Boley v. Atlantic Monthly Group , 950 F. Supp. 2d 249 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
GEORGE S. BOLEY, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-89 (RBW)
)
ATLANTIC MONTHLY GROUP, and )
JEFFREY GOLDBERG, )
)
Defendants. )
____________________________________)
MEMORANDUM OPINION
Plaintiff George S. Boley, proceeding pro se, brings this defamation action against the
Atlantic Monthly Group, Inc. (the “Atlantic Group”) and one of its employees, Jeffrey Goldberg.
See Complaint (“Compl.”) ¶¶ 20-32. Currently before the Court is the defendants’ motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and special motion to dismiss under
the District of Columbia Anti-Strategic Lawsuits Against Public Participation Act of 2010 (the
“Anti-SLAPP Act”), D.C. Code § 16-5502(a) (2012). Upon careful consideration of the parties’
submissions,1 the Court concludes for the following reasons that the defendants’ special motion
to dismiss must be granted.
1
In addition to those already identified, the Court considered the following submissions in rendering its decision:
Defendants the Atlantic Monthly Group, Inc. and Jeffrey Goldberg’s Memorandum of Points and Authorities in
Support of Motion to Dismiss and Special Motion to Dismiss Plaintiff’s Complaint (“Defs.’ Mem.”); the Plaintiff’s
Opposition to Defendants’ Motion to Dismiss and Special Motion to Dismiss the Plaintiff’s Complaint (“Pl.’s
Opp’n”); and Defendants the Atlantic Monthly Group, Inc. and Jeffrey Goldberg’s Reply Memorandum of Points
and Authorities in Support of Motion to Dismiss and Special Motion to Dismiss Plaintiff’s Complaint (“Defs.’
Reply”).
I. Background
Boley was formerly a public official in the Republic of Liberia, where he held positions
including “Minister of State, Minister of Education and Minister of Post and
Telecommunications.” Compl. ¶ 4. He also served as chairman of the Liberia Peace Council
during the Liberian Civil War in the early 1990s, a group which Boley claims sought “to find an
amicable end to the civil war.” Id. ¶¶ 16, 18.
The Atlantic Group publishes a monthly magazine, The Atlantic, which is widely
distributed in print and online. Id. ¶ 5. Goldberg is a national correspondent for The Atlantic.
Id. ¶ 6.
Goldberg made comments about Boley in two separate articles published on The
Atlantic’s website on January 27, 2010, and February 11, 2010. See id. ¶¶ 20-21. Boley’s
complaint excerpts the following passage from the January 27, 2010 article:
Some news out of New York. George Boley, a warlord I first met when covering
the Liberian civil war in the mid-90s, and who later moved to New York, was
arrested January 15th by U.S. Immigration and Customs and is now sitting in a
jail cell in upstate Batavia. So far, he’s being charged administratively, with lying
in order to gain entry into the U.S., and with committing extrajudicial killings
while in another country. Other branches of Homeland Security, I’ve been told,
are looking at charging him with actual war crimes, which is a good thing,
because he belongs in the Hague with his fellow warlord, Charles Taylor.
. . . I knew, from firsthand observation, that his organization, the grossly-
misnamed Liberian Peace Council, recruited and armed child soldiers; fed them
drugs; and ordered them to rape and kill.
Id. ¶ 20 (citing Jeffrey Goldberg, George Boley, Liberian Warlord, Is Finally Under Arrest, The
Atlantic (Jan. 27, 2010), http://www.theatlantic.com/international/archive/2010/01/george-boley-
liberian-warlord-is-finally-under-arrest/34330/ (last visited June 11, 2013) (“January 27, 2010
article”)). The complaint also excerpts the following passage from Goldberg’s February 11,
2010 article, in which Goldberg commented on a separate story discussing an alleged
2
relationship between a controversial Liberian figure, Charles Taylor, and Reverend Pat
Robertson:
You should pardon the expression, but, Christ. Charles Taylor is an evil man, more evil
than my own personal Liberian warlord, George Boley.[2] I suppose I shouldn’t be
surprised by Pat Robertson, but this is fairly unbelievable.
Id. ¶ 21 (citing Jeffrey Goldberg, Pat Robertson, Friend of Warlords, The Atlantic (Feb. 11,
2010), http://www.theatlantic.com/international/archive/2010/02/pat-robertson-friend-of-
warlords/35750/ (last visited June 11, 2013) (“February 11, 2010 article”)). Alleging that the
foregoing statements were defamatory, Boley instituted this action on January 22, 2013,
asserting common law claims against the defendants for defamation per se and defamation per
quod. See id. ¶¶ 22-32.
