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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2003 Decided December 12, 2003
No. 02-5294
CAREY DUNAI LOHRENZ,
APPELLANT
v.
ELAINE DONNELLY, CENTER FOR MILITARY READINESS, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 96cv00777)
Rodney A. Smolla argued the cause and filed the briefs for
appellant.
Kent Masterson Brown argued the cause for appellees.
With him on the brief was Frank M. Northam.
Before: ROGERS and ROBERTS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
ROGERS, Circuit Judge: The principal issue in this appeal is
the scope of the voluntary limited-purpose public figure doc-
trine. Carey Dunai Lohrenz became one of the first two
women combat pilots in the United States Navy at a time
when there was a public controversy about the appropriate-
ness of women serving in combat roles. In appealing the
grant of summary judgment on her defamation complaint
against Elaine Donnelly and the Center for Military Readi-
ness (‘‘CMR’’), Lohrenz contends that, because she was sim-
ply doing her job and was at most a peripheral figure in the
controversy about whether the Navy was applying a double
standard for women combat pilots, the district court erred in
ruling she was a public figure. To the extent that the court
might hold that she was an involuntary limited-purpose public
figure, Lohrenz attacks this court’s application of that doc-
trine in Dameron v. Washington Magazine, 779 F.2d 736
(D.C. Cir. 1985), cert. denied, 476 U.S. 1141 (1986), and urges
that its application be limited or the case overruled. Finally,
Lohrenz contends that the district court erred in finding that
she failed to present evidence from which a reasonable jury
could find by clear and convincing evidence that Donnelly and
CMR published the alleged defamations with actual malice.
Because Lohrenz’s evidence shows that she chose the F–14
combat jet while well aware of the public controversy over
women in combat roles, her challenge to the ruling that she
was a voluntary limited-purpose public figure once the Navy
assigned her to the F–14 combat aircraft rings hollow: she
chose combat training in the F–14 and when, as a result of
that choice, she became one of the first two women combat
pilots, a central role in the public controversy came with the
territory. Having assumed the risk when she chose combat
jets that she would in fact receive a combat assignment, Lt.
Lohrenz attained a position of special prominence in the
controversy when she ‘‘suited up’’ as an F–14 combat pilot.
Therefore, because the alleged defamations were germane to
her position as a woman combat pilot, we hold that the
district court did not err, upon applying the three-part test of
Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287
(D.C. Cir. 1980), cert. denied, 449 U.S. 898 (1980), in ruling
3
that Lohrenz was a limited-purpose public figure. Hence, we
do not reach Lohrenz’s challenge to the analysis in Dameron,
which only the en banc court can properly entertain. See
LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en
banc). Further, because a review of the evidence, again
viewed in the light most favorable to Lohrenz, shows that she
failed to meet the stringent standard established by the
Supreme Court for public figures, who must demonstrate by
clear and convincing evidence that defamation defendants
acted with actual malice, we affirm the judgment of the
district court.
I.
Upon de novo review of the grant of summary judgment,
see Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994), the
evidence, viewed in the light most favorable to Lohrenz as the
non-moving party and drawing all reasonable inferences in
her favor, see Forman v. Small, 271 F.3d 285, 291 (D.C. Cir.
2001), cert. denied, 536 U.S. 958 (2002); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Fed. R. Civ. P.
56(c), shows the following:
Carey Dunai Lohrenz served as a member of the United
States Navy following graduation from college in 1990, and
continued to serve in the Navy until early 1999. She graduat-
ed from Aviation Officer Candidate School with academic
honors and received her commission on May 17, 1991. She
successfully completed Primary Flight Training on February
3, 1992 with first place honors (Commodore’s List). As was
tradition, in light of Lt. Lohrenz’s graduation in the top ten
percent of her class at Primary Flight School, the Navy
recognized her superior performance as a student pilot by
assigning her to be trained in a preferred class of aircraft.
Lt. Lohrenz selected jets from among several alternatives.
Following completion of Intermediate and Advanced Training,
she received her designation as a naval aviator on June 25,
1993.
At the end of advanced jet training, pilots were given one
opportunity to suggest which particular jet they would like to
4
pilot. Shortly before she had to make her choice, a personnel
specialist in the Bureau of Naval Personnel advised Lt.
Lohrenz that, because women jet pilots were only permitted
to fly noncombat planes and all noncombat jets were being
decommissioned, the Navy had no place for women jet pilots;
she could either temporarily serve as a flight instructor or
leave the Navy. However, in the intervening days, the Navy
changed its policy, and permitted women to train for combat
aircraft. As Lohrenz alleged in her complaint, she then
‘‘chose combat aviation.’’ Amended Complaint ¶ 22. In June
1993, the Navy assigned Lt. Lohrenz to the West Coast F–14
program. Along with Lt. Kara Hultgreen, an experienced
Navy pilot, Lt. Lohrenz began training in the F–14 Tomcat
fighter jet in July 1993.
The Navy’s decision to assign Lt. Lohrenz and Lt. Hult-
green as the first women to pilot United States armed forces
combat aircraft occurred amidst an ongoing public controver-
sy about the appropriateness of women serving in combat
roles in the military. A subcontroversy concerned whether
the military should relax physical strength and other stan-
dards to account for differences between male and female
members of the armed services. And another subcontroversy
related to whether women should serve as combat pilots in
particular. These controversies persisted even after 1991,
when Congress repealed the law barring women from combat
fighters and bombers, and after April 1993, when, on the
heels of the Tailhook scandal involving allegations that Navy
officers had sexually harassed enlisted women, the Secretary
of Defense lifted the Defense Department’s ban on women
serving in such positions.
