Tatel, Circuit Judge:
In this defamation action, two former Liberian officials allege that Global Witness, an international human rights organization, published a report falsely implying that they had accepted bribes in connection with the sale of an oil license for an offshore plot owned by Liberia. The district court dismissed the complaint for failing to plausibly allege actual malice. For the reasons set forth in this opinion, we affirm. The First Amendment provides broad protections for speech about public figures, and the former officials have failed to allege that Global Witness exceeded the bounds of those protections.
Because this appeal comes to us from a dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), "[w]e accept facts alleged in the complaint as true and draw all reasonable inferences from those facts in the plaintiffs' favor." Hancock v. Urban Outfitters, Inc., 830 F.3d 511, 513-14 (D.C. Cir. 2016).
The dispute in this case traces its roots to an Atlantic Ocean plot owned by Liberia and thought to have potentially significant oil reserves. Compl. ¶ 18. The National Oil Company of Liberia (NOCAL), responsible under Liberian law for awarding oil licenses, first issued a license for the plot, known as "Block 13," in 2007 to a company called Broadway Consolidated PLC (BCP). Id. ¶¶ 19-21. That transaction was marred by "rumors of corruption," and when BCP failed to fulfill its obligations under its production sharing contract, Liberia began arranging to sell Block 13 to a different oil company. Id. ¶¶ 21-22.
ExxonMobil, a multinational oil company, was interested in purchasing Block 13 but wary of buying the license directly from BCP given the rumors of corruption surrounding the 2007 transaction. Accordingly, Exxon got a third-party, Canadian Overseas Petroleum Limited, to buy the Block 13 license and resell it to Exxon. In exchange, Exxon paid $120 million, of which $50 million went directly to Liberia —the most Liberia had ever received in a single natural resources deal. Id. ¶ 22. Unlike in the BCP transaction, Liberia was represented in these negotiations by the Hydrocarbon Technical Committee (HTC), a six-member government entity created to "superintend  negotiations" between oil companies and NOCAL. Id. ¶¶ 23-24. Plaintiffs Christiana Tah and Randolph McClain, Liberia's Minister of Justice and NOCAL's CEO respectively, were HTC members during the transaction.
After the deal was consummated, the Liberian President directed NOCAL's board to pay bonuses to those responsible for the new agreement as a "reward for exceptionally well-done service." Id. ¶¶ 25-26, 28. But before the board determined
NOCAL's board then authorized "approximately $500,000" worth of bonuses. Id. ¶ 29. Each "member of the HTC, including ... Tah and ... McClain, received... $35,000," and each of "five consultants were ... sent bonuses of $15,000." Id. The rest of the funds were split among the remaining NOCAL employees, including drivers and custodial workers. Id. The $35,000 payments to Tah and McClain are the focus of this case.
According to Global Witness's report, Catch me if you can, the organization first learned of Exxon's Block 13 deal from the Liberian Extractive Industries Transparency Initiative (LEITI), a semi-autonomous Liberian agency that publishes information about payments made by energy companies to the Liberian government. Because of NOCAL's "tarnished track record of corrupt deals, Global Witness saw there was a risk of bribery and began its investigation." Catch me if you can ("Report") at 9; see also Compl. ¶ 42. Global Witness focused on Block 13 in order to highlight the "critical information" provided by section 1504 of the Dodd-Frank Act, see 15 U.S.C. § 78m(q), which "[l]ike LEITI,... requires all oil, gas, and mining companies to report the payments they make to governments." Report at 9.
Catch me if you can addresses Block 13's background and the corruption surrounding the BCP deal. For example, it states BCP was "likely part-owned by [now-former Liberian] government officials with the power to influence the award of oil licenses," and that the award of Block 13 to BCP therefore violated Liberian law. Id. at 12. The report also claims that the BCP license was approved due to bribery. It then explains how Exxon structured its transaction to alleviate its concerns about the BCP deal.
The report principally addresses the $35,000 payments in a section titled "Monrovia, 2013: Awash in Cash." Id. at 30-31. This section discusses what are repeatedly described as "unusual, large" payments made to HTC members, referencing Tah and McClain by name. Id. at 30. It states that NOCAL characterized the payments as "bonuses," using scare quotes whenever it repeats the word "bonus," and claims that the payments "appear ... to be linked to the HTC's signing of Block 13." Id.
In support of its claim that the payments were "large" and "unusual," the report states that "there is no sign of equivalent bonuses during" the surrounding years, "except for smaller yearly bonuses paid shortly before Christmas[;]" that "the payments represented a 160 percent increase on the reported highest salary paid to a Liberian minister[;]" and that one HTC member who was supposedly working for free nonetheless received a payment. Id. The report then gives the definition of bribery under Liberian law and references some of the corruption surrounding the 2007 BCP deal—specifically, payments NOCAL made to members of the Liberian legislature to ensure approval of that earlier license, which NOCAL
A few weeks before Global Witness issued the report, it sent letters to HTC members informing each that "we believe that the payment made by NOCAL to you was most likely a bribe, paid as a reward to ensure that [Block] 13 was negotiated successfully," and asking for a response. Compl. ¶¶ 91-92. Several HTC members, including Tah, denied that the payments were bribes, insisting they were bonuses authorized by NOCAL's board that were "appropriately earned given the extraordinary success of the Exxon negotiations," and pointing out that all NOCAL employees received bonuses. Id. ¶¶ 93-95. Global Witness included excerpts from these denials in the report. Report at 30.
The report also discusses Exxon's relationship to these payments. It characterizes them as evidence of Exxon's possible "complicit[y]" in "Liberia's corrupt oil sector," declaring that "Exxon should have known better." Id. at 32-33. According to the report, "Exxon ... knew it was buying a license with illegal origins" and the payments were "in effect ... likely made with Exxon's money." Id. Although stating that "Global Witness believes that Exxon should have considered it possible that money the company provided to NOCAL could have been used as bribes in connection with Exxon's Block 13 deal," the report acknowledges that "Global Witness has no evidence that Exxon directed NOCAL to pay Liberian officials, nor that Exxon knew such payments were occurring." Id. at 31-32.
