Milan Jankovic v. International Crisis Group , 822 F.3d 576 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 10, 2016 Decided May 10, 2016
No. 14-7171
MILAN JANKOVIC, ALSO KNOWN AS PHILIP ZEPTER,
APPELLANT
FIELDPOINT B.V. AND UNITED BUSINESS ACTIVITIES
HOLDING, A.G.,
APPELLEES
v.
INTERNATIONAL CRISIS GROUP, A NON-PROFIT
ORGANIZATION, ET AL.,
APPELLEES
Consolidated with 14-7178
Appeals from the United States District Court
for the District of Columbia
(No. 1:04-cv-01198)
Rodney A. Smolla argued the cause for appellant. With him
on the briefs were William T. O'Brien, Lisa Norbett Himes, John
W. Lomas Jr., and Malcolm I. Lewin.
Michael D. Sullivan argued the cause for appellees. With
him on the brief were Thomas Curley, Mara J. Gassmann, Neil
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H. Koslowe, and Jonathan Greenblatt.
Hashim M. Mooppan was on the brief for amici curiae The
Brookings Institution, et al. in support of defendants-appellees.
Before: HENDERSON, ROGERS and SRINIVASAN, Circuit
Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Milan Jankovic, also known as
Philip Zepter, sued the International Crisis Group (“ICG”) for
defamation based on a statement in one of its reports that linked
him to the Slobodan Milosevic regime. This is the third time
this case is before the court. We twice previously reversed the
dismissal of the complaint and remanded the case. Jankovic v.
Int’l Crisis Grp. (Jankovic I), 494 F.3d 1080 (D.C. Cir. 2007);
Jankovic v. Int’l Crisis Grp. (Jankovic II), 593 F.3d 22 (D.C.
Cir. 2010). In the first appeal, the court held that one statement
in an ICG report was capable of defamatory meaning, and, in the
second appeal, the court rejected ICG’s defenses that the
statement was merely an opinion or a fair report or comment on
a government document. Zepter now appeals the grant of
summary judgment to ICG. Jankovic v. Int’l Crisis Grp.
(Jankovic III), 72 F. Supp. 3d 284 (D.D.C. 2014). He contends
that the district court erred in ruling that he was a limited-
purpose public figure, and alternatively that, to the extent he
was, the district court erred in finding that he failed to proffer
evidence from which a reasonable jury could find by clear and
convincing evidence that ICG published the defamatory
statement with actual malice.
Upon de novo review, we hold that summary judgment was
appropriately granted. On the evidence before the district court,
Zepter was a limited-purpose public figure with respect to the
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public controversy surrounding political and economic reform
in Serbia and integration of Serbia into international institutions
during the post-Milosevic era. Contrary to his suggestion, he
was not a mere bystander engaged in civic duties but was an
advisor to and financial supporter of Prime Minister Zoran
Djindjic, who came into power following Milosevic’s ouster.
Further, Zepter’s mustering of evidence, deficient in part due to
his procedural defaults, fails to show by clear and convincing
evidence that ICG acted with actual malice in publishing the
statement. Accordingly, we affirm.
I.
This appeal arises out of publication by the International
Crisis Group of Serbian Reform Stalls Again (“Report 145”), a
report about reforms in the wake of the assassination of Prime
Minister Zoran Djindjic. This report followed closely after
ICG’s publication of Serbia After Djindjic (“Report 141”). ICG,
a non-profit, multinational organization with over 90 staff
members on five continents published reports like these as part
of its mission to influence policymakers and to prevent and
resolve deadly conflict. Jankovic I, 494 F.3d at 1084–85. These
two reports were primarily authored and researched by James
Lyon, who was ICG’s project director for Serbia from 2000
through 2005.
Briefly: In 1999, Serbia was marred by violence as its
President, Slobodan Milosevic, carried out a pattern of ethnic
violence in the Serbian province of Kosovo. These actions
resulted in military intervention by the North Atlantic Treaty
Organization (“NATO”) and imposition of sanctions by the
United States and European countries. Milosevic lost the
presidency in a democratic election in 2000, but his successor,
President Vojislac Kostunica, faced a politically powerful
parliament led by Prime Minister Zoran Djindjic, who favored
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sweeping changes of Milosevic’s policies. In 2001, Prime
Minister Djindjic extradited Milosevic to The Hague,
Netherlands, to stand trial for war crimes. Prime Minister
Djindjic was assassinated in 2003. See Jankovic III, 72 F. Supp.
3d at 292.
Report 145, as described by its principal author, addressed,
among other things, the inability of the post-Milosevic Serbian
government to achieve political and economic reform and to
assert civilian control over the Milosevic-era police, military,
and intelligence structures. It also analyzed continuing concerns
about the influence of wealthy businessmen, some of whom
were considered to have been closely connected to these power
structures, on Serbia’s fledgling democracy. ICG’s concern was
that without meaningful political and economic reform the
prospect of further ethnic violence and national conflict in
Serbia and the Balkans was likely.
As a successful businessman, Zepter was concerned about
some of the negative statements ICG made about him in their
reports. Born and raised in Serbia, Zepter established a
successful cookware company after college and that business
achieved success throughout Europe. Jankovic III, 72 F. Supp.
3d at 292. Over time, Zepter expanded his business into other
areas, including banking, and he had banking interests in Serbia
while Milosevic was in power. He filed suit, alleging that
statements in the two ICG reports and an e-mail sent by the
principal author of the reports were defamatory, but this court
held that only claims related to a three-paragraph statement in
Report 145 could proceed. Jankovic I, 494 F.3d at 1084. That
statement described Zepter as a member of the “New Serbian
Oligarchy” and stated, for example, that he was “associated with
the Milosevic regime and benefitted from it directly.” Report
145, at 17. It also stated that individuals like Zepter continued
to be in positions of power and to enjoy access to public
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resources, and that few of the “crony companies” had been
subject to legal action despite promises by reformers. Id. at
17–18. The court concluded that a reasonable reader could
construe the statement as asserting “that Philip Zepter,
personally, was a ‘crony’ of Milosevic who supported the
regime in exchange for favorable treatment” and “that Philip
Zepter was actively in alliance with Milosevic and his regime.”
Jankovic I, 494 F.3d at 1091.
Having determined that the statement in Report 145 was
capable of defamatory meaning, the court subsequently rejected
ICG’s defenses of fair report, fair comment, and opinion.
