder, and bankrupt real-estate promoter” who has “no known news
reporting training or experience.” (Compl. ¶¶ 8, 40.) However, Davies explains in the
film that Al Jazeera’s producers considered Collins to be “perfectly placed to go
undercover” (Film Tr. at 6), and that the producers approached him with a “proposal”:
“help us to investigate doping in sport . . . by claiming to be an athlete desperate to
qualify for the Rio Olympics.” (Id.)
After Collins agreed to participate in Al Jazeera’s investigation, the producers
helped to “test out [his] cover story” by connecting him with the Bahamian doctor
previously mentioned. (Id.; see also id. at 7.) From there, Collins spent six months in
an undercover capacity, chasing leads and trying to contact various alleged suppliers of
PEDs in the Bahamas, Canada, and Texas. (See Compl. ¶ 40.) According to the
6
complaint, Collins’s modus operandi generally involved “[f]alsely claiming to be a
potential client[,]” and “induc[ing] people he came into contact with to discuss the topic
of performance-enhancing substances and to provide him with [such substances],” al l
while he was secretly recording the interactions with a hidden camera. (Id.) Collins
solicited the allegedly defamatory statements at issue in the instant case when he was
speaking with a central figure in the documentary: a purportedly notorious supplier of
PEDs named Charlie Sly. (See Film Tr. at 2728.)
The broad investigatory narrative that Davies presents in “The Dark Side”
focuses in large part on Sly. He is featured and discussed at multiple points in the film,
and Davies repeatedly comments on her impressions of him, mostly casting him in a
favorable light. For example, Davies characterizes Sly as a “doctor of pharmacy” when
he is first introduced (see id. at 15), 6 and when Sly is heard discussing a particular
banned substance (growth hormone) at one point in the film, Davies states, “Charlie Sly
appeared knowledgeable about the drug—he knows it’s severely restricted even as legal
medication.” (Id. at 33; see also id. at 3334 (Davies comments that “[w]e checked
[Sly’s claim regarding growth hormones] with one of America’s leading experts.
Professor Alan Rogol is an endocrinologist . . . He confirmed [Sly’s claim].”).) The
documentary also includes several comments from Davies indicating that her
investigatory team had confirmed certain details regarding Sly’s background. (See,
e.g., id. at 33 (“We’ve confirmed Charlie Sly worked in their pharmacy in 2011.”).)
Davies’s voice-over also makes clear that Sly’s reputation as a “chemical
mastermind” (id. at 2) precedes him: Collins contacts Sly precisely because two other
6
The complaint disputes this contention. ( See Compl. ¶ 58.)
7
suppliers are captured on tape calling Sly “a genius at outwitting” the World Anti-
Doping Agency, and someone who’s “taken smart drugs to a whole new level.” (Id. at
14, 15; see also id. at 15 (Davies remarks that “[s]omeone who’s taken drugs to a new
level—was someone we needed to meet”).)
Davies explains in the film that, after Collins established contact with Sly, Al
Jazeera set up hidden cameras at a café and in a hotel room to capture Collins’s initial
meeting with him. (See id. at 15.) During the ensuing exchange, which is shown in the
film, Sly offers Collins “[o]ne anabolic,” and says that he can “give [Collins] something
to use right now” that will be “great for . . . strength gains.” (Id.) Sly also says that
“[t]here’s a bunch of football players who take this. And a bunch of baseball players
who take it too . . . [,]” and he adds that “it was recently added to the MLB banned list.”
(Id.) In the film, this conversation between Collins and Sly continues inside Sly’s
apartment, where, according to Davies’s voiceover, Collins “discovers [Sly’s] fridge is
full of drugs[,] [i]ncluding a half filled syringe—which Sly offers for immediate use.”
(Id. at 16; see also id. (Davies asserts that Collins “declines the offer, saying he wants
to read up on Delta 2[,]” which Davies describes as the “designer steroid” that Sly
handed to Collins).) Collins then “takes the syringe away” (id.), and in a confessional
spoken directly to the camera, Collins asserts that Sly had talked to him about a famous
professional football player (by name), and had told him that the player “buys all [the]
stock” of Delta 2 from the only company that sells it on the internet (id. at 16–17).
“The Dark Side” proceeds to feature other aspects of Collins’s investigation into
doping, but Collins’s multiple meetings with Sly are a central component of the film.
Recorded hidden-camera footage of several conversations between Collins and Sly are
8
shown at various points, and in nearly every video clip, Sly brags about his connections
to famous players, who he names specifically in the course of promoting his services,
drugs, and business to Collins. (See, e.g., id. at 17, 19, 28, 29.) Eventually, Davies
states that the producers “wanted to test [Sly’s] doping expertise and his level of
connections” (id. at 23), and a video clip of the foyer of Sly’s apartment follows (see
id.). Then, as viewers gaze upon the entry to Sly’s residence, Davies remarks that Sly
“proved his link to one sportsman very quickly[,]” because “[w]aiting at his building is
a baseball player, Taylor Teagarden.” (Id.; see also id. at 23–24 (Davies comments that
Teagarden has played on professional teams “in Chicago, Texas, New York, and
Baltimore[,]” and that Sly has “guided him on a mix of clean and banned substances—
including the steroid Delta 2”).) 7
Significantly for present purposes, at one point about 35 minutes into the film,
Sly is shown driving in a car with Collins. According to Davies’s narration, during this
drive, Sly casually started to “name[] more sportsmen he claims are linked to Delta 2—
in baseball and football[,]” and then asserted that “he coached them on what to take and
how to avoid testing positive.” (Id. at 27.) Davies notifies the audience that her
production team had “primed Liam [Collins] with questions to dig into the claims” (id.),
and the subsequent discussion between Sly and Collins is captured by Collins’s hidden
camera. It is in response to Collins’s questions that Sly maintains that Howard and
Zimmerman use PEDs. (See id. at 2728.)
7
In the hidden camera video footage that follows, Teagarden admits to his use of banned steroids. He
states: “I used it last year” and “I was scared to be honest with you. I took it for like two weeks, and I
had a test four weeks after my last administration of it.” (Film Tr. at 24.)
9
B. The Film’s Allegedly Defamatory Statements About Plaintiffs
The following is a description of the segments in “The Dark Side” that feature a
specific conversation between Collins and Sly about Howard, with background
narration by Davies:
Davies [off-screen narration over video clip of Sly and Collins driving]: Back in
Texas, the pharmacist Charlie Sly names more sportsmen that he claims are
linked to Delta 2, in baseball and football. He says he coached them on what to
take and how to avoid testing positive. In a series of conversations crisscrossing
Texas, we primed Liam [Collins] with questions to dig into the claims.
[The video then cuts to a stylized clip of Howard running the bases in his Phillies
uniform, with voiceover as follows.]
Sports Announcer: That is well hit, it is way back, 50 home runs for Ryan
Howard.
[The shot then rests on a backdrop of a stylized Howard baseball card. Against
this backdrop, the following recorded conversation is played while the text of the
speakers’ words appear in subtitle-like fashion.]
Collins: So with the likes of Howard, once you’ve set him off is there like a
maintenance thing?
Sly: He is somebody that you cannot overwhelm with stuff. You just make sure
you have everything in bags. He knows to take stuff twice a day. Usually I just
have him like teach it back to me.
Collins: What did he notice in his hitting?
Sly: With the D2?
Collins: Yeah.
Sly: I think maybe some more explosiveness. He had a couple of years where he
had just a ton of home runs.
(Film; see also Film Tr. at 2728.)
10
A discussion of Zimmerman follows immediately; it features a conversation
between Collins and Sly during this same road trip:
[The video cuts to a stylized clip of Zimmerman batting in his Nationals unif orm,
with voiceover as follows:]
[Sports] Announcer: That’s a seeing-eye single for Ryan Zimmerman. 3 for 4
on the day.
[The shot then rests on a backdrop of a stylized Zimmerman baseball card.
Across this backdrop, the following conversation is played while text of the
conversation scrolls across the screen.]
Collins: How long have you known Zimmerman?
Sly: Probably six years . . . I worked with him in the off-season. That’s how I
get him to change some stuff.
Collins: Is he on the D2 as well?
Sly: Yeah.
Collins: What does he think of the D2?
Sly: It does its job.
Collins: Does he notice a lot more power or not?
Sly: Yeah, I think some guys have just kinda gotten used to it.
Collins: Yeah[.]
Sly: It’s the new normal.
(Film Tr. at 28; see also Film.)
After a short clip in which Sly and Collins discuss another professional athlete (a
football player who is also purportedly “in the D2 club”), Davies’s voice states that
11
Zimmerman, Howard, and the football player “each . . . emphatically denies taking
Delta 2 or any PED and say whoever claims that, is lying.” (Film Tr. at 29.) While
these denials are being referenced, the film features graphics of Zimmerman, Howard,
and the football player over the stylized words “Emphatically denies[.]” (Id.; see also
Film.)
C. Sly’s Recorded Recantation, And Al Jazeera’s Unstinting Efforts To
Disseminate And Publicize The Film
In the complaint, Zimmerman and Howard assert that “[a]ll of [Sly’s] statements
concerning [them] are categorically untrue.” (Compl. ¶ 47; see also Howard Compl. ¶
50 (alleging that,“[b]ut for the reference to Mr. Howard’s prowess as a home run
hitter,” the statements about Howard that Sly makes in the film are false).) Moreover,
and importantly, the complaint alleges that, before the documentary was distributed, Al
Jazeera was aware of certain facts that cast doubt on Sly’s credibility, and this
knowledge demonstrates that the film’s producers either knew Sly’s statements were
false, or recklessly disregarded the falsity of the statements. ( See Compl. ¶¶ 506l, 73.)
