United States Court of Appeals, District of Columbia Circuit
Date: December 2, 2016
Appeals from the United States District Court for the
District of Columbia (No. 1:09-cv-00635)
R. Handman argued the cause for
defendant-appellant/cross-appellee. With her on the briefs
were Lisa B. Zycherman and Jay Ward Brown.
T. Baine, Thomas G. Hentoff, Nicholas G. Gamse, Charles D.
Tobin, Jonathan Hart, Jonathan Donnellan, Kristina Findikyan,
David McCraw, Kurt Wimmer, Bruce D. Brown, and Gregg P.
Leslie were on the brief for amici curiae Coalition of Media
Organizations in support of
Gregory J. Dubinsky, appointed by the court, argued the cause
as amicus curiae in support of
plaintiff-appellee/cross-appellant. With him on the brief was
Michael J. Gottlieb.
Von Kahl, pro se, filed briefs for
Before: Rogers, Kavanaugh, and Wilkins, Circuit Judges.
Kavanaugh, Circuit Judge
First Amendment guarantees freedom of speech and freedom of
the press. Costly and time-consuming defamation litigation
can threaten those essential freedoms. To preserve First
Amendment freedoms and give reporters, commentators,
bloggers, and tweeters (among others) the breathing room they
need to pursue the truth, the Supreme Court has directed
courts to expeditiously weed out unmeritorious defamation
suits. See generally Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986); New York Times Co. v.
Sullivan, 376 U.S. 254 (1964). In this case, we follow
that Supreme Court directive.
1983, Yorie Von Kahl was convicted in federal court of
murdering two U.S. Marshals. Kahl was sentenced to life in
prison. In the ensuing years, Kahl has repeatedly turned to
the courts, the media, and the public in an effort to
publicize his plight and have his conviction overturned and
his sentence vacated.
2005, Kahl filed a mandamus petition in the Supreme Court.
The petition asked for Kahl's sentence to be vacated. As
part of its regular reporting on the Supreme Court, the
Bureau of National Affairs (known as BNA) summarized
Kahl's mandamus petition in one of BNA's
publications, Criminal Law Reporter. The report
recounted the "ruling below, " including the
sentencing judge's statement that Kahl lacked contrition
and believed that the murders were justified by his religious
and philosophical beliefs. In fact, however, those statements
had been made at the sentencing hearing by the prosecutor,
not by the judge.
sued BNA for defamation. Kahl argued that BNA falsely
reported that the sentencing judge (rather than the
prosecutor) had said that Kahl lacked contrition and believed
the murders were justified. BNA moved for summary judgment,
asserting among other things that BNA did not act with actual
malice in failing to identify the correct speaker at the
sentencing hearing. In particular, BNA pointed out that the
excerpted transcript of the sentencing hearing that was
attached as an appendix to Kahl's mandamus petition did
not identify the prosecutor as the speaker and led BNA's
reporter to believe that the statements were in fact made by
the sentencing judge.
District Court denied BNA's motion for summary judgment.
The District Court concluded that the inaccuracy of BNA's
report sufficed for Kahl to overcome summary judgment and
obtain a trial on his defamation claim. Recognizing the
importance of the First Amendment issue, however, the
District Court certified the issue for interlocutory appeal
under 28 U.S.C. § 1292(b). On appeal, BNA argues that
the inaccuracy of the report alone does not constitute
sufficient evidence of actual malice for Kahl to overcome
summary judgment. Otherwise, according to BNA, the actual
malice standard would be toothless. BNA further argues that
the remaining evidence in the record does not suffice for
Kahl to overcome summary judgment.
agree with BNA. We therefore reverse the order of the
District Court denying summary judgment and remand with
directions that the District Court grant summary judgment to
BNA on these defamation claims.
Von Kahl and his father, Gordon, were vehemently opposed to
federal taxation and to federal interference in their lives.
They belonged to anti-government groups that shared those
1977, Gordon was convicted of failing to file income tax
returns. In 1980, Gordon did not appear in court after he was
charged with a probation violation. Although the court issued
an arrest warrant, Gordon repeatedly evaded arrest.
1983, U.S. Marshals received word that Kahl family members -
including Gordon and Yorie - might be attending a meeting in
Medina, North Dakota. The Marshals went to arrest Gordon. But
the Marshals soon found themselves in a shoot-out with Kahl
family members. During this shoot-out, two U.S. Marshals were
shot and killed.
Von Kahl was subsequently convicted in federal court of two
counts of second-degree murder and sentenced to two
concurrent life terms. See United States v. Faul,
748 F.2d 1204, 1207-08 (8th Cir. 1984). Kahl's
convictions and sentences were upheld on direct appeal and
collateral review. See id. at 1223 (direct appeal);
Von Kahl v. United States, 242 F.3d 783, 793 (8th
Cir. 2001) (affirming denial of motion to vacate sentence
under 28 U.S.C. § 2255); Von Kahl v. United
States, 321 F.App'x 724, 732 (10th Cir. 2009)
(affirming dismissal of habeas petition under 28 U.S.C.
trial attracted regular press coverage. See BNA App.
53-102. In the ensuing years, moreover, Kahl continued to
publicize his opposition to federal taxation. He gave an
extensive on-camera interview for the documentary Death
and Taxes. See id. at 103-04, 160. During the
interview, he said that the shooting "stemmed from our
political and religious ideology" and that the Marshals
"needed to be shot." Id. at 160. He also
published a book about his case. Id. at 127-28. And
he maintained a website defending his cause and advocating
for his release from prison. Id. at 160.
has also continued to press his case in the courts. In 2005,
he petitioned the Supreme Court for a writ of mandamus that
would vacate his sentences. Kahl's mandamus petition
included an appendix with an excerpted transcript from his
sentencing hearing. Id. at 209-11. The excerpted
transcript did not expressly identify who was speaking at the
hearing. The excerpted transcript opened with a statement
that Kahl showed "not even a hint of contrition. The man
refused to even talk to the probation officer. We have the
statements at trial and those issued to the press and whatnot
that this man honestly believes that these murders, cold
blooded calculated murders were justified by some sort of a
perverted religious philosophical belief." Id.
at 209-10. Two paragraphs later in the excerpted transcript,
the sentencing judge announces Kahl's sentence.
summary of Kahl's mandamus petition was later published
by the Bureau of National Affairs in its Criminal Law
Reporter. The Criminal Law Reporter includes a
"Cases Docketed" section where BNA summarizes
petitions submitted to the Supreme Court. On August 17, 2005,
the Cases Docketed section summarized Kahl's mandamus
petition. BNA employee Alisa Johnson prepared the report of
Kahl's petition based on her review of the petition and
the attached appendix. ...