JOHN D. BATES, District Judge.
This is a defamation case filed by Trita Parsi and the National Iranian American Council (collectively, "plaintiffs"). Plaintiffs allege that Seid Hassan Daioleslam ("defendant") published numerous false and defamatory statements that characterize plaintiffs as agents of the Iranian government. Now before the Court is [144] defendant's motion for summary judgment. For the reasons discussed below, the motion will be granted.
As explained in this Court's prior opinions, Dr. Parsi is the president of the National Iranian American Council ("NIAC"), a Washington, D.C.-based non-profit group that is "dedicated to promoting Iranian American involvement in American civic life and relying on the public for financial and human resource support." Compl. ¶¶ 9, 10. Defendant is an Arizona resident who has published articles about Parsi and NIAC on various websites. Id. ¶¶ 5, 11. Plaintiffs' complaint seeks damages and injunctive relief against defendant for common law defamation and portrayal in a false light. Id. ¶ 11. The thrust of plaintiffs' complaint is that defendant "has published false and defamatory statements indicating that [plaintiffs are] member[s] of a subversive and illegal Iranian lobby colluding with the Islamic Republic of Iran...." Id. ¶ 13. Plaintiffs argue that these statements injured their reputations in the community, thereby hampering NIAC's effectiveness as an advocacy group and damaging its ability to raise funds. Id. ¶¶ 23, 42-43. Following contentious discovery, defendant filed [144] the instant motion for summary judgment, arguing that there is no evidence that his statements were published with actual malice.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the record evidence "shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Material facts are those that "might affect the outcome of the
This Court has previously held that NIAC and Parsi are limited public figures. See Parsi v. Daioleslam, 595 F.Supp.2d 99, 104-06 (D.D.C.2009). As such, they must show by clear and convincing evidence that defendant's statements were made with "actual malice" in order to prevail on their claims. Id.; New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). "The standard of actual malice is a daunting one." McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308 (D.C.Cir.1996). To establish actual malice, plaintiffs must show that defendant either knew that the challenged publication was false, or that he "in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Subjective ill-will does not establish actual malice, nor does a malevolent motive for publication. Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 665, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). Even "highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers" does not establish actual malice. Id. at 666, 109 S.Ct. 2678. But a plaintiff can show actual malice if he can demonstrate by clear and convincing evidence that defendant was "subjectively aware that it was highly probable that the story was (1) fabricated; (2) so inherently improbable that only a reckless person would have put it in circulation; or (3) based wholly on an unverified anonymous telephone call or some other source that appellees had obvious reasons to doubt." Lohrenz v. Donnelly, 350 F.3d 1272, 1283 (D.C.Cir.2003) (citations omitted).
In the summary judgment context, the movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party opposing the motion for summary judgment, however, "may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in [Rule 56] — set out specific facts showing a genuine issue for trial." Tate v. Dist. of Colum., 627 F.3d 904, 908-09 (D.C.Cir.2010) (citations omitted); Fed.R.Civ.P. 56(e). In the public figure defamation context, this means that the defendant's "burden in a motion for summary judgment is simply showing — pointing out to this Court — that there is an absence of evidence to support the element of actual malice in the plaintiff's [defamation] case." Secord, 747 F.Supp. at 787. Hence, even though defendant has moved for summary judgment here, the Court will focus on plaintiffs' evidence of actual malice.
One preliminary problem is that plaintiffs have failed to define the universe of allegedly defamatory statements. Plaintiffs have attached several articles to their complaint and to other pleadings, but they have for the most part failed to identify which statements they perceive as defamatory and to put forth specific evidence of actual malice relating to those statements. Moreover, plaintiffs implied at the motions hearing that the summary judgment record
Only in one instance have plaintiffs offered the kind of granular analysis that is normally necessary to prevail in this type of action. In a surreply in opposition to plaintiffs' motion for summary judgment, plaintiffs argue that "a careful review of just one of defendant's publications ... provides clear indicia of his actual malice towards Plaintiffs, which is evident given the number of misrepresentations, unsupported statements, and even falsifications the defendant makes." Plaintiffs scrutinize a 2008 article entitled "Iran's 2003 Grand Bargain Offer: Secrets, Lies, and Manipulation" to support their statement.
