United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 11, 2000 Decided January 5, 2001
No. 99-7221
Paul Weyrich,
Appellant
v.
The New Republic, Inc., et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 99cv01213)
Larry Klayman argued the cause and filed the briefs for
appellant.
Andrew H. Marks argued the cause for appellees. With
him on the brief were Clifton S. Elgarten and Stuart H.
Newberger.
Before: Edwards, Chief Judge, Rogers, Circuit Judge, and
Silberman, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge Edwards.
Edwards Chief Judge: Appellant Paul Weyrich appeals
from an order of the District Court dismissing his suit for
defamation, false light invasion of privacy, and civil conspiracy
to defame. Weyrich's complaint asserts that he was defamed
by an article, "Robespierre of the Right--What I Ate at the
Revolution," authored by David Grann and published by The
New Republic on October 27, 1997. The article is flowered
with anecdotes that reveal Weyrich to be both emotionally
volatile and short-tempered, and it depicts him as both a
zealoted political extremist and an easily-enraged tyrant of
the first order.
Weyrich complains that the article oversteps the bounds of
protected political commentary by attributing to him, as its
central theme, the diagnosable mental condition of paranoia.
He further contends that, in presenting its overall picture of
mental instability, the piece relies on false and misleading
anecdotes, as well as two defamatory caricatures. The Dis-
trict Court disagreed and granted appellees' motion to dis-
miss Weyrich's complaint in its entirety prior to discovery.
We reject Weyrich's claim that the article attributes to him
a diagnosable mental illness. "Paranoia" is used in the article
as a popular, not clinical, term, to embellish the author's view
of Weyrich's political zealotry and intemperate nature. The
author's musings on these scores are protected political com-
mentary, for, in context, it is clear that his comments are
meant only to deride Weyrich's political foibles and, relatedly,
to attack what the author sees as the inability of the conser-
vative movement "to accept the compromising nature of pow-
er." In short, these comments cannot reasonably be under-
stood as verifiably false, and, therefore potentially actionable,
assertions of mental derangement.
There are other segments of the article, however, that may
extend beyond protected commentary. Accepting the facts as
alleged in the complaint, as we must, it appears that some of
the anecdotes reported in the article are reasonably capable
of defamatory meaning and arguably place Weyrich in a false
light that would be highly offensive to a reasonable person.
Thus, because we find that some of the article's contested
statements are both verifiable and reasonably capable of
defamatory meaning, at least a portion of the complaint is
sufficient to survive a Rule 12(b)(6) motion to dismiss. We
are therefore constrained to reverse and remand the case for
further proceedings.
I. Background
A. The Article
The cover of the October 27, 1997 issue of The New
Republic carries a caricatured and smiling Paul Weyrich
leaning against a guillotine, arms crossed and wearing the
square-buckled shoes of a puritan. The disembodied heads of
conservative politicians--Newt Gingrich, Fred Thompson, and
others--litter the ground, each donning wide-eyed looks of
consternation and disbelief. Just left of the scene, the cover
reads "Robespierre of the Right--Paul Weyrich and the
Conservative Quest for Purity." Between the covers of the
cited issue of the magazine is the disputed article that is the
subject of this law suit. See David Grann, Robespierre of the
Right--What I Ate at the Revolution, The New Republic, Oct.
27 1997, at 20 (hereinafter "Article"). The five-page article
purports to offer a brief story of appellant's life as a leading
member of the conservative movement over the past 30 years.
The article poses Weyrich as a symbol of the movement.
And the author postulates that, because of its uncompromis-
ing character, the movement has torn apart and destabilized a
Republican party it helped to create.
At the outset of the article, Grann offers a justification for
the piece: "If Weyrich were the only conservative purging
Republicans, he would be no more than an interesting charac-
ter--a minor, albeit compelling, player in the history of the
conservative movement. Yet, he has become, in many re-
spects, a case study of the conservative mind." Article, at 20.
Grann then dedicates the first part of the article to appel-
lant's role in the rise of populist conservatives to national
prominence in the 1970s. The article catalogs Weyrich's
various leadership roles in the ideological movement: from
founding the Conservative Lunch Club of Capitol Hill, to
launching the Heritage Foundation, to establishing the Free
Congress Foundation, appellant helped grow the movement
at every stage--even coining the term "moral majority."
