The opinion of the court was delivered by: John D. Bates United States 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  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  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 suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Summary procedures are of special importance in libel suits brought with respect to reports on the activities of public figures and public officials. . . . For the stake here, if harassment succeeds, is free debate." Secord v. Cockburn, 747 F. Supp. 779, 786 (D.D.C. 1990) (citations omitted).
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 (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 (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 (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. 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 (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 did not contain all articles, videos, or other documents that might support their case. Tr. of Mot. Hrg. (July 6, 2012) at 20-21 ("However, it bears noting that the defendant is moving for summary judgment. We are not seeking summary judgment on this case. Therefore, we have not put everything that we have gathered through discovery on the record as of yet. There are a ton of other articles, YouTube [videos] . . . "). But defendant has filed a proper summary judgment motion, so plaintiffs' choice to withhold articles or evidence of actual malice was made at their own peril. Even a cursory review of defamation caselaw in the Supreme Court and this Circuit shows that such cases are often resolved on a defendant's motion for summary judgment, and that the resolution usually involves an extremely detailed analysis of specific defamatory statements and the support for those statements. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 245 (1986) (plaintiffs alleged that "some 28 statements and 2 illustrations in the 3 articles were false and derogatory"); Esquire Magazine, 74 F.3d at 1299 (focusing on support for three paragraphs).
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.*fn1 Mot. for Leave to File
Surreply to Def.'s MSJ [ECF 164-1] ("Pls.' Surreply") at 3.*fn2
The gist of the article is that the Iranian government,
through Trita Parsi, presented a top-secret offer to open negotiations
to high-ranking U.S. officials in 2003. According to the article, the
Iranian government never actually intended to conduct fruitful
negotiations with the United States; in actuality, they only wanted to
be able to loudly criticize the United States for its anticipated
refusal to agree to negotiate. The article is several pages long and
contains 25 endnotes.
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 Farsi sources. Third, plaintiffs argue that defendant cites his own articles as sources in endnotes 19 and 22. Id. at 5. But there is nothing untoward about this. In both cases, defendant is simply summarizing a few facts from his earlier work and then referring readers to that earlier work for more detailed analysis. Additionally, both of the underlying articles are extensively cited. Fourth, plaintiffs state that endnote 23 "is simply an event website." Id. That is not true: endnote 23 cites both an event website and the text of the speech given at the event, which is the source material for defendant's article. Finally, plaintiffs point out that "the source that supports endnote 20 is missing." Id. The URL given in the endnote does now redirect to an unrelated website, but a search of the Internet Archive shows that the cited website did exist at the time defendant originally published his article and did support his statement.*fn3 See http://web.archive.org/web/20080511180832/http://www.downsizedc.org/blog/ 2007/mar/08/no_war_with_iran_coalition.
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 (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, not deceit, on the part of Schaap"); Lohrenz v. Donnelly, 223 F. Supp. 2d 25, 55 (D.D.C. 2002), aff'd 350 F.3d 1272 (D.C. Cir. 2003) ("The Court will not impose liability for mere factual error -- an everyday occurrence in journalism -- unless those errors rise to the level of circumstantial evidence of 'actual malice.'"). Here, for the reasons explained below, none of defendant's errors "rise to the level of circumstantial evidence of 'actual malice.'"
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.*fn4
Hence, defendant merely failed to insert an "Id." citation
after the second block quote. But he did not invent the quotation out
of thin air, rely on an unverifiable anonymous source, or misleadingly
doctor an underlying source. Hence, the lack of an "id." does not
indicate actual malice. Similarly, plaintiffs argue that the sentence
"Then, [in 2006], the Iranian regime gave a fresh copy of the offer to
Trita Parsi" is not cited. Pls.' Surreply at 5. But that statement
merely repeats an earlier sentence in the article, and the earlier
sentence is properly cited. Indeed, defendant actually quotes the
source article in support of the earlier sentence. Not repeating the
citation a second time may be careless, but it is not evidence of
Plaintiffs' remaining issues are more substantive, but no more persuasive. Their first substantive ...