Plaintiffs make several objections to the article that can be dismissed easily. First, plaintiffs note that endnotes 13 and 16 (mistakenly referred to as 17) contain no link to the cited source. Pls.' Surreply at 4-5. It appears, however, that endnotes 13 and 16 are not online sources, so defendant could not be expected to provide a link to them. Second, plaintiffs point out that endnotes 14, 15, 16, and 17 are in Farsi and no English translation is provided. Id. But if the original source material is in Farsi and there is no English translation available, defendant can hardly be faulted for citing the original sources. Indeed, he would be expected to do so. Despite the fact that Parsi presumably speaks Farsi, plaintiffs have pointed to no substantive problems with the underlying
Plaintiffs also point to several issues with endnotes that can be dismissed as simple errors. Plaintiffs write that "the block quote relating to endnote 5" consists of several sentences that are strung together from different portions of the underlying source in an allegedly misleading way. Pls.' Surreply at 4. The three paragraphs in the block quotation do indeed come from different portions of the underlying source. This is indicated with an ellipses between the first and second paragraphs, but there is no ellipses between the second and third paragraphs. Nonetheless, having carefully reviewed the underlying article, the Court is confident that the pieced-together block quote does not in any way misconstrue or misrepresent the underlying source. Excerpting from a source can be a way to mislead the reader, but it can also simply be a way to condense relevant information, and there is no problem with doing the latter. See Esquire Magazine, 74 F.3d at 1306 ("Nonetheless, we think the explanation by Esquire — that they deleted the clause because of space considerations and because of its ambiguity — altogether plausible."). And while there should be an ellipses between the second and third paragraphs of the block quote, the lack of one hardly indicates that defendant "in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968).
As will become clear in the discussion below, defendant was often sloppy in his reporting, either omitting ellipses, slightly misquoting the underlying source, or failing to put a citation in the appropriate place. But none of the errors misrepresent the substance of the source material or mislead the reader. As many courts considering public figure defamation cases have concluded, sloppiness is not evidence of actual malice. Esquire Magazine, 74 F.3d at 1306 ("this ... seems as consistent with linguistic muddle as with reckless disregard, and in context not enough, even in conjunction with other evidence, to show actual malice by Esquire editors"); McFarlane v. Sheridan Square Press, 91 F.3d 1501, 1515 (D.C.Cir.1996) ("the conflict is so narrow that it appears to reflect only sloppiness and a slight over-generalization,
Plaintiffs also contend that the block quote that begins "Kharazi told me ..." is unsupported by any citation. Pls.' Surreply at 4. The preceding paragraph, however, also contains a block quote and a citation to a document published in the Washington Post. The "Kharazi told me..." block quote comes from that same document.
Plaintiffs' remaining issues are more substantive, but no more persuasive. Their first substantive objection runs as follows:
Pls.' Surreply at 5. Plaintiffs appear to miss the point of this passage from defendant's article (in addition to slightly mischaracterizing it). Defendant is arguing that Parsi is among those who believe that pressuring the United States on foreign policy issues is a way to ensure better treatment of Iran. In other words, to use plaintiffs' phrasing, defendant's article argues that "NIAC was created to bash U.S. policy" as a means of "prevent[ing] bashing of Iran." Plaintiffs draw a false distinction between (1) "bash[ing] U.S. policy" and (2) "prevent[ing] bashing of Iran," but defendant contends that these two concepts are, in fact, directly related. This is a reasonable reading of the underlying
Plaintiffs next take issue with this sentence: "Why did Iran decide to ask Bob Ney and Trita Parsi to `manage this issue' (as Parsi stated) and send the proposal to the White House?" Pls.' Surreply at 4. Plaintiffs argue that the thrust of this statement — that the Iranian regime directly put Ney and Parsi in charge of conveying the proposal to the appropriate U.S. officials — is unsupported by defendant's own source, which says that the Swiss ambassador to Iran, not "Iran," asked Ney and Parsi to send the proposal to the White House. Id. Plaintiffs also point out that defendant's source says that Parsi stated that he was "managing the issue" for Ney, but not that the Iranian government asked him to do so. Id.