In this regard, the complaint makes various assertions regarding problems with the
quality of the reporting underlying the film. (See, e.g., id. ¶ 57.) However, the primary
fact that Plaintiffs say was known to Al Jazeera and that should have undermined the
producers’ confidence in Sly’s statements was the fact that Sly later expressly rescinded
the remarks that he had made about athletes in “The Dark Side.” (See id. ¶¶ 1, 54.)
Specifically, the complaint points to a television interview of Davies that was
recorded shortly after “The Dark Side” was publicly released; in the interview, Davies
both “admitted that Al Jazeera heard from Sly ‘48 hours ago’”—i.e., before “The Dark
Side” was made available to the public—and reported “that ‘Charlie Sly now says that
12
anything he said to us wasn’t true.’” (Id. ¶ 60; see also Dec. 27, 2015 Al Jazeera
Interview With Davies (“Davies Interview”), Ex. V. to Compl., ECF No. 9 -22.) The
recantation statement of Sly’s that Davies references in the interview was itself
videotaped (see Sly Recantation Video, Ex. R to Compl., ECF No. 9 -18), and in the
taped remarks, Sly faces the camera directly and says:
The statements on any recordings or communications that Al
Jazeera intends to air are absolutely false and incorrect. To be
clear, I am recanting any such statements and there is no truth to
any statement of mine that Al Jazeera plans to air. Under no
circumstances should any of those statements, communications,
or recordings be aired.
(Compl. ¶ 54.) 8
Thus, Davies’s recorded interview confirms the complaint’s contention that Al
Jazeera was aware of Sly’s recantation prior to releasing the film. (See id. ¶ 1
(“Defendants knew full well that their ‘source’ had recanted his scandalous and untrue
allegations[.]”).) But Al Jazeera did not forego its planned distribution of “The Dark
Side” or investigate further after receiving word of the recantation; instead, it appears
that Davies makes a reference to Sly’s recantation in one narrated sentence at the end of
the film, in which she mentions that one other purported supplier of PEDs had failed to
comment, and that Sly had disavowed his own statements. (See Film Tr. at 36 (Davies
remarks that “Dr. Guyer didn’t respond to our request for a comment” and “Charlie Sly
said his statements about athletes were false and incorrect[,]” while the film displays a
graphic of Sly next to the words “false and incorrect”).)
8
Sly’s “55-second long video recantation” is quoted i n its entirety in the complaint ( see Compl. ¶ 54)
and referenced as an exhibit (see Sly Recantation Video). The complaint alleges that Al Jazeera
provided an advance copy of “The Dark Side” to The Huffington Post, and that that media company
published an online story about “The Dark Side” that contained a link to the video of Sly recanting.
(See Compl. ¶ 53.)
13
When Zimmerman and Howard learned that Al Jazeera was planning to
disseminate a film that accused them of taking illegal supplements—which they say
happened on December 9, 2015—they immediately contacted Al Jazeera’s counsel,
through their own lawyer, to inform Al Jazeera that they “unequivocally and
emphatically de[ny] using or having used Delta 2 or any other performance-enhancing
drug[.]” (Compl. ¶ 50 (internal quotation marks omitted).) Plaintiffs’ counsel again
reiterated Plaintiffs’ denials to Al Jazeera on December 23, 2015 (see id. ¶ 51), and
three days later, Plaintiffs allegedly learned that “Sly had unequivocally advised Davies
and Al Jazeera’s counsel, in writing, that the purported statements were false” (id. ¶ 52
(emphasis omitted)). Plaintiffs’ counsel then wrote to Al Jazeera’s counsel again, this
time on December 26, 2015, emphasizing that, in light of Sly’s recantation, “[t]here can
be no conclusion but that the sources for Al Jazeera’s statements regarding [Plaintiffs’]
use of performance enhancing drugs are patently unreliable[.]” ( Id. ¶ 52 (first alteration
in original) (internal quotation marks omitted).) Nevertheless, Al Jazeera posted the
full documentary to YouTube at 9:01 p.m. on December 26, 2015 (see id. ¶ 53), and it
formally aired the documentary on its television network the next day (see id. ¶ 61).
Meanwhile, Al Jazeera also posted on its website a news article that described
“The Dark Side” and included an embedded link to the film. (See id. ¶¶ 37, 38; see also
“The dark side: The secret world of sports doping” (“Print Article”), Ex. M to Compl.,
ECF No. 9-13, at 2.) The brief article describes the investigation and highlights some
of the pharmacists and doctors that Al Jazeera’s Investigative Unit encountered . It also
states that the investigation “exposed the crucial role of pharmacists and doctors in
creating and prescribing programmes of performance-enhancing drugs[,]” and that the
14
film “raises questions about some well-known athletes in American football and
baseball who the medical professionals claim to work with.” (Print Article at 3.)
With respect to Zimmerman and Howard specifically, the article makes the
following statement:
Sly also named baseball players Ryan Zimmerman, of the Washington
Nationals, and Ryan Howard, of the Philadelphia Phillies, raising
questions about whether they use the hormone supplement Delta 2. Both
have denied the allegations. In a statement to the Philadelphia Inquirer
on Sunday, Zimmerman and Howard’s lawyer William Burck said: ‘The
extraordinarily reckless claims made against our clients in this report
are completely false and rely on a source who has already recanted his
claims.’ The Nationals also issued a statement in support of
Zimmerman. The Phillies subsequently issued a statement supporting
Howard[.]
(Id. at 34.)
D. Procedural History
Plaintiffs filed the instant two-count complaint against Defendants on January
20, 2016, alleging that Defendants had recklessly published false and defamatory
statements concerning Plaintiffs when Defendants aired “The Dark Side” on Al
Jazeera’s television network and posted the aforementioned news article describing the
documentary on Al Jazeera’s website. (See Compl. ¶ 37.) 9 Plaintiffs contend that the
documentary and news article “state outright and also carry the unmistakable message
that [Plaintiffs have] taken or [are] taking illegal p erformance-enhancing substances,”
an allegation that Plaintiffs claim “[is] per se defamatory, as [it] falsely accuse[s]
9
Count One of Plaintiffs’ complaint claims “Libel” (Compl. at 21); however, this Memorandum
Opinion refers to this claim by the generic term “defa mation.” See 1 Rodney A. Smolla, Law of
Defamation § 1:10 (2016) (“Defamation is the generic term for the twin torts of libel and slander.”); see
also Tagliaferri v. Szulik, No. 15 Civ. 2685, 2015 WL 5918204, at *3 (S.D.N.Y. Oct. 9, 2015)
(“Generally, spoken defamatory words are slander; written defamatory words are libel.” (internal
quotation marks and citation omitted)). Count Two makes the closely -related claim that “The Dark
Side” and the news article “place [Plaintiffs] in a false light highly offens ive to a reasonable person[.]”
(Compl. ¶ 80.)
15
[Plaintiffs] of illegal acts, as well as acts injurious to [their] professional and business
reputation[.]” (Id. ¶¶ 48, 69.) Plaintiffs further allege that Defendants knew that the
underlying allegations were “based on uncorroborated accusations by a third party that
had been unequivocally recanted prior to Defendants’ publication.” (Id. ¶ 1 (emphasis
in original).)
Al Jazeera and Davies filed a motion to dismiss Plaintiffs’ complaint on April
11, 2016; Collins filed a separate motion to dismiss on April 8, 2016. (See generally
Defs.’ Mot.; Def. Collins’s Mot.) In their motion to dismiss, which is brought under
Federal Rule of Civil Procedure 12(b)(6), Al Jazeera and Davies argue that “The Dark
Side” as a whole is not reasonably capable of conveying the message that Plaintiffs
have used PEDs, and that the complaint fails to state a plausible claim that Defendants
published the allegedly defamatory statement with actual malice. (See Defs.’ Mem. at
2645.) Defendant Collins incorporates these arguments into his own motion, in which
he further argues that Plaintiffs have failed to allege plausible facts from which one
could infer that he published the documentary or news article, or did so with actual
malice. (See Def. Collins’s Mem. at 6, 1220.)
In their opposition, Plaintiffs maintain that a reasonable viewer could have
understood “The Dark Side” to convey the message that Plaintiffs have used PEDs, and
furthermore, that Defendants’ knowledge of Sly’s recantation prior to publication
supports the inference that Defendants published the statements with actual malice.
(See Pls.’ Opp’n at 18–24.) With respect to Collins, Plaintiffs contend that they have
adequately alleged that Collins participated in the publication of the defamatory
statements based on his extensive role in the eight-month investigation, and in addition,
16
that they have proffered sufficient facts to suggest that Collins acted with the same
degree of recklessness as Al Jazeera and Davies. (See id. at 27–30.)
Both motions are ripe for this Court’s review. (See Defs.’ Mem.; Def. Collins’s
Mem.; Pls.’ Opp’n; Defs. Al Jazeera and Davies’ Reply Mem. in Supp. of Defs.’ Mot.
