Petition for Writ of Certiorari — Lohrenz v. Donnelly

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No. 03-931 27 2 WAR 10 2004

In THOFFICE OF THE CLERK

Supreme Court of the United States

CAREY DUNAI LOHRENZ,

Petitioner,

ELAINE DONNELLY, Center for Military Readiness, et a/.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

CourT OF APPEALS FOR THE DISTRICT OF COLUMBIA

PETITION FOR A WRIT OF CERTIORARI

Ropney A. SMOLLA SuSAN G. BARNES

Counsel of Record 50 South Steele Street

University of Richmond Suite 820

School of Law Denver, CO 80209

Richmond, VA 23173 (303) 420-5928

(804) 289-8197

NéVILLE L. JOHNSON

BRIAN A. RISHWAIN

James T. RYAN

JOHNSON & RISHWAIN LLP

_ 12121 Wilshire Boulevard

Suite 1201

Los Angeles, CA 90025

(310) 826-2410

Counsel for Petitioner

186173 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

QUESTIONS PRESENTED

1. Under what circumstances does the First Amendment

require that we treat an ostensibly “private” person as a

“public figure” for the purposes of the law of defamation,

when the public attention that the person has acquired is not

the result of any voluntary entry by that person into an arena

of public debate, but is instead the product of happenstance,

in which the person has been drawn into the arena of public

‘attention involuntarily, through the press of events and

controversies outside the person’s control?

2. Should a quiet, non-publicity-seeking female naval

aviator who was among the first of two women trained to fly

F-14 Navy combat jets be deemed a public figure, even

though she did not voluntarily seek media attention, merely

because she voluntarily to “suited up” for a combat-ready

assignment at a time in American history in which the role

of women in combat was controversial?

3. Should this Court repudiate, or substantially narrow,

the one-sentence statement made by the Court in Gertz y.

Robert Welch, Inc., 418 U.S. 323, 345 (1974), in which this

Court stated: “Hypothetically, it may be possible for someone

to become a public figure through no purposeful action of

his own, but the instances of truly involuntary public figures

must be exceedingly rare.”’?

TABLE OF CONTENTS

Cocsivome PRORRUIOE «6.5 io5 sued sSunseeeseee

Taiite OF Ceetemn: sn... ss00430002 ee

Table Of Cited Autiforities .. jc. ccc cccccccccscs

Tie OF AURIS og ines tee

Cpeons DONW 2 wi... onc esnce ewe eee

Statement Of Jurisdiction .........cccccccacecs

Constitutional Provisions Involved .............

Statonsent C8 Tee Ce on uss es50deen eee

Reasons For Granting The Petition .............

The Decision Below Conflicts With The

Principles That Undergird This Court’s First

Amendment Doctrines Defining The Contours

Of The Public Figure Doctrine ...........

A. The Court of Appeals Judgment is

Ultimately Grounded in the Sole Fact that

Lohrenz “Suited Up” For Naval Aviation

Combet do WEGNER: occ s sea ee

B. Public Figure Status Should Be Grounded

in Voluntary Entry Into Public Debate

CCC HCSBHKRE RSE BOCK E CECE BEA SO EES SS em

Page

Contents

C. The District of Columbia Circuit’s

Expansive View of Involuntary Public

TS ee ae cak ac yep ah wa

D. The Conceptua! Flaws in Treating

Lohrenz as a Public Figure ..........

E. The Opinion Below is a Silent Retreat to

ee aba Dh oT

F. Treating Lohrenz as a Private Figure Does

Not Harm First Amendment Values ...

II. This Petition Should Be Granted To Resolve

A Conflict Between Federal Circuits And

Among Many Federal And State Court

he ray ge

et ST SO a

Page

TABLE OF CITED AUTHORITIES

Page

CASES

Associated Press v. Walker, 388 U.S. 130 (1967) ..

Sue c en eee Cea ee ees eeerrere errr: me? es

Atlanta Journal-Constitution v. Jewell, 252 Ga. App.