Jankovic II, 593 F.3d at 26–28. ICG had supported portions of
the statement with a list of frozen assets that was prepared by the
U.S. Office of Foreign Assets Control (“OFAC”), and an
accompanying Executive Order. See id. at 26–27. Although the
list included the assets of a bank established by Zepter, the court
held neither the fair report nor comment privileges applied
because the list included the assets of all Serbian financial
institutions, whether or not operated by Milosevic cronies. See
id. at 26–27, 29. The court also rejected ICG’s position that the
statement was merely an opinion, concluding it was “sufficiently
factual to be susceptible of being proved true or false.” Id. at
27–28 (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 21
(1990)). To the extent it might have been an opinion, the court
concluded it was not privileged because the opinion’s factual
basis was not fully disclosed in the report. See id. at 28.
Upon remand, the parties filed motions for summary
judgment. Zepter moved for partial summary judgment, seeking
to establish that he was a private figure and that the defamatory
passage was false. ICG moved for summary judgment on the
grounds that Zepter was a limited-purpose public figure and he
had failed to proffer sufficient evidence of actual malice. The
district court agreed with ICG. Jankovic III, 72 F. Supp. 3d at
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301, 316–17. In granting summary judgment to ICG, the district
court took note of various procedural defaults that hindered
Zepter’s ability to meet his burden, including failing to seek
timely discovery of Lyon’s sources, see id. at 314 n.32, and to
dispute some of ICG’s material facts, id. at 290.
Zepter appeals the grant of summary judgment, and our
review is de novo, Lohrenz v. Donnelly, 350 F.3d 1272, 1274
(D.C. Cir. 2003), while examining evidentiary and discovery
rulings for abuse of discretion, Morrison v. Int’l Programs
Consortium, Inc., 253 F.3d 5, 9 (D.C. Cir. 2001).
II.
The Supreme Court has long enshrined “a profound national
commitment to the principle that debate on public issues should
be uninhibited, robust, and wide-open, and that it may well
include vehement, caustic, and sometimes unpleasantly sharp
attacks on government and public officials.” New York Times
Co. v. Sullivan, 376 U.S. 254, 270 (1964) (internal citation
omitted). An action for defamation can be maintained only to
the extent it does not interfere with First Amendment rights of
free expression. Thus, “a public official” may not “recover[]
damages for a defamatory falsehood relating to his official
conduct unless he proves that the statement was made with
‘actual malice,’ that is, with knowledge that it was false or with
reckless disregard of whether it was false or not.” Id. at 279–80.
Since New York Times, the Court has explained that a similar
rule applies to public figures, and, accordingly, speech relating
to public officials and public figures, as distinct from private
persons, enjoys greater protection under the First Amendment.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974); Curtis
Publ’g Co. v. Butts, 388 U.S. 130, 154 (1967).
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The Court has laid down broad rules about when a private
individual becomes a public figure. Some individuals are public
figures because they “occupy positions of such persuasive power
and influence that they are deemed public figures for all
purposes,” but more commonly, private individuals become
more limited-purpose public figures because they “have thrust
themselves to the forefront of particular public controversies in
order to influence the resolution of the issues involved.” Gertz,
418 U.S. at 345. The Court set the “dividing line between public
and private figures based on those who assumed the risk of
publicity and had access to channels of communication to
defend themselves, and those who did not.” Lohrenz, 350 F.3d
at 1279 (citing Gertz, 418 U.S. at 344). Indeed, “[t]he
communications media are entitled to act on the assumption that
public officials and public figures have voluntarily exposed
themselves to increased risk of injury from defamatory
falsehood concerning them,” whereas a private individual “has
relinquished no part of his interest in the protection of his own
good name, and consequently he has a more compelling call on
the courts for redress of injury inflicted by defamatory
falsehood.” Gertz, 418 U.S. at 345. In setting these guidelines,
the Court accommodated the competing concerns between a free
press and a private person’s need to redress wrongful injury, but
has “been especially anxious to assure to the freedoms of speech
and press that ‘breathing space’ essential to their fruitful
exercise.” Id. at 342 (citation omitted).
A.
Whether Zepter is a limited-purpose public figure or is a
private figure is a “matter of law for the court to decide.”
Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C. Cir. 1987); see
Rosenblatt v. Baer, 383 U.S. 75, 88 n.15 (1966). Although
Gertz ultimately controls the resolution of this question of law,
this court employs a three-part inquiry first articulated in
Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287,
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1296–98 (D.C. 1980). See Tavoulareas, 817 F.2d at 772–73.
First, the court must identify the relevant controversy and
determine whether it is a public controversy. Waldbaum, 627
F.2d at 1296. Second, the plaintiff must have played a
significant role in that controversy. Id. at 1297. Third, the
defamatory statement must be germane to the plaintiff’s
participation in the controversy. Id. at 1298. In conducting this
analysis, a court must be mindful that “the touchstone” of the
limited-purpose public figure analysis remains determining
“whether an individual has assumed [a] role[] of especial
prominence in the affairs of society . . . [that] invite[s] attention
and comment.” See Lohrenz, 350 F.3d at 1279 (alterations in
original) (quoting Tavoulareas, 817 F.2d at 773). Zepter
contends that the district court erred at each step of the inquiry,
and, in so doing, misunderstood the teachings of Gertz.
1. Scope of Public Controversy. A controversy is not a
public controversy solely because the public is interested in it.
See Waldbaum, 627 F.2d at 1296–97; Time, Inc. v. Firestone,
424 U.S. 448, 454 (1976). To determine whether there is a
public controversy, the court “must examine whether persons
actually were discussing some specific question,” looking to
“see if the press was covering the debate, reporting what people
were saying and uncovering facts and theories to help the public
formulate some judgment.” See Waldbaum, 627 F.2d at 1297.
A controversy is a public one when a “reasonable person would
have expected persons beyond the immediate participants in the
dispute to feel the impact of its resolution.” Id.
The district court identified the public controversy as “the
progress of political and economic reform in Serbia and the
integration of Serbia into international institutions” in the post-
Milosevic Serbian government, including the Prime Minister
Djindjic regime. Jankovic III, 72 F. Supp. 3d at 301–03. Zepter
does not dispute that this is a public controversy, but maintains
9
that there was a more specific controversy on which the district
court needed to focus. In Zepter’s view, the period when
Djinjdic was in power was not relevant, and the public
controversy should have been focused on “the progress of
Serbian political and economic reform after the March 2003
assassination of Zoran Djindjic.” Appellant’s Br. 17. Zepter
maintains this controversy is more appropriate because it is
narrower, more directly tied to the report which contains the
defamation, and compelled by law of the case and judicial
estoppel.
When defining the relevant controversy, a court may find
that there are multiple potential controversies, and it is often true
that “a narrow controversy may be a phase of another, broader
one.” See Waldbaum, 627 F.2d at 1297 n.27. Indeed, courts
often define the public controversy in expansive terms. See
Tavoulareas, 817 F.2d at 773; Waldbaum, 627 F.2d at 1299.
