Milan Jankovic v. International Crisis Group

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 10, 2016 Decided May 10, 2016

No. 14-7171

MILAN JANKOVIC, ALSO KNOWN AS PHILIP ZEPTER,

APPELLANT

FIELDPOINT B.V. AND UNITED BUSINESS ACTIVITIES

HOLDING, A.G.,

APPELLEES

v.

INTERNATIONAL CRISIS GROUP, A NON-PROFIT

ORGANIZATION, ET AL.,

APPELLEES

Consolidated with 14-7178

Appeals from the United States District Court

for the District of Columbia

(No. 1:04-cv-01198)

Rodney A. Smolla argued the cause for appellant. With him

on the briefs were William T. O'Brien, Lisa Norbett Himes, John

W. Lomas Jr., and Malcolm I. Lewin.

Michael D. Sullivan argued the cause for appellees. With

him on the brief were Thomas Curley, Mara J. Gassmann, Neil

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H. Koslowe, and Jonathan Greenblatt.

Hashim M. Mooppan was on the brief for amici curiae The

Brookings Institution, et al. in support of defendants-appellees.

Before: HENDERSON, ROGERS and SRINIVASAN, Circuit

Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Milan Jankovic, also known as

Philip Zepter, sued the International Crisis Group (“ICG”) for

defamation based on a statement in one of its reports that linked

him to the Slobodan Milosevic regime. This is the third time

this case is before the court. We twice previously reversed the

dismissal of the complaint and remanded the case. Jankovic v.

Int’l Crisis Grp. (Jankovic I), 494 F.3d 1080 (D.C. Cir. 2007);

Jankovic v. Int’l Crisis Grp. (Jankovic II), 593 F.3d 22 (D.C.

Cir. 2010). In the first appeal, the court held that one statement

in an ICG report was capable of defamatory meaning, and, in the

second appeal, the court rejected ICG’s defenses that the

statement was merely an opinion or a fair report or comment on

a government document. Zepter now appeals the grant of

summary judgment to ICG. Jankovic v. Int’l Crisis Grp.

(Jankovic III), 72 F. Supp. 3d 284 (D.D.C. 2014). He contends

that the district court erred in ruling that he was a limited-

purpose public figure, and alternatively that, to the extent he

was, the district court erred in finding that he failed to proffer

evidence from which a reasonable jury could find by clear and

convincing evidence that ICG published the defamatory

statement with actual malice.

Upon de novo review, we hold that summary judgment was

appropriately granted. On the evidence before the district court,

Zepter was a limited-purpose public figure with respect to the

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public controversy surrounding political and economic reform

in Serbia and integration of Serbia into international institutions

during the post-Milosevic era. Contrary to his suggestion, he

was not a mere bystander engaged in civic duties but was an

advisor to and financial supporter of Prime Minister Zoran

Djindjic, who came into power following Milosevic’s ouster.

Further, Zepter’s mustering of evidence, deficient in part due to

his procedural defaults, fails to show by clear and convincing

evidence that ICG acted with actual malice in publishing the

statement. Accordingly, we affirm.

I.

This appeal arises out of publication by the International

Crisis Group of Serbian Reform Stalls Again (“Report 145”), a

report about reforms in the wake of the assassination of Prime

Minister Zoran Djindjic. This report followed closely after

ICG’s publication of Serbia After Djindjic (“Report 141”). ICG,

a non-profit, multinational organization with over 90 staff

members on five continents published reports like these as part

of its mission to influence policymakers and to prevent and

resolve deadly conflict. Jankovic I, 494 F.3d at 1084–85. These

two reports were primarily authored and researched by James

Lyon, who was ICG’s project director for Serbia from 2000

through 2005.

Briefly: In 1999, Serbia was marred by violence as its

President, Slobodan Milosevic, carried out a pattern of ethnic

violence in the Serbian province of Kosovo. These actions

resulted in military intervention by the North Atlantic Treaty

Organization (“NATO”) and imposition of sanctions by the

United States and European countries. Milosevic lost the

presidency in a democratic election in 2000, but his successor,

President Vojislac Kostunica, faced a politically powerful

parliament led by Prime Minister Zoran Djindjic, who favored

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sweeping changes of Milosevic’s policies. In 2001, Prime

Minister Djindjic extradited Milosevic to The Hague,

Netherlands, to stand trial for war crimes. Prime Minister

Djindjic was assassinated in 2003. See Jankovic III, 72 F. Supp.

3d at 292.

Report 145, as described by its principal author, addressed,

among other things, the inability of the post-Milosevic Serbian

government to achieve political and economic reform and to

assert civilian control over the Milosevic-era police, military,

and intelligence structures. It also analyzed continuing concerns

about the influence of wealthy businessmen, some of whom

were considered to have been closely connected to these power

structures, on Serbia’s fledgling democracy. ICG’s concern was

that without meaningful political and economic reform the

prospect of further ethnic violence and national conflict in

Serbia and the Balkans was likely.

As a successful businessman, Zepter was concerned about

some of the negative statements ICG made about him in their

reports. Born and raised in Serbia, Zepter established a

successful cookware company after college and that business

achieved success throughout Europe. Jankovic III, 72 F. Supp.

3d at 292. Over time, Zepter expanded his business into other

areas, including banking, and he had banking interests in Serbia

while Milosevic was in power. He filed suit, alleging that

statements in the two ICG reports and an e-mail sent by the

principal author of the reports were defamatory, but this court

held that only claims related to a three-paragraph statement in

Report 145 could proceed. Jankovic I, 494 F.3d at 1084. That

statement described Zepter as a member of the “New Serbian

Oligarchy” and stated, for example, that he was “associated with

the Milosevic regime and benefitted from it directly.” Report

145, at 17. It also stated that individuals like Zepter continued

to be in positions of power and to enjoy access to public

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resources, and that few of the “crony companies” had been

subject to legal action despite promises by reformers. Id. at

17–18. The court concluded that a reasonable reader could

construe the statement as asserting “that Philip Zepter,

personally, was a ‘crony’ of Milosevic who supported the

regime in exchange for favorable treatment” and “that Philip

Zepter was actively in alliance with Milosevic and his regime.”

Jankovic I, 494 F.3d at 1091.

Having determined that the statement in Report 145 was

capable of defamatory meaning, the court subsequently rejected

ICG’s defenses of fair report, fair comment, and opinion.