Lastly, Global Witness called on the Liberian government to investigate the payments and, in the event such investigation uncovers unlawful behavior, urged the U.S. Department of Justice "to determine if the company violated the [Foreign Corrupt Practices Act]." Id. at 32. Global Witness sent copies of the report to the U.S. Attorney General and the Chairman of the Securities and Exchange Commission. Compl. ¶¶ 100-02.
Following the report's publication, the Liberian government investigated the payments and concluded that they did not "constitute bribe[s] within the context of [Liberian] law" and were not "made so [the HTC] could undertake [an] official act." Id. ¶ 81 (internal quotation marks omitted). The Liberian government nonetheless recommended that the HTC members return the payments. Id. ¶ 83. Tah and McClain refused, asserting that the payments were above-board bonuses for a job well done. Id.
Believing that Catch me if you can falsely impugns their integrity and reputations, Tah and McClain sued Global Witness for defamation and false light invasion of privacy. They dispute none of the facts contained in the report but argue that Global Witness falsely "communicated [through implication] ... that ... each took a bribe in exchange for their roles in the Exxon purchase of Block 13." Id. ¶ 31 (emphasis omitted).
Global Witness responded with a special motion to dismiss under the District of Columbia's anti-SLAPP (strategic lawsuits against public participation) statute, which seeks to protect speakers from lawsuits "filed by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view." Competitive Enterprise Institute v. Mann, 150 A.3d 1213, 1226 (D.C. 2016) (internal quotation marks omitted). To defeat such a motion, the plaintiff must "demonstrate that the claim is likely to succeed on the merits," even as the act severely limits discovery. D.C. Code § 16-5502(b). A prevailing defendant may seek
The district court denied Global Witness's special motion because, in its view, the D.C. anti-SLAPP statute did not apply in federal court. Tah v. Global Witness Publishing, Inc., No. 18-cv-2109, 2019 WL 11307645 (D.D.C. June 19, 2019). The court, however, granted Global Witness's Rule 12(b)(6) motion, finding that "the contents of the report are protected speech under the First Amendment and cannot sustain a defamation claim." Tah v. Global Witness Publishing, Inc., 413 F.Supp.3d 1, 3-4 (D.D.C. 2019).
Tah and McClain appeal, arguing, as they did in the district court, that their allegations are sufficient to state a plausible case of actual malice because Global Witness (1) began its investigation with a preconceived story line, (2) received denials from some of those involved, (3) harbored ill-will toward Exxon, and (4) omitted Seward Cooper from the list of payment recipients. Global Witness cross-appeals, arguing that the anti-SLAPP statute applies in federal court and that the district court's denial of the special motion to dismiss deprived it of the ability "to recover the expenses it has incurred in defending against this meritless attack." Appellees' Br. 67. Like the district court, we begin with the anti-SLAPP issue.
Under the Supreme Court's decision in Shady Grove Orthopedic Associates., P.A. v. Allstate Insurance Co., to decide whether a state (or district) law or rule—in this case the D.C. anti-SLAPP statute—applies in a federal court exercising diversity jurisdiction, we "first determine whether [a federal rule of civil procedure] answers the question in dispute." 559 U.S. 393, 398, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010). If it does, the federal rule "governs ... unless it exceeds statutory authorization or Congress's rulemaking power." Id.
Applying the Shady Grove test, our court held in Abbas v. Foreign Policy Group, LLC that the D.C. anti-SLAPP act does not apply in federal court. 783 F.3d 1328, 1334-37 (D.C. Cir. 2015). Without controlling guidance from the D.C. Court of Appeals—at the time that court had yet to interpret the anti-SLAPP act—we construed the statute's "likely to succeed on the merits" standard literally, finding that it "is different from and more difficult for plaintiffs to meet than the standards imposed by Federal Rules 12 and 56." Id. at 1335. Accordingly, we concluded that the D.C. anti-SLAPP statute impermissibly "conflicts with the Federal Rules by setting up an additional hurdle a plaintiff must jump over to get to trial." Id. at 1334.
Global Witness argues that the D.C. Court of Appeals's subsequent decision in Competitive Enterprise Institute v. Mann effectively abrogates Abbas. There, interpreting the anti-SLAPP statute's special motion to dismiss provision for the first time, the Court of Appeals held, contrary to Abbas, that the "D.C. Anti-SLAPP Act's likelihood of success standard ... simply mirror[s] the standards imposed by Federal Rule 56," and that to decide a special motion to dismiss, the court "must assess the legal sufficiency of the evidence" as it currently stands at the time of the motion. Mann, 150 A.3d at 1236, 1238 n.32 (internal quotation marks omitted).
First, the special motion to dismiss "imposes the burden on plaintiffs." Id. Once a defendant makes a prima facie showing that the lawsuit in question qualifies as a SLAPP, the burden shifts to the plaintiff to defeat the special motion to dismiss. Id. at 1237. By contrast, even a "movant" defendant on a Federal Rule 56 summary judgment motion retains some initial "burden of showing that there is no genuine issue of fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Second, the Court of Appeals observed that, unlike a summary judgment motion, a special motion to dismiss will usually be decided "before discovery is completed." Mann, 150 A.3d at 1238 n.32. By contrast, under Federal Rule 56, summary judgment is typically "premature unless all parties have had a full opportunity to conduct discovery." Convertino v. DOJ, 684 F.3d 93, 99 (D.C. Cir. 2012) (internal quotation marks omitted). According to Global Witness, however, the allowance for discovery under the anti-SLAPP statute is identical to that under Federal Rule 56. The D.C. Court of Appeals's recent decision in Fridman v. Orbis Business Intelligence Ltd., 229 A.3d 494 (D.C. 2020), forecloses this argument. There, the court addressed the provision of the anti-SLAPP act that stays discovery whenever a special motion to dismiss is filed, except for "[w]hen it appears likely that targeted discovery will enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome." D.C. Code § 16-5502(c)(2). That standard, the court explained, "is difficult to meet," because the party requesting discovery must show that it is actually "likely" that "targeted discovery will enable him to defeat the special motion to dismiss." Fridman, 229 A.3d at 512-13. Thus, "discovery normally will not be allowed." Id. at 512. This differs from Federal Rule 56, under which full discovery is the norm, not the exception.