Although she never initiated any contacts with the media
prior to the alleged defamations, Lt. Lohrenz’s new combat
assignment made a few headlines. Her hometown newspa-
pers in Green Bay and Milwaukee, Wisconsin published brief
human interest stories about her and her family members,
most of whom have been military pilots. Further, in re-
sponse to Navy encouragement that Lt. Lohrenz did not feel
at liberty to decline, she granted an interview to KNSD–TV,
a local San Diego, California station. Also, The Compass, a
5
publication for the naval community in San Diego where Lt.
Lohrenz was posted, covered her assignment to the F–14.
Lt. Lohrenz explained in The Compass that the Navy’s
decision to allow her to choose combat aircraft came as a
great relief; she had been ‘‘in tears’’ because she ‘‘couldn’t
believe that all the guys [she] had gone through flight school
with, and had worked so hard and competed with and done
well, were going to go out to the fleet and get a chance and
[she] wasn’t going to have [her] chance.’’ Scott D. Williams,
First Women Join Fleet Fighter Squadron: The Jet Doesn’t
Know the Difference, The Compass, Sept. 9, 1994, at A1. Her
Commanding Officer, however, succeeded in deflecting most
of the media attention directed at her. This changed after
October 28, 1994.
After eleven months of training in the F–14, Lieutenants
Hultgreen and Lohrenz satisfied requirements for posting
with a carrier-based flight squadron. In August 1994, the
Navy assigned both women to fighter Squadron 213 attached
to the U.S.S. Abraham Lincoln in the Pacific Fleet. They
participated in regular training exercises to maintain their
combat readiness. In the course of such an exercise, on
October 28, 1994, Lt. Hultgreen died while attempting to land
an F–14 on the U.S.S. Lincoln; the Navy subsequently
determined that the plane did not signal to the pilot that one
of its engines was not working until it was too late to avoid a
crash. After Lt. Hultgreen’s death, the media turned its
attention to the question of whether the Navy had established
a ‘‘double standard’’ in order to enable women to qualify as
combat pilots, initially focusing on Lt. Hultgreen. Three
months after Lt. Hultgreen’s crash, Elaine Donnelly, who had
long opposed permitting women to serve in combat positions,
drew attention to Lt. Lohrenz. Starting in the 1970s, Don-
nelly had testified before Congress in opposition to women in
combat, published on the subject, and, in the early 1990s,
served on the Presidential Commission on Assignment of
Women in the Armed Services. In 1992, Donnelly incorpo-
rated the Center for Military Readiness and served as its
president; the CMR has regularly published articles and
issued press releases opposing women serving in combat
6
positions, including as combat pilots. As relevant here, Don-
nelly and CMR published four allegedly defamatory publica-
tions about Lt. Lohrenz.
First, on January 16, 1995 Donnelly wrote on CMR letter-
head to Senator Strom Thurmond to alert the then-Chairman
of the Senate Armed Services Committee to ‘‘certain prac-
tices designed to assure that women will not fail [that] have
now been extended to the demanding and dangerous field of
carrier aviation in the F–14 community.’’ Donnelly charac-
terized both Lt. Hultgreen and the other woman combat pilot,
‘‘Pilot B,’’ as unqualified pilots. She quoted at length from a
letter she had received from Lt. Patrick Jerome Burns, who
had briefly been an F–14 instructor for both women; howev-
er, she did not then identify Lt. Burns by name. Donnelly
and Lt. Burns cast the Navy’s decision to break down a
gender barrier and permit women pilots to fly combat aircraft
as ‘‘politically driven.’’ They wrote, ‘‘Navy policy on the
integration of women into fleet F–14 squadrons is, thus far,
an abject failure. It is indicative of the problems of gender
integration, which must be corrected, across the spectrum.’’
Second, a few months later, on April 25, 1995, Donnelly
republished the letter to Senator Thurmond as part of a more
comprehensive CMR ‘‘special report’’ on alleged double stan-
dards in naval aviation. The Donnelly Report included ex-
cerpts from Lt. Lohrenz’s confidential training records, parts
of which had been sent to Donnelly by Lt. Burns. The
Donnelly Report reiterated that Lt. Hultgreen and Pilot B
were unqualified pilots, and noted special accommodations the
Navy had made for Pilot B. The Report also referenced
several of the Navy’s specific rejections of Donnelly’s conclu-
sions. The Donnelly Report was circulated to the media,
online, and within the naval aviator community, including on
the U.S.S. Lincoln, where Lt. Lohrenz was still based. Even
though Lt. Lohrenz was referred to in the Donnelly Report
as ‘‘Pilot B,’’ as the only remaining carrier-qualified woman
F–14 pilot, her identity was known within the naval aviation
community, particularly on the U.S.S. Lincoln. Shortly
thereafter, the media revealed Lt. Lohrenz’s name. See, e.g.,
James W. Crawley, Navy Grounds Female F–14 Pilot for
7
Evaluation of Flying Skills, San Diego Union–Trib., June 30,
1995, at B–1.
Third, almost a year later, on March 28, 1996, Donnelly
restated her conclusion that Lt. Lohrenz was an incompetent
combat pilot in a speech at the Army–Navy Club in Washing-
ton, D.C. Fourth, twenty months later, on November 6, 1997,
after Lt. Lohrenz had filed suit, Donnelly repeated this
conclusion in a CMR press release, referring to Lt. Lohrenz
by name. The press release further asserted that the Navy’s
integration of women into combat squadrons was part of a
‘‘reckless’’ ‘‘race’’ with the Air Force that had been ‘‘instigat-
ed by aggressive female officers, feminist advocates, and
Navy public affairs officers.’’