Jankovic II, 593 F.3d at 26–28. ICG had supported portions of

the statement with a list of frozen assets that was prepared by the

U.S. Office of Foreign Assets Control (“OFAC”), and an

accompanying Executive Order. See id. at 26–27. Although the

list included the assets of a bank established by Zepter, the court

held neither the fair report nor comment privileges applied

because the list included the assets of all Serbian financial

institutions, whether or not operated by Milosevic cronies. See

id. at 26–27, 29. The court also rejected ICG’s position that the

statement was merely an opinion, concluding it was “sufficiently

factual to be susceptible of being proved true or false.” Id. at

27–28 (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 21

(1990)). To the extent it might have been an opinion, the court

concluded it was not privileged because the opinion’s factual

basis was not fully disclosed in the report. See id. at 28.

Upon remand, the parties filed motions for summary

judgment. Zepter moved for partial summary judgment, seeking

to establish that he was a private figure and that the defamatory

passage was false. ICG moved for summary judgment on the

grounds that Zepter was a limited-purpose public figure and he

had failed to proffer sufficient evidence of actual malice. The

district court agreed with ICG. Jankovic III, 72 F. Supp. 3d at

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301, 316–17. In granting summary judgment to ICG, the district

court took note of various procedural defaults that hindered

Zepter’s ability to meet his burden, including failing to seek

timely discovery of Lyon’s sources, see id. at 314 n.32, and to

dispute some of ICG’s material facts, id. at 290.

Zepter appeals the grant of summary judgment, and our

review is de novo, Lohrenz v. Donnelly, 350 F.3d 1272, 1274

(D.C. Cir. 2003), while examining evidentiary and discovery

rulings for abuse of discretion, Morrison v. Int’l Programs

Consortium, Inc., 253 F.3d 5, 9 (D.C. Cir. 2001).

II.

The Supreme Court has long enshrined “a profound national

commitment to the principle that debate on public issues should

be uninhibited, robust, and wide-open, and that it may well

include vehement, caustic, and sometimes unpleasantly sharp

attacks on government and public officials.” New York Times

Co. v. Sullivan, 376 U.S. 254, 270 (1964) (internal citation

omitted). An action for defamation can be maintained only to

the extent it does not interfere with First Amendment rights of

free expression. Thus, “a public official” may not “recover[]

damages for a defamatory falsehood relating to his official

conduct unless he proves that the statement was made with

‘actual malice,’ that is, with knowledge that it was false or with

reckless disregard of whether it was false or not.” Id. at 279–80.

Since New York Times, the Court has explained that a similar

rule applies to public figures, and, accordingly, speech relating

to public officials and public figures, as distinct from private

persons, enjoys greater protection under the First Amendment.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974); Curtis

Publ’g Co. v. Butts, 388 U.S. 130, 154 (1967).

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The Court has laid down broad rules about when a private

individual becomes a public figure. Some individuals are public

figures because they “occupy positions of such persuasive power

and influence that they are deemed public figures for all

purposes,” but more commonly, private individuals become

more limited-purpose public figures because they “have thrust

themselves to the forefront of particular public controversies in

order to influence the resolution of the issues involved.” Gertz,

418 U.S. at 345. The Court 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.” Lohrenz, 350 F.3d

at 1279 (citing Gertz, 418 U.S. at 344). Indeed, “[t]he

communications media are entitled to act on the assumption that

public officials and public figures have voluntarily exposed

themselves to increased risk of injury from defamatory

falsehood concerning them,” whereas a private individual “has

relinquished no part of his interest in the protection of his own

good name, and consequently he has a more compelling call on

the courts for redress of injury inflicted by defamatory

falsehood.” Gertz, 418 U.S. at 345. In setting these guidelines,

the Court accommodated the competing concerns between a free

press and a private person’s need to redress wrongful injury, but

has “been especially anxious to assure to the freedoms of speech

and press that ‘breathing space’ essential to their fruitful

exercise.” Id. at 342 (citation omitted).

A.

Whether Zepter is a limited-purpose public figure or is a

private figure is a “matter of law for the court to decide.”

Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C. Cir. 1987); see

Rosenblatt v. Baer, 383 U.S. 75, 88 n.15 (1966). Although

Gertz ultimately controls the resolution of this question of law,

this court employs a three-part inquiry first articulated in

Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287,

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1296–98 (D.C. 1980). See Tavoulareas, 817 F.2d at 772–73.

First, the court must identify the relevant controversy and

determine whether it is a public controversy. Waldbaum, 627

F.2d at 1296. Second, the plaintiff must have played a

significant role in that controversy. Id. at 1297. Third, the

defamatory statement must be germane to the plaintiff’s

participation in the controversy. Id. at 1298. In conducting this

analysis, a court must be mindful that “the touchstone” of the

limited-purpose public figure analysis remains determining

“whether an individual has assumed [a] role[] of especial

prominence in the affairs of society . . . [that] invite[s] attention

and comment.” See Lohrenz, 350 F.3d at 1279 (alterations in

original) (quoting Tavoulareas, 817 F.2d at 773). Zepter

contends that the district court erred at each step of the inquiry,

and, in so doing, misunderstood the teachings of Gertz.

1. Scope of Public Controversy. A controversy is not a

public controversy solely because the public is interested in it.

See Waldbaum, 627 F.2d at 1296–97; Time, Inc. v. Firestone,

424 U.S. 448, 454 (1976). To determine whether there is a

public controversy, the court “must examine whether persons

actually were discussing some specific question,” looking to

“see if the press was covering the debate, reporting what people

were saying and uncovering facts and theories to help the public

formulate some judgment.” See Waldbaum, 627 F.2d at 1297.

A controversy is a public one when a “reasonable person would

have expected persons beyond the immediate participants in the

dispute to feel the impact of its resolution.” Id.

The district court identified the public controversy as “the

progress of political and economic reform in Serbia and the

integration of Serbia into international institutions” in the post-

Milosevic Serbian government, including the Prime Minister

Djindjic regime. Jankovic III, 72 F. Supp. 3d at 301–03. Zepter

does not dispute that this is a public controversy, but maintains

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that there was a more specific controversy on which the district

court needed to focus. In Zepter’s view, the period when

Djinjdic was in power was not relevant, and the public

controversy should have been focused on “the progress of

Serbian political and economic reform after the March 2003

assassination of Zoran Djindjic.” Appellant’s Br. 17. Zepter

maintains this controversy is more appropriate because it is

narrower, more directly tied to the report which contains the

defamation, and compelled by law of the case and judicial

estoppel.

When defining the relevant controversy, a court may find

that there are multiple potential controversies, and it is often true

that “a narrow controversy may be a phase of another, broader

one.” See Waldbaum, 627 F.2d at 1297 n.27. Indeed, courts

often define the public controversy in expansive terms. See

Tavoulareas, 817 F.2d at 773; Waldbaum, 627 F.2d at 1299.