SOG, D9 B.E.00 LIDEROUE) ov cv ccsccacesnres 27

Bay View Packing Co. v. Taff, 198 Wis.2d 653,

543 N.W.2d 522 (Ct. App. 1995) ............. 26

Brewer v. Memphis Pub. Co., Inc., 626 F.2d 1238

oe Le 8 Peerrrrr errr. SERRE L Pe eo 26

Carson vy. Allied News Co., 529 F.2d 206 (7th

ks i oe eg ren rare BAe pa ra ye 25

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)

PEE POR Pe oe ee eh eet i, 12,13

Dameron v. Washington Magazine, Inc., 779 F.2d 736

ee ee I on eee eee a, 66, 17, 38,23

Daniel Goldreyer, Ltd. v. Dow Jones & Co., Inc.,

259 A.D.2d 353, 687 N.Y.S.2d 64 (1999) ...... 26

Della-Donna y. Gore Newspapers Company,

489 So.2d 72 (Fla. D. Ct. App. 4th Dist. 1986) ... 27

Dombey v. Phoenix Newspapers, Inc.,150 Ariz. 476,

peo oo he a” per rere rer rere ne 26

Flowers v. Carville, 310 F.3d 1118 (9th Cir. 2002) .. 25

Cited Authorities

Page

Franklin v. Lodge 1108, Benevolent and Protective

Order of Elks, 159 Cal. Rptr. 131 (Cal. Ct. App.

debi: ECR T REO r Pr eR Ree oN fie 26

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) .. passim

Hutchinson vy. Proxmire, 443 U.S. 11] (1979) ..... passim

Jacobson v. Rochester Communications Corporation,

Inc., 410 N.W.2d 830 (Minn. 1987) ........... 26

Khawar v. Globe Int’l Inc., 19 Cal. 4th 254, 79 Cal.

Rptr 2d 178, 965 P.2d 696 CFF ve see ka ens, 23

Lohrenz vy. Donnelly, 350 F.3d 1272 (D.C. Cir. 2003)

CERSSENA REN PELELS ESR ER ea l

Lohrenz v. Donnelly, 223 F. Supp.2d 25 (D. D.C. 2002)

+48 walk AEN EC Sic aie a gk a 3

Meeropol v.-Nizer, 560 F.2d 106] (2d Cir. 1977) .. 26

Milkovich v. Lorain Journal Company, 497 U.S. |

CPI oc 50:0 Skip sa yea te 28, 29

New York Times Co. y. Sullivan, 376 U.S. 254 (1964)

TM AEREREH SRG ROR Ey aly at 11, 12, 13

Rosenblatt v. Baer, 383 U.S. 75 (1966) ... ........ 5, 7, 29

.* A Seep ee ean ere a ee ees Wie.

Cited Authorities

Page

Scaccia v. Dayton Newspapers, Inc., 2001 WL

1517043 (Ct. App. Ohio 2d Dist. Nov. 30, 2001)

Sr ee er re re Nia A i ra 26

Schultz v. Reader's Digest Ass'n, 468 F. Supp. 551

1 Bo. ay wee eer yaar 25

Time, Inc. v. Firestone, 424 U.S. 448 (1976) ...... passim

Wagstaff v. The Morning Call, 41 Pa. D. & C. 4th 431

ie. See. Fi, Gee os cn dcawcaee seeders 26

Wells v. Liddy, 186 F.3d 505 (4th Cir. 1999) ......

Ee ee ee Re eS 20, 21, 23, 25

Wilson v. Daily Gazette Company, 588 S.E.2d 197

S| eee err ne Pe

Wolston v. Reader's Digest Association, Inc., 443 U.S.

OST CEG FS) «chad ec hen eee ade see passim

Zupnik v. Associated Press, Inc., 31 F. Supp.2d 70

ae | wr eee ee 26

UNITED STATES CONSTITUTION

Piel AE 6 65k ne passim

a eee ee oe

Vil

Cited Authorities

OTHER AUTHORITIES

Aureliano Sanchez-Arango, Casenote, The Elusive

“Involuntary Limited Purpose Public Figure’:

Why the Fourth Circuit Got it Wrong in Wells vy.

Liddy, 9 Geo. Mason L. Rev. 211 (2000) .......

Gerald Ashdown, Gertz and Firestone: A Study in

Constitutional Policy-Making, 61 Minn. L. Rev.

tinsel loads BEOE CO ee e

Clay Calvert & Robert D. Richards, 4 Pyrrhic Press

Victory: Why Holding Richard Jewell Is a Public

Figure Is Wrong and Harms Journalism, 22 Loy.

L.A. Ent. L. Rev. 293 (2002) .....7..........