Although Mann may undermine some of Abbas's reasoning, the bottom line remains: the federal rules and the anti-SLAPP law "answer the same question about the circumstances under which a court must dismiss a case before trial ... differently," and the anti-SLAPP law still "conflicts with the Federal Rules by setting up an additional hurdle a plaintiff must jump over to get to trial." Abbas, 783 F.3d at 1333-34 (internal quotation marks omitted). Accordingly, the district court properly applied Abbas to this case and denied the special motion.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "We assume the truth of all well-pleaded factual allegations and construe reasonable inferences from those allegations in a plaintiff's favor." Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 2016). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.
In a defamation by implication case under D.C. law, "the courts are
The actual malice standard is famously "daunting." McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308 (D.C. Cir. 1996). A plaintiff must prove by "clear and convincing evidence" that the speaker made the statement "with knowledge that it was false or with reckless disregard of whether it was false or not." Jankovic III, 822 F.3d at 589-90 (second part quoting New York Times Co., 376 U.S. at 279-80, 84 S.Ct. 710). "[A]lthough the concept of reckless disregard cannot be fully encompassed in one infallible definition," the Supreme Court has "made clear that the defendant must have made the false publication with a high degree of awareness of probable falsity," or "must have entertained serious doubts as to the truth of his publication." Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) (alteration omitted) (internal quotation marks omitted); see also id. at 688, 109 S.Ct. 2678 (using these formulations interchangeably). The speaker's failure to meet an objective standard of reasonableness is insufficient; rather the speaker must have actually "harbored subjective doubt." Jankovic III, 822 F.3d at 589.
The dissent thinks this is an easy case. "In Global Witness's story," the dissent asserts, "Exxon was the briber," Dissenting Op. at 244, yet the report admits that "Global Witness ha[d] no evidence that Exxon directed NOCAL to pay Liberian officials, nor that Exxon knew such payments were occurring," Report at 31.
Critically, however, neither Tah nor McClain advances this theory—in their briefing to us, they never even mention the sentence on which the dissent relies. They make four specific arguments in support of their claim that Global Witness possessed actual malice, supra at 238, not one of which is that Global Witness had no evidence that Exxon was the briber, and for good reason. At most, the report implies that NOCAL, not Exxon, was the briber, thus rendering any lack of evidence as to Exxon's direction or knowledge of the payments totally irrelevant. See Report at 32 (stating that Exxon "knew the risk" and "should have considered it possible that
We turn, then, to the "legal questions presented and argued" by Tah and McClain. They advance what the district court described as "several interlocking theories to support the allegation of actual malice." Tah, 413 F. Supp. 3d at 12. We agree with the district court that these theories fail to support a plausible claim that Global Witness acted with actual malice.
Tah and McClain first allege that Global Witness began their investigation with "a preconceived story line" that they argue "is plainly probative of actual malice." Appellants' Br. 19 (emphasis omitted). In support, they point out that the letters in which Global Witness asked for comment state that the $35,000 payments were "most likely" bribes. Compl. ¶¶ 91-92.
Our court, however, has made clear that "preconceived notions" or "suspicion[s]" usually do "little to show actual malice." Jankovic III, 822 F.3d at 597. After all, virtually any work of investigative journalism begins with some measure of suspicion. Thus, "concoct[ing] a pre-conceived storyline" by itself is "not antithetical to the truthful presentation of facts." Id. at 597 (internal quotation marks omitted). Moreover, because Global Witness sent the letters toward the end of its investigative process and just a few weeks before publication, the letters provide no support at all for the notion that Global Witness's conclusion was preconceived. As the district court correctly observed, "[t]hat Global Witness had arrived at its conclusion, right or wrong, by the time it reached out for comment and shortly before publication is commonplace and no surprise." Tah, 413 F. Supp. 3d at 13. Finally, seeking comment in advance of publication is a standard journalistic practice. See, e.g., Responses, Associated Press, http://www.ap.org/about/news-values-and-principles/telling-the-story/responses ("We must make significant efforts to reach anyone who may be portrayed in a negative way in our stories, and we must give them a reasonable amount of time to get back to us before we move the story."). Drawing a pernicious inference from adherence to such professional standards would turn First Amendment case law on its head. In
Next, Tah and McClain seek to draw an inference of actual malice from Global Witness's failure to credit their denials. This too finds no support in our First Amendment case law. A publisher "need not accept `denials, however vehement; such denials are so commonplace in the world of polemical charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error.'" Lohrenz v. Donnelly, 350 F.3d 1272, 1285 (D.C. Cir. 2003) (quoting Harte-Hanks, 491 U.S. at 691 n.37, 109 S.Ct. 2678). Although consistent with each other, the denials contain no "evidence that could be readily verified" of the sort that would provide "obvious reasons to doubt the veracity of [Global Witness's] publication." Id. (internal quotation marks omitted). As the district court pointed out, the denials "fail" even to "contest the facts that are [stated] in the Report." Tah, 413 F. Supp. 3d at 13.