(“Defs.’ Reply”), ECF No. 31; Def. Collins’s Reply Mem. in Supp. of Def. Collins’s
Mot. (“Def. Collins’s Reply”), ECF No. 32.) The Court held a hearing on the motions
on September 13, 2016.
II. LEGAL STANDARDS
A. Motions To Dismiss Under Rule 12(b)(6)
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint by
raising the question of whether or not the complaint contains “sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Harris v. D.C.
Water & Sewer Auth., 791 F.3d 65, 68 (D.C. Cir. 2015) (internal quotation marks
omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
When evaluating a Rule 12(b)(6) motion, the “court must accept as true all of the
allegations contained in a complaint[,]” Harris, 791 F.3d at 68 (internal quotation
marks omitted) (quoting Iqbal, 556 U.S. at 678), and “grant plaintiff the benefit of all
inferences that can be derived from the facts alleged,” Sparrow v. United Air Lines,
Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal quotation marks and citation
omitted). However, this tenet “is inapplicable to legal conclusions.” Harris, 791 F.3d
at 68 (internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 678). This means
17
that “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (alteration in original) (internal quotation
marks omitted) (quoting Iqbal, 556 U.S. at 678).
B. Defamation And False Light Invasion Of Privacy Claims
The defamation and false light invasion of privacy claims in this case are both
common law tort claims that have been brought under District of Columbia law. 10 To
state a claim for defamation under District of Columbia law, a plaintiff must allege “(1)
that he was the subject of a false and defamatory statement; (2) that the statement was
published to a third party; (3) that publishing the statement was at least negligent; and
(4) that the plaintiff suffered either actual or legal harm.” Farah v. Esquire Magazine,
736 F.3d 528, 53334 (D.C. Cir. 2013) (citations omitted). Relatedly, under District of
10
The parties appear to agree, without much elaboration, that District of Columbia law applies to this
legal action. (See Defs.’ Mem. at 32 (“For purposes of this motion, Defendants agree that the Court
should apply the substantive law of the District of Columbia.”); Pls.’ Opp’n at 17 18 (citing District of
Columbia case law for the substantive law that governs Plaintiffs’ claims).) To determine which
jurisdiction’s laws govern Plaintiffs’ claims, this Court applies the choice-of-law rules of the
jurisdiction in which it sits. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). The
District of Columbia’s choice-of-law rules “require that [courts] apply the tort law of the jurisdiction
that has the most significant relationship to the dispute[,]” taking into account the jurisdiction “where
the injury occurred, where the conduct causing the injury occurred, the domicile, residence, nationality,
place of incorporation and place of business of th e parties[.]” Abbas v. Foreign Policy Grp., LLC
(Abbas II), 783 F.3d 1328, 1338 n.6 (D.C. Cir. 2015). With respect to Plaintiff Zimmerman, who plays
for the Washington Nationals and arguably experienced reputational harm in the District of Columbia,
it is reasonable to assume that District of Columbia law should apply. But the same cannot be said for
Plaintiff Howard, who formerly played for the Philadelphia Phillies and presumably experienced
reputational harm predominantly in Pennsylvania. Although th e parties have not addressed this
discrepancy, this Court has examined Pennsylvania defamation law and discerns no meaningful
difference between the defamation law of that jurisdiction and the defamation law of the District of
Columbia. Compare Tucker v. Fischbein, 237 F.3d 275, 281 (3d Cir. 2001) (“Under Pennsylvania law,
a defamation plaintiff bears the burden to show: (1) The defamatory character of the communication[;]
(2) Its publication by the defendant[;] (3) Its application to the plaintiff[;] (4) The understanding by the
recipient of its defamatory meaning[; and] (5) The understanding by the recipient of it as intended to be
applied to the plaintiff.”), with Farah v. Esquire Magazine, 736 F.3d 528, 53334 (D.C. Cir. 2013)
(naming substantially similar elements). Accordingly, this Court will embrace the parties’ agreement
and apply District of Columbia law to this matter. See, e.g., Abbas II, 783 F.3d at 1338 n.6 (“[The
plaintiff] alleges that the conduct that caused his i njury took place in the District of Columbia. The
defendants agree that D.C. law should govern. The parties relied on D.C. defamation law in briefing
this appeal. We conclude that D.C. defamation law governs this dispute.”).
18
Columbia law, “[a] false light claim . . . requires a showing of: (1) publicity; (2) about a
false statement, representation or imputation; (3) understood to be of and concerning
the plaintiff; and (4) which places the plaintiff in a false light that would be offensive to
a reasonable person.” Doe v. Bernabei & Wachtel, PLLC, 116 A.3d 1262, 1267 (D.C.
2015) (alteration in original) (internal quotation marks and citation omitted). These two
torts share similar elements, and are often “analyzed in the same manner[,]” at least
“where the plaintiff rests both his defamation and false light claims on the same
allegations[.]” Blodgett v. Univ. Club, 930 A.2d 210, 223; see also id. at 222.
Nevertheless, they are two different claims, as the D.C. Circuit has recognized. See
Weyrich v. New Republic, Inc., 235 F.3d 617, 628 (D.C. Cir. 2001).
1. Defamation
“When confronted with a motion to dismiss [a defamation claim], a court must
evaluate ‘[w]hether a statement is capable of defamatory meaning,’ ” which is a
threshold “question of law[,]” Jankovic v. Int’l Crisis Grp. (Jankovic I), 494 F.3d 1080,
1091 (D.C. Cir. 2007) (second alteration in original) (quoting Weyrich v. New Republic,
Inc., 235 F.3d 617, 627 (D.C. Cir. 2001)), and must also determine whether the
statement is false, see White v. Fraternal Order of Police, 909 F.2d 512, 520 (D.C. Cir.
1990) (“Defamatory meaning and falsity are distinct elements of the tort of defamation
and are considered separately.”). To evaluate whether a statement is capable of
defamatory meaning, courts employ a two-part framework that asks: “‘(a) whether a
communication is capable of bearing a particular meaning, and (b) whether that
meaning is defamatory.’ The jury then determines whether the communication was in
fact so understood by its recipient.” Moldea v. N.Y. Times Co. (Moldea I), 15 F.3d
1137, 1142 (D.C. Cir. 1994) (quoting Restatement (Second) of Torts § 614 (1977)),
19
modified on reh’g on other grounds, 22 F.3d 310 (D.C. Cir. 1994) (Moldea II).
“[T]he defamatory meaning inquiry focuses only on whether a reasonable reader
could understand a statement as tending to injure a plaintiff’s reputation.” Moldea I, 15
F.3d at 1142 (emphasis added). “Assuming a statement is reasonably capable of a
defamatory meaning, the trier of fact must determine if it was actually understood by
the recipient in that sense.” Id. (internal quotation marks and citation omitted).
Ultimately, then, “[i]t is only when the court can say that the publication is not
reasonably capable of any defamatory meaning and cannot be reasonably understood in
any defamatory sense that it can rule as a matter of law, that it was not libelous.”
White, 909 F.2d at 518 (quoting Levy v. Am. Mut. Ins. Co., 196 A.2d 475, 476 (D.C.
1964)); see also Jankovic I, 494 F.3d at 1091.
The next element of a defamation claim—publication—requires a defendant to
have “published or knowingly participated in publishing the defamation.” Tavoulareas
v. Piro (Tavoulareas I), 759 F.2d 90, 136 (D.C. Cir. 1985) (emphasis in original),
vacated in part on other grounds on reh’g, 763 F.2d 1472 (D.C. Cir. 1985)
(Tavoulareas II), and on reh’g, 817 F.2d 762 (D.C. Cir. 1987) (Tavoulareas III) (en
banc). “Publication” is the communication of defamatory matter “intentionally or by a
negligent act to one other than the person defamed.” Restatement (Second) of Torts §
577(1) (1977); see also id. cmt. a (“Any act by which the defamatory matter is
intentionally or negligently communicated to a third person is a publication.”). A valid
claim for defamation also requires a showing of legal harm (i.e., defamation per se) or
special harm as a result of the publication. As relevant here, a statement constitutes
defamation per se when it “imput[es] to a person a . . . matter affecting adversely a
20
person’s fitness for trade, business, or profession[.]” Carey v. Piphus, 435 U.S. 247,
262 n.18 (1978).
Another significant element of a defamation claim is the defendant’s state of
mind, that is, if the defendant publishes a statement that is capable of a defamatory
meaning and that causes the plaintiff legal or special harm, the court must next
determine whether the defendant made the defamatory statement with the requisite
intent. The state of mind element is one the “[v]arious doctrinal protections [that]
preserve ‘the breathing space which freedoms of expression require in order to
survive[,]’” Farah, 736 F.3d at 534 (quoting Milkovich v. Lorain Journal Co., 497 U.S.
1, 19 (1990)), and the Supreme Court has managed to “reshape the common-law
landscape to conform to the First Amendment[,]” Phila. Newspapers, Inc. v. Hepps, 475
U.S. 767, 775 (1986), by enunciating two circumstances in which a heightened level of
intent will be required. “The first is whether the plaintiff is a public official or figure,”
and “[t]he second is whether the speech at issue is of public concern.” Id.