Although, as Zepter suggests, a broader public controversy may

involve many more individuals, defining a public controversy

broadly does not necessarily mean that too many individuals

will be treated as public figures because the broader the

controversy, the less likely it is for any individual to have had

“the necessary impact” on that controversy. See Waldbaum, 627

F.2d at 1297 n.27. And whether an individual has a sufficient

impact on the controversy is the second part of the Waldbaum

inquiry and is not relevant to the threshold question of defining

the public controversy.

Zepter’s view that narrowing the definition of the

controversy is required in order to relate it to the publication

containing the defamation is not well taken. The court has

defined controversies as being broader than the narrower

discussion contained in the defamatory document, see

Tavoulareas, 817 F.2d at 778–79; Waldbaum, 627 F.2d at 1290

& n.5, 1299, and Zepter offers no reason a different approach is

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required here. Although Report 145 focuses on the reform effort

after Prime Minister Djindjic’s assassination in 2003, its

discussion concerns the broader public debate about the reform

effort after Milosevic was ousted from power in 2000. See, e.g.,

Report 145, at i, 17–18. A report about the prospect of post-

2003 reforms in Serbia contributes to both the narrow post-

assassination issue and the broader discussion of post-2000

reforms.

Zepter’s judicial estoppel and law-of-the-case arguments

fare no better. Zepter fails to show ICG’s positions regarding

the scope of the controversy are inconsistent. ICG never argued

in this court or the district court that the only relevant public

controversy was related to the post-Djindjic assassination

period, and its prior explanation in 2009 that Report 145 focused

on the post-assassination period is consistent with its position

now that the relevant public controversy was much broader.

Judicial estoppel is therefore inapplicable. See New Hampshire

v. Maine, 532 U.S. 742, 750 (2001). Also, in Jankovic II, the

court did not address whether Zepter was a public figure and

concluded only that “[t]he language at issue in this case appears

in ICG’s Report 145, which addresses the deceleration of

Serbian reforms” after Prime Minister Djindjic’s assassination.

593 F.3d at 24. There is no reason to think the court

“affirmatively decided the issue” of the relevant public

controversy. See Crocker v. Piedmont Aviation, Inc., 49 F.3d

735, 739 (D.C. Cir. 1995).

2. Role in Controversy. For Zepter to be a limited-purpose

public figure, he must have “thrust” himself to the “forefront” of

the public controversy at issue. Waldbaum, 627 F.2d at 1297

(quoting Gertz, 418 U.S. at 345). Zepter maintains that the

breadth of the controversy ensures that someone such as himself

— a mere businessman interested in civic affairs — could not

have been expected to have the requisite impact. Appellant’s

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Br. 22–30. After all, a broad controversy “will have more

participants” such that it is unlikely any one individual “can

have the necessary impact.” Waldbaum, 627 F.2d at 1297 n.27.

In Gertz, the Supreme Court cautioned against concluding that

an individual was a public figure for all purposes solely because

of activity in “community and professional affairs” and declined

to treat that individual as a public figure for a limited

controversy in the absence of evidence that he had “thrust

himself into the vortex of” any relevant public issue or

“engage[d] the public’s attention in an attempt to influence its

outcome.” Gertz, 418 U.S. at 351–52; see Hutchinson v.

Proxmire, 443 U.S. 111, 134–35 (1979).

The evidence eliminates the risk that Zepter was merely an

ordinary civic participant and private person who has been

mischaracterized as a limited-purpose public figure. It shows

that he was was an outspoken supporter, financial backer, and

advisor of Prime Minister Djindjic. Zepter now steps back from

his statement to the press regarding his advisory role, but he

does not deny that he paid over $100,000 to a lobbyist to support

Prime Minister Djindjic’s effort to improve relations between

the United States and Serbia. Returning from a trip to the

United States in late November 2001, Djindjic announced that

the United States had promised assistance in writing off two-

thirds of Yugoslavia’s 12.2 billion dollar external debt and

rescheduling the remainder. In an open letter of December 30,

2001, to the Serbian people, entitled “My Answer to Them,”

which was published on the front page of two Serbian

newspapers, Zepter emphasized that he had long been a

supporter of Djindjic and of reform in Serbia and announced:

“When, in a few years, I enter [the] political arena, I will enter

to win.” In various interviews with members of the Balkan

press, Zepter repeated these views, including acknowledging in

an article published in the fall 2003 in Nacional (Croatia) that

he had given advice to Prime Minister Djindjic and paid for a

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lobbyist to improve relations between the United States and

Serbia.

Thus, Zepter was “purposely trying to influence the

outcome or could realistically have been expected, because of

his position in the controversy, to have an impact on its

resolution.” Waldbaum, 627 F.2d at 1297; see Gertz, 418 U.S.

at 345. The evidence shows that Zepter had voluntarily thrust

himself into ensuring that Serbia underwent reforms in the post-

Milosevic era. He attained “a position in the limelight” through

“purposeful action[s] of his own.” See Lohrenz, 350 F.3d at

1280 (quoting Gertz, 418 U.S. at 345). His actions ensured that

he would play a central role in the reform, and he “engaged in

conduct that he knew markedly raised the chances that he would

become embroiled in a public controversy.” Clyburn v. New

World Commc’ns, Inc., 903 F.2d 29, 33 (D.C. Cir. 1990);

Lohrenz, 350 F.3d at 1280. His close political relationship with

Prime Minister Djindjic carried a risk of public scrutiny. See

Clyburn, 903 F.2d at 33; Waldbaum, 627 F.2d at 1292, 1298;

Thompson v. Evening Star Newspaper Co., 394 F.2d 774, 776

(D.C. Cir. 1968); Rebozo v. Wash. Post Co., 637 F.2d 375,

379–80 (5th Cir. 1981). His public actions invited press scrutiny

in view of the public discussion regarding the impact that

businessmen of his stature would have on reform during and

after the Djindjic regime. It is little wonder that a prominent

businessman’s close ties to Prime Minister Djindjic achieved

“special prominence” in the debate about reform in Serbia. See

Waldbaum, 627 F.2d at 1297.

The three sworn statements proffered by Zepter from

prominent individuals with knowledge of Serbia — a former

U.S. Ambassador to Yugoslavia, a Djindjic-appointed Assistant

Minister of Foreign Affairs, and a former ICG employee — are

unhelpful to him. The former ICG employee had no knowledge

of Zepter whatsoever, and the other two had no knowledge of

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Zepter being involved in the political or economic affairs of

Prime Minister Djindjic. One understood Zepter simply to be a

personal friend of the Prime Minister. But such close personal

friendships can carry with them the risk of being swept up into

a public controversy. See Clyburn, 903 F.2d at 32–33; Rebozo,

637 F.2d at 379. Further, these individuals do not contradict the

evidence that Zepter was more than just a close personal friend,

even paying for a lobbyist to advance Serbia’s interests, as

defined by Prime Minister Djindjic, in the United States.