David Elder, Defamation: A Lawyer's Guide, § 5:8

A: Se a ea aaa ae tee ene

W. Wat Hopkins, The Involuntary Public F igure: Not

So Dead After All, 21 Cardozo Arts & Ent. L. J. 1

PR eer treedset ak eo ove te ht

Mark Karinja, Comment, Defamation: Conflict in the

Definition of “Public Figure,” 10 Seton Hall L.

BY, HES CTI ooo kkk vnc c nv ancceccs,

Dale Nichols, Note, The Involuntary Public Figure Class

of Gertz v. Robert Welch: Dead or Merely

Dormant?, 14 U. Mich. J. L. Reform 71 (1980)

Mark Rosen, Media Lament-The Rise and Fall of

Involuntary Public Figures, 54 St. John’s L. Rev.

Oe COME ee eae ees ee eee.

Page

vill -

Cited Authorities

Page

Rodney A. Smolla, Law of Defamation § 2.14 (1998)

RA ee Mirra Pee RR ca hy ten PPP ry 25

David Wallis, The Revival of Involuntary Limited-

Purpose Public Figures-Dameron vy. Washington

Magazine, Inc., 1987 B.Y.U. L. Rev. 313 ...... ai

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States Court

Of Appeals For The District Of Columbia Circuit

Decided December 12, 2003 ................ la

Appendix B — Memorandum Opinion Of The United

States District Court For The District Of

Columbia Dated August 16,2002 ............ 29b

Sate aiiett ast ta Alia eee Pda eo

be ee ee tre

OPINION BELOW

On December 12, 2003, the United States Court of Appeals

for the District of Columbia Circuit rendered its published

opinion in Lohrenz v. Donnelly, 350 F.3d 1272 (D.C. Cir. 2003)

(App. A). The memorandum opinion of the District Court is

dated August 16, 2002 (App. B).

STATEMENT OF JURISDICTION

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the Constitution provides:

“Congress shall make no law ... abridging the freedom of

Speech...”

STATEMENT OF THE CASE

This Petition presents a core question that has for decades

vexed American constitutional_law and culture: Under what

circumstances does the First Amendment require that we treat

an ostensibly “private” person as a “public figure” for the

purposes of the law of defamation, when the public attention

that the person has acquired is not the result of any voluntary

entry by that person into an arena of public debate, but is instead

the product of happenstance, in which the person has been drawn

into the arena of public attention involuntarily, through the press

of events and controversies outside the person’s control?

The Petitioner here, Carey Dunai Lohrenz, was a female

naval aviator who did not seek publicity or attention. She was

merely a Navy pilot who volunteered to serve her country.

Just as she was finishing her basic regimen of pilot training,

the Department of Defense changed its rules regarding the

assignment of women to combat positions, and Carey Lohrenz

became one of the first two women eligible to train for and fly

F-14 Tomcat fighters from Navy aircraft carriers.

At the time Lohrenz became an F-14 fighter pilot, the role

of women in combat was controversial. There was nothing at

all controversial, however, about Lohrenz’ career. She had been

iia a

a quiet and relatively reclusive naval aviator dedicated to doing

her job. Tragically, events changed this. The other woman who

had also been among the first two women trained to fly the

F-14, Lt. Kara Hultgreen, crashed and died while landing on

the U.S.S. Abraham Lincoln. This tragedy was seized upon by

those opposed to women in combat, as “evidence” supporting

their argument that women were unfit for combat aviation duty.

Launching what Lohrenz has alleged was a defamatory smear

campaign against her, the Respondents Elaine Donnelly and the

Center for Military Readiness (““CMR’’) propagated the claims

that Lohrenz was an unfit pilot, who had been promoted by the

Navy to fly F-14’s through a politically correct affirmative action

program in which the Navy advanced women such as Lohrenz

into combat assignments for which they were not qualified.

Lehrenz maintains that Donnelly’s defamation campaign,

circulated widely within the naval aviation community, including

her fellow pilots on the U.S.S. Abraham Lincoln, precipitated a

downward spiral in which her reputation was severely damaged,

that she suffered considerable stress, that her performance as

an aviator suffered, and that in the end this led to the ruin of her

career in the Navy and as a pilot.

From the outset of this litigation it has been clear that the

Lohrenz’ case might be won or lost on the resolution of the

question of whether she should be deemed a public figure or a

private figure. If she is a public figure, the question of whether

she has presented a sufficient evidentiary basis to create a triable

issue of fact as to whether the defendants published their

defamatory accusations with “actual malice,” knowledge of

falsity or reckless disregard for truth or falsity, is a close question

on which reasonable minds might differ. While Lohrenz

vigorously contested the actual malice issue in both the District

Court and the Court of Appeals below, Lohrenz does not

bring that issue, which is heavily fact-intensive, to this Court.