Courts have long held that, if the subject of the defamatory statement is a public
official or figure, the complaint must allege fault in the making of the defamatory
statement that rises to the level of “actual malice,” rather than mere negligence, see
Sullivan, 376 U.S. at 27980; see also Gertz, 418 U.S. at 345, which means that the
defendant must have “knowledge that [the statement] was false or [must act] with
reckless disregard of whether it was false or not[,]” Sullivan, 376 U.S. at 280. 11 The
actual malice standard is subjective; it is satisfied only when there is “sufficient
11
Plaintiffs—two MLB players—do not contest that they are public figures and that the appropriate
standard of fault in this matter is therefore actual malice ( see Sept. 16, 2016 Hr’g Tr. (“Hr’g Tr.”), ECF
No. 36, at 13:15), and this Court agrees, see Tavoulareas III, 817 F.2d at 772 (characterizing well-
known athletes as the “archetypes of the general purpose public figure”).
21
evidence” to suggest 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). In
addition, when the speech at issue is of public concern and the defendant is a media
member, there is no common law presumption that the defamatory speech is false, and
the plaintiff instead bears the burden of demonstrating both falsity and fault before
recovering damages. Hepps, 475 U.S. at 77677.
2. False Light Invasion Of Privacy
Notably, “[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
(internal quotation marks and citation omitted). This means that “[a] false light claim
involving a public figure, like a defamation claim, requires proof of actual malice.”
Parsi v. Daioleslam, 890 F. Supp. 2d 77, 92 (D.D.C. 2012). The publicity element of a
defamation claim also exists in the false light context; that is, “a false light claim . . .
[requires] knowledge of or . . . reckless disregard as to the falsity of the publicized
matter and the false light in which the other would be placed.” Weyrich, 235 F.3d at
628 (internal quotation marks and citations omitted); see also Moldea I, 15 F.3d at 1151
(“Publicity that is actionable in a false light claim generally will be actionable in
defamation as well.”).
Thus, because the elements of a false light claim are similar to those of a
defamation claim, courts often analyze the two claims in the same manner, particularly
where a plaintiff rests both claims on the same underlying allegations. However, what
is being remedied is at least conceptually distinct: “ a defamation tort redresses damage
to reputation while a false light privacy tort redresses mental distress from having been
22
exposed to public view.” White, 909 F.2d at 518 (emphasis added). Moreover, the
character of the statements that are actionable with respect to the two torts is also
different. To state a false light claim, a plaintiff must demonstrate that the false
statement, representation, or imputation at issue “places the plaintiff in a false light that
would be offensive to a reasonable person.” Doe, 116 A.3d at 1267 (internal quotation
marks and citation omitted). This requirement is satisfied if a plaintiff “is given
unreasonable and highly objectionable publicity that attributes to him characteristics,
conduct or beliefs that are false, and so is placed before the public in a false position.”
Restatement (Second) of Torts § 652E cmt. b (2016); see also Moldea I, 15 F.3d at
115051.
III. ANALYSIS
Zimmerman and Howard claim that the statements about their use of PEDs in
“The Dark Side” and in Al Jazeera’s promotional article constitute actionable
defamation and false light invasion of privacy, and that all three defendants should be
held accountable for committing these common law torts. In their separate motions to
dismiss, Al Jazeera, Davies, and Collins respond that the statements at issue do not
qualify as defamatory and were not published with the requisite intent, and Collins
further maintains that he has not published any statements at all. For the reasons
explained below, this Court concludes that the complaint that Zimmerman and Howard
have filed states defamation and false light claims as to Al Jazeera and Davies, but only
with respect to the statements contained in the documentary itself, and that the
complaint does not contain sufficient allegations of fact to support any defamation or
false light claim against Collins. Accordingly, the motion to dismiss that Al Jazeera
23
and Davies have filed will be granted in part and denied in part, and Collins’s motion to
dismiss will be granted in full.
A. The Complaint States A Defamation And A False Light Claim Against
Al Jazeera And Davies With Respect To “The Dark Side,” But Not
The News Article
As explained above, to survive Defendants’ motions to dismiss, the complaint
that Zimmerman and Howard have filed must allege facts that are sufficient to support
the elements of that pleading’s defamation and false light claims. This Court has
determined that a methodical march through an analysis of the facts relating to each of
the elements of both claims is not required here, because there is substantial overlap
between the elements of a defamation claim and a false light claim, as explained above
(see also Sept. 16, 2016 Hr’g Tr. (“Hr’g Tr.”), ECF No. 36, at 44:78) (concession by
Plaintiffs’ counsel that the defamation and false light claims rise and fall together) , and
also because Al Jazeera and Davies (in contrast to Collins) do not challenge the
adequacy of the instant complaint with respect to the elements of publication or
defamation per se. 12 Thus, the key questions to be resolved with respect to the motion
that Al Jazeera and Davies have filed are: (1) whether the complaint adequately alleges
that Al Jazeera and Davies have made a false and defamatory statement, and (2)
whether the complaint contains sufficient facts to suggest that Al Jazeera and Davies
published any such false and defamatory statement with actual malice. This Court
answers “yes” to the first question, but only insofar as the statements in the film are
12
This concession on the part of Al Jazeera and Davies appears to be a wise one. See Restatement
(Second) of Torts § 577 cmt. a (“Any act by which the defamatory matter is intentionally or negligently
communicated to a third party is a publication.”); see also Carey, 435 U.S. at 262 n.18 (explaining that
defamation per se consists of statements “imputing to a person a . . . matter affe cting adversely a
person’s fitness for trade, business, or profession”).
24
concerned, and although actual malice is a close question, the Court sees sufficient
allegations in the complaint and the accompanying exhibits to support a jury finding
that Al Jazeera and Davies published the statements in the film with the required intent.
1. Plaintiffs Have Adequately Alleged That Al Jazeera And Davies
Made A False And Defamatory Statement In “The Dark Side”
In order for a challenged statement to be actionable as defamation, “it must at a
minimum express or imply a verifiably false fact about [an individual].” Weyrich, 235
F.3d at 624; see also Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1292
(D.C. Cir. 1988). In addition, the falsehood must be “capable of bearing” a particular
meaning as a “reasonable reader” would understand the communication. Moldea I, 15
F.3d at 1142. A false statement that “‘tends to injure plaintiff in his trade, profession
or community standing, or lower him in the estimation of the community,’” id. (quoting
Afro-Am. Publ’g Co. v. Jaffe, 366 F.2d 649, 654 n.10 (D.C. Cir. 1966) (en banc)), when
“both the words themselves and the entire context in which the statement occurs” are
taken into account, Tavoulareas III, 817 F.2d at 779, qualifies as defamation. “Context
is critical because ‘it is in part the settings of the speech in question that makes their
. . . nature apparent, and which helps determine the way in which the intended
audience will receive them.’” Farah, 736 F.3d at 535 (emphasis and alteration in
original) (quoting Moldea II, 22 F.3d at 314); see also id. (“‘Context’ includes not only
the immediate context of the disputed statements, but also the type of publication[.]”).
The complaint that Zimmerman and Howard have filed alleges that the
statements made in “The Dark Side” regarding their use of PEDs are false, and that
when viewed in context, the statements are also defamatory. (See, e.g., Compl. ¶¶ 68–
69 (asserting that the statements at issue “state outright and also carry the unmistakable
25
message that Mr. Zimmerman has taken or is taking illegal performance -enhancing
substances, including Delta 2, in contravention of the MLB ban on such substances”).)
Notably, it is clear beyond cavil that if the documentary’s producers had directly
accused Zimmerman and Howard of using PEDs, that accusation would constitute a
defamatory statement. See Pacquiao v. Mayweather, 803 F. Supp. 2d 1208, 1213 (D.
Nev. 2011) (“[D]efendants’ alleged statements are actionable defamatory statements
because they falsely assert an objective fact; namely that Pacquiano was using and had
used PEDs.”). (See also Pls.’ Opp’n at 18 (observing that Defendants “do not contend
that an accusation that Zimmerman used performance-enhancing drugs is not
defamatory”).) The argument that Al Jazeera and Davies make is more nuanced; they
maintain that because it is Sly who has made the accusations as reported in the film, a
reasonable viewer would not interpret “The Dark Side” to convey a defamatory
message. (See Defs.’ Mem. at 2630; see also id. at 29 (“The Documentary makes clear
that the statements that Sly and his partners made about working with professional
athletes are only ‘claims[.]’”); Defs.’ Reply at 6 ( asserting that, in the film, “Al Jazeera
does not endorse any of Sly’s statements but repeatedly states that they are only what
he has ‘claimed’ or ‘said.’”).)
In this Court’s view, the argument that the challenged statements are not capable
of conveying a defamatory meaning because the film establishes that Sly is the
messenger, and that Al Jazeera and Davies are merely reporting that message, is
unpersuasive, because a reasonable viewer could certainly have understood the
documentary as a whole to be an endorsement of Sly’s claims. When the Court looks
beyond “the immediate context of the disputed statements,” Farah, 736 F.3d at 535, it
26
is readily apparent that the film includes many scenes that are capable of
communicating not only that Sly made the disputed allegations, but also that Sly’s
statements are credible and should be believed. This implicit endorsement occurs at
various points during Davies’s narration, such as when she contends approximately 29
minutes into the film that the producers undertook “to test [Sly’s] doping expertise and
his level of connections[,]” and then immediately states that “[h]e proved his link to one
sportsman very quickly.” (Film Tr. at 23.) Similarly, at the 43-minute mark, Davies
endorses Sly as “knowledgeable” about certain drugs (id. at 33), and she repeatedly
suggests that the production team independently researched Sly’s background and
various claims he made about certain drugs, and that the details checked out ( see id. at
3334 (“We checked [Sly’s claim regarding growth hormones] with one of America’s
leading experts. . . . He confirmed [Sly’s claim].”); id. at 33 (“We’ve confirmed Charlie
Sly worked in their pharmacy in 2011.”).) Thus, the film does more than merely report
that Sly made certain allegations; rather, it provides contextual clues that could lead a
reasonable viewer to believe that Sly is credentialed and trustworthy, and that his
statements—including those regarding Plaintiffs’ use of illegal PEDs—are true.