The article's description of appellant takes a decided turn,
however, when the story moves to the period beginning with
the inauguration of Ronald Reagan: "By 1981, while his
friends were still basking in their newfound power, Weyrich
began to experience sudden bouts of pessimism and para-
noia--early symptoms of the nervous breakdown that afflicts
conservatives today." Article, at 22 (emphasis added).
Thereafter, the remainder of the article reveals appellant to
be an uncompromising, vengeful, and often tyrannical "sym-
bol" of the conservative movement. He engineers the down-
fall of John Tower. Id. He accuses Senator Orrin Hatch of
having "psychological problems." Id. at 19. He distances
himself from Newt Gingrich, who, he says, "does not have
any immutable principles that he would die for," and Trent
Lott, who he describes as "the greatest disappointment of my
life." Id. at 24 (emphasis in original).
The article relays the following notable episode:
By the 1988 presidential campaign, Weyrich was even
more disillusioned. When the Bush camp refused to
meet with a group of Afghani resistance fighters, Wey-
rich conspired to hide them in an adjoining room when
Dan Quayle turned up for a luncheon hosted by the Free
Congress Foundation; the plan was to spring them on
the unsuspecting Quayle. But at the last minute, Bill
Pascoe, Bush's liaison to the Beltway conservatives,
leaked the plot, and Weyrich snapped. "Suddenly there
was a volcano of screaming," recalls one lobbyist in the
room. "Weyrich was calling Bill a traitor. He was
spitting and frothing at the mouth. We were ready to
get him a room right next to Hinckley." When the
yelling stopped, Weyrich dispatched a letter to Pascoe's
fiancee, questioning Pascoe's loyalty and implying that he
was unfit for marriage.
Id. at 22. On the page opposite this vignette, there appears a
second caricature, this time depicting appellant in a tie and
suspenders, feeding on a skewer of charred bodies. Its
portrayal of appellant echoes Grann's comparison of appellant
to conservatives generally: "Since taking power in 1994,
conservatives have gorged even by their standards. They
have savaged Dole, ravaged Gingrich, plumped up and then
devoured Lott. They have shut down the government they
spent decades trying to fill. They have, in short, acted as
nutty as Weyrich." Id. at 22. The piece calls this tendency
"Weyrichism," referring to "the kind of rhetoric that brands
one's own people apostates when they make some of the
compromises that power inevitably demands." Id.
Grann then details appellant's latest project, a conservative
cable channel known as National Empowerment Television
("NET"): "Launched in 1993 with a budget of roughly $10
million, it was supposed to be Weyrich's masterwork: the
first ideologically driven public affairs network in America, a
kind of third-wave Pravda." Id. at 23. The article describes
the network as a 24-hour vehicle, both on and off screen, for
Weyrich's conservatism. Not only did he host many of the
shows, he "even imposed ideological litmus tests on stage-
hands and secretaries. The result, staffers say, was sound
technicians who could spout the pro-life line but not plug in
the microphone." Id. Grann notes that "[o]ne reporter says
he was nearly fired for getting a response from the Clinton
administration about a scandal; he recalls how, when a guest
blurted out on air that he was gay, Weyrich became apoplec-
tic. 'Why should I be ashamed?' Weyrich says. 'I want
people on a mission.' " According to the article, appellant
eventually transformed the station into a self-contained fief-
dom:
More and more isolated, Weyrich now surrounds himself
with a coterie of sycophants who, aides say, have little
understanding of television and who patrol the corridors
maintaining ideological discipline. His inner circle con-
sists mainly of family members who receive handsome
salaries for their services: one son is in charge of
coalition luncheons; another produces "Morning View"
on NET; his daughter is vice president for development.
Weyrich also increasingly relies on Bill Lind, a kind of
minister of culture who hosts "Next Revolution" each
week, always wearing what appears to be the same black
turtleneck. Lind's own Manichaean ideology has only
encouraged Weyrich.
Id. at 24.
"As they had back home in Wisconsin," the article reports,
"people in Washington soon crossed to the other side of the
street when they saw Weyrich coming. Gingrich, who had
anchored two shows, declined to sign another contract. Lott
revoked the special Senate parking privileges Weyrich had
gotten after a car accident. GOP Senator John McCain of
Arizona refused even to talk to him. 'We know,' says Senator
Orrin Hatch, 'who has the psychological problems.' " Id. By
1996, the network had run into financial trouble. Too much
conservative competition on the national networks and main-
stream cable channels meant that Weyrich needed to "shout
louder just to be heard. On one recent evening, when
Republican Congressman Joe Barton left an NET broadcast
early in order to cast a vote, Weyrich lost it. He blastfaxed
his remarks to the media under the headline: 'Congressman
walks out on NET live interview.' 'You wonder why they
break their word on these big things,' he fumed. 'They can't
even keep their word on little things.' " Id.