Rather, Lohrenz presents to this Court the clean and pristine

question of whether a plaintiff who has not sought publicity

and not sought to influence the outcome of public debate may

nonetheless be forced to accept the disabilities of public figure

status through sheer dint of her voluntary military service to

her country.

The District Court held that Lohrenz was a public figure,

though it conceded that this ruling was largely grounded in the

possibility that Lohrenz could become a public figure

involuntarily. Lohrenz v. Donnelly, 223 F. Supp.2d 25 (D. D.C.

2002), App. 29b. The District Court thus held that Lohrenz was

a public figure, “albeit possibly involuntarily,” App 61b,

a holding openly influenced by the controversial decision of

the United States Court of Appeals for the District of Columbia

Circuit in Dameron v. Washington Magazine, Inc., 779 F.2d 736

(D.C. Cir. 1985). Dameron has long been understood as the

high-water mark among American cases holding that the

First Amendment may require that some persons be deemed

public figures in defamation suits even in the absence of any

voluntary action inviting public figure status, on the theory that

individuals may occasionally be swept into the realm of

public figure status through “sheer bad luck.” Dameron,

779 F.2d at 742.

In her appeal to the Court of Appeals, Lohrenz attacked the

District Court’s ruling on constitutional law and policy grounds,

arguing that the District Court’s ruling, based as it largely was

on the Dameron construct that recognized that individuals could

become “involuntary” public figures, should be reversed and

rejected by the Court of Appeals. Lohrenz openly invited the

Court of Appeals to repudiate and renounce the involuntary

public figure doctrine enshrined by Dameron. The Court of

Appeals below declined this invitation. The Court of Appeals.

held that it need not reach the frontal attack on the involuntary

public figure doctrine launched by Lohrenz, because whether

or not one accepted the legitimacy of the involuntary public

figure concept, Lohrenz was appropriately classified as a

voluntary public figure, solely because she clearly did volunteer

for assignment as a naval aviator at a time in American history

in which the role of women in combat was controversial.

Seeming to invite either en banc review or review by this

Court through a petition for certiorari, the panel opinion below

thus took pains to clear away all the distracting underbrush,

eliminating from contention all factual and legal arguments that

Lohrenz had voluntarily entered a pre-existing legal controversy

to attempt to influence the outcome of that controversy. To the

contrary, the Court of Appeals actually accepted a// the factual

submissions advanced by Lohrenz, refusing to credit any of the

claims of the defendants below that Lohrenz had voluntarily

invited media attention by entering a public debate. Rather, the

Court of Appeals rested its ruling entirely on the reasoning that

in choosing voluntarily to “suit up” for a combat-ready

assignment at a time in American history in which the role of

women was controversial, Lohrenz had volunteered for public

figure status. The Court of Appeals, through a bit of euphemistic

sleight-of-hand, thus claimed to have avoided the pristine

question of whether “involuntary public figures” could ever

exist, on the reasoning that Lohrenz had “volunteered “for a

duty position as a woman in which the role of women was

controversial.

On the surface this might be seen as having avoided the

question, which has festered unresolved by this Court for three

decades, of whether a plaintiff can become an public figure

“involuntarily.” This avoidance, however, was entirely on the

surface. For while the Court of Appeals may have pretended to

avoid a frontal confrontation with the “involuntary public figure”

construct, this avoidance was a mere play on words. In holding

that Lohrenz was a voluntary public figure, the Court of Appeals

openly laid down the policy gauntlet, making it clear that

Lohrenz was a voluntary public figure on/y in the sense that she

voluntarily “suited up” as a female naval aviator.

The question of constitutional law and policy is thus cleanly

presented. Should we saddle a defamed plaintiff with public

figure status solely because the plaintiff voluntarily assumed

the role of a “pioneer” in breaking a gender barrier, in

circumstances in which the plaintiff has not otherwise sought

to influence this public debate, and has done all she reasonably

can to maintain a low profile and not invite public attention?

The submission of Lohrenz here is that this issue presents

an enormously important question of constitutional law upon

which lower courts have divided. This Court should grant this

Petition to bring clarity and guidance to this important area of

First Amendment / defamation litigation. More fundamentally,

this Court should grant this Petition to restore a proper balance

between freedom of speech and freedom from falsehood.