The defendants have now filed a motion to dismiss under Rule 12(b)(6) and a special
motion to dismiss under the Anti-SLAPP Act, which authorizes the preliminary dismissal of
meritless defamation lawsuits challenging speech on matters of public concern. Because the
Anti-SLAPP Act instructs courts to address special motions to dismiss on an expedited basis, see
D.C. Code § 16-5502(d), the Court gives that motion priority and will address it first. 3
II. Special Motion to Dismiss under the Anti-SLAPP Act
A. Applicability of the Anti-SLAPP Act in Federal Diversity Actions
As a threshold matter, Boley argues that the Anti-SLAPP Act’s special motion to dismiss
provisions do not apply in federal proceedings where, as here, the court’s jurisdiction is based on
diversity. Pl.’s Opp’n at 22; see Compl. ¶ 1 (invoking the Court’s diversity jurisdiction). He
2
The text of “George Boley” in this online article contains a hyperlink to Goldberg’s January 27, 2010 article on
Boley.
3
Since the Court ultimately grants the defendants’ special motion to dismiss, it has no occasion to reach the merits
of the defendants’ Rule 12(b)(6) motion.
3
relies exclusively on 3M Co. v. Boulter, in which another member of this Court held that the
Anti-SLAPP Act “squarely attempts to answer the same question that [Federal Rules of Civil
Procedure] 12 and 56 cover and, therefore, cannot be applied in a federal court sitting in
diversity.” 842 F. Supp. 2d 85, 102 (D.D.C. 2012) (Wilkins, J.).
While thoroughly reasoned, 3M Co. conflicts with the weight of authority. Indeed, three
federal circuit courts have deemed it necessary to enforce state anti-SLAPP laws in diversity
actions, finding no conflict between those statutes’ special motion to dismiss provisions and
Federal Rules of Civil Procedure 12 and 56. See Godin v. Schencks, 629 F.3d 79, 81 (1st Cir.
2010); U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir.
1999); Henry v. Lake Charles Am. Press, LLC, 566 F.3d 164, 169 (5th Cir. 2009) (summarily
adopting Newsham’s reasoning). Finding these cases persuasive, the Court adopts their
reasoning and therefore will apply the Anti-SLAPP Act’s special motion to dismiss provisions in
this case. See Farah v. Esquire Magazine, Inc., 863 F. Supp. 2d 29, 36 n.10 (D.D.C. 2012)
(Collyer, J.) (reaching same conclusion).
B. The Anti-SLAPP Act
The subsection of the Anti-SLAPP Act governing special motions to dismiss provides in
pertinent part:
(a) A party may file a special motion to dismiss any claim arising from an act in
furtherance of the right of advocacy on issues of public interest within 45 days
after service of the claim.
(b) If a party filing a special motion to dismiss under this section makes a prima
facie showing that the claim at issue arises from an act in furtherance of the right
of advocacy on issues of public interest, then the motion shall be granted unless
the responding party demonstrates that the claim is likely to succeed on the
merits, in which case the motion shall be denied.
D.C. Code § 16-5502(a)-(b).
4
The “broad” protections afforded by the Act “follow[] ‘the lead of other jurisdictions,
which have similarly extended absolute or qualified immunity to individuals engaged in
protected actions’” by enacting anti-SLAPP laws. Farah, 863 F. Supp. 2d at 36 (quoting Rep. of
the D.C. Comm. on Public Safety and the Judiciary on Bill 18-893 (Nov. 19, 2010) (“Comm.
Report”) at 4). These statutes, like the District of Columbia’s Anti-SLAPP Act, reflect a
legislative judgment that
SLAPPs . . . have been increasingly utilized over the past two decades as a means
to muzzle speech or efforts to petition the government on issues of public interest.
Such cases are often without merit, but achieve their filer’s intention of publishing
or preventing opposing points of view, resulting in a chilling effect on the
exercise of constitutionally protected rights. Further, defendants of a SLAPP
must dedicate a substantial[] amount of money, time, and legal resources. The
impact is not limited to named defendants[’] willingness to speak out, but
prevents others from voicing concerns as well.
Comm. Report at 1. The Anti-SLAPP Act seeks to address these concerns “by incorporating
substantive rights that allow a defendant to more expeditiously, and more equitably, dispense of
a SLAPP.” Id.
In construing the Anti-SLAPP Act, this Court unfortunately has no guidance from the
D.C. Court of Appeals, which, to date, has not issued a published opinion interpreting the statute.
Where, as here, “the substantive law of the forum state is uncertain or ambiguous, the job of the
federal courts is carefully to predict how the highest court of the forum state would resolve the
uncertainty or ambiguity.” Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir.