On April 24, 1996, Lt. Lohrenz filed a defamation action
against Donnelly and CMR as well as the Copley Press (d/b/a
The San Diego Union Tribune), News World Communica-
tions, Inc. (d/b/a The Washington Times), and John Does 1–
100 (retired officers of the Navy and other military services,
who allegedly assisted Donnelly and republished her state-
ments). Lohrenz alleged in her complaint that she had
become the victim of a campaign by Donnelly and the other
defendants, ‘‘the gist of which was that the Navy engaged in
preferential treatment of female aviators, passing and pro-
moting them despite their substandard performance.’’ Appel-
lant’s Br. at 2. Lt. Lohrenz sued the three non-press defen-
dants, Donnelly, CMR, and the John Does, for libel and
slander. Her complaint also included causes of action for
libel against the two media defendants, and an invasion of
privacy claim against all defendants.
Lt. Lohrenz sought compensatory and punitive damages of
not less than $50,000 in view of the injuries proximately
caused, including her removal from flight status by the Navy
on May 30, 1995. Whereas she had been evaluated as an
above-average pilot until the publication of The Donnelly
Report, her instructors gave her only average marks in April
and May 1995. Lt. Lohrenz further alleged that despite the
conclusion of a Field Naval Aviation Evaluation Board that
she received no preferential treatment, was a qualified pilot,
8
and should have her flight status reinstated but be assigned
to a different aircraft, she had been unable to obtain rein-
statement as any type of naval aviator because of the damage
done to her reputation as a fighter pilot by the false and
defamatory statements of the defendants. Although two
years later the Navy Inspector General overturned the
Board’s decision that Lt. Lohrenz be assigned to fly in a
different aircraft and also found that the failure to return her
to flight status lacked substantial justification, Lt. Lohrenz
was never again assigned to fly a naval combat plane. As a
result of being out of the field for two years, Lt. Lohrenz
alleged, she lost her career as a naval aviator.
The district court entered summary judgment for Donnelly
and CMR. Lohrenz v. Donnelly, 223 F. Supp. 2d 25 (D.D.C.
2002). The court ruled that Lt. Lohrenz had become a
limited-purpose public figure, albeit possibly involuntarily, id.
at 44, and had failed to meet her burden to show that
Donnelly and CMR had published the defamatory material
with actual malice, id. at 58. The court found that Lt.
Lohrenz was a public figure because of her past conduct,
including taking on a role as one of the first two women
combat pilots, her numerous appearances in the media before
and after Lt. Hultgreen’s crash, and the fact that ‘‘she was a
forerunner in the military’s attempt to integrate women into
combat positions.’’ Id. Rejecting Lohrenz’s argument that
notwithstanding numerous interviews she had not ‘‘thrust’’
herself into the media spotlight, the district court pointed to
Dameron, 779 F.2d 736, stating that it was ‘‘well-settled that
private individuals may become limited-purpose public figures
unwillingly without voluntarily thrusting themselves into the
public eye.’’ Id. The court, citing Clyburn v. News World
Comm., Inc., 903 F.2d 29, 33 (D.C. Cir. 1990), also noted she
‘‘voluntarily gave statements about her F–14 assignment’’ and
‘‘was well-aware that her position as one of the first women
F–14 pilots would attract public attention.’’ Id. The court,
therefore, concluded that as ‘‘a central figure in the public
controversy over the place of women in the military’’ and
given the media coverage in which she was often ‘‘featured
prominently,’’ Lt. Lohrenz was a limited-purpose public fig-
9
ure. Id. The district court, having found that Lohrenz failed
to meet her burden to prove actual malice, rejected the
alternative defense that the published allegations were sub-
stantially true, id. at 59, and did not reach the fair reporting
defense based on the Navy Inspector General’s Report, id. at
60. The district court had previously dismissed the com-
plaints against the Copley Press for lack of jurisdiction,
Lohrenz v. Donnelly, 958 F. Supp. 17 (D.D.C. 1997), and
against the John Does, who were never identified, Lohrenz v.
Donnelly, No. 96–777 (D.D.C. Aug. 16, 2002) (order of dis-
missal). News World Communications, Inc. settled Lt. Loh-
renz’s complaint against it. Lohrenz, 223 F. Supp. 2d at 30.
II.
On appeal, Lohrenz contends that the district court erred
in ruling, under Waldbaum v. Fairchild Publications, Inc.,
627 F.2d 1287, 1296–1300 (D.C. Cir. 1980), cert. denied, 449
U.S. 898 (1980), that she was a limited-purpose public figure,
albeit possibly involuntarily. Devoting precious little of the
argument in her brief to an examination of the district court’s
application of the three-part test of Waldbaum, Lohrenz does
not challenge the appropriateness of Waldbaum’s analysis of
the voluntary limited-purpose public figure doctrine, acknowl-
edging that it was ‘‘faithful to the balance struck in Gertz.’’
