DC Circuit Discusses “Limited Purpose” Public Figures


On May 9, the U.S. Court of Appeals for the District of Columbia issued a significant ruling in Kahl v. Bureau of National Affairs, Inc. The Court of Appeals addresses (i) whether Yorie Von Kahl is a public figure for First Amendment purposes; and (ii) if so, whether he has produced sufficient evidence of actual malice by the Bureau of National Affairs, Inc. (BNA) to overcome BNA’s motion for summary judgment.

Some of these issues may play a role in a defamation lawsuit that is now before the local District of Columbia courts, Michael Mann v. Competitive Enterprise Institute, which concerns the hotly debated topic of climate change and global warming. On December 22, 2016, the District of Columbia Court of Appeals held that a jury could reasonable conclude that articles published in the National Review magazine “were false, defamatory and published with actual malice.”

According to the Court of Appeals, in Kahl, Kahl and his father, Gordon, were vehemently opposed to federal taxation and to federal interference in their lives, and they belonged to anti-government groups that shared those views. In 1977, Gordon was convicted of failing to file income tax returns and, in 1980,  he did not appear in court after he was charged with a probation violation. Although an arrest warrant was issued, Gordon repeatedly evaded arrest.

In 1983, U.S. Marshals received word that Kahl and Gordon might be attending a meeting in Medina, ND. The Marshals went to arrest Gordon but quickly found themselves in a shoot-out with Kahl family members. Two U.S. Marshals were shot and killed.

In 1983, Kahl was convicted in federal court of murdering the two Marshals and sentenced to life in prison. He has since filed many unsuccessful appeals to have his conviction overturned or his sentence vacated. On one of these occasions, BNA’s Criminal Law Reporter published a short story on his unsuccessful 2005 mandamus petition in the Supreme Court, and this story erroneously attributed damaging statements about the plaintiff to the presiding judge and not to the prosecutor.

Kahl sued the BNA for defamation under the law of the District of Columbia in the U.S. District Court for the District of Columbia. The court denied BNA’s request for summary judgment, holding that the inaccuracy of the BNA report allows Kahl the right to have a trial on his defamation claims.

The Court of Appeals has now reversed this decision, holding that Kahl is a “limited purpose” public figure, and that there is no evidence that BNA acted with actual malice in its reporting. Citing Gertz v. Robert Welch, Inc., the Court of Appeals noted that “public figures are those who have ‘thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.'” The Court of Appeals applied the three-part test to determine whether Kahl is a limited purpose public figure:

First, the court must identify the relevant controversy and determine whether it is a public controversy. Second, the plaintiff must have played a significant role in that controversy. Third, the defamatory statement must be germane to the plaintiff’s participation in the controversy.

The Court of Appeals found that, “[I]n this case, there was public controversy concerning the 1983 shootout, as well as about the underlying issues of taxation and federal government power. The press extensively covered the shootout and all stages of Kahl’s trial.” It next found that “Kahl assumed a public role in the controversy when he used his access to the press to promote his cause,” citing several examples. Finally, it found that “BNA’s report relates to Kahl’s role in the controversy. The report covers Kahl’s conviction for his role in the shootout and his petition to have his sentence vacated. It highlights Kahl’s ideology. And it cites Kahl’s engagement with the press.”

In sum, the Court of Appeals concluded that “Kahl’s active role in the controversy concerning the shootout and in the debate over taxes and the federal government means that he is a limited-purpose public figure in this case.”