1994). With this principle in mind, the Court deems it noteworthy that the Committee Report
prepared in connection with the Anti-SLAPP Act emphasizes that the law was designed to
“follow[] the model set forth in a number of other jurisdictions,” Comm. Report at 1, and that the
D.C. Court of Appeals often accords significant weight to such reports, see, e.g., Dist. of
Columbia v. Place, 892 A.2d 1108, 1113-15 (D.C. 2006). Where appropriate, then, the Court
5
will look to decisions from other jurisdictions (particularly those from California, which has a
well-developed body of anti-SLAPP jurisprudence) for guidance in predicting how the D.C.
Court of Appeals would interpret its own anti-SLAPP law.
C. Merits of the Defendants’ Motion
1. Prima Facie Showing of Protected Activity
For the defendants’ motion to prevail, they must initially make a “prima facie showing
that the claim at issue arises from an act in furtherance of the right of advocacy on issues of
public interest.” § 16-5502(b). The Act defines an “[a]ct in furtherance of the right of advocacy
on issues of public interest” to include:
(A) Any written or oral statement made:
(i) In connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official proceeding
authorized by law; or
(ii) In a place open to the public or a public forum in connection with an
issue of public interest; or
(B) Any other expression or expressive conduct that involves petitioning the
government or communicating views to members of the public in connection with
an issue of public interest.
§ 16-5501(1)(A)-(B). The Act further defines an “[i]ssue of public interest” to mean “an issue
related to health or safety; environmental, economic, or community well-being; the District
government; a public figure; or a good, product, or service in the market place.” § 16-5501(3).
Here, the defendants have made a prima facie showing that Goldberg’s allegedly
defamatory statements are protected under several provisions of the Anti-SLAPP Act. See
Defs.’ Mem. at 23-24. To begin with, all of Goldberg’s statements about Boley qualify as
“written . . . statement[s] made . . . [i]n a place open to the public or a public forum in connection
with an issue of public interest.” § 16-5501(1)(A)(ii). The Atlantic’s website is a “place open to
6
the public,” as anyone with internet access can view it. See Farah, 863 F. Supp. 2d at 38
(holding that statements in internet blog posting were “made in a ‘place open to the public or a
public forum’” (quoting § 16-5501(1)(A)). And Goldberg’s statements about Boley concerned
an issue of public interest because Boley is a “public figure.” See § 16-5501(3). Indeed, as his
complaint acknowledges, Boley is a “prominent” former public servant who held several high-
level positions in the Liberian government and even ran (unsuccessfully) for President of that
country. Compl. ¶¶ 4, 15-16, 19. Although the Anti-SLAPP Act does not define “public figure,”
this is a term of art in the context of constitutional defamation law, 4 and, as will be explained
below, Boley qualifies as a “limited purpose public figure” under that body of law. See infra at
15-17. Even setting aside whether Boley qualifies as a “public figure,” the Court finds that
statements concerning the alleged commission of war crimes by a former high-level foreign
official and that official’s subsequent arrest, investigation, and administrative charging by federal
authorities are quintessentially matters of public rather than private interest. For these same
reasons, all of Goldberg’s statements about Boley—including his comments that Boley is an
“evil” “warlord” who “belongs in the Hague”—also qualify for protection as “other expression . .
. communicating views to members of the public in connection with an issue of public interest.”
§ 16-5501(1)(B).
In addition, Goldberg’s statements regarding ICE’s arrest, investigation, and
administrative charging of Boley plainly qualify as “written . . . statement[s] made . . . [i]n
connection with an issue under consideration or review by [an] . . . executive . . . body.” § 16-
5501(1)(A)(i); see Lafayette Morehouse, Inc. v. Chron. Publ’g Co., 44 Cal. Rptr. 2d 46, 51 (Cal.
4
See FAA v. Cooper, __ U.S. __, __, 132 S. Ct. 1441, 1449 (2012) (“[I]t is a ‘cardinal rule of statutory construction’
that, when [a legislature] employs a term of art, ‘it presumably knows and adopts the cluster of ideas that were
attached to each borrowed word in the body of learning from which it was taken.’” (citation omitted)).
7
Ct. App. 1995) (interpreting identically-worded provision in California anti-SLAPP statute and
holding that newspaper’s statements regarding issues under consideration by county board of
supervisors and federal courts were covered by the provision), cited approvingly in Briggs v.
Eden Council for Hope & Opportunity, 969 P.2d 564, 571 (Cal. 1999); Braun v. Chron. Publ’g
Co., 61 Cal. Rptr. 2d 58, 61-62 (Cal. Ct. App. 1997) (reaching same conclusion regarding
newspaper articles reporting on an investigative audit).