While this discrepancy is troubling at first glance, it is much less so in context. Defendant's article first explains that Foreign Minister Kharazi gave a copy of the "Grand Bargain" proposal to the Swiss ambassador to Iran and asked him to "present the enclosed roadmap very confidentially to someone high in the DoS in order to know the U.S. reaction to it." This sentence is appropriately cited. The Swiss ambassador gave the proposal to then-Representative Ney and Parsi, then his staffer. These facts are also cited. The article then says:
There are no citations in this paragraph. As the Court reads the article, however, defendant is simply drawing an inference, based on his own long experience with Iranian and American politics, that the Swiss ambassador must have received instructions from Iran to present the proposal to Parsi. In other words, defendant is making a logical argument — namely, that it would have made no sense for the Swiss ambassador to make an independent decision to introduce Ney and Parsi as intermediaries — not a strict factual assertion. Given both the phrasing of the paragraph that begins "Obviously ..." and the fact that it is not cited (in a heavily cited article), it would be clear to any reasonable reader that the first paragraph, from which the next paragraph flows, offers the author's conclusion rather than a fact that has been established independently.
If defendant had simply written that "the Swiss ambassador was instructed to give the proposal to Bob Ney and Trita Parsi and did so," plaintiffs would have an argument that he willfully misrepresented the facts. But as it stands, the "Obviously..." paragraph is effectively a statement of opinion, and there is no reason to suspect that defendant did not sincerely believe it. Defamation law cannot be used to prevent an author from drawing any inferences or making any arguments, especially when the author makes clear to the reader that he is doing so.
Plaintiffs' final argument is that the last sentence in the article is unsubstantiated.
Setting aside the dissection of this article, plaintiffs advance several more general arguments on actual malice. First, they argue that defendant made various statements implying that plaintiffs were agents for the Iranian regime — calling Parsi and NIAC "the Mullahs' lobby," "the Ayatollahs' Lobby," "key players in the lobby enterprise of Tehran's ayatollahs in the United States," and "an active and disguised Washington-based lobbying enterprise for the Iranian theocratic regime" — but ignored Parsi's many statements that criticized the regime. Pls.' Opp. to Def.'s Mot. for Summ. J. [ECF 153] ("Pls.' Opp.") at 43. Examples of such statements are listed in an affidavit filed by Parsi. Id., Ex. N ("Parsi Aff.") ¶ 15. There are several problems with this argument. Most importantly, with one exception, there is no evidence that defendant was aware of any of the statements cited in Parsi's affidavit. Although defendant is obviously familiar with much of Parsi's work, there is no requirement that he track down every interview given, op-ed written, or conference attended before writing about Parsi. Hence, the existence of these scattered statements cannot prove actual malice.
Moreover, many of the statements listed in Parsi's affidavit are not strongly anti-regime. The one statement plaintiffs do allege that defendant was aware of, for instance, reads: "Diplomacy is falling victim to an endless cycle of provocations right now and those provocations obviously come from both sides. I think from the Iranian side it's been extremely provocative to [hold] this conference regarding the Holocaust in Tehran." Parsi Aff. ¶ 15(a) (alteration in original). That Parsi occasionally made statements reflecting a balanced, shared-blame approach is not inconsistent with the idea that he was first and foremost an advocate for the regime. Given the other evidence defendant amassed to support his views, the Court sees no "actual malice" in defendant's decision to disregard occasional contrary statements and assume that they were made largely to burnish Parsi and NIAC's image in the United States. After all, any moderately intelligent agent for the Iranian regime would not want to be seen as unremittingly pro-regime, given the regime's reputation in the United States.
Similarly, plaintiffs protest that defendant accused NIAC and Parsi of refusing to speak up on human rights abuses in Iran despite evidence that plaintiffs had in fact done so. Pls.' Opp. at 45. For the most part, again, plaintiffs have put forth no evidence that defendant ever saw the statements related to human rights that are cited in Parsi's affidavit. Plaintiffs' best argument relies on defendant's article "Ayatollahs' Lobby in Iran Offering Human Rights as a Negotiating Item."
The Court disagrees. While Parsi does criticize Iran's human rights record in the underlying article, his criticisms are tepid. A representative example is the following statement: "Even in long isolated Iran, a country known for its less than flattering Human Rights record, there is a trend toward the improvement of the human rights situation, although it remains far from being satisfactory."