Appellant’s Br. at 21. Rather, Lohrenz’s brief focuses on the
involuntary public figure analysis in Dameron v. Washington
Magazine, 779 F.2d 736, 741–42 (D.C. Cir. 1985), cert. denied,
476 U.S. 1141 (1986), which, she contends, is ‘‘fundamentally
unsound.’’ Appellant’s Br. at 5. She maintains that because
she was ‘‘at most on the broad periphery of a broad debate
that intensified when a different female aviator lost her life in
a crash,’’ she is not a public figure under Dameron. Id. at 5–
6. Lohrenz also contends that, even if the court determines
she is an involuntary public figure, the district court erred in
ruling that she failed to present evidence from which a
reasonable jury could find that Donnelly and CMR acted with
actual malice in publishing defamatory statements about her,
and hence summary judgment was inappropriate. Lohrenz
10
does not challenge the district court’s resolution of her inva-
sion of privacy claims.
As a threshold matter, Lohrenz’s focus on the involuntary
public figure doctrine in Dameron is misplaced, because the
evidence, viewed in the light most favorable to her, shows
that Lt. Lohrenz was a voluntary limited-purpose public
figure. In Waldbaum, the court addressed the question of
‘‘when an individual not a public official has left the relatively
safe harbor that the law of defamation provides for private
persons and has become a public figure within the meaning of
the Supreme Court’s decision in Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974).’’ Waldbaum, 627 F.2d at 1289. Eric
Waldbaum was the president and chief executive officer of a
diversified food cooperative that ranked second largest in the
country. He played an active role in setting the policies and
standards within the supermarket industry: ‘‘He battled the
traditional practices in the industry and fought particularly
hard for the introduction of unit pricing and open dating in
supermarkets.’’ Id. at 1290. He held several meetings to
which the press and public were invited, and his policy of
consolidation to eliminate unprofitable outlets generated con-
siderable comment in the affected area and in trade journals
as well as general interest publications, such as the Washing-
ton Post. Id. & n.3. Waldbaum sued for libel when a trade
publication reported that he had been dismissed by the Board
of Directors and that the cooperative ‘‘ ‘has been losing
money the last year and retrenching.’ ’’ Id. The district
court ruled that Waldbaum was a public figure for purposes
of the limited range of issues concerning the company’s
unique position within the supermarket industry and his
efforts to advance that position. Id. at 1291.
This court affirmed. In concluding that ‘‘a person has
become a public figure for limited purposes if he has attempt-
ed to have, or realistically can be expected to have, a major
impact on the resolution of a specific public dispute that has
foreseeable and substantial ramifications for persons beyond
its immediate participants,’’ id., the court established a three-
part test: (1) The court must isolate the public controversy,
that is, ‘‘a dispute that in fact has received public attention
11
because its ramifications will be felt by persons who are not
direct participants.’’ Id. at 1296. (2) The court must analyze
the plaintiff’s role in it. ‘‘Trivial or tangential participation is
not enoughTTTT [To be a limited-purpose public figure, a
plaintiff] must have achieved a ‘special prominence’ in the
debate.’’ Id. at 1297 (citation omitted). The court can look to
the plaintiff’s past conduct, the extent of press coverage, and
the public reaction to his conduct or statements. Id. The
court noted that a plaintiff ‘‘would be a public figure if the
defamation pertains to the subcontroversy in which he is
involved but would remain a private person for the overall
controversy and its other phases.’’ Id. at 1297 n.27. (3)
Finally, the court must determine whether the alleged defa-
mation was germane to the plaintiff’s participation in the
controversy. Id. at 1298. In the end, the court concluded
that notwithstanding Waldbaum’s active role and involvement
with the media, he was a limited purpose public figure only
for the purposes of the subcontroversy about his supermarket
innovations. Id. at 1300.
We are mindful that, although Waldbaum ‘‘provides us with
useful analytic tools[,] nevertheless, the touchstone remains
[the standard the Supreme Court set forth for classifying an
individual as a public figure, namely] whether an individual
has ‘assumed [a] role[ ] of especial prominence in the affairs
of society TTT [that] invite[s] attention and comment.’ Gertz,
418 U.S. at 345.’’ Tavoulareas v. Piro, 817 F.2d 762, 773
(D.C. Cir. 1987) (en banc). In Gertz, the Supreme Court
balanced the constitutional commitment to free speech and
press and the interests served by the defamation law in
protecting the dignity and worth of every human being, 418
U.S. at 341, and set the dividing line between public and
private figures based on those who assumed the risk of
publicity and had access to channels of communication to
defend themselves, and those who did not, id. at 344. The
Court in Gertz rejected the plurality’s broad view in Rosen-
bloom v. Metromedia, Inc., 403 U.S. 29 (1971), that the actual
malice standard applied if the relevant controversy ‘‘is a
matter of public or general concern without regard to wheth-
er the persons involved are famous or anonymous.’’ Id. at 44.
12
Concluding that the Rosenbloom approach paid inadequate
attention to the State’s interest in protecting private persons
from defamatory injury, Gertz, 418 U.S. at 346, the Court
observed that while some persons would be public figures by
virtue of their positions of ‘‘persuasive power and influence,’’
typically, public figures will be persons who ‘‘have thrust
themselves to the forefront of particular public controversies
in order to influence the resolution of the issues involved.’’
Id. at 345.
As applied here, Waldbaum’s analysis is faithful to Gertz.
