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Ninth Circuit:
Charity, Project Chief Are Limited-Purpose Public Figures
Opinion Affirms Dismissal of Defamation Action Pursuant to California’s Anti-SLAPP Statute
By a MetNews Staff Writer
A charity and the director of its project in Malawi are limited-purpose public figures, the Ninth U.S. Circuit Court of Appeals held yesterday, affirming an order dismissing with prejudice their defamation action in which the District Court judge determined that statements about them were false but that actual malice had not been established.
Senior Judge Sidney R. Thomas authored the opinion for a three-judge panel, finding that Judge Maxine M. Chesney of the Northern District of California did not err in striking the first amended complaint filed by plaintiffs Planet Aid and the director of Development Aid from People to People Malawi (“DAPP Malawi”), Lisbeth Thomsen. Chesney terminated the lawsuit pursuant to California’s anti-SLAPP statute, Code of Civil Procedure §425.16.
Defendants in the action, instituted in 2016, were the Center for Investigative Reporting, a California-based, nonprofit, investigative news outfit, its website, “Reveal” (www.revealnews.org) and two reporters, Matt Smith and Amy Walters.
Misappropriation Alleged
The reports on the website, as well as in podcasts, alleged that Planet Aid and DAPP Malawi had misappropriated millions of dollars in U.S. Department of Agriculture funds which had been entrusted to them to set up programs in Malawi.
The plaintiffs maintained that more than 50 statements about them uttered between March 2016 and August 2017 were actionable. Chesney determined that all but five of the assertions were demonstrably false.
Prior to the reports by Smith and Walters, Planet Aid and DAPP Malawi had been widely linked in press reports—in the Los Angeles Times, the Washington Post, the Chicago Tribune and elsewhere—to a Danish cult leader, Mogens Amdi Petersen, who was prosecuted—unsuccessfully—for charity fraud. The United Kingdom ceased providing funds to DAPP Malawi in 2016 in light of BBC reports on its links to Petersen.
Plaintiffs’ Contention
Planet Aid and Thomsen argued that they were not limited-purpose public figures, but had unwittingly been spotlighted by the media.
“To the contrary,” Thomas wrote, “they both actively thrust themselves into the public eye.”
He explained:
“By actively seeking attention from the press, promoting themselves through social media, employing public relations staff, and soliciting donations and grants, Planet Aid and Thomsen assumed a risk of public scrutiny. By regularly providing statements to the press, Planet Aid and Thomsen both demonstrate a greater access to channels of effective communication than private individuals, and therefore an ability to counteract false statements through self-help.”
2013 Precedent
Having voluntarily interjected themselves into a controversy that existed prior to the reports in issue, and given that the alleged defamation was tied to that controversy, Planet Aid and Thomsen were limited-purpose public figures under the Ninth Circuit’s 2013 decision in Makaeff v. Trump University, LLC, Thomas said. He noted that under the U.S. Supreme Court’s 1974 decision in Gertz v. Robert Welch, Inc., a limited-purpose public figure must show actual malice in a defamation action based on the reporting of a controversy in which the plaintiff is embroiled (while all-purpose public figures must show actual malice on connection with virtually any report).
Under the U.S. Supreme Court’s 1964 decision in New York Times Company v. Sullivan, the judge recited, “actual malice” means reporting a falsehood with knowledge of the falsity or in reckless disregard of the truth.
Chesney went through the evidence put forth to show actual malice and concluded: “[W]hether viewed separately or collectively, plaintiffs’ evidence is insufficient to support, by clear and convincing evidence, a finding that the allegedly defamatory statements regarding the diversion of USDA funds were made with actual malice.”
Thomas declared:
“The district court undertook a thorough and detailed analysis of the actual malice assertions. The record supports the district court’s conclusion. Therefore, we agree with the district court that, for the reasons stated by the district court in its order, a reasonable fact tinder could not find, by clear and convincing evidence, that the Reporters acted with actual malice.”
The case is Planet Aid v. Reveal, No. 21-15690.
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