Although, as Zepter suggests, a broader public controversy may
involve many more individuals, defining a public controversy
broadly does not necessarily mean that too many individuals
will be treated as public figures because the broader the
controversy, the less likely it is for any individual to have had
“the necessary impact” on that controversy. See Waldbaum, 627
F.2d at 1297 n.27. And whether an individual has a sufficient
impact on the controversy is the second part of the Waldbaum
inquiry and is not relevant to the threshold question of defining
the public controversy.
Zepter’s view that narrowing the definition of the
controversy is required in order to relate it to the publication
containing the defamation is not well taken. The court has
defined controversies as being broader than the narrower
discussion contained in the defamatory document, see
Tavoulareas, 817 F.2d at 778–79; Waldbaum, 627 F.2d at 1290
& n.5, 1299, and Zepter offers no reason a different approach is
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required here. Although Report 145 focuses on the reform effort
after Prime Minister Djindjic’s assassination in 2003, its
discussion concerns the broader public debate about the reform
effort after Milosevic was ousted from power in 2000. See, e.g.,
Report 145, at i, 17–18. A report about the prospect of post-
2003 reforms in Serbia contributes to both the narrow post-
assassination issue and the broader discussion of post-2000
reforms.
Zepter’s judicial estoppel and law-of-the-case arguments
fare no better. Zepter fails to show ICG’s positions regarding
the scope of the controversy are inconsistent. ICG never argued
in this court or the district court that the only relevant public
controversy was related to the post-Djindjic assassination
period, and its prior explanation in 2009 that Report 145 focused
on the post-assassination period is consistent with its position
now that the relevant public controversy was much broader.
Judicial estoppel is therefore inapplicable. See New Hampshire
v. Maine, 532 U.S. 742, 750 (2001). Also, in Jankovic II, the
court did not address whether Zepter was a public figure and
concluded only that “[t]he language at issue in this case appears
in ICG’s Report 145, which addresses the deceleration of
Serbian reforms” after Prime Minister Djindjic’s assassination.
593 F.3d at 24. There is no reason to think the court
“affirmatively decided the issue” of the relevant public
controversy. See Crocker v. Piedmont Aviation, Inc., 49 F.3d
735, 739 (D.C. Cir. 1995).
2. Role in Controversy. For Zepter to be a limited-purpose
public figure, he must have “thrust” himself to the “forefront” of
the public controversy at issue. Waldbaum, 627 F.2d at 1297
(quoting Gertz, 418 U.S. at 345). Zepter maintains that the
breadth of the controversy ensures that someone such as himself
— a mere businessman interested in civic affairs — could not
have been expected to have the requisite impact. Appellant’s
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Br. 22–30. After all, a broad controversy “will have more
participants” such that it is unlikely any one individual “can
have the necessary impact.” Waldbaum, 627 F.2d at 1297 n.27.
In Gertz, the Supreme Court cautioned against concluding that
an individual was a public figure for all purposes solely because
of activity in “community and professional affairs” and declined
to treat that individual as a public figure for a limited
controversy in the absence of evidence that he had “thrust
himself into the vortex of” any relevant public issue or
“engage[d] the public’s attention in an attempt to influence its
outcome.” Gertz, 418 U.S. at 351–52; see Hutchinson v.
Proxmire, 443 U.S. 111, 134–35 (1979).
The evidence eliminates the risk that Zepter was merely an
ordinary civic participant and private person who has been
mischaracterized as a limited-purpose public figure. It shows
that he was was an outspoken supporter, financial backer, and
advisor of Prime Minister Djindjic. Zepter now steps back from
his statement to the press regarding his advisory role, but he
does not deny that he paid over $100,000 to a lobbyist to support
Prime Minister Djindjic’s effort to improve relations between
the United States and Serbia. Returning from a trip to the
United States in late November 2001, Djindjic announced that
the United States had promised assistance in writing off two-
thirds of Yugoslavia’s 12.2 billion dollar external debt and
rescheduling the remainder. In an open letter of December 30,
2001, to the Serbian people, entitled “My Answer to Them,”
which was published on the front page of two Serbian
newspapers, Zepter emphasized that he had long been a
supporter of Djindjic and of reform in Serbia and announced:
“When, in a few years, I enter [the] political arena, I will enter
to win.” In various interviews with members of the Balkan
press, Zepter repeated these views, including acknowledging in
an article published in the fall 2003 in Nacional (Croatia) that
he had given advice to Prime Minister Djindjic and paid for a
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lobbyist to improve relations between the United States and
Serbia.
Thus, Zepter was “purposely trying to influence the
outcome or could realistically have been expected, because of
his position in the controversy, to have an impact on its
resolution.” Waldbaum, 627 F.2d at 1297; see Gertz, 418 U.S.
at 345. The evidence shows that Zepter had voluntarily thrust
himself into ensuring that Serbia underwent reforms in the post-
Milosevic era. He attained “a position in the limelight” through
“purposeful action[s] of his own.” See Lohrenz, 350 F.3d at
1280 (quoting Gertz, 418 U.S. at 345). His actions ensured that
he would play a central role in the reform, and he “engaged in
conduct that he knew markedly raised the chances that he would
become embroiled in a public controversy.” Clyburn v. New
World Commc’ns, Inc., 903 F.2d 29, 33 (D.C. Cir. 1990);
Lohrenz, 350 F.3d at 1280. His close political relationship with
Prime Minister Djindjic carried a risk of public scrutiny. See
Clyburn, 903 F.2d at 33; Waldbaum, 627 F.2d at 1292, 1298;
Thompson v. Evening Star Newspaper Co., 394 F.2d 774, 776
(D.C. Cir. 1968); Rebozo v. Wash. Post Co., 637 F.2d 375,
379–80 (5th Cir. 1981). His public actions invited press scrutiny
in view of the public discussion regarding the impact that
businessmen of his stature would have on reform during and
after the Djindjic regime. It is little wonder that a prominent
businessman’s close ties to Prime Minister Djindjic achieved
“special prominence” in the debate about reform in Serbia. See
Waldbaum, 627 F.2d at 1297.
The three sworn statements proffered by Zepter from
prominent individuals with knowledge of Serbia — a former
U.S. Ambassador to Yugoslavia, a Djindjic-appointed Assistant
Minister of Foreign Affairs, and a former ICG employee — are
unhelpful to him. The former ICG employee had no knowledge
of Zepter whatsoever, and the other two had no knowledge of
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Zepter being involved in the political or economic affairs of
Prime Minister Djindjic. One understood Zepter simply to be a
personal friend of the Prime Minister. But such close personal
friendships can carry with them the risk of being swept up into
a public controversy. See Clyburn, 903 F.2d at 32–33; Rebozo,
637 F.2d at 379. Further, these individuals do not contradict the
evidence that Zepter was more than just a close personal friend,
even paying for a lobbyist to advance Serbia’s interests, as
defined by Prime Minister Djindjic, in the United States.