The decisions of this Court have sought to strike the

appropriate balance between our nation’s robust commitment

to freedom of speech and the vital interests served by defamation

law, which the Court has described as reflecting “no more than

our basic concept of the essential dignity and worth of every

human being — a concept at the root of any system of ordered

liberty.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974),

quoting Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J.,

concurring). The dividing line between public and private figures

is an essential bulwark in the preservation of this “essential

dignity.”

At the heart of this critical doctrinal dichotomy there rests

a corresponding set of mediating moral and policy judgments,

often described in the shorthand of “‘assumption of risk” and

“access to the channels of communication.” The first judgment

is grounded in notions of fairness and assumption of risk: It is a

fair “bargain” to impose on public figures additional exposure

to risk of injury to reputation as part of the price of voluntary

entry into the public arena. A second judgment is grounded in

our profound national commitment to free public discourse and

robust debate: When persons enter an arena to participate in

public discourse and influence the outcome of a public

controversy, it is important that we provide “breathing space”

to all points of view in that debate, and in the service of that

breathing space we rely heavily on the marketplace of ideas,

and on the access of those individuals to channels of mass

communication, to provide correctives and reputational self-

defense. Gertz v. Robert Welch, Inc., 418 U.S. at 344.

Given these animating policies, it is no surprise that in

defining who is and is not a public figure, First Amendment

defamation doctrine has long placed heavy emphasis on whether

the individual has voluntarily entered a public controversy to

influence its resolution. And indeed, this Court’s defamation

jurisprudence has been entirely faithful to these policies and

their corresponding doctrinal divisions.

The District of Columbia Court of Appeals, however, has

taken a wrong turn, endorsing the notion that a plaintiff could

become a public figure for defamation purposes involuntarily,

through nothing more that “sheer bad luck.”’ Carey Lohrenz

submits that this is a mistake. The “sheer bad luck” doctrine is

“sheer bad law,” law that has lost the moral and policy compass

that ought to guide this field.

The errant strain of involuntary public figure doctrine that

has taken hold in the law of the District of Columbia Court of

Appeals is entirely grounded in that Court’s expansive

misinterpretation of one passing statement made by this Court

in Gertz, in which this Court stated: “Hypothetically, it may be

possible for someone to become a public figure through no

purposeful action of his own, but the instances of truly

involuntary public figures must be exceedingly rare.” Geriz v.

Robert Welch, Inc., 418 U.S. at 344. This sentence, and the gloss

that some lower court decisions have laid upon it, have fueled

the “involuntary public figure” concept, and have undercut the

real balance contemplated by Gertz and its progeny, such as

Time, Inc. v. Firestone, 424 U.S. 448 (1976), Wolston v. Reader's

Digest Association, Inc., 443 U.S. 157 (1979), and Hutchinson

v. Proxmire, 443 U.S. 111 (1979). It has been over twenty-five

years since this Court has addressed the scope of the public

figure doctrine in defamation law. The result below, in which a

Navy pilot who was simply trying to serve her country was

deemed a public figure by dint of nothing more than her gender

;

alone, demonstrates that it is time for this Court to address this

area again, and apply an restorative corrective.

The critical constitutional question posed by the outcome

below ought not be papered over through the cosmetic linguistic

that Lohrenz did, after all, “volunteer.” For while the Court

below did reason that Lohrenz had “volunteered” for public

figure status, it is absolutely clear that her voluntariness was

not the usual kind of voluntariness found in public figure cases.

The Court of Appeals conceded that Lohrenz had not voluntarily

entered a public debate to influence its outcome, had not

volunteered for media attention, and had not volunteered in for

anything other than suiting up to fly combat jets at a time when

the role of women in the military was controversial. App. 18a.

This was to stretch the concept of “volunteering” to the point at

which it became essentially involuntary volunteering. If what

Lohrenz did counts as volunteering for public figure status, then

the requirement of voluntary entry into the public arena becomes

little more than a euphemism. The decision below breaks faith

with the ideal of protection of reputation as a core principle

embracing “our basic concept of the essential dignity and worth

of every human being — a concept at the root of any system of

ordered liberty.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 341

(1974), quoting Rosenblatt v. Baer, 383 U.S. 75, 92 (1966)

(Stewart, J., concurring).