According to the dissent, our description of the law is "obviously fallacious," Dissenting Op. at 248-49, an odd accusation given that we have done nothing more than quote from our court's decision in Lohrenz. Undaunted, the dissent attempts to distinguish Lohrenz on the ground that Global Witness "had `no evidence'—and no witnesses—to contradict the six denials." Id. at 249 (quoting Report at 31). But that quotation comes from the same sentence in Catch me if you can that the dissent relies on for the proposition—irrelevant to the arguments made by Tah and McClain, see supra at 240-41—that Global Witness had no evidence that Exxon had paid bribes.
Contrary to the dissent, moreover, nothing in the six denials comes close to the kind of "readily verifi[able]" evidence, Lohrenz, 350 F.3d at 1285, needed to support a plausible—and we emphasize the word plausible—case that Global Witness published with a "high degree of awareness of probable falsity," Harte-Hanks, 491 U.S. at 688, 109 S.Ct. 2678 (alteration omitted) (internal quotation marks omitted). See Dissenting Op. at 249-50. To be sure, as the dissent points out, the denials state that more than 140 others, such as NOCAL drivers and janitors, also received bonuses. But as the report explains, "the vast majority of these payments were smaller ... by two orders of magnitude" and "were not made to people who signed the Exxon deal." Report at 32. Indeed, the denials themselves characterized the payments the HTC received as rewards for those "who performed exceptionally in conducting the negotiations on the Exxon Contract," a rationale obviously inapplicable to payments to other company employees. Compl. ¶ 93 (quoting Tah's denial); see also id. ¶ 94 (quoting McClain's denial, which stated "[a]ny bonus given by our superiors was in acknowledgement of the Team's extraordinary work after the completion of the landmark Contract"). It is also true that the denials explain, as does the report, that the pot of money used to make the payments was "negotiated" as part of the larger Exxon deal, Dissenting Op. at 249-50; Report at 32, but we fail to see how that contradicts the idea that the payments were bribes from NOCAL. The dissent refers to the NOCAL board resolution approving the payments, presumably because the denials claim that the payments were "authorized by NOCAL's Board of Directors." Compl. ¶ 93 (quoting Tah's denial). But according to the report, Global Witness "requested, but had not yet received" a copy of the board resolution, and the complaint alleges nothing to the contrary. Report at 31.
The implications of Tah and McClain's theory are breathtaking: they would find support for an inference of actual malice in a wide swath of investigative journalism that turns out to be critical of its subject. "It would be sadly ironic for judges in our adversarial system to conclude ... that the mere taking of an adversarial stance is antithetical to the truthful presentation of facts." Tavoulareas, 817 F.2d at 795.
Finally, Tah and McClain argue that "the stunning failure of Global Witness to include ... Seward Cooper, as among the [HTC] members who received a $35,000 bonus" reveals actual malice because Cooper, along with Tah, determined that the payments were legal. Appellants' Br. 34. We do not see how this omission shows awareness of falsity or reckless disregard for the truth. If anything, that one of the lawyers responsible for conducting a legal analysis of the payments was himself in line to receive one makes the payments even more suspicious.
For all these reasons, Tah and McClain have failed to plausibly allege that Global Witness acted with actual malice. This deficiency proves fatal not only to their defamation claims but to their false light claims as well. See Farah v. Esquire Magazine, 736 F.3d 528, 540 (D.C. Cir. 2013) (explaining that a "plaintiff may not use related causes of action to avoid the constitutional requisites of a defamation claim" and that "[t]he First Amendment considerations that apply to defamation therefore apply also to [plaintiffs'] counts for false light" (internal quotation marks omitted)).
We affirm the district court's dismissal of the complaint, as well as its denial of the anti-SLAPP motion.
Silberman, Senior Circuit Judge, dissenting in part:
Global Witness (Appellee) falsely insinuated that former Liberian officials (Appellants) took bribes from Exxon. It admitted that it had no evidence that Exxon had contacted Appellants, directly or indirectly, with respect to the alleged payments. And the evidence Global Witness did have suggested the payments at issue were proper staff bonuses, not bribes. Nevertheless, the Majority creates a whole new theory of the case—one not advanced by any Party— that the Appellants were bribed not by Exxon, but by their own principal, the National Oil Company. According to the Majority, its new narrative is so unassailable that, even at the 12(b)(6) stage, it precludes an inference that Global Witness
As Global Witness explained, "this is a story of bribery." J.A. 58. Bribery, as it is commonly understood, involves a quid pro quo. See McDonnell v. United States, ___ U.S. ___, 136 S.Ct. 2355, 2372, 195 L.Ed.2d 639 (2016); accord J.A. 82 ("[A] payment given so a public servant will undertake an official act."). As such, bribery has three necessary components: A briber, a bribee, and an exchange. In Global Witness's story, it seems obvious that Exxon was the briber, Appellants were the bribees, and the trade was $35,000 to ensure the deal goes through. Without one element, there is obviously no bribery. In other words, if no briber—or no bribe— then no bribee.
In its cross-appeal, Global Witness contends that its Report was not even defamatory —it simply raised questions. Of course, Appellants disagree, claiming that the Report, Catch me if you can, falsely insinuated that they took bribes from Exxon to approve the Block 13 deal.
The district court easily determined that Global Witness's story contained the defamatory implication that Appellants took bribes from Exxon. Tah v. Glob. Witness Publ'g, Inc., 413 F.Supp.3d 1, 10 (D.D.C. 2019) ("[T]he import of the Report [is] that there was bribery—either by [the National Oil Company], Exxon, or both—in connection with the post-negotiation payments to Liberia's chief representatives."); id. at 9 (Global Witness's Report "literally [drew] a line between Exxon's money, the bonuses, and the sale of the license for Block 13"); accord Appellant Br. 15 ("The story was that Exxon ... brazenly engineered a Liberian oil purchase through bribery."). According to Global Witness, Exxon's payment to the National Oil Company and the subsequent bonuses were "unusual" and "suspicious." J.A. 82, 83, 85. Exxon, as Global Witness saw it, "was under no obligation to pay most of the money" it transferred to the National Oil Company; "$4 million of its $5 million payment was characterized as a `bonus.'" J.A. 84 (emphasis in original). And, as Global Witness reminds its readers, the National Oil Company has a record of bribing officials on behalf of oil companies. The "bonuses" then paid to the officials were, Global Witness wrote, "unusual, large payments to officials who signed the Exxon deal." J.A. 85. Global Witness further noted that these individual "bonuses" were likely derived from the same bank account into which Exxon paid the initial $4 million "bonus" to the National Oil Company.