The evidence already described disposes of Zepter’s view
that the only evidence offered in support of his status as a
limited-purpose public figure are unreliable Serbian press
articles and his purely defensive statements to the press. In
suggesting that relying on Serbian news sources for their truth
was error in view of their unreliability and potential hearsay
problems, Zepter ignores that he failed to offer evidence that the
particular articles on which the district court relied were untrue.
Under the local rules, uncontested facts may be taken as true for
purposes of summary judgment. See Jankovic III, 72 F. Supp.
3d at 290 & n.3 (citing Local Civ. R. 7(h) and Jackson v.
Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d
145, 153 (D.C. Cir. 1996)). Although there was evidence that
the reliability of the Serbian press, generally, was subject to
question, the evidence did not indicate it was categorically
unreliable; rather, articles could be evaluated on a case-by-case
basis and, according to Lyon, could be a “useful barometer of
public sentiment, or some portion of it, as well as at times
convey accurate information,” Lyon Decl.¶ 51 (Mar. 29, 2013).
News sources can play a central non-hearsay role in this part of
the inquiry. See Waldbaum, 627 F.2d at 1297, 1290 n.3; see
also Tavoulareas, 817 F.2d at 773–74. In any event, relevant
content in the news stories is supported by evidence that Zepter
could hardly dispute or label as hearsay, including the lobbyist’s
deposition testimony on the intended effect of his lobbying and
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Zepter’s own view of his role as contributing to the transition of
the Serbian government. See Denton Dep. Tr. 13–19, 95–97
(Dec. 14, 2011); Milan Jankovic, “My Answer to Them,” Glas
Jovnosti, Dec. 30, 2001, at 4 (Eng. translation).
On the other hand, it is true that “responding to press
inquiries or attempting to reply to comments on oneself through
the media does not necessarily mean that [one] is attempting to
play a significant role in resolving a controversy.” Waldbaum,
627 F.2d at 1298 n.31; see also Clyburn, 903 F.2d at 32–33. So,
the court does not give great weight to a plaintiff’s press
statements when the statements “merely answer the alleged libel
itself” or consist of “purely defensive, truthful statements made
when an individual finds himself at the center of a public
controversy but before any libel occurs.” See Clyburn, 903 F.2d
at 32. Zepter, however, used the public controversy to do more
than provide a “short simple statement of his view of the story,”
and instead drew “attention to himself” and used “his position
in the controversy ‘as a fulcrum to create public discussion.’”
See id. (quoting Wolston v. Reader’s Digest Ass’n, 443 U.S. 157,
168 (1979)); Tavoulareas, 817 F.2d at 773–74; Time, 424 U.S.
at 454 n.3. His open letter to the Serbian People was more than
a mere defensive statement as it expressed his continued support
for the political regime headed by Prime Minister Djindjic and
explained his own future political ambitions. This goes “beyond
an ordinary citizen’s response to the eruption of a public fray
around him.” Clyburn, 903 F.2d at 33. Moreover, the conduct
that Zepter acknowledged to the press — acting as an advisor
and financier of the Serbian reform effort — makes him a
limited-purpose public figure, and it was that conduct, and not
the negative stories, that involved him in the public controversy.
See id. at 33. Zepter’s choosing to involve himself in reform —
through his supportive public statements and the payment of a
lobbyist — is what gave him “special prominence” in the public
controversy.
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3. Germaneness. For Zepter to have been a limited-purpose
public figure, the defamatory statement must be “germane to the
plaintiff’s participation in the controversy.” Waldbaum, 627
F.2d at 1298. “Misstatements wholly unrelated to the
controversy” are not protected, but statements, including those
highlighting a plaintiff’s “talents, education, experience, and
motives,” can be germane. Id. (emphasis added).
To Zepter, the defamation regarding his possible
relationship to Milosevic could not relate to his role in a public
controversy focused on the period after Milosevic was no longer
in power. Yet even if Zepter was an important figure in the
Serbian reform effort mainly due to his relationship with Prime
Minister Djindjic, his relationship to Milosevic is relevant to
Zepter’s role in the controversy. Linking Zepter to Milosevic
would be relevant to understanding Zepter’s role and why he
wanted to be involved in the reform effort led by Prime Minister
Djindjic. The germaneness test is met because the defamatory
statement relates to the individual’s role in the public
controversy.
Also according to Zepter, ICG has not offered sufficient
evidence of a relationship between Zepter and Milosevic for the
defamatory statement to be germane. But the germaneness part
of the Waldbaum inquiry is not the place to debate whether the
statement is true or even well-supported. Those questions are
relevant to the actual malice inquiry. The purpose of the
germaneness inquiry is to ensure that the allegedly defamatory
statement — whether true or not — is related to the plaintiff’s
role in the relevant public controversy. This ensures that
publishers cannot use an individual’s prominence in one area of
public life to justify publishing negligent falsehoods about an
unrelated aspect of the plaintiff’s life. See Waldbaum, 627 F.3d
at 1298.
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B.
As a limited-purpose public figure, Zepter can prevail on
his defamation claim only if he “proves that the statement was
made with ‘actual malice’ — that is, with knowledge that it was
false or with reckless disregard of whether it was false or not.”
See New York Times, 376 U.S. at 279–80. A defendant has
acted recklessly 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 v.
Thompson, 390 U.S. 727, 731 (1968) (emphasis added) (quoting
Garrison v. Louisiana, 379 U.S. 64, 74 (1964)). The plaintiff
can “prove the defendant’s subjective state of mind through the
cumulation of circumstantial evidence, as well as through direct
evidence.” Tavoulareas, 817 F.2d at 789. But it 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. See McFarlane v. Sheridan Square Press,
Inc., 91 F.3d 1501, 1508 (D.C. Cir. 1996). The plaintiff can
make this showing, for example, by offering evidence 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 [defendant]
had obvious reason to doubt.’” Lohrenz, 350 F.3d at 1283(quoting Tavoulareas, 817 F.2d at 790); see also St. Amant, 390
U.S. at 732; Clyburn, 903 F.2d at 33. In view of the important
values enshrined in the First Amendment, the Constitution
further protects publishers by requiring that plaintiffs prove
actual malice by clear and convincing evidence. See Gertz, 418
U.S. at 342; see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 244 (1986).
1. To prevail on summary judgment, and now on appeal,
Zepter must show that “the evidence in the record could support
a reasonable jury finding . . . that [he] has shown actual malice
17
by clear and convincing evidence.” Anderson, 477 U.S. 255–56.