The first and third prongs of the Waldbaum test are essen-
tially uncontested by Lohrenz, for she concedes there was a
public controversy about women in combat and also about the
circumstances surrounding Lt. Hultgreen’s death, see Appel-
lant’s Br. at 32–33, and the alleged defamatory statements by
Donnelly and CMR plainly were germane to the subcontro-
versy about women combat pilots and the Navy’s alleged
double standards. See Lohrenz v. Donnelly, 223 F. Supp. 2d
at 44. Thus, the remaining question is whether Lt. Lohrenz,
at the time she became an F–14 combat pilot, achieved ‘‘a
‘special prominence’ in the debate,’’ thereby satisfying Wald-
baum’s second prong. 627 F.2d at 1297. She both rejects
that conclusion, maintaining that she was only trying to do
her job and her involvement in the public controversy was
tangential at best, see Appellant’s Br. at 32, and contests
whether the general controversy about women in combat was
sufficiently linked to her performance as an F–14 combat
pilot to render her a public figure. Id.
To satisfy the Waldbaum inquiry’s ‘‘ ‘special prominence’ ’’
requirement, ‘‘[t]he plaintiff must either have been purpose-
fully trying to influence the outcome or could realistically
have been expected, because of his position in the controver-
sy, to have an impact on its resolution.’’ 627 F.2d at 1297.
This phrasing incorporates both Gertz’s analysis that, through
‘‘purposeful action of his own,’’ 418 U.S. at 345, a plaintiff
attains a position in the limelight, see, e.g., Curtis Publishing
Co. v. Butts, 388 U.S. 130, 154 (l967), as well as Gertz’s
general observation that the media is entitled to act on the
assumption that public officials and public figures have ex-
13
posed themselves to increased risk of injury from defamation.
418 U.S. at 345. Although, as we understand Lohrenz’s
position on appeal, it was the Navy, not she, that placed her
at the center of the controversy about women as combat
pilots, the evidence, construed in the light most favorable to
her, does not support her position. Lohrenz not only alleged
that she ‘‘chose to be trained in combat aviation,’’ Amended
Complaint ¶ 22, her actions and statements belie any basis on
which to conclude that she did not voluntarily seek to be in
the combat pilot position to which the Navy assigned her.
Once she ‘‘choseTTTcombat aviation’’ by indicating her prefer-
ence for the F–14 while knowing of the preexisting public
controversy over the appropriateness of women in combat
positions, Lt. Lohrenz assumed the risk that if she succeeded
in qualifying for a combat assignment and the Navy made
such an assignment, she would find herself at the center of
the controversy as a result of the special prominence that she
and only one other woman combat pilot attained upon receiv-
ing their F–14 assignments. That Lt. Lohrenz might have
preferred a combat assignment that did not place her in the
center of the public controversy is legally irrelevant.
Under the circumstances, Lohrenz’s contention that she
was, in effect, an anonymous Navy pilot, rings hollow as there
is no evidence to support such a conclusion. By choosing to
remain in the Navy as a combat pilot, and indicating her
preferences among combat aircraft, Lt. Lohrenz became a
limited purpose public figure at the point she ‘‘suited up’’ as
an F–14 pilot. ‘‘[A] reasonable person would have concluded
that this individual would play or was seeking to play a major
role in determining the outcome of the controversy [about the
appropriateness of women serving in combat roles].’’ Wald-
baum, 627 F.2d at 1298. By choosing a path of endeavor as a
combat pilot she assumed the risk that she would attain such
an assignment, which, in light of the public controversy,
meant she would be in a position of special prominence in that
controversy. So long as defamatory statements made about
her were germane to her role in that controversy, the Wald-
baum inquiry is satisfied, and she is a voluntary public figure
14
for the limited purpose of the debate about whether and how
women should be integrated into combat aviation roles. And,
as the district court found, after the crash of Lt. Hultgreen’s
F–14, Lt. Lohrenz also became a central figure in the subcon-
troversy about whether the Navy was applying double stan-
dards for its women combat pilots. At both points, when she
was assigned to the F–14 and in the aftermath of Lt. Hult-
green’s crash, Lt. Lohrenz was a public figure whose per-
formance would be of interest to the public. See Gertz, 418
U.S. at 344–45; Waldbaum, 627 F.2d at 1297.
Lohrenz fails in her attempt to suggest that her position
was no different than that of the criminal trial attorney in
Gertz or the consultant in Clyburn, 903 F.2d 29, who hob-
nobbed with government officials. In neither of those cases
was there a preexisting public controversy comparable to that
of which Lt. Lohrenz was aware when she ‘‘chose to be
trained in combat aviation.’’ Moreover, to the extent Lohrenz
contends that the district court erred in ‘‘allowing the undeni-
able ‘public interest’ in the general question of ‘women in
combat’ to morph into the public controversy germane to
Lohrenz’s defamation claim, which should have been focused
on a public controversy regarding the fitness or competence of
Carey Lohrenz herself,’’ Appellant’s Br. at 32, she ignores
that the substance of the controversy about the appropriate-
ness of women in combat positions embraced concerns about
Lt. Lohrenz’s performance as a pathbreaking woman combat
pilot of unknown ability. In sum, the evidence, viewed most
favorably to Lohrenz, fails to show the media was not entitled
to assume that she had voluntarily exposed herself to an
increased risk of injury from defamatory falsehoods about her
role as a combat pilot.