The court explained how Global Witness "tied ExxonMobil's payments [to the National Oil Company] for the acquisition of rights in Block 13 with how [the Company] shared some of that money with its negotiators, including Plaintiffs." Tah, 413 F. Supp. 3d at 9. One chart in the Report tracked payments from Exxon to the National Oil Company to members of the Hydrocarbon Technical Committee, including Appellants Christiana Tah and Randolph McClain. The district court noted that this chart, listing the amount of each official's bonus, "had the effect of literally drawing a line between Exxon's money, the bonuses, and the sale of the license for Block 13." Id.
The Report also connected Exxon to the bribes by making repeated parallels to the 2003 transaction. In that deal, Global Witness asserted that the National Oil Company paid bribes to legislators on behalf of the Broadway Consolidated oil company to secure ratification of its purchase. J.A. 68; see also J.A. 84 (noting that the National Oil Company had also paid bribes on behalf of Oranto Petroleum). And now, Exxon
The court also rejected the Appellee's argument that its story actually negated any inference of bribery because it expressly stated that "Global Witness has no evidence that Exxon directed [the National Oil Company] to pay Liberian officials, nor that Exxon knew such payments were occurring." Id. (quoting J.A. 83). After the Report repeatedly insinuated bribery, this disclaimer "did not negate the inference that ExxonMobil's money was, in part, paid as bribes to [Company] representatives who signed the lease agreement." Id. This statement merely "admit[ed] that the Global Witness suspicions and calls for investigations of ExxonMobil and [the National Oil Company] lacked any evidence that the former had involvement in monies paid to employees of the latter." Id. (emphasis in original).
My disagreement with the district court is limited to the actual malice question (my disagreement with the Majority is much broader). In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court set forth the well-known rule that, to hold a defendant liable for defaming a public figure, a plaintiff must prove the defendant acted with "actual malice." Id. at 279-80, 84 S.Ct. 710. That is, with knowledge that the statement was false or with reckless disregard for the truth. Id. at 280, 84 S.Ct. 710. As the Supreme Court saw it, this scienter requirement appropriately balanced (as a policy matter) the vindication of reputational harms with the need to protect unintentional falsehoods that inevitably arise as part of vibrant debate. Id. at 271-72, 84 S.Ct. 710. The actual-malice rule makes the speaker's state of mind the constitutional gravamen in any defamation case brought by a public figure.
The Majority emphasizes that actual malice is a subjective test. Majority Op. 240 (citing Jankovic v. Int'l Crisis Grp., 822 F.3d 576, 589 (D.C. Cir. 2016)). But it is important not to confuse what a plaintiff must ultimately show with the kind of evidence he may use to make that showing. It is the rare case in which a defendant will confess his state of mind and thus allow the plaintiff to prove actual malice with direct evidence. Accordingly, as the Appellee concedes, actual malice "is ordinarily inferred from objective facts." Washington Post Co. v. Keogh, 365 F.2d 965, 967 (D.C. Cir. 1966); accord Appellee Br. 50.
In St. Amant v. Thompson, the Supreme Court listed three examples of objective circumstances that permit a subjective inference of actual malice: (1) "where a story is fabricated by the defendant ... or is based wholly on an unverified anonymous telephone call;" (2) "when the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation;" and (3) "where there are obvious reasons to doubt" the basis for the story. 390 U.S. 727, 732, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); see also Tavoulareas v. Piro, 817 F.2d 762, 790 (D.C. Cir. 1987) (en banc). So even in the absence of contradictory evidence, a story may be so facially implausible or factually flimsy that the jury may infer that it must have been published with
St. Amant's examples thus suggest a straightforward framework for evaluating contentions of actual malice. We first assess the inherent plausibility of a defendant's story as well as the facts in support. And if we find the story objectively plausible, we then ask whether evidence to the contrary creates obvious reasons for doubt.
* * *
I turn to whether Global Witness's accusation that Exxon bribed the Appellants— the case before us—is facially plausible. Appellants claim that Global Witness knew it lacked any support for insinuating that the payments to Tah and McClain were bribes. Thus, a jury could infer that Global Witness subjectively doubted the truth of its Report.
I agree. In my view, because Global Witness's story is obviously missing (at least) one necessary component of bribery, it is inherently improbable. Although it accused Appellants of taking bribes from Exxon, Global Witness admits that it had "no evidence that Exxon directed the [National Oil Company] to pay Liberian officials, nor that Exxon knew such payments were occurring." J.A. 83 (emphasis added). In other words, despite all its investigating, Global Witness uncovered nothing to demonstrate that Exxon was the briber and nothing to even suggest there was an agreed upon exchange. Accord Tah, 413 F. Supp. 3d at 10 ("Global Witness's suspicions and calls for investigations of ExxonMobil and [the National Oil Company] lacked any evidence that the former had involvement in monies paid to employees of the latter.") (emphasis in original). And with no privity between Exxon and the Technical Committee members, it is bizarre to accuse Appellants of taking a bribe. As St. Amant teaches, it is sufficient to infer—on this basis alone—that Appellee acted with knowing disregard for the veracity of its publication.