For these reasons, Defendants’ reliance on Abbas v. Foreign Policy Group, LLC
(Abbas I), 975 F. Supp. 2d 1 (D.D.C. 2013), is misplaced. The court in that case was
reviewing several allegedly defamatory statements that were published in a magazine
article, including a statement that “several Palestinians” had made to the author, and
also the contention that the plaintiff had “socked away $100 million in ill -gotten gains.”
Id. at 18. The Abbas court concluded that the first statement was “not an assertion of
false fact, or indeed of any fact” because the author “is reporting on what people in the
27
region have said to him, and does not otherwise take any position on what he has
heard.” Id. at 21 (emphasis in original). Similarly, the court reasoned that the second
statement also could not be considered defamatory, because it “is not reported as fact,
and is instead put in context, making it clear to the reader that [the] statement is merely
the latest in an ongoing exchange of charge and countercharge.” Id. at 19 (internal
quotation marks omitted).
“The Dark Side” does much more than that. Rather than simply reporting third-
party allegations without “otherwise tak[ing] any position on” the statements , id. at 21,
the film weaves Sly’s statements into a broader narrative about doping in sports that the
producers themselves have purportedly confirmed through their own investigation . (See
Film Tr. at 6 (“[W]e had a proposal [for Collins], help us to investigate doping in
sport.” (statement of Davies)).) And the narrative that is presented also contains
statements that seem aimed at burnishing Sly’s “chemical mastermind” credentials and
bolstering his credibility (id. at 2; see also, e.g., id. at 23), which makes it even more
likely that a reasonable viewer would be left with the impression that the filmmakers
believe that what he says in the film is accurate.
It is also significant that, unlike in Abbas I, the statements at issue in the instant
case were published as part of an editorialized documentary that features a discernable
theme and a story line—circumstances that, together, more readily imply that the
reported statements represent the tested positions of the investigators . Cf. White, 909
F.2d at 526 (“Television touches more senses than does the print media, and the
standards for finding defamation cannot be woodenly applied without taking into
account the kind of medium by which the message was delivered.”). And in further
28
contrast to Abbas I, “The Dark Side” does not place Sly’s allegations in the context of
any comparable “exchange of charge and countercharge[,]” 975 F. Supp. 2d at 19;
instead, the bulk of the documentary is aimed at airing the allegations made by Sly and
other purported suppliers of PEDs regarding specific athletes who allegedly use these
substances. (See Film Tr. at 2 (explaining that, by “[w]orking with a British athlete[,]”
Al Jazeera’s producers were able to “catch the chemical mastermind and hear about
players he claims he’s doped to fame”).)
Thus, when the allegations in the complaint and the statements in the
documentary itself are viewed in the light most favorable to Plaintiffs, see Kowal v.
MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994), a reasonable viewer could
perceive “The Dark Side” itself to convey the message that Zimmerman and Howard
used PEDs, which constitutes a defamatory statement and unquestionably places
Plaintiffs in a “light that would be offensive to a reasonable person.” Doe, 116 A.3d at
1267. Furthermore, the complaint unequivocally alleges that “[a]ll of these statements
concerning [Plaintiffs] are categorically untrue[,]” because Plaintiffs have “never taken
Delta 2, human growth hormone, or any other steroid or other performance-enhancing
substance banned by the MLB.” (Compl. ¶ 47.) Therefore, the complaint’s allegations
as to the message conveyed by the “The Dark Side,” if in fact so understood by a jury,
are sufficient to give rise to actionable defamation and false light claims. 13
13
At this stage of the litigation, the Court is called upon only to test the sufficiency of the complaint’s
allegations, and thus, it expresses no opinion regarding whether a jury wo uld ultimately conclude that
“The Dark Side” actually does convey the message that Zimmerman and Howard in fact used PEDs. It
suffices to say here that the documentary is at least reasonably capable of communicating such a
message, and that this message would be defamatory. See Klayman v. Segal, 783 A.2d 607, 613 (D.C.
2001) (“If it appears that the statements are at least capable of a defamatory meaning, whether they
were defamatory and false are questions of fact to be resolved by the jury.” (internal quotation marks
and citation omitted)). Moreover, this Court does not perceive Defendants to be making any argument
that the complaint is insufficient with respect to its allegations of falsity. See White, 909 F.2d at 520
29
2. The Statements Contained In The News Article Cannot Reasonably
Be Understood To Convey A False And Defamatory Message
Whereas the statements in the film regarding Zimmerman’s and Howard’s
alleged use of PEDs are capable of conveying a defamatory meaning, this Court
concludes that similar statements made in the context of Al Jazeera’s film -related
promotional news article do not carry with them the same defamatory message. The
short article, which an unidentified member of the “Al Jazeera Staff” authored,
describes the overall premise of Al Jazeera’s investigation—i.e., to “expose[] the
crucial role of pharmacists and doctors in creating and prescribing programmes o f
performance-enhancing drugs”—and also recounts some of the statements that various
pharmacists and doctors made to Collins in the film. (Print Article at 3.) According to
the article, the suppliers’ statements “raise[] questions about some well-known athletes
in American football and baseball who the medical professionals claim to work with.”
(Id.) Charlie Sly is described as a “pharmacist” who names certain athletes he
purportedly supplied with PEDs. (Id.) But the very first mention of any athlete by
name appears in a sentence that reports that athlete’s denial of the doping allegations.
(See id.) Indeed, the article states both that “[t]he athletes and medical professionals
who responded to requests for comment denied any wrongdoing” and also that Sly
himself “has disavowed his statements” that were “caught on hidden camera” before the
article names either of the plaintiffs. (Id.) And this sequence is significant because, as
explained above, it helps to provide context for the subsequent mention of Zimmerman
(“Defamatory meaning and falsity are distinct elements of the tort of defamation and are considered
separately.”). In light of this apparent concession, the Court assumes that Plaintiffs have sufficiently
alleged the falsity of the accusations on the face of the complaint ( see Compl. ¶ 47); it remains to be
seen whether Plaintiffs can put forward sufficient evidence to demonstrate the falsity of the statements.
See Liberty Lobby, 838 F.2d at 1293 (“[It is the] plaintiff’s burden of proving falsity[.]”).
30
and Howard that the complaint characterizes as a defamatory statement.
Near the end of the article, long after Sly is introduced and his recantation is
noted, the article states: “Sly also named baseball players Ryan Zimmerman, of the
Washington Nationals, and Ryan Howard, of the Philadelphia Philli es, raising questions
about whether they use the hormone supplement Delta 2. Both have denied the
allegations.” (Id.) The article then proceeds to quote an emphatic statement of denial
from Plaintiffs’ counsel. (See id. at 34 (counsel William Burke stating that “[t]he
extraordinarily reckless claims made against our clients in this report are completely
false and rely on a source who has already recanted his claims” ).) Thus, this Court is
persuaded that, when read in context, the statements in the news article regarding PED
use by Zimmerman and Howard are not reasonably capable of conveying a false and
defamatory message, unlike the similar statements made in the film itself.
As an initial matter, the contention that Sly “named” Plaintiffs as users of PEDs
is not false; Sly unquestionably states that Zimmerman and Howard use PEDs in the
videotaped conversations that he has with Collins. (See Film Tr. at 2728.) And as
was true in Abbas I, the article’s statement about what Sly said reads as the mere
reporting of an occurrence rather than the endorsement of a stated fact . See Abbas I,
975 F. Supp. 2d at 19 (the contention that an accusation was made “is not an assertion
of false fact, or indeed, of any fact” if the media is merely reporting on what was said
without otherwise taking any position on those claims).
Nor can the alleged defamation claim rest on the article’s contention that Sly’s
allegations “rais[e] questions about whether [Plaintiffs] use” PEDs. (Print Article at 3.)
The phrase “raising questions”—as it appears in the context of the news article, see
31
Tavoulareas III, 817 F.2d at 779—does not naturally imply that Plaintiffs actually used
PEDs, especially when the “raising questions” statement is sandwiched between Al
Jazeera’s acknowledgment that Sly has “disavowed” his original allegations, on the one
hand, and Plaintiffs’ emphatic denials, on the other. (Print Article at 3.) To be sure,
the comment that an accusation “rais[es] questions” might suffice in some contexts,
such as those in which it is clear from the surrounding narrative that the doubts being
expressed contribute to derogatory insinuations being made about the subject. But such
is not the case with respect to Al Jazeera’s article, because, in stark contrast to the film,
the print article does not purport to carry a message of truth or falsity regarding the
information that is being conveyed, and contains no background narration, graphic
images, or sounds that are capable of bolstering or otherwise endorsing Sly’s claims of
wrongdoing in the mind of a reasonable reader. See White, 909 F.2d at 526.