Plaintiffs' next argument is that defendant ignored several editors and others who questioned the factual bases for his articles. Pls.' Opp. at 40-42. Here again, the Court is required to examine the record closely to determine whether plaintiffs' allegation is supported. This effort is hampered by the fact that the parties have provided only incomplete excerpts of defendant's deposition. See Pls.' Opp. Exs. E, J; Def's. Reply in Supp. of Mot. for Summ. J. [ECF 158] ("Def.'s Reply") Exs. A, L, M. It is often difficult to tell which article is being discussed, and the Court rarely has access to defendant's complete testimony about any given article. Nonetheless, virtually nothing in the truncated record relied on by the parties supports the proposition that defendant avoided his editors' questions and willfully avoided learning the truth. To the contrary, the record suggests that defendant and his editors were careful to substantiate his articles and that defendant engaged with those who questioned him.
Plaintiffs' first charge is that defendant published an article claiming that Bob Ney, Roy Coffee, and David DiStefano were the founders of NIAC even though defendant "wasn't sure at the time" whether this was true. Pls.' Opp. at 41. Plaintiffs point to an email by Ken Timmerman (whom plaintiffs mistakenly refer to as Tim Timmerman), who eventually published defendant's article, asking for proof of defendant's allegations against Ney, Coffee, and DiStefano. Id. While the Court does not have the complete correspondence between Timmerman and defendant, the available excerpts refute any notion that Timmerman disbelieved defendant's argument or that defendant willfully ignored Timmerman's questions. Timmerman asked a number of probing questions to ensure that there was sufficient factual support for specific assertions in the article, but he also noted that the article was a
Moreover, contrary to plaintiffs' suggestion, defendant unequivocally rejected the idea that he had any subjective doubt about his story at the time he published it. During his deposition, defendant explained that he received and reviewed some of the discovery documents in this case after the article was published, and those documents caused him to question the article's conclusions. Def.'s Reply, Ex. L at 69-71, 185. But defendant reaffirmed several times that he would have stood by his 2007 conclusions based on the material available to him in 2007. Id. at 186 ("Oh I can tell you that having in my possession what I had in 2006 and 7 I would have — I will write it again in the same manner[.]"); id. at 70 (same). See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 512, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (a plaintiff must show defendant "realized the inaccuracy at the time of publication") (emphasis added). Moreover, after receiving the discovery documents, defendant posted NIAC's response to his original article on his website and "shared his doubts" about his original conclusions with his readers. Def.'s Reply, Ex. L at 185-86. This openness is inconsistent with actual malice. See Esquire Magazine, 74 F.3d at 1304 ("[F]ull (or pretty full) publication of the grounds for doubting a source tends to rebut a claim of malice, not to establish one.").
Plaintiffs' next argument is similar. They point to an email from Timmerman to defendant suggesting that "one thing I'd tone down in the article below... is the anti-Semitism label. [The subject] could actually sue you on that and you don't establish anti-Semitism in that section. You establish a pattern of anti-Israel acts[.]" Pls.' Opp, Ex. J at 126-27. The problem is that plaintiffs offer no evidence about whether defendant heeded Timmerman's warning or ignored it. This is a relatively easy matter to establish; it requires only comparing the article draft to the article ultimately published, but plaintiffs never do so. Defendant was not certain at his deposition whether he had made any edits in response to Timmerman's suggestion, but thought that he might have done so as part of larger edits to the article. Id. at 127. That an editor made a suggestion to defendant, without any proof of what the response to that suggestion was, certainly cannot establish actual malice.
The next issue plaintiffs raise concerns the reaction of another editor, Jed Babbin, to defendant's article. This is a somewhat closer case than the Timmerman edits. Defendant submitted an article to Babbin and received a reply noting that it was far too long for Babbin's magazine and that the allegations needed to be "supported by credible references." Babbin added that he would "be glad to take another look at if you can cut and bolster." Pls.' Opp., Ex. J at 102. Because the article was "urgent" and defendant "did
Later in the deposition, defendant testified further about Babbin's critiques of his work. Id. at 130-32. Although it is a little difficult to tell whether the later testimony relates to the same article as the earlier testimony, it appears that it does.