The article closes with Grann interviewing appellant at the
Monocle, a famed insider Washington restaurant, "where
JFK sent a limo from the White House to pick up his favorite
sandwich." Id. Grann notices that appellant appears uncom-
fortable with his surroundings, that "[h]e seems conscious of
being mistaken for the people around him.... When
[Grann] ask[s] him what to order, he says he doesn't eat here
enough to know. Yet, judging by the staff's reaction to him,
he seems to be a regular--a fact the manager later confirms."
Id. Asked whether he had not become "a kind of K Street
Robespierre--a man who once devoted his life to building a
movement and who now profits by destroying it," appellant
offers Grann a "glimpse [of] his famous temper":
"I defy anybody to tell me any privilege that I have as a
result of what I'm doing," Weyrich says, turning red. "I
just think that is a bogus charge." Though he makes at
least $280,000 a year for all his operations, and was
driven to the restaurant in a chauffeured sedan, [Grann
doesn't] say anything. "If the good Lord wants me to do
something else then I'll be gone tomorrow," he continues,
his voice rising. "Every year I have been in this city, I
find it more sinful. And I have prayed many times for
the opportunity to do something else. And so far the
answer keeps coming back: 'Keep doing what you're
doing.' "
Id.
B. The Present Action
Less than one year after the disputed publication, appellant
filed suit against appellees The New Republic, Grann, and
others in Florida state court for defamation, civil conspiracy
to defame, and false light invasion of privacy. See Complaint,
Weyrich v. The New Republic, Inc., No. 098-7628 (Fla. Cir.
Ct. Sept. 22, 1998) (hereinafter "Complaint"), reprinted in
Joint Appendix ("J.A.") at 5. Appellees removed the case on
diversity grounds to the United States District Court for the
Middle District of Florida, which then transferred it to the
District Court for the District of Columbia. The District
Court dismissed the complaint on August 13, 1999 in response
to appellees' Rule 12(b)(6) motion. The instant appeal fol-
lowed.
The complaint alleges that the article "contains false, mis-
leading, disparaging and defamatory statements about Mr.
Weyrich that wrongfully portray him as mentally unsound
and paranoid. Persons who read this Article understood it to
have such meaning." Complaint p 12. As examples, it cites
both the above-quoted reference to "bouts of pessimism and
paranoia," and a pair of sentences from the first page of the
piece: "The habits of suspicion, pessimism, and antagonism
run too deep. And nowhere do they run deeper than in Paul
Weyrich." Id. p 13 (quoting Article, at 20, but failing to finish
the quoted sentence: "--a man trying his hardest to destroy
the very Republican establishment he spent his life building").
In addition to these direct "attributions" of paranoia, the
complaint identifies a number of the article's anecdotal vi-
gnettes, including most of the above-quoted passages, which
"further wrongfully depict Mr. Weyrich as mentally unsound
and paranoid ... [and] that wrongfully portray Mr. Weyrich
as isolated, tyrannical and violent." Id. pp 14-15. Finally, it
alleges that the two caricatures contribute to the article's
portrait of appellant as "mentally unsound and paranoid."
Id.pp 16-17.
II. Analysis
We review the District Court's grant of appellees' Rule
12(b)(6) motion to dismiss de novo. Taylor v. FDIC, 132 F.3d
753, 761 (D.C. Cir. 1997). "Dismissal under Rule 12(b)(6) is
proper when, taking the material allegations of the complaint
as admitted, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969),
and construing them in plaintiff['s] favor, Scheuer v. Rhodes,
416 U.S. 232, 236 (1974), the court finds that the plaintiff[ ]
ha[s] failed to allege all the material elements of [his] cause of
action." Id. In undertaking this review, we must assume, as
the complaint alleges, the falsity of any express or implied
factual statements made in the article. See Complaint pp 12-
17, 28, 32. We must also assume that such statements were
made by appellees with knowledge of their falsity or reckless
disregard for their truth. See id.pp 29, 33. We must then
decide whether the disputed article (1) contains express or
implied verifiably false statements of fact, which (2) are
reasonably capable of defamatory meaning or otherwise place
appellant in an offensive false light. See Moldea v. New York
Times Co., 15 F.3d 1137, 1142-43 (D.C. Cir. 1994) (hereinafter
"Moldea I"), rev'd in part on reh'g, 22 F.3d 310 (D.C. Cir.