2. Likelihood of Success on the Merits
Because the defendants have made a prima facie showing that Boley’s defamation claim
“arises from an act in furtherance of the right of advocacy on issues of public interest,” the
burden now shifts to Boley “to demonstrate[] that the claim is likely to succeed on the merits.” §
16-5502(b). The Anti-SLAPP Act does not define the contours of this standard, so the Court
again views as instructive pertinent caselaw from California. There, a plaintiff seeking to show
“a probability of prevailing on a claim” in response to an anti-SLAPP motion “must satisfy a
standard comparable to that used on a motion for judgment as a matter of law.” Price v. Stossel,
620 F.3d 992, 1000 (9th Cir. 2010). Thus, a plaintiff is required to “‘demonstrate that the
complaint is legally sufficient and supported by a prima facie showing of facts to sustain a
favorable judgment if the evidence submitted by the plaintiff is credited.’” Id. (citation omitted).
If “‘a plaintiff presents an insufficient legal basis for the claims or when no evidence of sufficient
substantiality exists to support a judgment for the plaintiff,’” the “‘anti-SLAPP motion should be
granted.’” Id. (citation omitted).
To prevail on a defamation claim under District of Columbia law, a plaintiff must
prove four elements: (1) that the defendant made a false and defamatory statement
concerning the plaintiff; (2) that the defendant published the statement without
privilege to a third party; (3) that the defendant’s fault in publishing the statement
amounted to at least negligence; and (4) either that the statement was actionable
8
as a matter of law irrespective of special harm or that its publication caused the
plaintiff special harm.
Oparaugo v. Watts, 884 A.2d 63, 76 (D.C. 2005) (quotation marks and citation omitted).
“Normally the issue of privilege antecedes the question whether a communication is capable of
defamatory meaning.” White v. Fraternal Order of Police, 909 F.2d 512, 527 (D.C. Cir. 1990).
Accordingly, the Court first considers whether Goldberg’s allegedly defamatory statements are
privileged.
i. Privilege
The defendants contend that Goldberg’s statements are protected by the fair report
privilege. Defs.’ Mem. at 11. “There is no question that, as a matter of District of Columbia
law, publications do enjoy a conditional fair report privilege,” which shields “fair and accurate
reports of official proceedings.” Dameron v. Wash. Mag., Inc., 779 F.2d 736, 739 (D.C. Cir.
1985). “‘The basis of the privilege is the interest of the public in having information made
available to it as to what occurs in official proceedings and public meetings.’” Id. (citation
omitted). “Under applicable District of Columbia law, a defendant must ‘clear[] two major
hurdles’ to qualify for the fair report privilege.” Jankovic v. Int’l Crisis Grp., 593 F.3d 22, 26
(D.C. Cir. 2010) (quoting Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 89 (D.C. 1980)).
A defendant “must show, first, that [the] publication was a ‘fair and accurate report’ of a
qualified government source, and, second, that the publication properly attributed the statement
to the official source.” Id.Goldberg’s statements describing ICE’s arrest, investigation, and administrative charging
of Boley, see Compl. ¶ 20, are protected by the fair report privilege. First, these statements
concerned a “governmental proceeding” to which the privilege applies. See White, 909 F.2d at
527 (privilege applies broadly to “reports of any official proceeding or action taken by any
9
officer or agency of government” (quoting Phillips, 424 A.2d at 88) (emphasis omitted)).
Second, official ICE documents filed in a habeas action instituted by Boley challenging his
detention (the authenticity of which Boley does not dispute) reveal that Goldberg’s statements
were a “fair and accurate report” of the ICE removal proceeding. Compare Compl. ¶ 20 (citing
as defamatory Goldberg’s statements that Boley “was arrested January 15th[, 2010] by U.S.
Immigration and Customs and is now sitting in a jail cell in upstate Batavia,” that “he’s being
charged administratively, with lying in order to gain entry into the U.S., and with committing
extrajudicial killings while in another country,” and that “[o]ther branches of Homeland Security
. . . are looking at charging him with actual war crimes”), with Boley v. Phillips, No. 6:12-6016,
ECF No. 4-2, at 4 (W.D.N.Y. March 14, 2012) (ICE letter confirming that Boley was taken into
ICE custody on January 15, 2010); id. at 10-12 (ICE “Notice to Appear,” dated January 15,
2010, charging Boley with numerous extrajudicial killings in Liberia and failure to possess valid
documentation for entry into the United States); id. at 20-21 (ICE “Additional Charges of
Inadmissibility/Deportability,” dated August 11, 2010, charging Boley with recruitment or use of
child soldiers in Liberia); see also Defs.’ Mem., Declaration of Micah J. Ratner (“Ratner Decl.”),
Exhibit (“Ex.”) 6 (March 30, 2012 ICE News Release) (announcing that Boley, “[t]he former
leader of the Liberian Peace Council (LPC) who committed human rights abuses during the
Liberian civil war in the 1990s[,] was deported to his native country Friday, capping an effort by
U.S. Immigration and Customs Enforcement (ICE) to investigate the case and win the former
warlord’s removal from the United States”). And third, Goldberg specifically attributed the
statements to ICE “in such a manner that the average reader would be []likely to understand
[them] . . . to be a report on or summary of an official document or proceeding.” Dameron, 779
F.2d at 739. As in White, Goldberg’s statements accurately “summarized the gist of the
10
allegations” advanced by ICE, and “consistently attributed the reported facts” to the pending ICE
proceeding. 909 F.2d at 528. The statements are therefore privileged.