The evidence already described disposes of Zepter’s view

that the only evidence offered in support of his status as a

limited-purpose public figure are unreliable Serbian press

articles and his purely defensive statements to the press. In

suggesting that relying on Serbian news sources for their truth

was error in view of their unreliability and potential hearsay

problems, Zepter ignores that he failed to offer evidence that the

particular articles on which the district court relied were untrue.

Under the local rules, uncontested facts may be taken as true for

purposes of summary judgment. See Jankovic III, 72 F. Supp.

3d at 290 & n.3 (citing Local Civ. R. 7(h) and Jackson v.

Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d

145, 153 (D.C. Cir. 1996)). Although there was evidence that

the reliability of the Serbian press, generally, was subject to

question, the evidence did not indicate it was categorically

unreliable; rather, articles could be evaluated on a case-by-case

basis and, according to Lyon, could be a “useful barometer of

public sentiment, or some portion of it, as well as at times

convey accurate information,” Lyon Decl.¶ 51 (Mar. 29, 2013).

News sources can play a central non-hearsay role in this part of

the inquiry. See Waldbaum, 627 F.2d at 1297, 1290 n.3; see

also Tavoulareas, 817 F.2d at 773–74. In any event, relevant

content in the news stories is supported by evidence that Zepter

could hardly dispute or label as hearsay, including the lobbyist’s

deposition testimony on the intended effect of his lobbying and

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Zepter’s own view of his role as contributing to the transition of

the Serbian government. See Denton Dep. Tr. 13–19, 95–97

(Dec. 14, 2011); Milan Jankovic, “My Answer to Them,” Glas

Jovnosti, Dec. 30, 2001, at 4 (Eng. translation).

On the other hand, it is true that “responding to press

inquiries or attempting to reply to comments on oneself through

the media does not necessarily mean that [one] is attempting to

play a significant role in resolving a controversy.” Waldbaum,

627 F.2d at 1298 n.31; see also Clyburn, 903 F.2d at 32–33. So,

the court does not give great weight to a plaintiff’s press

statements when the statements “merely answer the alleged libel

itself” or consist of “purely defensive, truthful statements made

when an individual finds himself at the center of a public

controversy but before any libel occurs.” See Clyburn, 903 F.2d

at 32. Zepter, however, used the public controversy to do more

than provide a “short simple statement of his view of the story,”

and instead drew “attention to himself” and used “his position

in the controversy ‘as a fulcrum to create public discussion.’”

See id. (quoting Wolston v. Reader’s Digest Ass’n, 443 U.S. 157,

168 (1979)); Tavoulareas, 817 F.2d at 773–74; Time, 424 U.S.

at 454 n.3. His open letter to the Serbian People was more than

a mere defensive statement as it expressed his continued support

for the political regime headed by Prime Minister Djindjic and

explained his own future political ambitions. This goes “beyond

an ordinary citizen’s response to the eruption of a public fray

around him.” Clyburn, 903 F.2d at 33. Moreover, the conduct

that Zepter acknowledged to the press — acting as an advisor

and financier of the Serbian reform effort — makes him a

limited-purpose public figure, and it was that conduct, and not

the negative stories, that involved him in the public controversy.

See id. at 33. Zepter’s choosing to involve himself in reform —

through his supportive public statements and the payment of a

lobbyist — is what gave him “special prominence” in the public

controversy.

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3. Germaneness. For Zepter to have been a limited-purpose

public figure, the defamatory statement must be “germane to the

plaintiff’s participation in the controversy.” Waldbaum, 627

F.2d at 1298. “Misstatements wholly unrelated to the

controversy” are not protected, but statements, including those

highlighting a plaintiff’s “talents, education, experience, and

motives,” can be germane. Id. (emphasis added).

To Zepter, the defamation regarding his possible

relationship to Milosevic could not relate to his role in a public

controversy focused on the period after Milosevic was no longer

in power. Yet even if Zepter was an important figure in the

Serbian reform effort mainly due to his relationship with Prime

Minister Djindjic, his relationship to Milosevic is relevant to

Zepter’s role in the controversy. Linking Zepter to Milosevic

would be relevant to understanding Zepter’s role and why he

wanted to be involved in the reform effort led by Prime Minister

Djindjic. The germaneness test is met because the defamatory

statement relates to the individual’s role in the public

controversy.

Also according to Zepter, ICG has not offered sufficient

evidence of a relationship between Zepter and Milosevic for the

defamatory statement to be germane. But the germaneness part

of the Waldbaum inquiry is not the place to debate whether the

statement is true or even well-supported. Those questions are

relevant to the actual malice inquiry. The purpose of the

germaneness inquiry is to ensure that the allegedly defamatory

statement — whether true or not — is related to the plaintiff’s

role in the relevant public controversy. This ensures that

publishers cannot use an individual’s prominence in one area of

public life to justify publishing negligent falsehoods about an

unrelated aspect of the plaintiff’s life. See Waldbaum, 627 F.3d

at 1298.

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B.

As a limited-purpose public figure, Zepter can prevail on

his defamation claim only if he “proves that the statement was

made with ‘actual malice’ — that is, with knowledge that it was

false or with reckless disregard of whether it was false or not.”

See New York Times, 376 U.S. at 279–80. A defendant has

acted recklessly if “the defendant in fact entertained serious

doubts as to the truth of his publication” or acted “‘with a high

degree of awareness of . . . probable falsity.’” St. Amant v.

Thompson, 390 U.S. 727, 731 (1968) (emphasis added) (quoting

Garrison v. Louisiana, 379 U.S. 64, 74 (1964)). The plaintiff

can “prove the defendant’s subjective state of mind through the

cumulation of circumstantial evidence, as well as through direct

evidence.” Tavoulareas, 817 F.2d at 789. But it is not enough

to show that defendant should have known better; instead, the

plaintiff must offer evidence that the defendant in fact harbored

subjective doubt. See McFarlane v. Sheridan Square Press,

Inc., 91 F.3d 1501, 1508 (D.C. Cir. 1996). The plaintiff can

make this showing, for example, by offering evidence 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 [defendant]

had obvious reason to doubt.’” Lohrenz, 350 F.3d at 1283

(quoting Tavoulareas, 817 F.2d at 790); see also St. Amant, 390

U.S. at 732; Clyburn, 903 F.2d at 33. In view of the important

values enshrined in the First Amendment, the Constitution

further protects publishers by requiring that plaintiffs prove

actual malice by clear and convincing evidence. See Gertz, 418

U.S. at 342; see also Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 244 (1986).