1994) (hereinafter "Moldea II"); see also Guilford Transp.
Ind., Inc. v. Wilner, 760 A.2d 580, 597 (D.C. 2000).
A. Verifiable Statements under Milkovich, Moldea I, and
Moldea II
For a statement to be actionable under the First Amend-
ment, it must at a minimum express or imply a verifiably
false fact about appellant. Milkovich v. Lorain Journal Co.,
497 U.S. 1, 19-20 (1990); Moldea II, 22 F.3d at 313 ("[S]tate-
ments of opinion can be actionable if they imply a provably
false fact, or rely upon stated facts that are provably false.").
However, "a statement of opinion relating to matters of public
concern which does not contain a provably false factual
connotation will receive full constitutional protection." Mil-
kovich, 497 U.S. at 20 (relying on Philadelphia Newspapers,
Inc. v. Hepps, 475 U.S. 767 (1986)). Thus, the First Amend-
ment provides protection for "statements that cannot 'reason-
ably [be] interpreted as stating actual facts' about an individ-
ual." Milkovich, 497 U.S. at 20 (quoting Hustler Magazine,
Inc. v. Falwell, 485 U.S. 46, 50 (1988)). In deciding whether
a reasonable factfinder could conclude that a statement ex-
pressed or implied a verifiably false fact about appellant, the
court must consider the statement in context. Moldea II, 22
F.3d at 313-15. "This provides assurance that public debate
will not suffer for lack of 'imaginative expression' or the
'rhetorical hyperbole' which has traditionally added much to
the discourse of our Nation." Milkovich, 497 U.S. at 20
(quoting Hustler Magazine, 485 U.S. at 53-55). Verifiability
is therefore a critical threshold question at the Rule 12(b)(6)
stage.
With these principles in mind, we reject appellant's claim
that, by stating that he "began to suffer bouts of pessimism
and paranoia" following the 1981 election, the article actually
attributes to appellant a "debilitating psychological condi-
tion." Appellant's Br. at 15. The article's single reference to
"paranoia" is certainly pejorative, but the author deploys it in
its popular, not clinical, sense to describe and criticize what
he sees as "early symptoms of the nervous breakdown that
afflicts conservatives today." Article, at 22. Appellees right-
ly point out that the definitive, clinical term "paranoia" has
taken on a less-than-definitive popular meaning, as have
"crazy" and "nutty."
Appellant argues that the present case is indistinguishable
from Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir. 1969), in
which the Second Circuit upheld a defamation judgment
against media defendants for reporting that Senator Barry
Goldwater had a paranoiac personality. There, two authors
penned a psychobiography of the Senator for Fact Magazine,
asserting that he, in fact, suffered from clinically diagnosable
paranoia. In so doing, they relied on a single-question survey
of thousands of psychiatrists, whom they asked whether the
Senator was "psychologically fit to serve as President of the
United States" after informing each that the Senator had
already suffered from two nervous breakdowns (which was
not true). Id. at 329-30. They presented their findings as a
psychological profile of the Senator, detailing various instanc-
es of his political and personal conduct as predictable man-
ifestations of an underlying psychological illness. In short,
the article purported to be a well-researched psychiatric
diagnosis--which it was not.
The holding in Goldwater is both unremarkable and inappo-
site. The defendants in that case had published a fraudulent
diagnosis, which was itself verifiable. Here, references to
"bouts of pessimism and paranoia," "habits of suspicion, pessi-
mism, and antagonism," and the fact that other conservatives
have acted "as nutty as Weyrich," cannot be so understood.
Certainly, looking at these statements in isolation, a reason-
able reader might interpret them to attribute a diagnosable
and debilitating mental affliction to appellant. "Bouts of ...
paranoia" might suggest appellant actually suffered repeated
delusional or psychotic episodes, as appellant's brief suggests.
But, the First Amendment demands that we place these
references in their proper context. Moldea II, 22 F.3d at 314
(reversing in part Moldea I on rehearing, because "Moldea I
erred in assuming that Milkovich abandoned the principle of
looking to the context in which speech appears").