The Court next turns to Goldberg’s statement that he “knew, from firsthand observation,
that [Boley’s] organization, the grossly-misnamed Liberian Peace Council, recruited and armed
child soldiers; fed them drugs; and ordered them to rape and kill.” Compl. ¶ 20. Boley asserts
that this statement “cannot be attributed to any official source.” Pl.’s Opp’n at 18. Boley’s
argument might be convincing based solely on the excerpt provided in his complaint, which
depicts Goldberg’s statement as presenting “historical fact[s] without any indication that the
statement[ was] intended as a summary of an official [proceeding or] document.” White, 909
F.2d at 528; see Dameron, 779 F.2d at 740.
But the complaint misleadingly takes Goldberg’s statement out of context. The excerpt
highlighted by Boley is cherry-picked from the following passage from Goldberg’s article:
I’ve been involved with Boley’s case for a little while. I was subpeonaed by a
human rights group in Minnesota, the Advocates for Human Rights, to testify
against Boley in a defamation lawsuit that he himself filed against the group (the
definition of chutzpah, by the way). I eventually provided a sworn affadavit in
the case, in which I detailed what I knew of Boley’s activities in the civil war,
which is a lot -- I knew, from firsthand observation, that his organization, the
grossly-misnamed Liberian Peace Council, recruited and armed child soldiers; fed
them drugs; and ordered them to rape and kill. For starters. (The lawsuit,
unsurprisingly, was dismissed earlier this month.)
January 27, 2010 article. Viewed in context, then, Goldberg’s allegedly defamatory statement
merely described an affidavit he submitted in an official proceeding, i.e., a civil lawsuit filed by
Boley. The fair report privilege applies to summaries of statements made in connection with
judicial proceedings, see Liberty Lobby, Inc. v. Dow Jones & Co., Inc., 838 F.2d 1287, 1299
(D.C. Cir. 1988); Johnson v. Johnson Publ’g Co., 271 A.2d 696, 698 (D.C. 1970), even when it
is the defendant’s summary of his own prior testimony, see Rosenberg v. Helinski, 616 A.2d
11866, 875-76 (Md. 1992). And Goldberg’s statement fairly and accurately described his affidavit
with proper attribution to the court document. Compare January 27, 2010 article, with Boley v.
Minn. Advocates for Human Rights, No. 08-5908, ECF No. 20 (D. Minn. Nov. 20, 2009)
(Affidavit of Jeffrey Goldberg). Thus, the statement is protected by the fair report privilege. 5
Goldberg also opined that the government’s investigation and potential charging of Boley
for war crimes was a “good thing[] because he belongs in the Hague.” Compl. ¶ 20. This
comment, while exceeding the bounds of the fair report privilege, falls within the scope of a
separate, “freestanding doctrine under District of Columbia law”: the “fair comment” privilege.
Jankovic, 593 F.3d at 177. This “long recognized” doctrine “accord[s] the media the privilege of
fair comment on matters of public interest,” so long as the opinions expressed are based on true
facts. Phillips, 424 A.2d at 88; see Jankovic, 593 F.3d at 177; Wash. Times Co. v. Bonner, 86
F.2d 836, 841 n.4 (D.C. Cir. 1936). Such statements are not actionable in defamation “[b]ecause
the reader understands that such supported opinions represent the writer’s interpretation of the
facts presented, and because the reader is free to draw his or her own conclusions based upon
those facts.” Moldea v. New York Times Co., 15 F.3d 1137, 1145 (D.C. Cir. 1994) (“Moldea
I”), rev’d in part on reh’g, 22 F.3d 310 (D.C. Cir. 1994) (“Moldea II”). Here, Goldberg’s
statement expressed his personal opinion on a matter of public concern, and was based on a fact
that is undisputed as true in this case, i.e., that the federal government was investigating Boley in
January 2010 for committing war crimes abroad. The statement is accordingly protected as fair
comment.