As the non-moving party, he is entitled to the benefit of all
“justifiable inferences” in his favor and “need only present
evidence from which a jury might return a verdict in his favor.”
See id. at 254–55, 257. He is also entitled to the benefit of the
aggregate of the evidence. See Lohrenz, 350 F.3d at 1283;
Tavoulereas, 817 F.2d at 794 n.43. Nonetheless, because of the
heightened burden imposed by the clear and convincing standard
and the challenges associated with offering evidence about state
of mind, this standard is not easily met, even at summary
judgment. See Lohrenz, 350 F.3d at 1283. The “standard of
actual malice is a daunting one,” McFarlane, 91 F.3d at 1515(quoting McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308
(D.C. Cir. 1996)), and “[f]ew public figures have been able
clearly and convincingly to prove that the scurrilous things said
about them were published by someone with ‘serious doubts as
to the truth of his publication.’” Id. (quoting St. Amant, 390
U.S. at 731).
Although the serious doubt inquiry “is too fact-bound to be
resolved on the basis of any single factor or mechanical test,”
see Tavoulereas, 817 F.2d at 788, several principles guide the
analysis. For example, “actual malice does not automatically
become a question for the jury whenever the plaintiff introduces
pieces of circumstantial evidence tending to show that the
defendant published in bad faith.” Id. at 789. Nor is it enough
for the plaintiff to offer evidence of “highly unreasonable
conduct constituting an extreme departure from the standards of
investigation and reporting ordinarily adhered to by responsible
publishers.” Harte-Hanks Commc’ns v. Connaughton, 491 U.S.
657, 664–65 (1989) (citation omitted); Clyburn, 903 F.2d at 33.
Nor, further, does it suffice for a plaintiff merely to proffer
“purportedly credible evidence that contradicts a publisher’s
story.” Lohrenz, 350 F.3d at 1284. Rather, it is only when a
plaintiff offers evidence that “a defendant has reason to doubt
18
the veracity of its source” does “its utter failure to examine
evidence within easy reach or to make obvious contacts in an
effort to confirm a story” demonstrate reckless disregard.
McFarlane, 91 F.3d at 1509. Absent such concerns, the
defendant has no duty to corroborate the defamatory allegation.
See id. Even “ill will toward the plaintiff or bad motives are not
elements of actual malice,” and “such evidence is insufficient by
itself to support a finding of actual malice.” Tavoulareas, 817
F.2d at 795. That is, “a newspaper’s motive in publishing a
story — whether to promote an opponent’s candidacy or to
increase its circulation — cannot provide a sufficient basis for
finding actual malice.” Harte-Hanks Commc’ns, 491 U.S. at
665. Only when the evidence of ill will or bad motive is also
probative of a “willingness to publish unsupported allegations”
is it suggestive of actual malice. See Tavoulareas, 817 F.2d at
796.
2. Zepter contends that a reasonable jury could find that
ICG published the defamatory statement in Report 145 with
actual malice. He points to a series of circumstances that
individually or collectively, he maintains, would permit a
reasonable jury to find that ICG’s statement was based on a
mere assumption that there was continuing influence of the
Milosevic oligarchy during and after the Djindjic regime, and
that ICG’s lack of evidence that Zepter was a Milosevic crony
demonstrates that it published the statement with actual malice.
See Jankovic I, 494 F.3d at 1091. As he puts it, the principal
author of Report 145, Lyon, “self servingly claims to have
assumed that any financially successful person from Serbia must
have been a Milosevic crony,” and his “claim is all the more
unwarranted in light of evidence showing that Lyon pursued a
scheme to extort Zepter.” Appellant’s Br. 9. The view that
Report 145’s defamatory statement was based on a mere
assumption ignores key portions of Lyon’s declaration, which
explains his research process and that his conclusion was not a
19
mere assumption but based on information gathered from
various sources. ICG’s other conduct on which Zepter relies,
including Lyon’s attempted extortion, does not rise to the level
of clear and convincing evidence of actual malice.
Because Lyon was the principal author of Report 145 and
Zepter maintains that nothing that ICG points to supports the
defamatory statement, it bears setting out the particulars of
Lyon’s declaration. ICG maintains that it had and continues to
have a good faith belief that the defamatory statement is true,
explaining the process for gathering information for Report 145
and the basis for concluding that Zepter was aligned with the
Milosevic regime. ICG — including ICG’s Vice President in
charge of research with over 30 years at the U.S. State
Department and another former ICG employee with thirty years’
experience in foreign affairs — considered Lyon to be an expert
on the area and to be one of ICG’s best analysts. Lyon had
devoted his professional life to the study of the Balkans, had a
Ph.D in Balkan history from the University of California, Los
Angeles, and had extensive experience from living and working
in, and conducting research on, the Balkans. He spent
approximately two months researching, interviewing, and
drafting Report 145, which underwent further editing upon his
supervisor’s review and upon subsequent review by the director
of research, and the report was ultimately approved by ICG’s
president. In view of Lyon’s extensive reporting and research,
ICG was confident in the truthfulness of its report.
Although the precise source for the defamatory statement
was not made clear in Report 145, Lyon explained that his
conclusion that Zepter was a Milosevic crony was based on prior
ICG reports, interviews he had conducted, Balkan press reports,
a report purporting to be from the Office of the High
Representative (“OHR”) formed to implement the Dayton Peace
Agreement, and the OFAC frozen assets list. Lyon Decl.
20
¶¶ 27–67. Through reviewing or researching ICG’s prior reports
(Reports 115, 118, 126, and 141), Lyon had become familiar
with Zepter and had come to believe that Zepter’s banks were in
league with the Milosevic regime in view of the role such banks
might have played in aiding the regime by controlling cash
flows in Serbia and neighboring Republika Srpska (“RS”). Id.¶¶ 27–39. Additionally, he conducted many interviews with
officials associated with Balkan governments and the embassies
of the NATO powers that intervened in the region as well as
businessmen in the area. Id. ¶¶ 40–41. Although the precise
identities of these sources remain confidential, Lyon stated each
had previously proven to be reliable and that he had confidence
in the information they were providing. Id. ¶¶ 48–50. From
these interviews with confidential sources, Lyon concluded that
“it was impossible during the Milosevic era to have amassed
significant wealth without the sponsorship of, or direct
assistance from, the regime or its security services.” Id. ¶ 42.
He had been told by a local government source that Zepter had
access to privileged currency rates and “was among those who
had profited handsomely under the [Milosevic] regime.” Id.