1. To prevail on summary judgment, and now on appeal,

Zepter must show that “the evidence in the record could support

a reasonable jury finding . . . that [he] has shown actual malice

17

by clear and convincing evidence.” Anderson, 477 U.S. 255–56.

As the non-moving party, he is entitled to the benefit of all

“justifiable inferences” in his favor and “need only present

evidence from which a jury might return a verdict in his favor.”

See id. at 254–55, 257. He is also entitled to the benefit of the

aggregate of the evidence. See Lohrenz, 350 F.3d at 1283;

Tavoulereas, 817 F.2d at 794 n.43. Nonetheless, because of the

heightened burden imposed by the clear and convincing standard

and the challenges associated with offering evidence about state

of mind, this standard is not easily met, even at summary

judgment. See Lohrenz, 350 F.3d at 1283. The “standard of

actual malice is a daunting one,” McFarlane, 91 F.3d at 1515

(quoting McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308

(D.C. Cir. 1996)), and “[f]ew public figures have been able

clearly and convincingly to prove that the scurrilous things said

about them were published by someone with ‘serious doubts as

to the truth of his publication.’” Id. (quoting St. Amant, 390

U.S. at 731).

Although the serious doubt inquiry “is too fact-bound to be

resolved on the basis of any single factor or mechanical test,”

see Tavoulereas, 817 F.2d at 788, several principles guide the

analysis. For example, “actual malice does not automatically

become a question for the jury whenever the plaintiff introduces

pieces of circumstantial evidence tending to show that the

defendant published in bad faith.” Id. at 789. Nor is it enough

for the plaintiff to offer evidence of “highly unreasonable

conduct constituting an extreme departure from the standards of

investigation and reporting ordinarily adhered to by responsible

publishers.” Harte-Hanks Commc’ns v. Connaughton, 491 U.S.

657, 664–65 (1989) (citation omitted); Clyburn, 903 F.2d at 33.

Nor, further, does it suffice for a plaintiff merely to proffer

“purportedly credible evidence that contradicts a publisher’s

story.” Lohrenz, 350 F.3d at 1284. Rather, it is only when a

plaintiff offers evidence that “a defendant has reason to doubt

18

the veracity of its source” does “its utter failure to examine

evidence within easy reach or to make obvious contacts in an

effort to confirm a story” demonstrate reckless disregard.

McFarlane, 91 F.3d at 1509. Absent such concerns, the

defendant has no duty to corroborate the defamatory allegation.

See id. Even “ill will toward the plaintiff or bad motives are not

elements of actual malice,” and “such evidence is insufficient by

itself to support a finding of actual malice.” Tavoulareas, 817

F.2d at 795. That is, “a newspaper’s motive in publishing a

story — whether to promote an opponent’s candidacy or to

increase its circulation — cannot provide a sufficient basis for

finding actual malice.” Harte-Hanks Commc’ns, 491 U.S. at

665. Only when the evidence of ill will or bad motive is also

probative of a “willingness to publish unsupported allegations”

is it suggestive of actual malice. See Tavoulareas, 817 F.2d at

796.

2. Zepter contends that a reasonable jury could find that

ICG published the defamatory statement in Report 145 with

actual malice. He points to a series of circumstances that

individually or collectively, he maintains, would permit a

reasonable jury to find that ICG’s statement was based on a

mere assumption that there was continuing influence of the

Milosevic oligarchy during and after the Djindjic regime, and

that ICG’s lack of evidence that Zepter was a Milosevic crony

demonstrates that it published the statement with actual malice.

See Jankovic I, 494 F.3d at 1091. As he puts it, the principal

author of Report 145, Lyon, “self servingly claims to have

assumed that any financially successful person from Serbia must

have been a Milosevic crony,” and his “claim is all the more

unwarranted in light of evidence showing that Lyon pursued a

scheme to extort Zepter.” Appellant’s Br. 9. The view that

Report 145’s defamatory statement was based on a mere

assumption ignores key portions of Lyon’s declaration, which

explains his research process and that his conclusion was not a

19

mere assumption but based on information gathered from

various sources. ICG’s other conduct on which Zepter relies,

including Lyon’s attempted extortion, does not rise to the level

of clear and convincing evidence of actual malice.

Because Lyon was the principal author of Report 145 and

Zepter maintains that nothing that ICG points to supports the

defamatory statement, it bears setting out the particulars of

Lyon’s declaration. ICG maintains that it had and continues to

have a good faith belief that the defamatory statement is true,

explaining the process for gathering information for Report 145

and the basis for concluding that Zepter was aligned with the

Milosevic regime. ICG — including ICG’s Vice President in

charge of research with over 30 years at the U.S. State

Department and another former ICG employee with thirty years’

experience in foreign affairs — considered Lyon to be an expert

on the area and to be one of ICG’s best analysts. Lyon had

devoted his professional life to the study of the Balkans, had a

Ph.D in Balkan history from the University of California, Los

Angeles, and had extensive experience from living and working

in, and conducting research on, the Balkans. He spent

approximately two months researching, interviewing, and

drafting Report 145, which underwent further editing upon his

supervisor’s review and upon subsequent review by the director

of research, and the report was ultimately approved by ICG’s

president. In view of Lyon’s extensive reporting and research,

ICG was confident in the truthfulness of its report.

Although the precise source for the defamatory statement

was not made clear in Report 145, Lyon explained that his

conclusion that Zepter was a Milosevic crony was based on prior

ICG reports, interviews he had conducted, Balkan press reports,

a report purporting to be from the Office of the High

Representative (“OHR”) formed to implement the Dayton Peace

Agreement, and the OFAC frozen assets list. Lyon Decl.

20

¶¶ 27–67. Through reviewing or researching ICG’s prior reports

(Reports 115, 118, 126, and 141), Lyon had become familiar

with Zepter and had come to believe that Zepter’s banks were in

league with the Milosevic regime in view of the role such banks

might have played in aiding the regime by controlling cash

flows in Serbia and neighboring Republika Srpska (“RS”). Id.

¶¶ 27–39. Additionally, he conducted many interviews with

officials associated with Balkan governments and the embassies

of the NATO powers that intervened in the region as well as

businessmen in the area. Id. ¶¶ 40–41. Although the precise

identities of these sources remain confidential, Lyon stated each

had previously proven to be reliable and that he had confidence

in the information they were providing. Id. ¶¶ 48–50. From

these interviews with confidential sources, Lyon concluded that

“it was impossible during the Milosevic era to have amassed

significant wealth without the sponsorship of, or direct

assistance from, the regime or its security services.” Id. ¶ 42.

He had been told by a local government source that Zepter had

access to privileged currency rates and “was among those who

had profited handsomely under the [Milosevic] regime.” Id.