5
It bears noting that the statements in Goldberg’s affidavit are themselves absolutely privileged under District of
Columbia law. See Oparaugo, 884 A.2d at 79 (recognizing an “absolute privilege” for statements made in the
course of judicial proceedings).
12
Other aspects of Goldberg’s allegedly defamatory statements do not appear to be within
the scope of any privilege—namely his characterizations of Boley as “evil” and a “warlord.”
Compl. ¶¶ 20-21. Nevertheless, as explained below, these statements do not give rise to a
meritorious defamation claim.
ii. Goldberg’s Characterization of Boley as “Evil”
When evaluating the merits of a defamation claim, courts must address two threshold
questions of law: “whether the disputed [publication] (1) contains express or implied verifiably
false statements of fact, which (2) are reasonably capable of defamatory meaning or otherwise
place [the plaintiff] in an offensive false light.” Weyrich v. New Republic, Inc., 235 F.3d 617,
623 (D.C. Cir. 2001); Moleda II, 22 F.3d at 316-17. Regarding this first requirement, the Circuit
has explained that a statement must “at a minimum express or imply a verifiably false fact about”
the plaintiff in order to be “actionable under the First Amendment.” Weyrich, 235 F.3d at 624.
This principle seeks to assure that “public debate will not suffer for lack of ‘imaginative
expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of
our Nation.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 (1990) (quoting Hustler
Magazine v. Falwell, 485 U.S. 46, 53-55 (1988)).
As the defendants point out, Defs.’ Reply at 5, Goldberg’s characterization of Boley as
“evil” is not a verifiable statement of fact, see Underwager v. Channel 9 Australia, 69 F.3d 361,
367 (9th Cir. 1995) (statement that plaintiff was “intrinsically evil” was not “not capable of
verification” and thus was not actionable). This is precisely the sort of “imaginative expression”
and “rhetorical hyperbole” that the First Amendment protects. Consequently, the statement is
not actionable in defamation.
13
iii. Goldberg’s Characterization of Boley as a “Warlord”
Goldberg repeatedly referred to Boley as a “warlord” in his two Atlantic articles. See
Compl. ¶¶ 20-21. The defendants do not appear to dispute that this term expresses a verifiable
statement of fact that is capable of defamatory meaning. However, assuming without deciding
that these threshold requirements are satisfied, the Court concludes that Boley’s defamation
claim based on Goldberg calling him a “warlord” is not likely to succeed on the merits because
there is no indication that the statement was false or made with actual malice.
Reflecting our “national commitment to the principle that debate on public issues should
be uninhibited, robust, and wide-open,” the First Amendment sets a high bar for “public figures”
to recover for defamation. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
Specifically, a public figure may prevail in a defamation suit only if he can produce “clear and
convincing evidence” that the challenged publication was made with “actual malice”—i.e., with
“knowledge that it was false or with reckless disregard of whether it was false or not.” Masson
v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991).
“The Supreme Court has identified two classes of public figures in addition to
government officials: general purpose and limited purpose public figures.” 6 Tavoulareas v. Piro,
817 F.2d 762, 772 (D.C. Cir. 1987) (en banc). “A person becomes a general purpose public
figure only if he or she is ‘a well-known celebrity, his name a household word.’” Id. (citation
omitted). “Few people,” however, “attain the general notoriety that would make them public
figures for all purposes.” Waldbaum v. Fairchild Publn’s, Inc., 627 F.2d 1287, 1296 (D.C. Cir.
6
Some courts have indicated that foreign government officials qualify as public officials for the purpose of
constitutional defamation analysis, regardless of their status as general or limited purpose public figures. E.g., Desai
v. Hersh, 719 F. Supp. 670, 673-74 (N.D. Ill. 1989); Sharon v. Time, Inc., 599 F. Supp. 538, 563 (S.D.N.Y. 1984).
Because the Court ultimately finds that Boley is a limited purpose public figure, it need not address whether his
status as a former official of a foreign government alone makes him a public official subject to the heightened
“actual malice” standard of fault.
14
1980). Much more common are “public figures for the more limited purpose of certain issues or
situations.” Tavoulareas, 817 F.2d 7at 772. “Whether (and to what extent) a person is a public
figure is a matter of law for the court to decide.” Id.Here, Boley has not achieved the level of notoriety necessary to qualify as a general
purpose public figure, so the Court will consider whether he is a limited purpose public figure.
a. Limited Purpose Public Figure
In Waldbaum, the Circuit “formulated a three-part test for identifying a limited-purpose
public figure, requiring (1) that there have been a public controversy; (2) that the plaintiff have
played a sufficiently central role in the controversy; and (3) that the alleged defamatory
statement have been germane to the plaintiff’s participation in the controversy.” Clyburn v.