¶ 45. He had also been told by many intelligence and diplomatic
sources that Zepter and his businesses were believed to be
engaged in money laundering and arms dealing, that he had ties
to “Milosevic’s state security apparatus[,] and that Zepter’s
company had been formed with capital from a state-owned
company controlled by Milosevic.” Id. ¶¶ 48–49. Lyon
acknowledged being encouraged in his conclusion by the fact
that questions were being raised by the Balkan press about the
source of Zepter’s wealth and his ties to the Milosevic regime.
Id. ¶ 52. Lyon also received from a NATO intelligence source
a report purporting to be from the OHR that supported his
conclusion Zepter was engaged in criminal wrongdoing and was
associated with Milosevic. Id. ¶¶ 52, 57, 60–61. Finally, Lyon
also relied on the fact that the OFAC had included Zepter Bank
on a list of entities whose assets should be frozen. Id. ¶¶ 64–65.
21
This bolstered Lyon’s conclusion that the bank had close ties to
the Milosevic regime. Id. ¶¶ 65–67. Because his research
revealed that it was not “possible that any significant
commercial entity, particularly a bank, could operate
independently of [the Milosevic] regime,” Lyon believed that
the bank’s assets were frozen due to its relationship with the
Milosevic government. Id. ¶ 67.
Zepter maintains, Lyon’s declaration aside, that the record
supports an inference that ICG did not rely on any sources
outside of the OFAC frozen assets list. Because ICG previously
represented to this court in 2009 that the defamatory statement
was either purely an opinion, or at least an opinion fully
supported by the frozen assets list, a jury could infer that ICG
did not actually rely on the other sources referenced in Lyon’s
declaration, which was not prepared until 2013. Given the
court’s conclusion that the factual basis for the defamatory
statement had not been disclosed to the reader as a result of
“ICG falsely stat[ing] the basis for the frozen assets lists,” see
Jankovic II, 593 F.3d at 28, Zepter maintains the court must hold
that Lyon had no other basis for the defamatory statement and
that therefore the defamatory statement was merely an
unsubstantiated opinion based on a mere assumption.
Zepter overreads Jankovic II. ICG’s defense that the
defamatory statement was an opinion does not necessarily mean
it had no other factual basis for the statement. Nor did this court
hold that ICG’s only basis for the defamatory statement was the
frozen asset list. Rather, the court concluded that the statement
did not deserve protection “under the doctrine that ‘a statement
of opinion that is based upon true facts that are revealed to
readers’” is not actionable. See id. (citation omitted). Nothing
revealed to the readers of Report 145 — including the OFAC list
— sufficed to fully support the defamatory statement. See id.ICG had not, however, argued that its only factual support for
22
the statement was the frozen assets list but that the frozen assets
list supplied a fully disclosed basis for supporting the statement.
This left open the possibility that ICG had other sources
undisclosed in the Report to support the defamatory statement.
Zepter is correct that the court cannot consider one source
on which Lyon purports to rely – the OHR Report. The district
court ruled ICG was judicially estopped from relying on this
evidence. Jankovic III, 72 F. Supp. 3d at 317 n.37. On appeal,
ICG has failed to present more than cursory argument, in a
footnote and without case citations, that this was error,
Appellee’s Br. 46–47 n.10. The court does not consider the
merits of such underdeveloped arguments, thereby leaving that
ruling in place. See Am. Wildlands v. Kempthorne, 530 F.3d
991, 1001 (D.C. Cir. 2008); Cement Kiln Recycling Coal. v.
EPA, 255 F.3d 855, 869 (D.C. Cir. 2001).
Zepter maintains further, however, that even if a jury could
believe that Lyon relied on each of the sources he mentioned in
his declaration, there were “obvious reasons to doubt” their
accuracy or reliability. See, e.g., McFarlane, 91 F.3d at 1513(citation omitted); Lohrenz, 350 F.3d at 1284–85. He focuses on
why the OFAC listing and Serbian press are unreliable, but he
nowhere suggests there was any reason for Lyon to doubt ICG’s
prior reports or his confidential sources, each of which support
the defamatory statement. Zepter’s counsel emphasized during
oral argument that, unlike the precedents on which ICG relies,
ICG has never revealed the identity of its confidential sources or
otherwise provided the specific basis for the defamatory
statement. True, but this gets Zepter only so far. Zepter’s
failure to learn the identity of the confidential sources was due,
at least in part, to his untimely discovery request. See Jankovic
III, 72 F. Supp. 3d at 315 n.32. The only record evidence is that
Lyon had confidence in what these sources told him based on
their past reliability. Lyon Decl. ¶¶ 48–50.
23
And there is no merit to Zepter’s argument that ICG could
not rely on confidential sources because ICG had failed to
disclose their identity to him. See Appellant’s Br. 51–52.
Where, as here, “the primary source of evidence is the reporter’s
own (naturally self-interested) testimony of what a confidential
source told him, the combination of the burden of proof and the
reporter’s privilege to withhold the source’s identity confront a
defamation plaintiff with unusual difficulties.” Clyburn, 903
F.2d at 35. But the court also recognized that “the reporter’s
privilege is a qualified one,” because a plaintiff may be able to
compel a reporter to divulge his sources if the plaintiff “exhausts
all reasonable alternative means of identifying the source.” Id.(citing Zerilli v. Smith, 656 F.2d 705, 713–14 (D.C. Cir. 1981),
and Carey v. Hume, 492 F.2d 631, 639 (D.C. Cir. 1974)). In the
cases on which Zepter relies, the defendant was precluded from
relying on the confidential sources after a court had determined
that the reporter’s privilege gave way and that precluding the
defendant from relying on such sources was an attractive
alternative remedy to requiring the reporter to reveal a source’s
identity. See, e.g., Dowd v. Calabrese, 577 F. Supp. 238, 244
(D.D.C. 1983). Zepter is not at that point, for his motion to
compel disclosure was denied because he filed it after the time
for discovery had closed. Jankovic III, 72 F. Supp. 3d at 315
n.32; see also Jankovic v. Int’l Crisis Grp., No. 04-1198, slip op.
at 4 (D.D.C. Sept. 4, 2014). On appeal, Zepter makes only a
cursory argument this was error, in a footnote to his brief. The
court does not consider such arguments, see Am. Wildlands, 530
F.3d at 1001; Cement Kiln, 255 F.3d at 869, as Zepter does not
attempt to explain why the district court abused its discretion in
refusing to permit untimely discovery when he could have
sought production during the discovery period. As in Clyburn,
Zepter’s “failure to offer evidence of actual malice” with respect
to the confidential sources “must be charged squarely to him.”
See 903 F.2d at 35.