REASONS FOR GRANTING THE PETITION

I. THE DECISION BELOW CONFLICTS WITH THE

PRINCIPLES THAT UNDERGIRD THIS COURT’S

FIRST AMENDMENT DOCTRINES DEFINING THE

CONTOURS OF THE PUBLIC FIGURE DOCTRINE

A. The Court of Appeals Judgment is Ultimately

Grounded in the Sole Fact that Lohrenz “Suited

Up” For Naval Aviation Combat as a Woman

The decision of the Court of Appeals rested starkly on the

elemental proposition that Lohrenz, as a pioneer in breaking a

gender barrier for women in combat, was by virtue of her

voluntary entry into that duty a public figure, even though she

had not sought media attention, had not attempted to use her

position to influence debate, had been generally reclusive, and

had engaged only in a modicum of local interest puff-piece

interviews with home-town newspapers and one San Diego-

based naval aviator magazine. The pivotal passage in the opinion

thus stated:

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.

App. 2a.

The Court of Appeals’ dismissive judgment that Lohrenz’

claim that she was just a good naval aviator doing her job

“rings hollow” buries the very point in dispute. The Court of

Appeals’ explanation for this putatively hollow ring was entirely

its insistence that Lohrenz must have known that as a woman

suiting up for combat jets she would attract attention. Indeed, a

close reading of the passage above reveals that Court of Appeals

did not claim that Lohrenz voluntarily assumed the risk of media

attention by entering a public debate in any conventional sense,

but merely that she voluntarily assumed the risk of assignment

to combat duty by choosing training for combat jets. Lohrenz

has consistently maintained that she could don the pilot’s

uniform to serve her nation as a female pilot and not

automatically don the mantle of public figure status. This

argument “rings hollow” only if one assumes the premise in

question. !

The Court of Appeals focused heavily on the broad general

societal debate over the role of women in combat. The Navy’s

decision to assign Lt. Lohrenz and Lt. Hultgreen as the first

women to pilot United States armed forces’ combat aircraft, the

Court noted, “occurred amidst an ongoing public controversy

about the appropriateness of women serving in combat roles in

the military.” App. 5a. The Court in turn reasoned that a

“subcontroversy” existed over the issue of whether the military

should relax physical strength and other standards to account

for differences between male and female members of the armed

services. App. 5a. And yet another subcontroversy existed, the

Court reasoned, as to whether women should serve as combat

pilots. App. 5a. 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. App. Sa.

The Court of Appeals conceded that Lohrenz “never

initiated any contacts with the media prior to the alleged

defamations.” App. 5a. The Court noted that her hometown

newspapers (in Green Bay and Milwaukee, Wisconsin)

published brief human interest stories about her and her family

members, most of whom have been military pilots, and that she

participated in similar human interest stories while in training

in San Diego. The Court of Appeals did not find significance in

this relatively low-grade media attention, however, noting

instead that Lohrenz’ Commanding Officer “succeeded in

deflecting most of the media attention directed at her, which

1. Itis important to emphasize that at the time Lohrenz volunteered

for pilot status, women were not assignable to combat duty. Thus it is

not at all fair to say that she volunteered for public figure status when

she “suited up” for combat pilot status.

was Lohrenz’ wish.” App. 6a. The media dynamic changed,

however, after the fatal crash of Lt. Hultgreen on October 28,

1994. Lt. Hultgreen died while attempting to land an F-14 on

the U.S.S. Abraham 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.)

App. 6a. After Lt. Hultgreen’s death, the Court of Appeals noted,

“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.” App. 6a. Indeed it was not until three months

after Lt. Hultgreen'’s crash that Elaine Donnelly, who had long

opposed permitting women to serve in combat positions, brought

intensive and damaging attention to Lohrenz. Through a series

of publications and speeches over the course of a year, Donnelly

and her organization CMR systematically maligned Lohrenz,

using her as the principal exhibit in a broader campaign against

women in combat.

The Court of Appeals also pressed the point that an

individual’s subjective intent to be or not to be a public figure

does not control the determination of public figure status.

App. 16a. Like most simple truisms, however, this point is true,

but of value only so far as it goes. It is certainly accurate to say

that the question of whether or not a plaintiff is a public figure

must be an objective determination, not a subjective one.

But this only begs the question of what types of conduct will

objectively render one a public figure. Is it enough that one

accepts a job that might invite attention? Or is more required?

On the day that Lt. Kara Hultgreen was killed in her plane

there were hundreds of thousands of men and women serving

in the armed forces. Were they all public figures? Or only the

jet pilots? Or only the female jet pilots — the ostensible theory

of the Court below? The proper question is not whether Lohrenz

subjectively desired public figure status — clearly she did not.