News World Commc’ns, Inc., 903 F.2d 29, 31 (D.C. Cir. 1990) (citing Waldbaum, 627 F.2d at
1296-98). Each Waldbaum requirement is satisfied here.
First, there was a public controversy concerning the Liberian Civil War. The issue
garnered attention from the United States Department of State, which published a detailed report
describing the “flagrant disregard for human rights by the 40,000 to 60,000 fighters in the major
factions” involved in the war. Defs.’ Mem., Ratner Decl., Ex. 1 (March 1996 Department of
State Report entitled “Liberia Human Rights Practices, 1995” (“State Department Report”)) at 2.
It has also received substantial press coverage internationally, and became the subject of at least
one widely-published book. See Stephen Ellis, The Mask of Anarchy: The Destruction of
Liberia and the Religious Dimension of an African Civil War (1999). Thus, “persons actually
were discussing [the] specific question,” and “the press was covering” it. Waldbaum, 627 F.2d
at 1297. And certainly a national civil war involving widespread reported abuses of human
15
rights is no isolated matter. Such events instead have “foreseeable and substantial ramifications”
for both participants and nonparticipants alike. See id.
Second, Boley played a sufficiently central role in the controversy. Boley acknowledges
that during the Liberian Civil War he was chairman of the “Liberia Peace Council,” which he
claims sought to find an “amicable end to the civil war” through peaceful negotiation. 7 Compl.
¶¶ 16, 18. As Boley himself stated, he felt compelled to become involved because, “[a]s a
prominent Liberian,” he could “not sit on the sidelines and allow the carnage to continue.” Id. ¶
15. “[B]y purposely trying to influence the outcome” of the Liberian Civil War, Boley thrust
himself into the forefront of the controversy. See Waldbaum, 627 F.2d at 1297. At the very
least, Boley “could realistically have been expected, because of his position in the controversy,
to have an impact on its resolution.” See id. Indeed, that is precisely what Boley states he
attempted to do: impact the resolution of the civil war through his stature as a prominent
Liberian.
Boley suggests that his actions in Liberia did not make him a public figure in the United
States. See Pl.’s Opp’n at 4. But this argument overlooks that a limited purpose public figure is
defined “not in terms of geography but in terms of the controversy that he has stepped into.”
Lluberes v. Uncommon Prods., LLC, 663 F.3d 6, 20 (1st Cir. 2011) (citing Gertz v. Robert
Welch, Inc., 418 U.S. 323, 351 (1974); Tavoulareas, 817 F.2d at 772). As indicated, the
controversy at issue here—the Liberian Civil War—stretched beyond that country’s borders,
garnering attention from the United States government and the global press. Because Boley
admittedly “exposed [himself] to increased risk of injury from defamation” on the topic of the
7
The State Department found otherwise. See Defs.’ Mem., Ratner Decl., Ex. 1 (State Department Report) at 3
(“There were credible reports that George Boley,” in his capacity as the leader of the Liberia Peace Council,
“authorized the summary execution of seven of his fighters November 14 for harassment of civilians. Boley did not
deny these allegations.”).
16
Liberian Civil War and its attendant human rights abuses, see Lohrenz v. Donnelly, 350 F.3d
1272, 1280 (D.C. Cir. 2003), the second Waldbum requirement is satisfied.
Third, the allegedly defamatory statement—Goldberg’s characterization of Boley as a
“warlord”—directly concerned Boley’s involvement in the Liberian Civil War. In his January
27, 2010 article, Goldberg indicated that he was calling Boley a warlord based upon his firsthand
experience with Boley “when covering the Liberian civil war in the mid-90s.” And in referring
to Boley as a warlord in his February 11, 2010 article, Goldberg provided a hyperlink to his
January 27, 2010 article, thus incorporating that article by reference and providing the necessary
context for the allegedly defamatory remark.
Accordingly, the Court concludes that the Waldbaum criteria are satisfied and that Boley
qualifies as a limited purpose public figure.
b. Falsity and Actual Malice
“Where a public figure . . . pursues a libel action, first amendment requirements supplant
. . . the common law of defamation . . . in several respects.” Liberty Lobby, Inc., 838 F.2d at
1292. “First, such a plaintiff must demonstrate by at least a fair preponderance of the evidence
that the allegedy defamatory statement is false.” Id. In considering the element of falsity, the
Court must be mindful that “‘[s]ubstantial truth’ . . . is generally regarded as a defense to
defamation.” Moldea I, 15 F.3d at 1150. Thus, “‘[i]t is not necessary to establish the literal truth
of the precise statement made. Slight inaccuracies of expression are immaterial provided that the
defamatory charge is true in substance.’” Liberty Lobby, Inc., 838 F.2d at 1296 (citation
omitted).