¶ 45. He had also been told by many intelligence and diplomatic

sources that Zepter and his businesses were believed to be

engaged in money laundering and arms dealing, that he had ties

to “Milosevic’s state security apparatus[,] and that Zepter’s

company had been formed with capital from a state-owned

company controlled by Milosevic.” Id. ¶¶ 48–49. Lyon

acknowledged being encouraged in his conclusion by the fact

that questions were being raised by the Balkan press about the

source of Zepter’s wealth and his ties to the Milosevic regime.

Id. ¶ 52. Lyon also received from a NATO intelligence source

a report purporting to be from the OHR that supported his

conclusion Zepter was engaged in criminal wrongdoing and was

associated with Milosevic. Id. ¶¶ 52, 57, 60–61. Finally, Lyon

also relied on the fact that the OFAC had included Zepter Bank

on a list of entities whose assets should be frozen. Id. ¶¶ 64–65.

21

This bolstered Lyon’s conclusion that the bank had close ties to

the Milosevic regime. Id. ¶¶ 65–67. Because his research

revealed that it was not “possible that any significant

commercial entity, particularly a bank, could operate

independently of [the Milosevic] regime,” Lyon believed that

the bank’s assets were frozen due to its relationship with the

Milosevic government. Id. ¶ 67.

Zepter maintains, Lyon’s declaration aside, that the record

supports an inference that ICG did not rely on any sources

outside of the OFAC frozen assets list. Because ICG previously

represented to this court in 2009 that the defamatory statement

was either purely an opinion, or at least an opinion fully

supported by the frozen assets list, a jury could infer that ICG

did not actually rely on the other sources referenced in Lyon’s

declaration, which was not prepared until 2013. Given the

court’s conclusion that the factual basis for the defamatory

statement had not been disclosed to the reader as a result of

“ICG falsely stat[ing] the basis for the frozen assets lists,” see

Jankovic II, 593 F.3d at 28, Zepter maintains the court must hold

that Lyon had no other basis for the defamatory statement and

that therefore the defamatory statement was merely an

unsubstantiated opinion based on a mere assumption.

Zepter overreads Jankovic II. ICG’s defense that the

defamatory statement was an opinion does not necessarily mean

it had no other factual basis for the statement. Nor did this court

hold that ICG’s only basis for the defamatory statement was the

frozen asset list. Rather, the court concluded that the statement

did not deserve protection “under the doctrine that ‘a statement

of opinion that is based upon true facts that are revealed to

readers’” is not actionable. See id. (citation omitted). Nothing

revealed to the readers of Report 145 — including the OFAC list

— sufficed to fully support the defamatory statement. See id.

ICG had not, however, argued that its only factual support for

22

the statement was the frozen assets list but that the frozen assets

list supplied a fully disclosed basis for supporting the statement.

This left open the possibility that ICG had other sources

undisclosed in the Report to support the defamatory statement.

Zepter is correct that the court cannot consider one source

on which Lyon purports to rely – the OHR Report. The district

court ruled ICG was judicially estopped from relying on this

evidence. Jankovic III, 72 F. Supp. 3d at 317 n.37. On appeal,

ICG has failed to present more than cursory argument, in a

footnote and without case citations, that this was error,

Appellee’s Br. 46–47 n.10. The court does not consider the

merits of such underdeveloped arguments, thereby leaving that

ruling in place. See Am. Wildlands v. Kempthorne, 530 F.3d

991, 1001 (D.C. Cir. 2008); Cement Kiln Recycling Coal. v.

EPA, 255 F.3d 855, 869 (D.C. Cir. 2001).

Zepter maintains further, however, that even if a jury could

believe that Lyon relied on each of the sources he mentioned in

his declaration, there were “obvious reasons to doubt” their

accuracy or reliability. See, e.g., McFarlane, 91 F.3d at 1513

(citation omitted); Lohrenz, 350 F.3d at 1284–85. He focuses on

why the OFAC listing and Serbian press are unreliable, but he

nowhere suggests there was any reason for Lyon to doubt ICG’s

prior reports or his confidential sources, each of which support

the defamatory statement. Zepter’s counsel emphasized during

oral argument that, unlike the precedents on which ICG relies,

ICG has never revealed the identity of its confidential sources or

otherwise provided the specific basis for the defamatory

statement. True, but this gets Zepter only so far. Zepter’s

failure to learn the identity of the confidential sources was due,

at least in part, to his untimely discovery request. See Jankovic

III, 72 F. Supp. 3d at 315 n.32. The only record evidence is that

Lyon had confidence in what these sources told him based on

their past reliability. Lyon Decl. ¶¶ 48–50.

23

And there is no merit to Zepter’s argument that ICG could

not rely on confidential sources because ICG had failed to

disclose their identity to him. See Appellant’s Br. 51–52.

Where, as here, “the primary source of evidence is the reporter’s

own (naturally self-interested) testimony of what a confidential

source told him, the combination of the burden of proof and the

reporter’s privilege to withhold the source’s identity confront a

defamation plaintiff with unusual difficulties.” Clyburn, 903

F.2d at 35. But the court also recognized that “the reporter’s

privilege is a qualified one,” because a plaintiff may be able to

compel a reporter to divulge his sources if the plaintiff “exhausts

all reasonable alternative means of identifying the source.” Id.

(citing Zerilli v. Smith, 656 F.2d 705, 713–14 (D.C. Cir. 1981),

and Carey v. Hume, 492 F.2d 631, 639 (D.C. Cir. 1974)). In the

cases on which Zepter relies, the defendant was precluded from

relying on the confidential sources after a court had determined

that the reporter’s privilege gave way and that precluding the

defendant from relying on such sources was an attractive

alternative remedy to requiring the reporter to reveal a source’s

identity. See, e.g., Dowd v. Calabrese, 577 F. Supp. 238, 244

(D.D.C. 1983). Zepter is not at that point, for his motion to

compel disclosure was denied because he filed it after the time

for discovery had closed. Jankovic III, 72 F. Supp. 3d at 315

n.32; see also Jankovic v. Int’l Crisis Grp., No. 04-1198, slip op.

at 4 (D.D.C. Sept. 4, 2014). On appeal, Zepter makes only a

cursory argument this was error, in a footnote to his brief. The

court does not consider such arguments, see Am. Wildlands, 530

F.3d at 1001; Cement Kiln, 255 F.3d at 869, as Zepter does not

attempt to explain why the district court abused its discretion in

refusing to permit untimely discovery when he could have

sought production during the discovery period. As in Clyburn,

Zepter’s “failure to offer evidence of actual malice” with respect

to the confidential sources “must be charged squarely to him.”

See 903 F.2d at 35.