The Majority's assertion that this argument was never made by the Appellants leads me to wonder whether we received the same briefs. In my copy, Appellants argue that "Global Witness subjectively knew that it had not been able to determine whether the payments of $35,000 to Christiana Tah and Randolph McClain were corrupt bribery payments. Yet ... Global Witness proceeded to present to readers the defamatory message that in fact  Tah and  McClain had taken bribes." Appellant Br. 36 (emphasis in original). That sounds to me a whole lot like accusing Global Witness of publishing its story with no evidence to back it up. The Majority, moreover, faults me for assessing the inherent (im)plausibility of Global Witness's story, without a specific request from Tah and McClain to do so. But (as discussed) "inherently implausible" is a legal standard by which we assess Appellants' arguments—not an argument to be advanced. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S.Ct. 1711, 114 L.Ed.2d 152 (1991); cf. Eldred v. Ashcroft, 255 F.3d 849, 853 (D.C. Cir. 2001) (Sentelle, J., dissenting) ("Merely because the parties fail to advance the proper legal theory underlying their claim does
To be sure, Appellants did not quote the "no evidence" paragraph in their brief; it was "the Court" at oral argument that focused on this damning language. But it is hardly a new argument; it is only evidence —although powerful evidence—supporting Appellants' argument. Apparently, the Majority also recognizes the significance of the passage and wishes to rule it out of order. But the Appellee itself injected this statement into the controversy when it brandished it as supposedly exculpatory evidence. Appellee Br. 19, 35.
Global Witness points to other facts that support its story, but none amount to a hill of beans. It emphasizes the obvious point: Payments were made to Appellants. Then it notes these payments were "likely" sent from the same account where Exxon deposited its $4 million "bonus" to the National Oil Company itself. Although a sly suggestion of wrongdoing, when you think about it, it's a non sequitur. If that were support for a bribe, any investment banker's commission could be illegal.
Next, Global Witness justifies its story based on a past "history" of bribery by the National Oil Company. The Company had previously, in connection with the 2003 bid, paid out bribes to legislators on behalf of another oil company in order to ratify a transaction. Our situation is quite different; in this case, the recipients of the "bribes" were the National Oil Company's own agents and employees. And connecting bribery to the 2013 circumstances from the wholly separate 2003 bid—in which Tah and McClain were not even involved— is a grossly unfair inference. Global Witness attempts to tar the conduct of two parties to a transaction with the prior bad acts of entirely different people. That is entirely illegitimate.
It is significant, moreover, that the National Oil Company paid out bonuses to all those involved in the negotiations—including American consultants—as well as low-ranking employees. Yet the story focuses on members of the Technical Committee as if they were special transgressors. But for Global Witness's story to be true, Exxon was somehow spreading bribes left and right like Johnny Appleseed. The much more obvious explanation is that the "bonuses" were in fact bonuses paid for out-standing performance. Certainly at the 12(b)(6) stage, Appellants are entitled to that inference (Global Witness is not entitled to its speculative inference to the contrary). See Palin v. New York Times Co., 940 F.3d 804, 815 (2d Cir. 2019).
The timing and manner of the payments are further indications of bonuses, not bribes. Recall that in connection with Broadway's 2003 bid for Block 13, Global Witness explained that the National Oil Company supposedly paid most of Broadway's bribes to legislators before approval of the deal. In contrast, the 2013 payments from the National Oil Company to its own negotiators, staff, and consultants occurred after the deal was completed. J.A. 67. The latter payments—as Global Witness knew—were only initiated after the approval of a board resolution authorizing up to $500,000 in bonuses. And, as Global Witness also acknowledges, the board had the full legal authority to take this action. These payments, openly made, are also indicia of proper bonuses; bribes, which are illegal everywhere, are typically made in the dark. See DiBella v. Hopkins, 403 F.3d 102, 117 (2d Cir. 2005) (defendant knew that payments to plaintiff were not surreptitious, which supported the jury's conclusion that the defendant made a bribery accusation with actual malice).
For all these reasons, I consider Global Witness's Report inherently improbable.
* * *
There is more: Global Witness had additional, "obvious reasons" to doubt its Report, which would also support an inference of actual malice. St. Amant, 390 U.S. at 732, 88 S.Ct. 1323 (example three). All the eyewitnesses to the transaction that responded to Global Witness explained precisely why it was wrong. And Global Witness had no facts that would cause it to discount these explanations.
Six individuals—four members of the Technical Committee and two consultants— responded to Global Witness's accusations of bribery. Each denied that bribery occurred. At least four offered specific, fact-based explanations as to why Global Witness was wrong. Christiana Tah (a Yale Law School graduate)
Two American consultants—not mentioned by the Majority and not targeted by Global Witness's story—also told Global Witness that its Report was false. Each received $15,000 bonuses. One consultant, Jeff Wood, explained that Exxon's payment to the National Oil Company was not "voluntary" as Global Witness reported—it was negotiated as part of the transaction. J.A. 45. Moreover, Wood noted, it made no sense to equate legislative bribes paid following Broadway's 2003 bid to the National Oil Company's 2013 payments to its own staff. Wood again explained that all the employees of the National Oil Company received payments, not just those that signed the deal. Last, Wood wrote that it was absurd to infer bribery because no similar bonuses had been paid in recent years. Since no other deals had been concluded, there was no success to reward.
The Majority, however, asserts that a publisher "need not accept denials, however vehement" as a matter of law. Majority Op. 241-42 (quoting Lohrenz, 350 F.3d at 1285); see also Appellee Br. 54 ("[D]enials do not and cannot constitute `evidence' as a matter of law."). This proposition is obviously fallacious.