Second, the plaintiff must prove that the defendants “acted with actual malice, and not
merely ordinary negligence, in publishing [the] allegedly defamatory statements about” him.
17
Lohrenz, 350 F.3d at 1282-83. To meet this burden, Boley “must show, by clear and convincing
evidence, that when the defendants published the alleged defamations they were subjectively
aware that it was highly probable that the story was ‘(1) fabricated; (2) so inherently improbable
that only a reckless person would have put [it] in circulation; or (3) based wholly on an
unverified anonymous telephone call or some other source that appellees had obvious reasons to
doubt.’” Id. at 1283 (citation omitted). Courts serve an important function in assessing actual
malice. As the Supreme Court has explained, “[t]he question whether the evidence in the record
in a defamation case is of the convincing clarity required to strip the utterance of First
Amendment protection is not merely a question for the trier of fact.” Bose Corp. v. Consumers
Union of U.S., Inc., 466 U.S. 485, 511 (1984). “Judges, as expositors of the Constitution, must
independently decide whether the evidence in the record is sufficient to cross the constitutional
threshold that bars the entry of any judgment that is not supported by clear and convincing proof
of ‘actual malice.’” Id.Because Goldberg characterized Boley as a warlord based on his own purported
observations of him in Liberia, this is not a case where actual malice can be shown through a
journalist’s reckless reliance on an unreliable third-party source; rather, the question is whether
Goldberg fabricated the story. See St. Amant v. Thompson, 390 U.S. 727, 732 (1968) (actual
malice may be established by proof that the “story [was] fabricated by the defendant, or [was]
the product of his imagination”). And Boley “cannot show actual malice in the abstract; [he]
must demonstrate actual malice in conjunction with a false defamatory statement.” Tavoulareas,
817 F.2d at 794. Furthermore, with respect both to falsity and actual malice, Boley must
“‘demonstrate that [his] complaint is legally sufficient and supported by a prima facie showing of
18
facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’”
Price, 620 F.3d at 1000 (citation omitted).
Boley has failed to make this showing. Although his complaint makes blanket denials of
Goldberg’s statements and denies having committed any war crimes, Compl. ¶ 23, Boley does
not specifically deny that he was a “warlord” as that term is commonly defined, 8 nor does he
explain why Goldberg’s characterization of him as a warlord was false. See Vogel v. Felice, 26
Cal. Rptr. 3d 350, 363 (Cal. Ct. App. 2005) (in responding to anti-SLAPP motion, plaintiff
“tacitly admitted the substantial truth of” allegedly defamatory statement where he merely
“described . . . characterization as false, but never stated the true facts to which the statement
would have to be compared in order to establish its substantial falsity”). More important, in
opposing the defendants’ Anti-SLAPP motion, Boley has adduced no facts indicating that the
“warlord” statements were false or made with actual malice, offering only broad and conclusory
denials of Goldberg’s comments. The defendants, meanwhile, have pointed to evidence
corroborating Boley’s status as a former warlord, including the State Department Report and the
findings of the ICE removal proceeding, see Defs.’ Mem., Ratner Decl., Ex. 1 (State Department
Report) at 3; id., Ex. 6 (March 30, 2012 ICE News Release) (referring to Boley as a “former
warlord”), all of which suggests that Goldberg’s statements were substantially true and made in
good faith. The Court therefore concludes that Boley has failed to make a prima facie showing
of facts that Goldberg’s statements were false, let alone “fabrications” that support an inference
of actual malice.
8
See Merriam-Webster Dictionary, available at http://www.merriam-webster.com/dictionary/warlord (last visited
June 17, 2013) (defining “warlord” as “a supreme military leader” or “a military commander exercising civil power
by force usually in a limited area”).
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III. Conclusion
For the foregoing reasons, the Court concludes that the defendants have made a prima
facie showing that Boley’s defamation claim arises from an act in furtherance of the right of
advocacy on issues of public interest, and that Boley has failed to demonstrate that his
defamation claim is likely to succeed on the merits. Moreover, it does not appear to the Court
that limited discovery would allow Boley to defeat the defendants’ motion. See D.C. Code § 16-
5502(c)(2) (“When it appears likely that targeted discovery will enable the plaintiff to defeat the
[special] motion [to dismiss under the Anti-SLAPP Act] and that the discovery will not be
unduly burdensome, the court may order that specified discovery be conducted.”). Accordingly,
the defendants’ special motion to dismiss is granted.
SO ORDERED this 25th day of June, 2013. 9
REGGIE B. WALTON
United States District Judge
9
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
20