All things considered, then, and taking into account the entire context of the
article in which the statement appears, this Court concludes that the passage at issue in
Al Jazeera’s written article cannot reasonably be read to imply the assertion of the false
and defamatory fact of which Plaintiffs complain. See Klayman v. Segal, 783 A.2d 607,
614 (D.C. 2001) (“[A] statement in an article may not be isolated and then pronounced
defamatory, or deemed capable of a defamatory meaning. Rather, any single statement
or statements must be examined within the context of the entire article.”). And for
these same reasons, the facts about the article alleged in the complaint fail to
demonstrate that the article places Zimmerman and Howard in a false light that would
be highly offensive to a reasonable person. (See also Hr’g Tr. at 44:68 (Plaintiffs’
counsel acknowledging that Plaintiffs’ defamation and false light claims rise and fall
32
together).) Consequently, Plaintiffs have not adequately alleged a defamation or false
light claim against Al Jazeera and Davies with respect to the statements contained in the
news article.
3. Plaintiffs Have Alleged Sufficient Facts To Support An Inference
That Al Jazeera And Davies Published The Defamatory Statements
In “The Dark Side” With Actual Malice
Because Zimmerman and Howard are public figures, their defamation and false
light action can only survive Defendants’ motions to dismiss if it adequately alleges
facts that support an inference that Defendants published the defamatory statements in
“The Dark Side” with actual malice. (See supra Part II.B.) Not surprisingly, Plaintiffs
maintain that the complaint’s allegations adequately address the actual malice inquiry;
in this regard, Plaintiffs point to a variety of stated circumstances that were allegedly
known to these Defendants and, in Plaintiffs’ view, demonstrate that Defendants acted
with actual malice with respect to the allegedly defamatory statements at issue. (See
Pls.’ Opp’n at 2127.) Defendants strenuously respond that none of Plaintiffs’
allegations permit a plausible inference that they published the defamatory statem ents
with knowledge of falsity or with reckless disregard as to probable falsity, which is
what “actual malice” means in this context. (See Defs.’ Mem. at 3544.) See also
Montgomery, 197 F. Supp. 3d at 259.
This Court fully acknowledges that the actual malice hurdle is a high bar that
public-figure plaintiffs rarely surmount in cases such as this one, as Defendants
fervently maintain. (See, e.g., Hr’g Tr. at 5557.) However, for the reasons explained
below, the Court concludes that it cannot dismiss the instant complaint on actual malice
grounds, because, when considered in the aggregate, the complaint’s allegations can
33
support a reasonable inference that Al Jazeera and Davies in fact entertained serious
doubts as to the truth of Sly’s allegation.
a. The Actual Malice Standard Can Be Satisfied With Proof Of
Reckless Disregard For The Statement’s Truth, Which Can Take
The Form Of Obvious Reasons To Doubt A Source’s Veracity
A public figure plaintiff may prevail on a defamation claim only if he offers
proof that the statement was made with actual malice—that is, with “knowledge that
[the statement] was false or with reckless disregard of whether it was false or not.”
Sullivan, 376 U.S. at 280; see also Gertz, 418 U.S. at 334. A defendant acts with
reckless disregard if “the defendant in fact entertained serious doubts as to the truth of
his publication[,]” or acted “with a high degree of awareness of probable falsity.” St.
Amant, 390 U.S. at 731 (internal quotation marks omitted).
“It is well established that the ‘serious doubt’ standard requires a showing of
subjective doubts by the defendant.” Tavoulareas III, 817 F.2d at 789; see also St.
Amant, 390 U.S. at 731 (explaining that “reckless conduct is not measured by whether a
reasonably prudent man would have published, or would have investigated before
publishing” the statement); Jankovic v. Int’l Crisis Grp. (Jankovic II), 822 F.3d 576,
589 (D.C. Cir. 2016) (“[I]t is not enough to show that defendant should have known
better; instead, the plaintiff must offer evidence that the defendant in fact harbored
subjective doubt.”). And it is clear beyond cavil that “[t]he plaintiff can prove the
defendant’s subjective state of mind through the cumulation of circumstantial evidence,
as well as through direct evidence.” Jankovic II, 822 F.3d at 589 (internal quotation
marks and citation omitted).
Notably, although “the ‘serious doubt’ inquiry enunciated by the Supreme Court
is too fact-bound to be resolved on the basis of any single factor or mechanical test[,]”
34
Tavoulareas III, 817 F.2d at 788, several principles gleaned from binding case law help
to guide the analysis. First, it is clear that the defendant’s “failure to investigate will
not alone support” the required degree of recklessness, Harte-Hanks Commc’ns, Inc. v.
Connaughton, 491 U.S. 657, 692 (1989) (emphasis added), nor will “an extreme
departure from the standards of investigation and reporting ordinarily adhered to by
responsible publishers[,]” id. at 666 (internal quotation marks and citation omitted). Of
course, these clear boundaries only illuminate the types of conduct that do not suffice to
show recklessness; the closest the Supreme Court has gotten to defining the affirmative
contours of the recklessness inquiry is the non-exhaustive list in St. Amant of three
examples of the types of circumstantial evidence that may support an inference of
subjective recklessness. See 390 U.S. at 732. Those are: (1) evidence that indicates
the defendant “fabricated” the story, or (2) evidence that suggests the allegedly
defamatory statements are “so inherently improbable that only a reckless man would
have put them in circulation[,]” or (3) evidence that demonstrates that “there are
obvious reasons to doubt the veracity of the informant or the accuracy of his reports.”
Id.; see also Tavoulareas III, 817 F.2d at 790 (“The examples provided [in St. Amant]
. . . constitute useful benchmarks for lower courts to employ in determining whether a
record is sufficient to sustain a finding of constitutional malice.”).
This all means that the reckless disregard standard for establishing actual malice
can be satisfied where the defendant “in fact entertained serious doubts as to the truth
of his publication[,]” and, significantly for present purposes, a plaintiff can demonstrate
this by proffering evidence that indicates that the defendant had “obvious reasons to
doubt the veracity of the informant or the accuracy of his reports .” St. Amant, 390 U.S.
35
at 731, 732. And, fortunately, case law from the Supreme Court and the D.C. Circuit
provides further guidance—albeit in a different context—as to the types of evidence
that might supply a defendant with an obvious reason to doubt his source. See also id.
at 730 (remarking that the “outer limits” of this inquiry “will be marked out through
case-by-case adjudication,” rather than “one infallible definition ”). 14
For example, the D.C. Circuit has suggested that facts that cast doubt on the
source’s reliability may be probative of actual malice, assuming such facts are known to
the defendant at the time of publication. Cf. Tavoulareas III, 817 F.2d at 791
(concluding that a reporter’s reliance on a particular source did not constitute actual
malice, where the reporter knew that the source had also given the same statement to
congressional investigators and had repeatedly demonstrated his “consistency as a
source” (internal quotation marks and citation omitted)); see also St. Amant, 390 U.S. at
733 (finding that the record was insufficient to support actual malice, due in part to the
plaintiff’s failure to offer “evidence to demonstrate a low community assessment of [the
source’s] trustworthiness or unsatisfactory experience with him by [ the defendant]”).
In this same vein, the case law suggests that the fact that a defendant undertakes to
verify all or part of a source’s contentions cuts against a finding of actual malice. See
Tavoulareas III, 817 F.2d at 790 (finding significant that “much of [the source’s]
information was independently verified by other sources whose credibility even the
plaintiff does not now challenge” (internal quotation marks and citation omitted)); see
also St. Amant, 390 U.S. at 733 (reasoning that verification of part of a source’s
14
The following opinions regarding the sufficiency of the evidence do not arise at the motion -to-
dismiss stage; however, in this Court’s view, these cases provide useful guidance as to the types of
evidence that can support an actual malice finding, and thus are instructive regarding the types of facts
that a complaint must allege to state a defamation claim where the plaintiff must show actual malice.
36
information was probative of the defendant’s lack of actual malice in relying on the
source for other, uncorroborated information).
Most recently, the D.C. Circuit in Jankovic v. International Crisis Group
(Jankovic II), 822 F.3d 576 (D.C. Cir. 2016), held that the plaintiff—a Serbian
businessman—had failed to demonstrate that the defendant (a non-profit organization)
acted with actual malice when it published a report that linked the plaintiff to the
Slobodan Milosevic regime. Id. at 582. Although the author of the report at issue
relied upon multiple sources to support the allegedly defamatory statement, see id. at
59192, the plaintiff proffered evidence at summary judgment to suggest that only some
of those sources were unreliable, and “nowhere suggest[ed] there was any reason for
[the author] to doubt [the other sources], each of which support [ed] the defamatory
statement[,]” id. at 593. The panel thus rejected the plaintiff’s argument that the author
had an obvious reason to doubt his sources. Id. at 597; see also id. (“[D]espite
weaknesses in some sources on which [the defendant] relied . . . , [the plaintiff] has
failed to establish that the defendant actually possessed subjective doubt about t he
statement published[.]” (internal quotation marks and citation omitted) ). The Jankovic
II court also suggested that “evidence showing that [the defendant’s] report underwent
multiple internal reviews by knowledgeable staff” undermined any conclusion that the
defendant actually harbored subjective doubts about the report’s sources. Id. at 597.
Finally, it appears from this Court’s review of the case law that, while evidence
establishing obvious reasons to doubt the veracity of a defendant’s source can support a
finding of reckless disregard on its own, see St. Amant, 390 U.S. at 732, such evidence
also gives rise to an additional inquiry that may be quite significant with respect to the
37
overall actual malice inquiry. As it turns out, if there is evidence that a defendant had
an obvious reason to doubt the veracity of a source, then the defendant’s failure to
investigate the source’s allegation prior to publication can be probative of actual
malice. See, e.g., McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1507 (D.C.