24

Zepter’s failure to offer evidence casting doubt on ICG’s

good faith reliance on these confidential sources leaves no basis

for a reasonable inference that Lyon had not supported the

defamatory statement with such sources. This may well prevent

Zepter from proving actual malice, see, e.g., Liberty Lobby, Inc.

v. Dow Jones & Co., Inc., 838 F.2d 1287, 1297–98 (D.C. Cir.

1988); McFarlane, 91 F.3d at 1513; Tavoulareas, 817 F.2d at

790. See also St. Amant, 390 U.S. at 731–32. But Zepter is

entitled to the benefit of the aggregate effect of evidence

relevant to showing ICG acted with actual malice. See Lohrenz,

350 F.3d at 1283; Tavouloreas, 817 F.2d at 794 n.43. He

maintains that other circumstances relating to Report 145 could

still convince a jury that Lyon did not rely on these confidential

sources. Zepter focuses on Lyon’s other sources where there is

evidence of unreliability as well as a series of editorial missteps

by ICG, and Lyon’s attempted extortion.

First, Zepter maintains that a jury could find that it was

reckless for ICG to rely on the Serbian press because ICG

recognized that some Serbian press outfits were “sensationalist

bordering on libel” and others were “notorious for spreading

rumours and outright lies,” Report 145, at 9–10. Zepter,

however, exaggerates the role the Balkan press played in Lyon’s

reporting, as his declaration’s greater reliance on confidential

sources demonstrates. As in McFarlane, 91 F.3d at 1513, even

though Lyon had reason to be “wary” of the press reports, “he

also had some reason to believe the story, based upon his own

research and his conversations with journalists and experts” on

Balkan affairs. See also Tavoulareas, 817 F.2d at 790. Any

potential bias associated with the news reports, “does not detract

from the reliability” of the confidential sources. See Clyburn,

903 F.2d at 34. And disclosure in Report 145 of the potential

unreliability of the press reports would tend to dispel any claim

of actual malice. See McFarlane, 74 F.3d at 1304.

25

Second, Zepter maintains that a reasonable jury could find

actual malice based on ICG’s negligence in overreading the

OFAC frozen asset list to support the defamatory statement.

This court concluded that ICG’s reliance was misplaced because

the listing did not mean that “Zepter Banka gave ‘support’ to

Milosevic, and that its U.S. assets were frozen because of that

support.” Jankovic II, 593 F.3d at 27. But that is not the same

as showing that ICG knowingly published a false statement or

subjectively doubted that the list justified the conclusion at the

time Report 145 was issued. What is relevant to malice is the

information “that was available to and considered by [ICG] prior

to publication.” McFarlane, 91 F.3d at 1508. Even if the

Executive Order accompanying the OFAC list did not reflect

ICG’s understanding of the list, the inferences in Zepter’s favor

end with a showing that ICG honestly, if mistakenly believed

that the OFAC listing was evidence of Zepter’s support for the

Milosevic regime. An honest misinterpretation does not amount

to actual malice even if the publisher was negligent in failing to

read the document carefully. Cf. Time, Inc. v. Pape, 401 U.S.

279, 289–92 (1971); Bose Corp. v. Consumers Union of U.S.,

Inc., 466 U.S. 485, 512 (1984).

Third, Zepter’s reliance on insufficient investigation by ICG

is a non-starter. Only if “a defendant has reason to doubt the

veracity of its source” is its “failure to examine evidence within

easy reach or to make obvious contacts” evidence of its reckless

disregard. See McFarlane, 91 F.3d at 1510. Lyon had not

discovered anything that caused him to doubt his conclusion

about Zepter, and therefore was under no obligation to

investigate further. See Lohrenz, 350 F.3d at 1284–85;

McFarlane, 91 F.3d at 1510; Masson v. New Yorker Magazine,

Inc., 960 F.2d 896, 901 (9th Cir. 1992); see also St. Amant, 390

U.S. at 732–33. “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

26

is no ‘obvious reason to doubt’ that source.” Lohrenz, 350 F.3d

at 1285. Zepter has not identified any such evidence that ICG

might have easily discovered, other than possibly from speaking

with Zepter himself. That Lyon did not contact Zepter, who

might reasonably be expected to deny that he was a Milosevic

crony, is neither surprising nor required. See McFarlane, 91

F.3d at 1510–11; Lohrenz, 350 F.3d at 1286.

Fourth, ICG’s purported deviations from its normal

operating procedures are no more suggestive of actual malice.

Zepter highlights ICG’s use of an intern to fact check, which is

unremarkable, and this, along with ICG’s departures from its

style and procedures guidelines, does not amount to “purposeful

avoidance of the truth.” See Harte-Hanks Commc’ns, 491 U.S.

at 692. Whether these procedures were regularly followed is up

for debate, but departures from the normal procedure would, at

most, constitute evidence of “highly unreasonable conduct

constituting an extreme departure from the standards of

investigation and reporting ordinarily adhered to by responsible

publishers.” Even less does mere sloppy journalism constitute

clear and convincing evidence that ICG acted with actual

malice. See Lohrenz, 350 F.3d at 1284 (quoting Harte-Hanks

Commc’ns, 491 U.S. at 666).

Fifth, Zepter emphasizes that anyone familiar with Serbia

would recognize the inherent improbability of an outspoken

supporter of Prime Minister Djindjic having previously been a

Milosevic supporter. This posits a false dichotomy. See

Jankovic III, 72 F. Supp. 3d at 313. The evidence shows that it

was neither unheard of for a former Milosevic supporter to shift

alliances, such that Lyon and ICG would have been breaking

new ground in concluding that Zepter had done exactly that, nor

that anyone at ICG thought this possibility particularly unlikely.

Shifting alliances were thought to be common, as illustrated by

the example of a Milosevic security chief joining the post-

27

Milosevic government. And according to the President of ICG,

there was nothing inconsistent about “someone having been

close to the Milosevic regime but nonetheless at the same time

being close to people who were, with varying degrees of

capacity and intent, trying to forge a new regime for Serbia.”

Evan Garth Dep. Tr. 346 (Oct. 26, 2011). Maybe Zepter should

not have been considered by ICG to be among those who

switched allegiances, but he has pointed to no evidence that ICG

staff would have been subjectively aware that it was inherently

improbable that he had done so.