To be sure, we discounted the probative value of the denials in Lohrenz v. Donnelly. 350 F.3d 1272. Lohrenz involved a publication that questioned the competence of a female fighter pilot. According to the story, the pilot was substandard, should not be flying, and was only assigned to the F-14 program on account of a "politically driven policy." Id. at 1284. The publisher's source was one of the pilot's former training officers, who we characterized as "a knowledgeable, non-anonymous source." Id. Furthermore, the publisher had obtained additional information from the Navy that confirmed the training officer's claims—namely, that the pilot had received a number of accommodations during training, which other officers agreed were "excessive." J.A. 1285. Nevertheless, the Navy denied the story, and officials told the publisher that its conclusions were inaccurate.
But as we explained, the fact of a denial, in itself, "hardly alert[s] the conscientious reporter to the likelihood of error." Lohrenz, 350 F.3d at 1285 (quoting Harte-Hanks, 491 U.S. at 691 n.37, 109 S.Ct. 2678). Rather, the specific content of a denial may well give the publisher obvious reasons to doubt the veracity of the publication. See id.; Montgomery v. Risen, 197 F.Supp.3d 219, 263 (D.D.C. 2016), aff'd, 875 F.3d 709 (D.C. Cir. 2017). So in Lohrenz, we reasoned that the Navy's denials were contradicted by the publisher's interview with the flight instructor. 350 F.3d at 1285. In light of the evidence on both sides of the question, the Lohrenz publisher did not have any obvious reason to doubt its story.
Global Witness, however, did not have evidence on both sides of the issue. It had "no evidence"—and no witnesses—to contradict the six denials. The cumulative balance of the evidence thus gives Global Witness obvious reasons for doubt. See McFarlane, 91 F.3d at 1514.
I am dumbfounded by the Majority's assertion that the denials in our case contain "no readily verifiable information ... that would provide `obvious reasons to doubt.'" Majority Op. 241-42. The denials were specific, and it was within Global Witness's power to easily inquire into whether other employees received bonuses, the content of the Board's resolution approving the bonuses, and whether the $4 million to the National Oil Company was negotiated as part of the purchase price (etc.).
The Majority discounts these facts by weighing the evidence and drawing inferences against Tah and McClain. See Majority Op. 242-43 ("[T]he dissent refers to the NOCAL board resolution approving the payments.... But ... Global Witness
* * *
In sum, the dramatic indication of actual malice is the statement in Global Witness's story to which we have previously referred. J.A. 83 (Global Witness had "no evidence that Exxon directed the [National Oil Company] to pay Liberian officials, nor that Exxon knew such payments were occurring.").
Circumventing the devastating impact of this statement, the Majority creates a new narrative: The Global Witness Report accused only the National Oil Company—not Exxon—of paying bribes. With all due respect, the Majority is employing judicial jiu-jitsu. At no time did the Appellee even hint—in its briefs or oral argument—that was its defense. The Appellee argues the district court erred in finding the Report defamatory for only three reasons: because (1) it calls for investigations, Appellee Br. 31-34; (2) it includes a disclaimer that Global Witness had not determined the payments were improper, Appellee Br. 34-35; and (3) the Report never uses the word "bribe" to describe the payments, Appellee Br. 35-36. The Majority's judicial refashioning of the defamatory implication is entirely illegitimate. See Diamond Walnut Growers, Inc. v. NLRB, 113 F.3d 1259, 1263 (D.C. Cir. 1997) (en banc).
The Majority cloaks its improper fashioning of a wholly new argument by accusing me of doing the same. But if I'm misreading Global Witness's Report to imply that Exxon bribed Appellants, I'm in quite good company. After all, the district court endorsed my reading. Tah, 413 F. Supp. 3d at 10. So did the Appellant. Appellant Br. 15, 23-24. And the Liberian government. See J.A. 42. Even the Appellee assumes that if the Report contains a defamatory implication, it would be that Exxon bribed Tah and McClain. Otherwise, the Appellee would not have argued its disclaimer, that "Global Witness has no evidence that Exxon directed [the National Oil Company] to pay Liberian officials," is somehow exculpatory. Appellee Br. 34-35. As the Majority recognizes, this statement is irrelevant if one assumes that the National Oil Company was the briber. In sum, the Majority's theory not only falls out of the clear blue sky, but it is also a sub silento overruling of the district judge. After all, Exxon looms over the whole
Perhaps the Majority's theory is not advanced by any Party because the theory makes even less sense than if Exxon were the briber. In the revisionist view, the National Oil Company bribed its own agents and employees to do their jobs. Tellingly, the Majority offers no motive for a bribe. After all, the Liberian government ordered the sale of the Block 13 license for failure to make any progress in developing potential oil reserves. J.A. 69. So there is no reason to think that the Appellants had the authority to hold up the transaction. Nor is there a reason to believe the National Oil Company would have benefitted from the delay.
In any event, the Majority's narrative is procedurally inappropriate. At the 12(b)(6) stage, we accept all reasonable defamatory readings of the Report advanced by the plaintiff. See Weyrich v. New Republic, Inc., 235 F.3d 617, 627 (D.C. Cir. 2001). As the district court ably explained, there can be no doubt that one defamatory implication of the Report is that Exxon bribed Appellants. That allegation—actually pressed by Tah and McClain—must be analyzed for actual malice.
* * *
The Majority's opinion creates a profoundly troubling precedent. By fashioning a different defamatory implication on its own, the Majority embraces a telling example of judicial "creativity." Still, its approach seems sui generis; I rather doubt we will ever see its like again. On the other hand, the Majority's misunderstanding of the doctrinal framework of New York Times v. Sullivan's actual malice concept is profoundly erroneous. And that will distort our libel law. But perhaps most troublesome is the conflict it creates with the Second Circuit (not to mention the Supreme Court) concerning the role of a court when applying Rule 12(b)(6) in the libel context. "The test is whether the complaint is plausible, not whether it is less plausible than an alternative explanation." Palin, 940 F.3d at 815.