The present case fits comfortably within the well-guarded
Bresler-Letter Carriers line of decisions, the vitality of which
the Supreme Court recently reaffirmed in Milkovich. 497
U.S. at 20. In Greenbelt Cooperative Publishing Ass'n v.
Bresler, 398 U.S. 6 (1970), the Court extended First Amend-
ment protection to a newspaper's assertion that a real estate
developer had "blackmailed" the city. The Court noted that
the statements would have been actionable if the paper
actually had accused Bresler of committing the crime of
blackmail. However, context revealed that the newspaper
had used the term only to describe Bresler's hard-nosed
negotiating tactics. Id. at 13. Similarly, in National Ass'n of
Letter Carriers v. Austin, 418 U.S. 264 (1974), the Court held
that a union could not be sued for its use of the term "scab,"
defined in part as a "traitor," though actual accusations of
treason would be actionable. Id. at 283-84.
As used in the present case, the term "paranoia" animates
the author's critique of what he sees as appellant's (and other
conservatives') unwavering and, ultimately, self-defeating po-
litical dogmatism. The difficulty in the present case, if there
is one, stems from the author's decision to interweave exam-
ples of appellant's political extremism with examples of his
behavioral extremism. In one episode, the article reports
appellant as having "snapped" and "frothed at the mouth,"
erupting in anger so irrationally that onlookers were "ready
to get him a room right next to Hinckley." Article, at 22. In
another, he becomes "apoplectic" after a guest admits his
homosexuality on the air. Id. at 23. Former colleagues no
longer speak to him; Orrin Hatch has implied that he has
"psychological problems." Id. at 24. Appellant has with-
drawn, "[m]ore and more isolated," surrounding himself with
"a coterie of sycophants," including Bill Lind, whose "Mani-
chaean ideology has only encouraged [appellant]." Id. Ap-
pellant argues that these episodes and anecdotes provide as
much context for the phrase "bouts of ... paranoia" as does
the general political commentary, and a reasonable reader
might therefore regard the article as actually asserting that
appellant suffers from, or has been diagnosed with, a psycho-
logical ailment.
Admittedly, the article paints an unflattering picture of
appellant. Indeed, it uses examples of his "famous temper"
to shade the line between political extremism and personal
extremism, suggesting that the alleged irrationality of the
conservative right runs deeper than mere ideology. But the
article's suggestion that appellant's behavior exhibited "para-
noia" is rhetorical sophistry, not a verifiably false attribution
in fact of a "debilitating mental condition" as was the case in
Goldwater. Never does the article claim to make a psycho-
logical pronouncement, nor would a reasonable reader under-
stand it to do so. The New Republic is itself well-known to
be a magazine of political commentary, a self-described
"Weekly Journal of Opinion." Presented in such a loose
manner, in such a well-understood context, the article's refer-
ence to "bouts of ... paranoia" is neither verifiable nor does
it imply specific defamatory facts about appellant. Likewise,
the caricatures, though biting, are not actionable. See Hus-
tler Magazine, 485 U.S. at 53-54 (extolling the value of
political cartoons to a free society).
These findings do not end our analysis, however. The fact
that the use of the term "paranoia" constitutes protected,
unverifiable comment in the present case does not insulate
the otherwise verifiable anecdotes reported by the author in
support of his assertions that Weyrich is "nutty" and notable
for his "famous temper." In other words, an article's political
"context" does not indiscriminately immunize every statement
contained therein.
The complaint asserts that appellees have published a
number of false anecdotes, suggesting to the average reader
that appellant is not only a political reactionary, but emotion-
ally volatile, perhaps even mentally unsound, and otherwise
unfit for his profession. For example, the article includes
some historical vignettes which, alone and in concert, offer
the reader a glimpse of appellant's "famous temper." Article,
at 24. Unlike the two caricatures, nothing in the common
parlance of political criticism would alert a reasonable reader
that the article's anecdotes about Weyrich are other than
verifiable facts. Indeed, in a number of instances, the author
utilizes quotations, some purportedly from appellant, to fur-
ther reinforce the impression that the stories are in fact true.