Sixth, Zepter points to the evidence that Lyon attempted to

extort money from him, something he waited some nine years

after its alleged occurrence to mention. During a meeting with

Lyon, either before or after Report 145 was issued, Zepter

claimed that Lyon said Zepter could get him to stop writing

negative stories about him if he paid Lyon one to two million

dollars. Zepter Dep. Tr. 308–09 (Mar. 15, 2012). On summary

judgment, the court must assume that the extortion attempt

occurred. See Fed. R. Civ. P. 56(c); Anderson, 477 U.S. at 255;

cf. Robinson v. Pezzat, No. 15-7040, 2016 WL 1274044, at *6–7

(D.C. Cir. Apr. 1, 2016). Zepter suggests a reasonable jury

could find that Lyon’s motive to extort undermined the

credibility of Lyon’s work and offered an incentive for him to

write untrue reports.

Keeping in mind that “speech ‘honestly believed,’ whatever

the speaker’s motivation, ‘contribute[s] to the free interchange

of ideas and the ascertainment of truth,’” Tavoulareas, 817 F.2d

at 795 (alteration in original) (quoting Garrison, 379 U.S. at 73),

Zepter is nonetheless correct that in some circumstances motive-

based evidence can be probative of actual malice, see id. But

the mere presence of some ulterior motive — whether a profit

motive, a motive to produce the most interesting stories, or a

personal desire to harm the subject of a story — is not enough

28

to support a finding of actual malice. See Harte-Hanks

Commc’ns, 491 U.S. at 666–68; Tavoulareas, 817 F.2d

at 795–97, accord Masson v. New Yorker Magazine, Inc., 501

U.S. 496, 511 (1991). This is so even though such motives may

naturally provide publishers with an incentive to achieve an end

without regard to the truth of what they publish. See

Tavoulareas, 817 F.2d at 797. Absent evidence that the

publisher’s alleged motive shows an “intent to inflict harm

through falsehood,” a “willingness to publish unsupported

allegations,” or a desire to publish “with little or no regard for

[the report’s] accuracy,” the plaintiff has not produced motive-

based evidence probative of actual malice. See id. at 795–97

(citation omitted); see also Harte-Hanks Commc’ns, 491 U.S. at

667. This is true even where the plaintiff introduces evidence

that the publisher engaged in “contemptible” conduct in

reporting the story, for example, by asking someone to steal

documents in support of a story. See Tavoulareas, 817 F.2d at

796.

For the attempted extortion to be clear and convincing

evidence from which a reasonable jury could find actual malice,

Zepter must proffer evidence not only that Lyon prepared

Report 145 with an extortion motive in mind, but also that the

extortion motive caused ICG or Lyon to risk publishing an

untrue statement about him. Zepter’s evidence fails to establish

the latter, at least by clear and convincing evidence. All Zepter

has shown is that Lyon hoped to capitalize on working on

reports about the Balkans. That evidence, without more, does

not amount to evidence that Lyon was willing to publish

untruths in order to make an extra buck. See Tavoulareas, 817

F.2d at 796–97. Such evidence is not inevitably clear and

convincing evidence of actual malice. A reporter might be

equally, if not more, successful in blackmailing someone with

true information, so the fact of extortion does not categorically

allow the inference that Lyon intended to extort Zepter with

29

falsehoods. In fact, Zepter’s own recounting of the extortion

attempt significantly downplays the plausibility of such an

inference. The only evidence shows that Lyon’s motive to

extort was consistent with blackmailing individuals with reports

he believed to be true. When Zepter asked Lyon to stop

publishing “lies,” Lyon responded that he believed what he

wrote was true and that he had reliable sources to prove it.

Zepter Dep. Tr. 308. In view of all of the other evidence

supporting Lyon’s conclusion about Zepter and the evidence that

ICG had a strong motive to publish truthful, carefully prepared

reports that were even better than many embassy reports, see Jon

Greenwald Dep. Tr. at 163–64 (Jun. 10, 2011), no reasonable

jury could find that Lyon’s extortion attempt indicated he

published a falsehood either willingly or recklessly, much less

that there was such clear and convincing evidence.

The district court declined to consider Zepter’s proffered

declarations providing hearsay accounts of Lyon’s attempts to

extort others who were the subject of ICG reports. Jankovic III,

72 F. Supp. 3d at 318 (citing Fed. R. Civ. P. 56(c)(4); Fed. R.

Evid. 403, 404(a)(1)). Zepter offered these declarations only to

“show reputation concerning character” generally, and so even

were these declarations in evidence, they would do no more to

establish that Lyon was willing to publish without regard to

truth or falsity in order to extort. There is no need, then, to

consider whether it was an abuse of discretion to exclude these

declarations.

Seventh, for a similar reason, Zepter’s related argument that

Lyon had concocted a pre-conceived storyline by which all

wealthy Serbian citizens were Milosevic cronies also fails to

establish actual malice. Lyon may have adopted an adversarial

stance toward these wealthy citizens he had come to believe

were deserving of suspicion, but this attitude is not “antithetical

to the truthful presentation of facts.” See Tavoulareas, 817 F.2d

30

at 795.

For these reasons, we conclude that, despite weaknesses in

some sources on which ICG relied and viewing the evidence in

his favor, Zepter has failed to establish that “the defendant

actually possessed subjective doubt” about the statement

published in Report 145. See McFarlane, 91 F.3d at 1508.

Owing in part to his procedural failings during discovery and at

summary judgment, Zepter has not pointed to evidence that

there were obvious reasons to doubt the confidential sources or

that ICG or Lyon had discovered evidence causing them to

doubt the conclusion that Zepter was allied with the Milosevic

regime. Absent such evidence from Zepter, the record evidence

of Lyon’s extensive background research and reporting on the

Balkans, his understanding of the Serbian press, and his good

faith belief that the frozen assets list implied more than it

actually did, belies actual malice. This is particularly so in view

of evidence showing that ICG’s report underwent multiple

internal reviews by knowledgeable staff. Evidence of ICG’s

missteps and preconceived notions about Zepter’s Milosevic

years does little to show actual malice. And although Zepter’s

evidence of Lyon’s attempted extortion shows poor judgment

and is hardly admirable conduct for a reporter, see Tavoulareas,

817 F.2d at 796, even that evidence fails to show that Lyon

risked writing “lies” or was motivated to do so. Separately,

then, each of Zepter’s factual theories fails to show clear and

convincing evidence of actual malice.

Zepter’s theories fare no better when viewed in the

aggregate. Even taking these flawed evidentiary assertions

together, no reasonable jury could find by clear and convincing

evidence that ICG acted with actual malice. See McFarlane, 91

F.3d at 1516. What is still missing is evidence that ICG had

“serious doubts” about the truth of the defamatory statement or

that it published the statement with a high degree of awareness

31

of its probable falsity, such that ICG acted with reckless

disregard for the statement’s truth. See St. Amant, 390 U.S. at

730.

Accordingly, we hold that Zepter has failed to establish

clear and convincing evidence of actual malice, and we affirm

the grant of summary judgment to ICG.