With this conclusion, the court has no occasion to hold that
either her earlier conduct or the media coverage following her
assignment to the F–14 showed that Lt. Lohrenz was well-
known or attempting to influence a public controversy, see
Wolston, 443 U.S. at 167–68; prior to ‘‘suiting up’’ as an F–14
pilot, she had not been a general-purpose public figure or a
voluntary limited-purpose public figure. See Gertz, 418 U.S.
at 351–52. Neither her Navy enlistment and non-combat
15
pilot training, which did not render her ‘‘fam[ous]’’ or ‘‘noto-
ri[ous]’’, see id., nor her mere acquiescence to press inquiries
fairly characterized as of a hometown-girl human interest
variety, see Waldbaum, 627 F.2d at 1298 n.31, nor her
attempts to defend herself through the media against alleged-
ly defamatory statements by Donnelly and CMR, see id. at
n.34; cf. Time, Inc. v. Firestone, 424 U.S. 448, 454 n.3 (1976),
rendered her a public figure. Instead, it was her voluntary
act of ‘‘cho[osing] combat aircraft,’’ thereby assuming the risk
of a combat assignment, followed by her ‘‘suiting up’’ as one
of the first two American women combat pilots, that gave her
‘‘ ‘special prominence’ ’’ in the controversy about women in
combat and established her voluntary limited-purpose public
figure status.
The result here is in accord with a principle alluded to by
Justice Harlan in Curtis Publishing Co. v. Butts, 388 U.S.
130, 154 (1967) (with three Justices concurring and the Chief
Justice concurring in the result), namely, the First Amend-
ment requires that where, as here, recovery by a defamation
plaintiff could be viewed as vindicating a government policy, a
plaintiff must make the higher showing required by the actual
malice standard. Further, our approach adheres to the princi-
ple that, unless a plaintiff accepted a role in which she
reasonably could have been expected to play a role in resolv-
ing a controversy, see Waldbaum, 627 F.2d at 1297, merely
accepting an anonymous assignment in an arena where there
is a public controversy is not alone sufficient to transform a
private person into a public figure. Cf. Hutchinson v. Prox-
mire, 443 U.S. 111, 134–35 (1979); see also Gertz, 418 U.S. at
352. Lt. Lohrenz was not just any fighter pilot; when she
‘‘suited up,’’ she could reasonably have been expected to know
that she was assuming a position of ‘‘ ‘special prominence’ ’’ in
the controversy about women in combat roles. Again, it was
not Lt. Lohrenz’s decision to pursue a Navy career as a
combat jet pilot that made her a public figure, but rather that
in so doing she assumed the risk of success whereby she
would become one of the first few women combat pilots and
thus necessarily attain ‘‘ ‘special prominence’ ’’ in an ongoing
public controversy about such opportunities. Finally, the
result here is consistent with Gertz’s principle that only those
16
with access to the media to defend themselves should be
designated public figures. See 418 U.S. at 345. Lt. Lohrenz
possessed ready access to the channels of public discourse, as
evidenced not only by the media attention she received when
first assigned as a combat pilot along with Lt. Hultgreen, but
by her appearance on April 19, 1998, on the CBS television
program 60 Minutes.
Our conclusion about Lt. Lohrenz’s public figure status
does not suggest that she was not a good naval aviator trying
to do her job, and it does not penalize her for acting with
‘‘professionalism,’’ see Appellant’s Br. 32, 35. Lt. Lohrenz
was confronted with the choice of piloting a supersonic com-
bat fighter jet as a voluntary public figure, or giving up her
dream of being a Navy pilot in order to remain a private
figure. But given that potentially difficult choice, it was
nonetheless she who ‘‘chose jets’’ when she knew there was a
public controversy about women in combat, and she must live
with the consequences of that choice and her resulting assign-
ment as one of the first women combat pilots. We hold that
as an F–14 combat pilot Lt. Lohrenz became a voluntary
limited-purpose public figure. Therefore, we do not reach
Lohrenz’s attacks on Dameron.
III.
As a public figure, Lohrenz bore the burden of proving that
Donnelly and CMR acted with actual malice, and not merely
ordinary negligence, in publishing allegedly defamatory state-
ments about her. The district court found that Lohrenz
failed to present evidence from which a reasonable jury could
so find. Lohrenz contends that the district court did not give
her the benefit of the aggregate of her evidence, as she was
entitled, see, e.g., McFarlane v. Esquire Magazine, 74 F.3d
1296, 1304 (D.C. Cir. 1996); Tavoulareas v. Piro, 817 F.2d
762, 794 n.43 (D.C. Cir. 1987) (en banc), and that she present-
ed ‘‘highly probative’’ evidence of actual malice by showing
that ‘‘Donnelly and CMR were on a mission to advance a pre-
conceived story line, and may have targeted Lohrenz to ‘get’
her out of their more generalized zeal to drum women from
combat positions.’’ Appellant’s Br. at 38–39.
17
In a civil action where the subjective state of mind determi-
nation turns on credibility and nuance, Lohrenz’s position
that the issue should never have been decided on summary
judgment has facial appeal. See, e.g., Goldwater v. Ginzburg,
414 F.2d 324, 336–37 (2d Cir. 1969). The difficulty in agree-
ing with her contention that the district court erred in
granting summary judgment stems not from the general
proposition she asserts but from the nature of the heavy
burden she bears. To determine whether Lohrenz met her
burden to show actual malice by Donnelly and CMR in
publishing the alleged defamations, the court must be able to
find that there is clear and convincing evidence ‘‘to permit the
conclusion that the[y] in fact entertained a serious doubt as to
the truth of [their] publication.’’ St. Amant v. Thompson, 390
U.S. 727, 731 (1968). In that regard, the Supreme Court
acknowledged in St. Amant that:
It may be said that such a test puts a premium on
ignorance, encourages the irresponsible publisher
not to inquire, and permits the issue to be deter-
mined by the defendant’s testimony that he publish-
ed the statement in good faith and unaware of its
probable falsityTTTT New York Times [v. Sullivan,
376 U.S. 254 (1964)] and succeeding cases have
emphasized that the stake of the people in public
business and the conduct of public officials is so
great that neither the defense of truth nor the
standard of ordinary care would protect against self-
censorship and thus adequately implement First
Amendment policies. Neither lies nor false commu-
nications serve the ends of the First Amendment,
and no one suggests their desirability or further
proliferation. But to insure the ascertainment and
publication of the truth about public affairs, it is
essential that the First Amendment protect some
erroneous publications as well as true ones.
