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Kahl v. Bureau of National Affairs, Inc.

United States Court of Appeals, District of Columbia Circuit

May 9, 2017

Yorie Von Kahl, Plaintiff-Appellee
Bureau of National Affairs, Inc., Defendant-Appellant

          Argued Date: December 2, 2016

          Appeals from the United States District Court for the District of Columbia (No. 1:09-cv-00635)

          Laura R. Handman argued the cause for defendant-appellant/cross-appellee. With her on the briefs were Lisa B. Zycherman and Jay Ward Brown.

          Kevin 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 defendant-appellant/cross-appellee.

          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.

          Yorie Von Kahl, pro se, filed briefs for plaintiff-appellee/cross-appellant.

          Before: Rogers, Kavanaugh, and Wilkins, Circuit Judges.


          Kavanaugh, Circuit Judge

         The 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.

         In 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.

         In June 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.

         Kahl 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.

         The 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.

          We 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.


         Yorie 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 views.

         In 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.

         In 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.

         Yorie 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. § 2241).

          The 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.

         Kahl 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.

         A 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. ...

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