24
Zepter’s failure to offer evidence casting doubt on ICG’s
good faith reliance on these confidential sources leaves no basis
for a reasonable inference that Lyon had not supported the
defamatory statement with such sources. This may well prevent
Zepter from proving actual malice, see, e.g., Liberty Lobby, Inc.
v. Dow Jones & Co., Inc., 838 F.2d 1287, 1297–98 (D.C. Cir.
1988); McFarlane, 91 F.3d at 1513; Tavoulareas, 817 F.2d at
790. See also St. Amant, 390 U.S. at 731–32. But Zepter is
entitled to the benefit of the aggregate effect of evidence
relevant to showing ICG acted with actual malice. See Lohrenz,
350 F.3d at 1283; Tavouloreas, 817 F.2d at 794 n.43. He
maintains that other circumstances relating to Report 145 could
still convince a jury that Lyon did not rely on these confidential
sources. Zepter focuses on Lyon’s other sources where there is
evidence of unreliability as well as a series of editorial missteps
by ICG, and Lyon’s attempted extortion.
First, Zepter maintains that a jury could find that it was
reckless for ICG to rely on the Serbian press because ICG
recognized that some Serbian press outfits were “sensationalist
bordering on libel” and others were “notorious for spreading
rumours and outright lies,” Report 145, at 9–10. Zepter,
however, exaggerates the role the Balkan press played in Lyon’s
reporting, as his declaration’s greater reliance on confidential
sources demonstrates. As in McFarlane, 91 F.3d at 1513, even
though Lyon had reason to be “wary” of the press reports, “he
also had some reason to believe the story, based upon his own
research and his conversations with journalists and experts” on
Balkan affairs. See also Tavoulareas, 817 F.2d at 790. Any
potential bias associated with the news reports, “does not detract
from the reliability” of the confidential sources. See Clyburn,
903 F.2d at 34. And disclosure in Report 145 of the potential
unreliability of the press reports would tend to dispel any claim
of actual malice. See McFarlane, 74 F.3d at 1304.
25
Second, Zepter maintains that a reasonable jury could find
actual malice based on ICG’s negligence in overreading the
OFAC frozen asset list to support the defamatory statement.
This court concluded that ICG’s reliance was misplaced because
the listing did not mean that “Zepter Banka gave ‘support’ to
Milosevic, and that its U.S. assets were frozen because of that
support.” Jankovic II, 593 F.3d at 27. But that is not the same
as showing that ICG knowingly published a false statement or
subjectively doubted that the list justified the conclusion at the
time Report 145 was issued. What is relevant to malice is the
information “that was available to and considered by [ICG] prior
to publication.” McFarlane, 91 F.3d at 1508. Even if the
Executive Order accompanying the OFAC list did not reflect
ICG’s understanding of the list, the inferences in Zepter’s favor
end with a showing that ICG honestly, if mistakenly believed
that the OFAC listing was evidence of Zepter’s support for the
Milosevic regime. An honest misinterpretation does not amount
to actual malice even if the publisher was negligent in failing to
read the document carefully. Cf. Time, Inc. v. Pape, 401 U.S.
279, 289–92 (1971); Bose Corp. v. Consumers Union of U.S.,
Inc., 466 U.S. 485, 512 (1984).
Third, Zepter’s reliance on insufficient investigation by ICG
is a non-starter. Only if “a defendant has reason to doubt the
veracity of its source” is its “failure to examine evidence within
easy reach or to make obvious contacts” evidence of its reckless
disregard. See McFarlane, 91 F.3d at 1510. Lyon had not
discovered anything that caused him to doubt his conclusion
about Zepter, and therefore was under no obligation to
investigate further. See Lohrenz, 350 F.3d at 1284–85;
McFarlane, 91 F.3d at 1510; Masson v. New Yorker Magazine,
Inc., 960 F.2d 896, 901 (9th Cir. 1992); see also St. Amant, 390
U.S. at 732–33. “Even where doubt-inducing evidence could be
discovered, a publisher may still opt not to seek out such
evidence and may rely on an informed source, so long as there
26
is no ‘obvious reason to doubt’ that source.” Lohrenz, 350 F.3d
at 1285. Zepter has not identified any such evidence that ICG
might have easily discovered, other than possibly from speaking
with Zepter himself. That Lyon did not contact Zepter, who
might reasonably be expected to deny that he was a Milosevic
crony, is neither surprising nor required. See McFarlane, 91
F.3d at 1510–11; Lohrenz, 350 F.3d at 1286.
Fourth, ICG’s purported deviations from its normal
operating procedures are no more suggestive of actual malice.
Zepter highlights ICG’s use of an intern to fact check, which is
unremarkable, and this, along with ICG’s departures from its
style and procedures guidelines, does not amount to “purposeful
avoidance of the truth.” See Harte-Hanks Commc’ns, 491 U.S.
at 692. Whether these procedures were regularly followed is up
for debate, but departures from the normal procedure would, at
most, constitute evidence of “highly unreasonable conduct
constituting an extreme departure from the standards of
investigation and reporting ordinarily adhered to by responsible
publishers.” Even less does mere sloppy journalism constitute
clear and convincing evidence that ICG acted with actual
malice. See Lohrenz, 350 F.3d at 1284 (quoting Harte-Hanks
Commc’ns, 491 U.S. at 666).
Fifth, Zepter emphasizes that anyone familiar with Serbia
would recognize the inherent improbability of an outspoken
supporter of Prime Minister Djindjic having previously been a
Milosevic supporter. This posits a false dichotomy. See
Jankovic III, 72 F. Supp. 3d at 313. The evidence shows that it
was neither unheard of for a former Milosevic supporter to shift
alliances, such that Lyon and ICG would have been breaking
new ground in concluding that Zepter had done exactly that, nor
that anyone at ICG thought this possibility particularly unlikely.
Shifting alliances were thought to be common, as illustrated by
the example of a Milosevic security chief joining the post-
27
Milosevic government. And according to the President of ICG,
there was nothing inconsistent about “someone having been
close to the Milosevic regime but nonetheless at the same time
being close to people who were, with varying degrees of
capacity and intent, trying to forge a new regime for Serbia.”
Evan Garth Dep. Tr. 346 (Oct. 26, 2011). Maybe Zepter should
not have been considered by ICG to be among those who
switched allegiances, but he has pointed to no evidence that ICG
staff would have been subjectively aware that it was inherently
improbable that he had done so.