See Masson v. New Yorker Magazine, Inc., 501 U.S. 496,
519-20 (1991) ("The orthodox use of a quotation is the quin-
tessential 'direct account of events that speak for them-
selves.' " (quoting Time, Inc. v. Pape, 401 U.S. 279, 285
(1971)). The anecdotes are not offered as forms of parody,
see Hustler Magazine, 485 U.S. 46 (offering examples of
protected parody); they are presented as the truth about
Weyrich. And in most instances, the offending anecdotes are
verifiable.
The line separating a fabricated narrative and hyperbolic
description of an actual event is sometimes fuzzy. The First
Amendment protects a reporter's "rational interpretation" of
events or factual statements when relying on ambiguous
sources. Masson, 501 U.S. at 519. If it turns out that the
facts underlying the offending anecdotes are true, and appel-
lant takes issue instead with the article's description and
rhetorical juxtaposition of events, appellant's claim must fail.
Rational interpretation passes over into verifiably false re-
porting of the described events only when the author has,
through description and reporting, materially altered the
underlying facts. Id. at 516. These issues are not before us
on this appeal, however. Rather, as noted above, our inqui-
ries on this appeal are limited to whether the disputed article
(1) contains express or implied verifiably false statements of
fact, which (2) are reasonably capable of defamatory meaning
or otherwise place appellant in an offensive false light. We
conclude here that the reported anecdotes survive the verifia-
bility screen. We turn now to consider whether the cited
anecdotes are reasonably capable of defamatory meaning.
B. Reasonably Capable of Defamatory Meaning
Because this is a diversity action, we must first decide the
proper law of defamation and false light invasion of privacy to
apply. This court looks to the choice of law rules prevailing
in the District of Columbia, see Klaxon Co. v. Stentor Elec.
Mfg. Co., 313 U.S. 487, 496 (1941), which employs the govern-
mental interest analysis test of the Restatement Second of
Conflict of Laws, Vaughan v. Nationwide Mut. Ins. Co., 702
A.2d 198, 200 (D.C. 1997). Applying it to defamation actions,
"[t]he weight of authority considers that the law to be applied
is ... [that of] the place where the plaintiff suffered injury by
reason of his loss of reputation." Dowd v. Calabrese, 589
F. Supp. 1206, 1210 (D.D.C. 1984) (citing Restatement (Sec-
ond) of Conflict of Laws s 150 cmt. e (1971)). Given the
nature of appellant's livelihood, given that appellant worked
in Washington, D.C. at the time the article was published, and
given that both parties rely on District of Columbia law, we
apply the District's common law of defamation and false light
invasion of privacy in assessing the claims before us.
A statement is actionable in defamation under District of
Columbia law if it is both false and defamatory. Moldea I, 15
F.3d at 1142. As noted above, because this is an appeal from
a grant of a Rule 12(b)(6) motion, we must assume the falsity
of any verifiable statement. A statement is defamatory "if it
tends to injure plaintiff in his trade, profession or community
standing, or lower him in the estimation of the community."
Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1293-
94 (D.C. Cir. 1988) (quoting Howard Univ. v. Best, 484 A.2d
958, 988 (D.C. 1984)). An "allegedly defamatory remark must
be more than unpleasant or offensive; the language must
make the plaintiff appear 'odious, infamous, or ridiculous.' "
Best, 484 A.2d at 989. Whether a statement is capable of
defamatory meaning is a question of law, but "[i]t is only
when the court can say that the publication is not reasonably
capable of any defamatory meaning and cannot be reasonably
understood in any defamatory sense that it can rule as a
matter of law, that it was not libelous." White v. Fraternal
Order of Police, 909 F.2d 512, 518 (D.C. Cir. 1990) (quoting
Levy v. American Mut. Ins. Co., 196 A.2d 475, 476 (D.C.
1964)).
Although we do not here dissect each verifiable statement
to provide an exhaustive list for the District Court, potential
candidates include the author's observation that appellant, in
response to Bill Pascoe's perceived betrayal, "snapped,"
erupted in a "volcano of screaming," "froth[ed] at the mouth,"
and "dispatched a letter to Pascoe's fiancEe, questioning
Pascoe's loyalty and implying that he was unfit for marriage."
Article, at 22. If indeed the story is fabricated, we cannot
say that it is not reasonably capable of any defamatory
meaning--it arguably makes appellant appear highly volatile,
irrational, unsound and otherwise "odious, infamous, or ridic-
ulous."
Not all of the verifiably false anecdotes relied upon by
appellant are reasonably capable of defamatory meaning.