After observing my colleagues' efforts to stretch the actual malice rule like a rubber band, I am prompted to urge the overruling of New York Times v. Sullivan. Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. See McKee v. Cosby, ___ U.S. ___, 139 S.Ct. 675, 203 L.Ed.2d 247 (2019) (Thomas, J., concurring in denial of certiorari). The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 380-88, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (White, J., dissenting). As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth. New York Times should be overruled on these grounds alone.
Nevertheless, I recognize how difficult it will be to persuade the Supreme Court to overrule such a "landmark" decision. After all, doing so would incur the wrath of press and media. See Martin Tolchin, Press is Condemned by a Federal Judge for Court Coverage, New York Times A13 (June 15, 1992) (discussing the "Greenhouse effect"). But new considerations have arisen over the last 50 years that make the New York Times decision (which I believe I have faithfully applied in my dissent) a threat to American Democracy. It must go.
But I went even further in my concurrence: I urged the Supreme Court to overrule Pape (and, while they're at it, Bivens
I recognized, however, that convincing the Court to overrule these precedents would be an uphill battle. As I wrote, the Court has committed itself to a constitutional Brezhnev doctrine.
In a short concurring opinion, Justice Kennedy lamented my criticism. He warned that "[w]e must guard against disdain for the judicial system," i.e., the Supreme Court. Crawford-El, 523 U.S. at 601, 118 S.Ct. 1584. In his view, criticism of the Court is tantamount to an attack on the Constitution. He cautioned, "if the Constitution is to endure, it must from age to age retain `th[e] veneration which time bestows.'" Id. (quoting The Federalist No. 49, at 314 (Madison) (C. Rossiter ed., 1961)). Apparently, maintaining a veneer of infallibility is more important than correcting fundamental missteps.
To the charge of disdain, I plead guilty. I readily admit that I have little regard for holdings of the Court that dress up policymaking in constitutional garb. That is the real attack on the Constitution, in which— it should go without saying—the Framers chose to allocate political power to the political branches. The notion that the Court should somehow act in a policy role as a Council of Revision is illegitimate. See 1 The Records of the Federal Convention of 1787, at 138, 140 (Max Farrand ed., 1911). It will be recalled that maintaining
Admittedly, the context of the Times opinion made the Court's decision attractive as a policy matter. The case centered on a full-page advertisement soliciting donations for the civil rights movement and legal defense of Dr. Martin Luther King, Jr. 376 U.S. at 256-57, 84 S.Ct. 710. The advertisement claimed that civil rights proponents faced an "unprecedented wave of terror" from "Southern violators" denying constitutional guarantees to African Americans. Id. at 256, 84 S.Ct. 710. It described "truckloads of police armed with shotguns and tear-gas" that "ringed" a college campus in Montgomery, Alabama. Id. at 257, 84 S.Ct. 710. It further asserted that state authorities padlocked the dining hall "in an attempt to starve [the students] into submission." Id. Various claims in the ad were inaccurate, and The Times eventually published a retraction. Id. at 261, 84 S.Ct. 710.
Sullivan sued, alleging the advertisement's false statements libeled him because, as commissioner of public affairs, he supervised the police department. Id. at 256, 262, 84 S.Ct. 710. After just two hours and twenty minutes of deliberation, an Alabama jury awarded Sullivan $500,000 (the largest libel judgment in Alabama history), and the state Supreme Court affirmed. Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment 33, 45 (1991).
When the Supreme Court reversed, its decision was seen as a "triumph for civil rights and racial equality." E.g., Geoffrey Stone, New York Times Co. v. Sullivan, in The Oxford Companion to the Supreme Court of the United States 586-87 (1992). The point of these suits had less to do with repairing reputations and more to do with deterring the northern press from covering civil rights abuses. Southern officials, as Anthony Lewis succinctly explains, had thus twisted "the traditional libel action... into a state political weapon to intimidate the press":
Lewis, Make no Law at 35.
Indeed, the day after the Alabama court's verdict, the Alabama Journal (a Montgomery paper) celebrated the result. An editorial trumpeted that the case would cause the "reckless publishers of the North ... to make a re-survey of their habit of permitting anything detrimental to the South and its people to appear in their columns." Id. at 34. "The Times was summoned more than a thousand miles to Montgomery to answer for its offense. Other newspapers and magazines face the same prospect." Id. Even before the Supreme Court issued the Times decision, a second suit filed by a mayor—based on the same ad—had already resulted in another $500,000 verdict against The Times. Id. at 35. And three additional suits remained pending. Id. CBS had similarly been sued for $1.5 million over a televised program that depicted the difficulties of African Americans in registering to vote. Id. at 36. By 1964, southern officials had filed almost $300 million in libel suits against the northern press. Id.
One can understand, if not approve, the
As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity.
Although the bias against the Republican Party—not just controversial individuals —is rather shocking today, this is not new; it is a long-term, secular trend going back at least to the '70s.
As has become apparent, Silicon Valley also has an enormous influence over the distribution of news. And it similarly filters news delivery in ways favorable to the Democratic Party. See Kaitlyn Tiffany, Twitter Goofed It, The Atlantic (2020) ("Within a few hours, Facebook announced that it would limit [a New York Post] story's spread on its platform while its third-party fact-checkers somehow investigated the information. Soon after, Twitter took an even more dramatic stance: Without immediate public explanation, it completely banned users from posting the link to the story.").
It is well-accepted that viewpoint discrimination "raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace." R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 387, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). But ideological homogeneity in the media—or in the channels of information distribution—risks repressing certain ideas from the public consciousness just as surely as if access were restricted by the government.
To be sure, there are a few notable exceptions to Democratic Party ideological control: Fox News, The New York Post, and The Wall Street Journal's editorial page.
There can be little question that the overwhelming uniformity of news bias in the United States has an enormous political impact.
It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news. It is fair to conclude, therefore, that one-party control of the press and