Sixth, Zepter points to the evidence that Lyon attempted to
extort money from him, something he waited some nine years
after its alleged occurrence to mention. During a meeting with
Lyon, either before or after Report 145 was issued, Zepter
claimed that Lyon said Zepter could get him to stop writing
negative stories about him if he paid Lyon one to two million
dollars. Zepter Dep. Tr. 308–09 (Mar. 15, 2012). On summary
judgment, the court must assume that the extortion attempt
occurred. See Fed. R. Civ. P. 56(c); Anderson, 477 U.S. at 255;
cf. Robinson v. Pezzat, No. 15-7040, 2016 WL 1274044, at *6–7
(D.C. Cir. Apr. 1, 2016). Zepter suggests a reasonable jury
could find that Lyon’s motive to extort undermined the
credibility of Lyon’s work and offered an incentive for him to
write untrue reports.
Keeping in mind that “speech ‘honestly believed,’ whatever
the speaker’s motivation, ‘contribute[s] to the free interchange
of ideas and the ascertainment of truth,’” Tavoulareas, 817 F.2d
at 795 (alteration in original) (quoting Garrison, 379 U.S. at 73),
Zepter is nonetheless correct that in some circumstances motive-
based evidence can be probative of actual malice, see id. But
the mere presence of some ulterior motive — whether a profit
motive, a motive to produce the most interesting stories, or a
personal desire to harm the subject of a story — is not enough
28
to support a finding of actual malice. See Harte-Hanks
Commc’ns, 491 U.S. at 666–68; Tavoulareas, 817 F.2d
at 795–97, accord Masson v. New Yorker Magazine, Inc., 501
U.S. 496, 511 (1991). This is so even though such motives may
naturally provide publishers with an incentive to achieve an end
without regard to the truth of what they publish. See
Tavoulareas, 817 F.2d at 797. Absent evidence that the
publisher’s alleged motive shows an “intent to inflict harm
through falsehood,” a “willingness to publish unsupported
allegations,” or a desire to publish “with little or no regard for
[the report’s] accuracy,” the plaintiff has not produced motive-
based evidence probative of actual malice. See id. at 795–97
(citation omitted); see also Harte-Hanks Commc’ns, 491 U.S. at
667. This is true even where the plaintiff introduces evidence
that the publisher engaged in “contemptible” conduct in
reporting the story, for example, by asking someone to steal
documents in support of a story. See Tavoulareas, 817 F.2d at
796.
For the attempted extortion to be clear and convincing
evidence from which a reasonable jury could find actual malice,
Zepter must proffer evidence not only that Lyon prepared
Report 145 with an extortion motive in mind, but also that the
extortion motive caused ICG or Lyon to risk publishing an
untrue statement about him. Zepter’s evidence fails to establish
the latter, at least by clear and convincing evidence. All Zepter
has shown is that Lyon hoped to capitalize on working on
reports about the Balkans. That evidence, without more, does
not amount to evidence that Lyon was willing to publish
untruths in order to make an extra buck. See Tavoulareas, 817
F.2d at 796–97. Such evidence is not inevitably clear and
convincing evidence of actual malice. A reporter might be
equally, if not more, successful in blackmailing someone with
true information, so the fact of extortion does not categorically
allow the inference that Lyon intended to extort Zepter with
29
falsehoods. In fact, Zepter’s own recounting of the extortion
attempt significantly downplays the plausibility of such an
inference. The only evidence shows that Lyon’s motive to
extort was consistent with blackmailing individuals with reports
he believed to be true. When Zepter asked Lyon to stop
publishing “lies,” Lyon responded that he believed what he
wrote was true and that he had reliable sources to prove it.
Zepter Dep. Tr. 308. In view of all of the other evidence
supporting Lyon’s conclusion about Zepter and the evidence that
ICG had a strong motive to publish truthful, carefully prepared
reports that were even better than many embassy reports, see Jon
Greenwald Dep. Tr. at 163–64 (Jun. 10, 2011), no reasonable
jury could find that Lyon’s extortion attempt indicated he
published a falsehood either willingly or recklessly, much less
that there was such clear and convincing evidence.
The district court declined to consider Zepter’s proffered
declarations providing hearsay accounts of Lyon’s attempts to
extort others who were the subject of ICG reports. Jankovic III,
72 F. Supp. 3d at 318 (citing Fed. R. Civ. P. 56(c)(4); Fed. R.
Evid. 403, 404(a)(1)). Zepter offered these declarations only to
“show reputation concerning character” generally, and so even
were these declarations in evidence, they would do no more to
establish that Lyon was willing to publish without regard to
truth or falsity in order to extort. There is no need, then, to
consider whether it was an abuse of discretion to exclude these
declarations.
Seventh, for a similar reason, Zepter’s related argument that
Lyon had concocted a pre-conceived storyline by which all
wealthy Serbian citizens were Milosevic cronies also fails to
establish actual malice. Lyon may have adopted an adversarial
stance toward these wealthy citizens he had come to believe
were deserving of suspicion, but this attitude is not “antithetical
to the truthful presentation of facts.” See Tavoulareas, 817 F.2d
30at 795.
For these reasons, we conclude that, despite weaknesses in
some sources on which ICG relied and viewing the evidence in
his favor, Zepter has failed to establish that “the defendant
actually possessed subjective doubt” about the statement
published in Report 145. See McFarlane, 91 F.3d at 1508.
Owing in part to his procedural failings during discovery and at
summary judgment, Zepter has not pointed to evidence that
there were obvious reasons to doubt the confidential sources or
that ICG or Lyon had discovered evidence causing them to
doubt the conclusion that Zepter was allied with the Milosevic
regime. Absent such evidence from Zepter, the record evidence
of Lyon’s extensive background research and reporting on the
Balkans, his understanding of the Serbian press, and his good
faith belief that the frozen assets list implied more than it
actually did, belies actual malice. This is particularly so in view
of evidence showing that ICG’s report underwent multiple
internal reviews by knowledgeable staff. Evidence of ICG’s
missteps and preconceived notions about Zepter’s Milosevic
years does little to show actual malice. And although Zepter’s
evidence of Lyon’s attempted extortion shows poor judgment
and is hardly admirable conduct for a reporter, see Tavoulareas,
817 F.2d at 796, even that evidence fails to show that Lyon
risked writing “lies” or was motivated to do so. Separately,
then, each of Zepter’s factual theories fails to show clear and
convincing evidence of actual malice.
Zepter’s theories fare no better when viewed in the
aggregate. Even taking these flawed evidentiary assertions
together, no reasonable jury could find by clear and convincing
evidence that ICG acted with actual malice. See McFarlane, 91
F.3d at 1516. What is still missing is evidence that ICG had
“serious doubts” about the truth of the defamatory statement or
that it published the statement with a high degree of awareness
31
of its probable falsity, such that ICG acted with reckless
disregard for the statement’s truth. See St. Amant, 390 U.S. at
730.
Accordingly, we hold that Zepter has failed to establish
clear and convincing evidence of actual malice, and we affirm
the grant of summary judgment to ICG.