The proper question is whether Lohrenz objectively volunteered

to enter a pre-existing public controversy in an attempt to

influence its outcome. The only answer to this question that is

consistent with the rationale of Gertz and the competing

constitutional tensions between freedom of speech and

protection of individual dignity is that Lohrenz did not

voluntarily enter a public controversy. And unless this Court is

willing to say that Lohrenz must be treated as a public figure

nonetheless, the ruling of the Court of Appeals ought not stand.

B. Public Figure Status Should Be Grounded in

Voluntary Entry Into Public Debate

The entire notion of an “involuntary” public figure is in

substantial tension with the theoretical assumptions that under

gird First Amendment principles emanating from New York

Times Co. v. Sullivan, 376 U.S. 254 (1964). The New York Times

case, a comerstone of modern First Amendment jurisprudence,

was grounded in an antipathy toward seditious libel.

In establishing the actual malice standard for libel suits brought

by public officials, this Court heavily emphasized the importance

of providing “breathing space” for speech critical of

public officials, and their conduct in and fitness for office.

The New York Times case was thus an opinion driven by the

importance of protecting the marketplace of ideas, public

discourse, and debate, decided “against the backdrop of a

profound national commitment to the principle that debate on

public issues should be uninhibited, robust, and wide open...”

Id. at 270.

When this Court originally extended the reach of the

New York Times rule beyond public officials to public figures,

the Court remained faithful to this public discourse rationale.

When, in the companion cases Curtis Publishing Co. v. Butts,

388 U.S. 130 (1967) and Associated Press v. Walker, 388 U.S.

130 (1967), the Court expanded the Jimes standard, the

extension was based on the supposition that many persons who

do not hold government office nonetheless play an influential

role in the resolution of social issues. See id. at 163-64 (Warren,

C.J., concurring).

For a brief period, a plurality of this Court seemed to

abandon this doctrinal tie to society’s deliberative processes,

divorcing the actual malice standard from the identity of the

plaintiff and the plaintiff’s role in influencing the outcome of

public debates, and instead linking the actual malice standard

to a far more expansive “issue of public concern”’ construct.

In Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971),

a four-Justice plurality thus held that the actual malice standard

should apply if the subject matter of the speech “is a matter of

public or general concern without regard to whether the persons

involved are famous or anonymous.” /d. at 44.

The Rosenbloom approach was repudiated, however, in

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), in which the

Court held that in defamation actions brought by private figures

in which the defamatory speech involves issues of public

concern, states are free to predicate liability on a showing of

ordinary negligence. The public figure / private figure dichotomy

was grounded in two rationales. The first of these rationales,

the “access to the media” argument, was based on the assumption

that public officials and public figures are more likely to have

effective opportunities for self-help when they are defamed,

because they generally enjoy significantly greater access to

channels of effective communication. Jd. at 344. The second

rationale in Gertz was more normative, largely reflecting the

homespun moral that one who seeks the public arena must accept

the heat of the fire as part of the price of entering the kitchen.

People who voluntarily attain public figure status often have

assumed roles of special prominence in social affairs, and in all

fairness they may be required to accept greater public scrutiny

and greater exposure to defamation as part of the cost of such

fame. Jd. at 345.

Gertz was thus to a large degree a return to the public

discourse rationale of New York Times, Walker, and Butts.

Both the “assumption of risk” and “access to the media”

rationales were substantially tied to notions of influencing debate

and public discourse. Indeed, most of the Gertz Court’s

OI ci ADE BAG Ae VG AI ED ALK

discussion of public figures emphasized such factors as “power”

and influence” in matters of public debate. /d. at 344-45.

The notion that an “involuntary” public figure might exist

traces its genesis to one sentence in Gertz. That sentence,

italicized below, was part of the Court’s broader description of

the various classifications of public figures. This passage in its

entirety reads:

Hypothetically, it may be possible for someone to

become a public figure through no purposeful action

of his own, but the instances of truly involuntary

public figures must be exceedingly rare. For the most

part those who attain this status have assumed roles

of especial prominence in the affairs of society.

Some occupy positions of such persuasive power

and influence that they are deemed public figures

for all purposes. More commonly, those classed as

public figures have thrust themselves to the forefront

of particular public controversies in order to

influence the resolution of the issues involved.

In either event, they invite attention and comment.