Cir. 1996) (holding that “a publisher has no duty to investigate unless he has ‘obvious
reasons’ to doubt the veracity of his source” (emphasis added)). In other words,
notwithstanding the general rule that a defendant “has no duty to corroborate [or
investigate] the defamatory allegation[,]” once “a plaintiff offers evidence that a
defendant has reason to doubt the veracity of its source[,]” then the defendant’s “utter
failure to examine evidence within easy reach or to make ob vious contacts in an effort
to confirm a story demonstrate[s] reckless disregard.” Jankovic II, 822 F.3d at 590
(internal quotation marks and citations omitted); see also id. at 59495 (“[The author]
had not discovered anything that caused him to doubt his conclusion about [the
plaintiff], and therefore was under no obligation to investigate further.”).
b. The Instant Complaint Alleges Facts Known To Al Jazeera And
Davies That, In The Aggregate, Are Sufficient To Support A
Finding That Al Jazeera And Davies Entertained Serious
Doubts As To Sly’s Claims
Although actual malice is, admittedly, a close question on the facts presented in
this case, this Court concludes that Plaintiffs’ complaint contains sufficient facts to
support an inference that Al Jazeera and Davies had obvious reasons to doubt Sly’s
claims, and that they proceeded to publish “The Dark Side” with reckless disregard as
to the truth of those claims.
There are a number of alleged facts that point in this direction. The complaint
says, for example, that Al Jazeera and Davies knew that Sly had “questionable”
38
motivations, since he made his allegations “in the context of his sales pitch attempting
to sell his services, his drugs, and his business to Collins.” (Compl. ¶ 56.) In addition,
Plaintiffs allege that Al Jazeera and Davies knew Sly’s allegations lacked any
specificity, because Sly did “not identify when [Plaintiffs are] alleged to have started
taking [PEDs] or for how long, or how [they] received and paid for the drugs.” (Id. ¶
57.) These allegations regarding Sly’s reliability are particularly striking given the fact
that Al Jazeera and Davies neither relied upon on multiple sources to support the
statements at issue, see Jankovic II, 822 F.3d at 59192, nor “independently verified”
Sly’s allegations regarding Howard and Zimmerman with “other sources whose
credibility” is not in question, Tavoulareas III, 817 F.2d at 790; instead, Sly was the
“sole source of the allegations[.]” (Compl. ¶ 52 (emphasis added).) 15
But the primary support for Plaintiffs’ assertion that Al Jazeera and Davies
subjectively doubted Sly’s trustworthiness was the fact that they were indisputably
aware of Sly’s pre-publication recantation. (See id. ¶ 1.) Plaintiffs allege that, prior to
publication, Sly “unequivocally advised Davies and Al Jazeera’s counsel, in writing,
that the purported statements were false.” (Id. ¶ 52.) In addition, Davies herself
confirmed during a subsequent interview that Al Jazeera had “heard from Sly”
regarding his recantation 48 hours before publication (see id. ¶ 60), and during that
same interview, Davies “admit[ted] that Sly is untrustworthy,” stating “[y]ou have to
say, well, is he lying now, [or] was he lying during day upon day upon day of
15
Nothing in the complaint or the film (which is incorporated into the complaint by reference) indicates
that Al Jazeera or Davies undertook an independent investigation to verify Sly’s allegations about
Zimmerman and Howard, despite Davies’s expressions of intent regarding a broader effort to “test”
Sly’s credibility. (See Film Tr. at 23 (“We wanted to test his doping expertise and his level of
connections.” (statement of Davies)).)
39
undercover filming, because obviously the two don’t square” (id. ¶ 60 (second
alteration in original) (internal quotation marks and citation omitted)).
The substance of Sly’s unequivocal recantation further supports an inference that
Al Jazeera and Davies had reason to doubt their sole source. (See id. ¶ 54 (Sly states:
“[t]o be clear, I am recanting any such statements and there is no truth to any statement
of mine that Al Jazeera plans to air.”).) Construing these facts in the light most
favorable to Plaintiffs, see Kowal, 16 F.3d at 1276, this Court can hardly conceive of a
more “obvious reason[] to doubt the veracity of the informant or the accuracy of his
reports[,]” St. Amant, 390 U.S. at 732, than a taped statement by the sole source of the
statements in question unequivocally recanting those statements prior to the defendant’s
publication of them. And when Plaintiffs are also afforded “the benefit of the aggregate
of the evidence[,]” this Court finds that Sly’s unequivocal recantation—taken together
with other facts known to Al Jazeera and Davies—gives rise to at least a plausible
inference that Al Jazeera and Davies in fact entertained serious doubts as to Sly’s
credibility. Jankovic II, 822 F.3d at 589.
Notably, Plaintiffs’ complaint also contains allegations regarding Al Jazeera’s
and Davies’s failure to investigate or corroborate Sly’s story, and as explained above,
given the alleged facts that support the inference that Al Jazeera and Davies had reasons
to doubt Sly’s veracity, their alleged failure to investigate may be further proof of
reckless disregard. See Jankovic II, 822 F.3d at 590. In this regard, Plaintiffs allege
that Al Jazeera and Davies “failed to uncover a single reported piece of evidence
corroborating Sly’s outlandish claims[,]” notwithstanding their “six months of
undercover work[.]” (Compl. ¶ 57.) Additional investigative failures purportedly
40
include “contradictions as to even easily verifiable facts[,]” such as Sly’ s employment
status. (Id. ¶ 58; see also id. (“While Davies refers to him as a ‘doctor of pharmacy’
and ‘pharmacist,’ and ‘The Dark Side’ credits him with working at the Guyer Institute
in Indiana in 2011, public records reveal that in 2011 Sly was not licensed in Indiana as
either a doctor of pharmacy or a pharmacist, but rather as a pharmacy intern[.]”).) And
Plaintiffs also contend that Al Jazeera and Davies purportedly “refused to further
investigate the sole source of these allegations[,]” notwithstanding Plaintiffs’ repeated
insistence (through counsel and prior to publication) that Sly’s allegations were false.
(Id. ¶ 73d; see also id. ¶¶ 5052.)
To be sure, the “standard of actual malice is a daunting one,” Jankovic II, 822
F.3d at 590 (internal quotation marks and citation omitted), as it should be, because
defamation claims necessarily implicate a defendant’s First Amendment rights. See
Sullivan, 376 U.S. at 27980. But when this Court grants these Plaintiffs “the benefit
of all inferences that can be derived from the facts alleged,” Sparrow, 216 F.3d at 1113
(internal quotation marks and citation omitted), as it must at this stage of the litigation,
it concludes that their complaint survives the preliminary obstacle that a motion to
dismiss constructs, because the complaint’s allegations of fact support the inference
that Al Jazeera and Davies entertained serious doubts as to Sly’ s claims and failed to
investigate these claims adequately, which, together, suffice to support a plausible
finding of actual malice.
c. Neither Defendants’ Questions About Sly’s Recantation, Nor
Their Disclosure Of It In The Film, Eviscerates The Inference
Of Actual Malice That A Jury Might Otherwise Draw
Undaunted, Al Jazeera and Davies argue that no actual malice conclusion could
41
be reasonably reached based on the facts as alleged in Plaintiffs’ complaint, because, in
fact, there was no obvious reason to doubt Sly’s veracity. To underscore this point, Al
Jazeera and Davies emphasize that Sly’s recantation was not credible, and that various
scenes from the documentary actually buttressed Sly’s contention that he supplied PEDs
to professional athletes. (See Defs.’ Mem. at 38 (emphasizing that Sly spoke
knowledgeably and accurately about drugs, and that Sly’s colleagues referred to Sly as
someone who takes care of “a few other big, like really big athletes” (internal quotation
marks and citation omitted)); see also id. at 39 (emphasizing that Sly appeared nervous
in his recantation video, which was created only after Sly learned that his conversations
had been recorded and would be aired, thus potentially exposing him to civil and
criminal liability).)
Boiled to bare essence, this line of argument is really nothing more than a
rebuttal to the complaint’s allegations of fact, which cannot carry the day at the motion-
to-dismiss stage because this Court must accept the complaint’s allegations as true. Put
another way, even if one could interpret the various Sly-related scenes in “The Dark
Side” and Sly’s recantation video as evidence that Al Jazeera and Davies had reason to
trust Sly’s contentions, as these defendants insist, “[a]t this stage of the litigation, [the
court] must accept as true all material allegations of the complaint, drawing all
reasonable inferences from those allegations in plaintiffs’ favor[.]” LaRoque v. Holder,
650 F.3d 777, 785 (D.C. Cir. 2011) (emphasis added) (internal quotation marks and
citations omitted). This standard means that, when faced with two, equally plausible
interpretations of the record facts—that Sly’s credibility was doubtful given his
unequivocal recantation, on the one hand, and that there was no reason to doubt Sly’s
42
veracity because his assertions were generally corroborated, on the other —“[t]he court
must view the complaint in a light most favorable to the plaintiff.” Mizell v. SunTrust
Bank, 26 F. Supp. 3d 80, 85 (D.D.C. 2014) (first alteration in original) (internal
quotation marks omitted).
