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Tah v. Global Witness Publishing, Inc.: D.C. Circuit Dissent in Defamation Case Urges Overruling of NYT v. Sullivan

Reports First Amendment

Tah v. Global Witness Publishing, Inc., No. 19-7132 (D.C. Cir. Mar. 19, 2021). Complaint hosted by CourtListener. District Court opinion hosted by Justia.

Last week, in Tah v. Global Witness Publishing, Inc., the U.S. Circuit Court for the District of Columbia affirmed the rulings of the District of Columbia District Court.

The case arose from a report titled Catch me if you can by Global Witness, a non-profit anti-corruption watchdog. The report detailed ExxonMobil’s acquisition of Block 13, an offshore oil license off the coast of Liberia, and described bonuses paid to Liberian officials for the successful deal negotiation. Appellants are two Liberian officials who took part in the negotiations and were implicated in the report. They argued first that the report conveyed that they had received a bribe in exchange for their recommendations of the deal’s approval. They also argued that Global Witness had acted with negligence and actual malice, stating that the organization “subjectively knew that it had not been able to determine whether or not the payments…to [Appellants] were corrupt bribery payments or an [sic] innocent and deserved bonuses.” Complaint at 36, Tah v. Glob. Witness Publ’g, Inc., No. 19-7132 (D.C. Cir. Mar. 19, 2021).

The D.C. Circuit affirmed the district court’s denial of Global Witness’ special motion to dismiss under the D.C. Code § 16-5502, an Act passed to combat strategic litigation against public participation (“SLAPP”). It noted that the Act conflicted with the Federal Rules of Civil Procedure and therefore cannot be applied.

Second, the court dismissed plaintiffs’ complaint alleging defamation and false light invasion of privacy because it “fail[ed] to plausibly allege actual malice.” The “actual malice” standard, which applies to claims of defamation against public figures, was established in the Supreme Court’s 1964 ruling in New York Times v. Sullivan. The standard requires a plaintiff to prove by “clear and convincing evidence” that the statement was “made…with knowledge that it was false or with reckless disregard of whether it was false or not.”

The D.C. Circuit affirmed the district court’s dismissal of the case. Noting the First Amendment’s broad protection for speech about public figures and the “daunting” actual malice standard, the court held that appellants had “failed to allege that Global Witness exceeded the bounds” of First Amendment protections. The court held that the existence of a preconceived storyline, acknowledgment of appellants’ denial of the acts, evidence of ill will toward ExxonMobil and former Secretary of State and oil executive Rex Tillerson were not sufficient to show actual malice.

Judge Silberman dissented, finding that the complaint made a facially plausible showing of actual malice. He noted Global Witness’ admission that it had “no evidence that Exxon directed the National Oil Company of Liberia [the entity responsible for awarding oil licenses] to pay Liberian officials, nor that Exxon knew such payments were occurring.” He concluded that the absence of any indication of a corrupt motive on NOCAL’s part, of privity between ExxonMobil and those who received bonuses, and of requests for “illegal or improper tasks” all support an inference of actual malice.

Judge Silberman then urged the Supreme Court to overrule New York Times v. Sullivan. He first advanced an originalist argument, stating that the landmark decision had “no relation to the text, history, or structure of the Constitution.” He also expressed his scorn for “holdings of the [Supreme] Court that dress up policymaking in constitutional garb.” While he acknowledged that the policy rationale behind the Sullivan decision was understandable given the background of the Civil Rights Movement, he remarked that developments over the last fifty years make Sullivan “a threat to American Democracy.” Sullivan and its judicial progeny, he argued, “increased the power of the press” and resulted in an “ideological consolidation of the press”and “bias against the Republican Party.” He warned that ideological control of communications is the “first step taken by any potential authoritarian or dictatorial regime” and that one-party control is a “threat to a viable democracy.”

Judge Silberman’s denunciation of the Supreme Court’s First Amendment jurisprudence elicited a significant response from the press. His dissent is unlikely to induce the Supreme Court to overturn Sullivan anytime soon, but its amplification of both originalist criticisms of the decision and contemporary criticisms of the news media has nevertheless created waves among the public.