Plaintiffs' next two critiques can be lumped together. First, they write that "Vahin Alaghband told the defendant that his writing should be based on facts not conjecture." Pls.' Opp. at 42. Alaghband was the subject of the article he criticized. See Pls.' Opp., Ex. J at 169-70. That Alaghband would criticize an article criticizing him is hardly surprising, and does not prove actual malice. See Lohrenz, 350 F.3d at 1285 ("[P]ublishers 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.'") (quoting Harte-Hanks
Plaintiffs' weakest complaint is that defendant criticized another journalist, Sohrab Sobhani, for claiming that defendant was a member of MEK/MKO (a militant organization) without contacting him for comment. Pls.' Opp. at 42. Plaintiffs infer that defendant knows that it is imperative to contact the subject of the story, and that his failure to contact NIAC and Parsi for comment on every story concerning them indicates actual malice. But the deposition excerpts plaintiffs provide contain no support for the proposition that defendant believes it is customary or required to contact subjects of stories. Pls.' Opp., Ex. E at 31. ("Q: Do you think it was wrong for [Sobhani] not to contact you before publishing that information? A. I didn't expect him — I don't know if it's wrong or right. I didn't expect him to contact me[.]") Moreover, whatever defendant believed about the appropriateness of contacting the subject of a story for comment, "if caselaw is clear on any point it is that an author is under no duty to ... provide the subject an opportunity to reply." Secord, 747 F.Supp. at 788.
In sum, none of the communications from editors or other journalists provide any evidence that defendant had subjective doubts about his articles or willfully avoided the truth. Defendant's next argument is that actual malice exists because defendant is biased against Parsi due to his own ideological sympathies. Plaintiffs contend that defendant is a member of the MEK/MKO, "a militant organization that advocates the overthrow of the Islamic Republic of Iran through violence," Pls.' Opp. at 39. Hence, plaintiffs argue, defendant's anti-regime views motivate him to falsely attack Parsi. Id. Defendant vigorously denies that he is a member of MEK/ MKO. See Def.'s Reply at 7-8. But even if he were, caselaw resoundingly rejects the proposition that a motive to disparage someone is evidence of actual malice. Harte-Hanks, 491 U.S. at 665, 109 S.Ct. 2678 ("Petitioner is plainly correct in recognizing that ... 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"); Lohrenz, 350 F.3d at 1284 ("Evidence that the publishers of the allegedly defamatory statements were on a mission to reinstate the
Plaintiffs bolster their motive argument by pointing to one of defendant's emails, which reads: "I strongly believe that Trita Parsi is the weakest part of the Iranian web because he is related to Siamak Namazi and Bob Ney. I believe that destroying him will be the start of attacking the whole web." Pls.' Opp., Ex. K. Plaintiffs argue that this email shows that defendant just wants to "destroy[]" Parsi, regardless of whether he really is advocating for or on behalf of the Iranian regime. Pls.' Opp. at 40. What plaintiffs have overlooked is the possibility that defendant wants to discredit Parsi and "attack[] the whole web" because he genuinely believes that Parsi and his associates are advocating for or on behalf of a regime that he strongly opposes. That possibility is, in the Court's view, much more plausible than the idea that defendant's personal dislike of Parsi has motivated him to concoct dozens of elaborate articles discussing Parsi and the Iranian regime. This email, then, is not enough to bring the case before a jury that must find actual malice by clear and convincing evidence.
Plaintiffs' next argument is that defendant conceded in his deposition that he did not subjectively believe that Parsi was an agent for the Iranian regime. See, e.g., Pls.' Opp. at 10. The deposition testimony on which plaintiffs focus is the italicized part of the following exchange:
Pls.' Opp., Ex. E at 35-36.
Plaintiffs conclude that by testifying that he believed that Parsi "had lobbied in favor of the Iranian regime," defendant was conceding that he did not believe Parsi was actually an agent of the regime. That is a serious overreading of a cautious answer at a deposition. Indeed, Parsi's attorney's next question assumes that defendant believed Parsi was "a part of the Iranian regime," and defendant's answer fully supports that assumption. Plaintiffs cannot hang their case on one sentence that is, at best, ambiguous.
Because plaintiffs have mustered no evidence that defendant actually harbored any doubts about the correctness of his writings, or willfully blinded himself to the truth, their defamation claim must fail. Their false light claim must also fail. "[A] plaintiff may not avoid the strictures of the burdens of proof associated with defamation by resorting to a claim of false light invasion." Moldea v. New York Times Co., 22 F.3d 310, 319 (D.C.Cir.1994). A false light claim involving a public figure, like a defamation claim, requires proof of actual malice. See Time, Inc. v. Hill, 385 U.S. 374, 387-88, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967); Lohrenz, 223 F.Supp.2d at 40.
For the foregoing reasons, defendant's motion for summary judgment will be granted, and all counts of plaintiffs' complaint will be dismissed. Given this disposition of the case, several other pending motions will be denied as moot. A separate order accompanies this opinion.