Al Jazeera’s and Davies’s stronger argument is that their inclusion of
Zimmerman’s and Howard’s denials, along with Sly’s denial, in “The Dark Side”
actually negates any finding of actual malice. (See Defs.’ Mem. at 4445.) It is
generally true that “reporting perspectives at odds with the publisher’s own, ‘tend[s] to
rebut a claim of malice, not to establish one[,]’” Lohrenz v. Donnelly, 350 F.3d 1272,
1286 (D.C. Cir. 2003) (quoting McFarlane v. Esquire Magazine, 74 F.3d 1296, 1304
(D.C. Cir. 1966)), but Al Jazeera’s and Davies’s argument overlooks two pertinent
facts. First, it is not clear to this Court that “The Dark Side” clearly communicates
Sly’s repudiation of the accusations that he makes throughout the film , because the
documentary references Sly’s denial immediately following a reference to another
alleged male supplier, Dr. Guyer, and this hybrid assertion takes the form of the
following cryptic statement by Davies: “Dr. Guyer didn’t respond to our request for a
comment. Charlie Sly said his statements about athletes were false and incorrect.”
(Film Tr. at 36.) In this Court’s view, it is not immediately apparent from this
hodgepodge of contentions whether Sly’s reported assertion—that “his statements about
athletes were false and incorrect”—refers to the falsity of the statements made by Dr.
Guyer (who Davies says did not comment) or the statements previously made by Sly
himself.
Second, even if the documentary clearly communicates Sly’s subsequent
43
recantation, the inclusion of references to the statements of denial by Zimmerman,
Howard, and Sly does not unequivocally absolve Al Jazeera and Davies of liability for
defamation; rather, it simply “tend[s] to rebut a claim of malice[.]” Lohrenz, 350 F.3d
at 1286. Again, the sole question at this point is whether the facts alleged, when
construed in the light most favorable to Plaintiffs, adequately state a claim for
defamation, and if the evidence the parties amass on either side of this issue is legally
sufficient, it is a question that a jury will ultimately have to decide.
Consequently, this Court concludes that Plaintiffs’ complaint adequately pleads
actual malice, and thus, their complaint contains allegations of fact that are sufficient to
state a claim for defamation against Al Jazeera and Davies for the statements regarding
Plaintiffs that are contained in “The Dark Side.”
B. The Complaint Fails To State A Defamation Or A False Light Claim
Against Collins Because It Does Not Allege Facts That Suggest Collins
Published The Defamatory Statements In “The Dark Side”
For all its talk about what Defendants did and what was known to them,
Plaintiffs’ complaint makes clear that Collins is situated quite differently than Al
Jazeera and Davies vis-à-vis the defamatory statements that “The Dark Side” contains.
Unlike Al Jazeera—the news network responsible for producing the film (see Compl. ¶¶
37, 38)—and Davies—the lead reporter on the production team and the narrator (see id.
¶ 33)—Collins is described as a former athlete with no known news reporting
experience, who was tapped to aid the investigation precisely because he was an
outsider to the investigative journalism world (see id. ¶ 40). In light of Collins’s
unique role in the overall production of the film, there have to be sufficient facts in the
complaint to support an inference that Collins actuall y “published or knowingly
participated in publishing” the defamatory statements in the documentary. Tavoulareas
44
I, 759 F.2d at 136 (emphasis omitted). This Court concludes that Plaintiffs’ complaint
falls short in this regard, because there are no factual allegations in the complaint that,
if true, come anywhere close to establishing that Collins had the level of responsibility
for the film’s production that would be necessary to demonstrate that he “ published or
knowingly participated in publishing the defamation” at issue. Tavoulareas I, 759 F.2d
at 136 (emphasis omitted). 16
Publication “is an infrequent issue in defamation cases, because normally it is
fairly clear who wrote, edited, or published the statement in question .” Id. But when
analyzing publication-related facts in a case that is similar to this one, the D.C. Circuit
concluded that a special correspondent for The Washington Post (Golden) was not
sufficiently responsible for the publication of an allegedly defamatory article in that
newspaper, where he was not involved in the writing of the article or the final editorial
processes, even though he had initially approached the newspaper with the idea for the
story, had conferred with the paper during the course of its investigation, a nd was
ultimately designated a “Special Correspondent[.]” Id. at 101; see also id. at 136 (“The
plaintiffs do not seriously argue that Golden himself took any part in the actual writing
or editing of the . . . article, or that he exercised any influence or co ntrol over the Post
defendants’ handling of the material.” (emphasis in original)). The D.C. Circuit
affirmed the district court’s judgment notwithstanding the verdict in Golden’s favor,
after distinguishing between participation in the investigation and participation in the
16
Because this Court has already determined that the only actionable defamatory statements at issue in
this case are the statements about Zimmerman and Howard that appear in the film, as opposed to the
news article, see supra Part III.A.2, it only assesses here whether the complaint’s contentions regarding
Collins’s role in the publication of the film are sufficient to sustain the claims that Plaintiffs h ave
brought against him.
45
actual preparation of the story. See id. at 136 (“While [Golden] participated in the
investigation” he “played no role in the actual preparation of the story.”) . And at the
end of the day, after twice rehearing the case, see Tavoulareas II, 763 F.2d 1472;
Tavoulareas III, 817 F.2d 762, the Circuit eventually affirmed the initial panel’s
conclusion that liability for defamation was not appropriate with respect to Golden due
to his “limited involvement in the ultimate publication” of the defamatory statements.
Tavoulareas III, 817 F.2d at 770 n.7.
So it is here. Despite the complaint’s allegations that Collins, like Golden, was
involved in the initial investigation that was featured in the film, the complaint that
Zimmerman and Howard have filed fails to allege any facts that, if true, support an
inference that Collins took any steps to publish “The Dark Side.” Nothing in the
complaint suggests, for example, that Collins was involved in the production (i.e.,
editing) of the footage that he filmed with the hidden camera that Al Jazeera provided,
nor does the complaint speak to his role in the distribution of the allegedly defamatory
documentary. To the contrary, the factual allegations in Plaintiffs’ complaint actually
tend to suggest that Davies, as opposed to Collins, coordinated the production of the
film (see, e.g., Compl. ¶ 33 (alleging that Davies worked in Al Jazeera’s Investigative
Unit and “was the lead reporter involved in [‘The Dark Side’]”)), and the complaint
also strongly implies that Al Jazeera and Davies, rather than Collins, were responsible
for the public dissemination of the defamatory statements at issue (see, e.g., id. ¶ 38
(“[I]n advance of its televised airing of ‘The Dark Side,’ Al Jazeera posted a video of
the full program on YouTube, and provided the full program to The Huffington Post[.]”
(emphasis added)); id. ¶ 53 (“Al Jazeera posted the full program on YouTube and
46
provided The Huffington Post with an advance copy[.]” (emphasis added)); id. ¶ 57 (“Al
Jazeera published its report despite its inability to gather any corroborating
evidence[.]” (emphasis added)); id. ¶ 62 (“Davies appeared on NBC’s The Today Show
for an interview about ‘The Dark Side.’”).) Furthermore, Plaintiffs point to no
objective facts—such as a producer credit at the end of the documentary—that would
give rise to a reasonable inference that Collins was involved in the editorial preparation
of “The Dark Side,” and this Court is aware of none.
In an attempt to salvage their claims against Collins, Plaintiffs argue that
Collins’s active collaboration with Al Jazeera and Davies throughout their eight -month
investigation renders it “at least plausible that he was participating in the
publication[.]” (Hr’g Tr. at 92:710; see also Pls.’ Opp’n at 27–29.) But in this
Court’s view, it is not plausible that an individual with no news reporting training or
experience would be participating in the editorial processes of a major media company,
even if that individual was recruited to participate in the investigatory phase of the
production in an undercover capacity. Thus, although Plaintiffs’ complaint alleges that
Collins worked with Al Jazeera producers to “catch” PED suppliers on video (see Film
Tr. at 2), this fact alone is not enough to support any inference that Collins
subsequently served as an editor or a producer of the film, and in the absence of any
such facts, Plaintiffs’ defamation and false light claims against Collins cannot proceed.
See Farah, 736 F.3d at 533 (“To meet the requirements for defamation under District of
Columbia law, a plaintiff must prove . . . that the statement was published to a third
party[.]”); see also Doe, 116 A.3d at 1267.
47
IV. CONCLUSION
This Court has carefully reviewed the complaint and the ex hibits that have been
submitted in this case, including the documentary that Plaintiffs say has defamed them
and has cast them in a false light. While it is far from clear that Plaintiffs will
ultimately be able to prove the defamation and false light cla ims they seek to advance
in this action, the Court finds that their complaint alleges facts that would permit a
reasonable jury to find that Al Jazeera and Davies published false and defamatory
statements about Plaintiffs in “The Dark Side,” but not in the news article, and that
these two defendants published such statements with actual malice. With respect to
Collins, the Court concludes that nothing in the complaint suggests that he was involved
in the publication of the film’s allegedly false and defamatory statements, and
therefore, Plaintiffs cannot maintain their claims against him. Accordingly, as set forth
in the Order accompanying this Memorandum Opinion, Davies ’s and Al Jazeera’s
Motion to Dismiss is GRANTED IN PART and DENIED IN PART, and Collins’s
Motion to Dismiss is GRANTED in full.
DATE: April 3, 2017 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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