Id. at 731–32.
In the two decades since St. Amant, this court has elabo-
rated on the evidentiary thresholds that a plaintiff must meet
18
to prove actual malice in a defamation claim. The court
explained in Tavoulareas, 817 F.2d at 788–98, that the plain-
tiff must show, by clear and convincing evidence, that when
the defendants published the alleged defamations they were
subjectively aware that it was highly probable that the story
was ‘‘(1) fabricated; (2) so inherently improbable that only a
reckless person would have put [it] in circulation; or (3)
based wholly on an unverified anonymous telephone call or
some other source that appellees had obvious reasons to
doubt.’’ Id. at 790 (internal quotations omitted). Viewing the
evidence in the light most favorable to Lohrenz as the non-
moving party, see Fed. R. Civ. P. 56(c); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), we hold that she
failed to meet her burden.
Evidence that the publishers of the alleged defamatory
statements were on a mission to reinstate the ban against
women being assigned to combat positions in the military
does not suffice to show actual malice. That Donnelly and
CMR acted on the basis of a biased source and incomplete
information does not ‘‘demonstrate with clear and convincing
evidence that the defendant[s] realized that [their] statement
was false or that [they] subjectively entertained serious
doubts as to the truth of [their] statement.’’ Bose Corp. v.
Consumers’ Union of U.S., 466 U.S. 485, 511 n.30 (1984).
Lohrenz’s position — that Donnelly and CMR had to
resolve doubts about the specific facts of Lt. Lohrenz’s per-
formance record once credible evidence was placed before
them to cause them ‘‘obvious reasons’’ to doubt the reliability
of the information they had previously trusted — assumes the
proposition to be decided, namely whether the Navy’s asser-
tions and evidence that Lt. Lohrenz was a qualified F–14
combat pilot were credible. If the mere proffering of pur-
portedly credible evidence that contradicts a publisher’s story
were enough to meet the Tavoulareas test, the resolution of
the motion for summary judgment filed by Donnelly and
CMR could have taken a different turn. As the law stands,
Lohrenz’s evidence must show more than ‘‘highly unreason-
able conduct constituting an extreme departure from the
standards of investigation and reporting ordinarily adhered to
19
by responsible publishers.’’ Harte-Hanks Communications,
Inc. v. Connaughton, 491 U.S. 657, 666 (1989) (internal quota-
tion omitted). Lohrenz’s evidence also must show Donnelly’s
and CMR’s ‘‘reckless disregard for the truth, TTT [such as] a
high degree of awareness of TTT probable falsity, or TTT
serious doubts as to the truth of [their] publication.’’ Con-
naughton, 491 U.S. at 667 (internal citations omitted).
Donnelly stated in her letter to Senator Thurmond that Lt.
Lohrenz (‘‘Pilot B’’) was a substandard pilot who should not
be flying and who had been assigned to the F–14 program on
account of a ‘‘politically driven policy.’’ Prior to writing the
letter, Donnelly had obtained information about the sole
surviving woman F–14 pilot from Lt. Burns, who briefly was
one of Lt. Lohrenz’s training officers. Whatever bias Lt.
Burns may be shown to have against women in combat flight
positions, Lohrenz’s evidence shows that Donnelly’s publica-
tion was based on a knowledgeable, non-anonymous source.
Under the circumstances, Tavoulareas does not require more
of a publisher. 817 F.2d at 790. Additionally, by the time
she published The Donnelly Report, Donnelly also had por-
tions of Lt. Lohrenz’s training records that supported Lt.
Burns’ assertions that the Navy made special accommoda-
tions for Lt. Lohrenz.
Although failure to investigate does not in itself establish
bad faith, see St. Amant, 390 U.S. at 733 (citing New York
Times, 376 U.S at 287–88), it is true, as Lohrenz contends,
that once the publisher has obvious reasons to doubt the
accuracy of a story, the publisher must act reasonably in
dispelling those doubts. See id. at 731 (citing Curtis Publish-
ing Co. v. Butts, 388 U.S. 130, 153 (1967)). ‘‘Thus, where the
publisher undertakes to investigate the accuracy of a story
and learns facts casting doubt on the information contained
therein, it may not ignore those doubts, even though it had no
duty to conduct the investigation in the first place.’’ Masson
v. New Yorker Magazine, Inc., 960 F.2d 896, 901 (9th Cir.
1992) (on remand from the Supreme Court).
Donnelly and CMR never discovered any facts sufficient to
cause them to doubt their conclusion about Lt. Lohrenz’s
20
incompetence as an F–14 combat pilot. The evidence offered
by Lohrenz is not comparable to the football game films
available to the publisher in Curtis Publishing that demon-
strated the falsity of the report it was relying on concerning
the former football coach. 388 U.S. at 158. Even where
doubt-inducing evidence could be discovered, a publisher may
still opt not to seek out such evidence and may rely on an
informed source, so long as there is no ‘‘obvious reason to
doubt’’ that source. See, e.g., McFarlane, 74 F.2d at 1305.