For example, at the hearing on the motion to dismiss in the
District Court, counsel for appellant protested vigorously that
the author had defamed appellant by falsely asserting that
Newt Gingrich had refused to sign another NET anchor
contract, that Trent Lott had revoked appellant's capitol
parking privileges, and that John McCain will not talk with
him. Transcript of Hearing, at 8-9 (Aug. 13, 1999), reprinted
in J.A. at 33. We agree with the District Court that, even if
false, these facially innocuous statements are not themselves
defamatory and, as such, should have no bearing on the
resolution of appellant's claims on remand. They certainly do
not, on their face, suggest anything untoward about appellant.
On remand, the District Court must decide which of the
verifiably false statements cited by appellant are reasonably
capable of defamatory meaning. We emphasize again that, to
be actionable, the story must be materially false. If the
author has merely hyperbolized, provided colorful rhetorical
description of appellant's anger, that will not suffice. Re-
statement (Second) of Torts s 581A cmt. f (1977) ("Slight
inaccuracies of expression are immaterial provided that the
defamatory charge is true in substance."); see also Masson,
501 U.S. at 516-17 (applying "substantial truth" doctrine).
C. False Light Invasion of Privacy
We pause only briefly over appellant's related false light
invasion of privacy claim. Though invasion of privacy false
light is distinct from the tort of defamation, the same First
Amendment protections apply. See Moldea I, 15 F.3d at
1151 ("[A] plaintiff may not avoid the strictures of the bur-
dens of proof associated with defamation by resorting to a
claim of false light invasion."). Because the two torts are so
similar, "[a] plaintiff may only recover on one of the two
theories based on a single publication, but is free to plead
them in the alternative." Id.
To prevail on a false light claim under District of Columbia
law, appellant must show that (a) the published material
places appellant in a false light which "would be highly
offensive to a reasonable person," and (b) "the actor had
knowledge of or acted in reckless disregard as to the falsity of
the publicized matter and the false light in which the other
would be placed." Id. at 1150-51 (quoting Restatement
(Second) of Torts s 652E). The second element tracks the
First Amendment's intent requirement for defamation claims
brought by public figures, see New York Times, 376 U.S. 254,
and the court at this stage assumes the requisite state of
mind. The Restatement Second of Torts recognizes that the
"highly offensive" and "odious, infamous, and ridiculous" in-
quiries, though similar, may sometimes produce different
results. Restatement (Second) of Torts s 652E cmt. b. We
remind the District Court that, before finding that a state-
ment is not actionable, because it is not reasonably capable of
defamatory meaning, it must also satisfy itself that the state-
ment does not arguably place appellant in a "highly offensive"
false light.
III. Conclusion
Political commentary can be brutal, and the brutality of
that commentary alone does not render protected speech
unprotected. But neither does the label "political commen-
tary" insulate the reporting of verifiable and arguably defam-
atory facts. There is no doubt that a reasonable person,
reading the article's repeated tale of appellant's volatile tem-
per and apparent emotional instability, could very well con-
clude that appellant is an emotionally unstable individual unfit
for his trade or profession. One or more of the anecdotes
arguably make appellant appear personally odious, infamous,
or ridiculous. On remand, the District Court must take pains
to distinguish those anecdotes that are both verifiably false
and reasonably capable of defamatory meaning from those
that are not.
In remanding this case, we do not in any way suggest the
proper outcome on the merits. Appellant must still clear a
number of difficult hurdles. He must show that the potential-
ly defamatory statements are indeed materially false. Be-
cause appellant is a public figure and the offending state-
ments speak to his capabilities and credibility as a political
actor, he must also "demonstrate by clear and convincing
evidence that [appellees] published the defamatory falsehood
with 'actual malice,' that is, with 'knowledge that it was false
or with reckless disregard of whether it was false or not.' "
Liberty Lobby, 838 F.2d at 1292 (quoting New York Times,
376 U.S. at 280).
We are mindful that trial courts are understandably wary
of allowing unnecessary discovery where First Amendment
values might be threatened. As we have suggested on previ-
ous occasions, the District Court may in its discretion limit
discovery to the threshold issue of falsity, thereby delaying
and possibly eliminating the more burdensome discovery
surrounding evidence of "actual malice." McBride v. Merrell
Dow & Pharm., Inc., 800 F.2d 1208, 1214 (D.C. Cir. 1986).
So ordered.