In fact, the information that Donnelly and CMR received
reasonably led them not to investigate allegedly contradictory
evidence. By the time Donnelly published The Donnelly
Report, she had additional information from the Navy that
appeared to confirm much of what Lt. Burns had told her
about Lt. Lohrenz. Rear Admiral Lyle Bien’s report, pro-
duced in reaction to Donnelly’s letter to Senator Thurmond,
confirmed Lt. Burns’ allegations that Lt. Lohrenz had re-
ceived a number of accommodations during training and
stated that some of the officers, especially junior officers,
thought the accommodations were excessive. Admiral Bien’s
report did not confirm that Lt. Lohrenz or the other woman
pilot were unqualified. He viewed concessions as a matter
within the discretion of the commanding officer so long as
safety and common standards were maintained, but he did
confirm that there were perceptions that a double standard
was being applied. Admiral Bien nonetheless concluded that
gender based bias had not tainted the Navy’s training or
rating of women combat pilots.
Donnelly had also been told by the Vice Chief of Naval
Operations, Admiral Stanley Arthur, and other Navy officers
that her conclusion about Lt. Lohrenz was wrong, that her
information was coming from someone ‘‘working their own
agenda,’’ and that she should be aware that she had not seen
the entire training record. The following year, prior to her
Army–Navy Club speech, Donnelly had again been warned by
Navy officials that her conclusion about Lt. Lohrenz was
inaccurate. Yet publishers need not accept ‘‘ ‘denials, howev-
er vehement; such denials are so commonplace in the world
of polemical charge and countercharge that, in themselves,
21
they hardly alert the conscientious reporter to the likelihood
of error.’ ’’ Connaughton, 491 U.S. at 691 n.37 (citing Ed-
wards v. Nat’l Audubon Soc’y, Inc., 556 F.2d 113, 121 (2d Cir.
1977)). See also Coliniatis v. Dimas, 965 F. Supp. 511, 519
(S.D.N.Y. 1997). Unlike evidence that could be readily veri-
fied, see, e.g., Curtis Publishing, 388 U.S. at 158; McFarlane,
74 F.3d at 1299, the Navy’s denials did not give Donnelly
‘‘obvious reasons’’ to doubt the veracity of her publication.
Donnelly, for example, could reasonably infer that Admiral
Bien had not been objective in concluding, despite contrary
evidence in his report that detailed special accommodations
made for Lt. Lohrenz, that the pilot was safe to fly and that
she had not been promoted based on a double standard.
Furthermore, Admiral Bien wrote that no instructor inter-
viewed had stated that Lt. Lohrenz and Lt. Hultgreen were
unsafe to fly, yet Donnelly knew that Lt. Burns had been
interviewed and claimed that he had said precisely that to
Admiral Bien.
Hence, despite the Navy’s denials, no reasonable juror
could find either that Donnelly knew her charges were false,
or that she had cause to ‘‘obviously doubt’’ her story. See
Sparshott v. Feld Entertainment, Inc., 311 F.3d 425, 429
(D.C. Cir. 2002). Although Lohrenz maintains that Donnelly
and CMR should have pursued ‘‘easily available documentary
or witness sources,’’ Appellant’s Br. at 42, and that it was
improper for them to publish their allegations without seeing
Lt. Lohrenz’s full performance records, the records were not
available without Lt. Lohrenz’s consent, see Lohrenz v. Don-
nelly, 187 F.R.D. 1, 10 (D.D.C. 1999). Lohrenz has pointed to
no authority establishing that publishers must withhold publi-
cation merely because they have not consulted particular
documents, the procuring of which would effectively render
the story’s publication reliant on the subject’s consent, and
two district courts have reached a contrary conclusion. See
Secord v. Cockburn, 747 F. Supp. 779, 788–89 & n.8 (D.D.C.
1990); Loeb v. New Times Communications Corp., 497 F.
Supp. 85, 93 (S.D.N.Y. 1980); see also generally St. Amant,
390 U.S. at 731. As the district court in Loeb observed, the
‘‘failure to verify statements with the plaintiff and reliance
22
upon some biased sources, in themselves, do not amount to
reckless disregard of the truth.’’ 497 F. Supp. at 93 (citing
St. Amant, 390 U.S. at 730). Donnelly and CMR thus were
not required to remain silent until the day Lt. Lohrenz
agreed to disclose her confidential training records to them.
Furthermore, The Donnelly Report and CMR’s press re-
lease embraced Donnelly’s conclusions about Lt. Lohrenz but
also reported that Navy officials held different views. Such
admissions, i.e., reporting perspectives at odds with the pub-
lisher’s own, ‘‘tend[ ] to rebut a claim of malice, not to
establish one.’’ McFarlane, 74 F.3d at 1304. Donnelly’s and
CMR’s dissemination of the Navy’s denials of Donnelly’s
conclusion about Lt. Lohrenz, combined with the reasonable
implication that those denials tended to demonstrate the
Navy’s desire to conceal double standards even after confirm-
ing that at least Donnelly’s allegations of a double standard
were ‘‘substantially true,’’ weighs against, rather than for, a
finding of actual malice.
For these reasons, we hold that because no reasonable
juror could find by clear and convincing evidence that Donnel-
ly or CMR acted with actual malice in any of the four
publications at issue, Lohrenz failed to meet her burden of
proof.
Accordingly, we affirm the judgment of the district court,
granting summary judgment to Donnelly and CMR.