Id. at 345 (emphasis added). There are several points worth

making about this passage. First, it was far from an unequivocal

declaration that “involuntary” public figures definitely exist.

The mention of involuntary public figures was made on the fly,

without analytical development or justification. The solitary

sentence in which this possibility was raised began with the

word “hypothetically,” and merely said that it “may be possible”

for such a figure to exist, ending with the caution that “the

instances of truly involuntary public figures must be exceedingly

rare.” Id.

Most importantly, however, the Court’s casual and

hypothetical mention of involuntary public figures was pointedly

not consistent within any of the larger themes animating the

Gertz opinion. All of the other discussion of public figures in

the case spoke in terms of the debate and discourse-related

theories that onginally drove New York Times, Walker, and Butts.

The Court in Gertz thus spoke of the “pervasive power and

influence” of “all purpose” public figures, and in discussing

limited-purpose public figures, spoke of persons who had “thrust

themselves to the forefront of particular public controversies in

order to influence the resolution of the issues involved.” Jd.

All these public figures, the Court said, “invite attention and

comment.” Jd. These are not terms consistent with the notion

of involuntary public figures. Words and phrases such as

“thrust,” “forefront of particular public controversies,” and

“in order to influence the resolution of the issues” are incoherent

when applied to the involuntary figure.

The three cases from this Court that followed Gertz

reinforced this theme, and indeed were even more stringent than

Gertz in their emphasis on factors such as the plaintiff’s

voluntariness, attempts to influence public discourse, and

assumption of risk. In Time, Inc. v. Firestone, 424 U.S. 448

(1976), for example, the Court ruled that Mary Alice Firestone,

wife of Russell Firestone, a member of the wealthy Firestone

family, was a private figure, despite being embroiled in bitter

and highly-publicized divorce litigation. She had done nothing

to invite public controversy other than to participate in the

litigation, the Court reasoned, and this was not enough to bring

her within the definition of a public figure. Firestone’s

prominence in what the Court depicted as “the sporting set” did

not qualify her as a person of “especial prominence in the affairs

of society.” Jd. at 453. Although the Court conceded that some

participants in some litigation may be legitimate public figures,

either generally or for the limited purpose of press coverage

concerning the litigation, Firestone was drawn into a public

forum largely against her will as a consequence of her invocation

of the only redress available to her. /d. at 457. So too, the Court

stated that Firestone’s appearance in a few press conferences to

satisfy the press inquiries did not convert her into a public figure.

Id. at 455, n.3.

Continuing these themes, the Court in Wolston v. Readers

Digest Association, Inc., 443 U.S. 157 (1979), held that the

‘

;

plaintiff Wolston, who had been brought before a grand jury

investigation in connection with an espionage inquiry, was a

private figure. Wolston was subpoenaed by the grand jury

after his aunt and uncle pleaded guilty to charges of espionage.

Id. at 161-62. After appearing before the grand jury on several

occasions, Wolston ignored a subpoena requiring him to appear

before the grand jury in 1958, and subsequently pleaded guilty

to a charge of criminal contempt. Jd. at 162-63. Wolston’s

episode with the grand jury investigation and his subsequent

conviction for criminal contempt resulted in 15 newspaper

articles in New York and Washington, D.C., and other

publications on Soviet espionage. /d. at 163. Yet despite all of

this, the Court held Wolston was a private figure, emphasizing

that Wolston had not invited attention. Even though it could

have quite plausibly been understood that Wolston had in at

least a constructive sense “voluntarily” entered the controversy

by not appearing before the grand jury, the Court did not —

this enough to qualify him for public figure status.

Finally, in Hutchinson v. Proxmire, 443 U.S. 111 (1979),

_ the Court held that an academic who had received substantial

federal grants for research was a private figure for purposes of

criticism of those grants by United States Senator William

Proxmire, who had bestowed upon the academic one of his

infamous “Golden Fleece” awards, a mock prize that Senator

Proxmire invented to expose what he regarded as waste in

government. Hutchinson had voluntarily applied for federal

funds, and reports of his successes in obtaining federal grants

appeared in local newspapers and scientific journals.

Furthermore, Hutchinson was not without access to the media;

some newspapers and wire services reported Hutchinson’s

response to the Golden Fleece Award. Jd. at 134. Once again,

however, the Court found that the plaintiff was not a public

figure, echoing Firestone and Wolston. Of particular importance

for the purposes here, the Court in Hutchinson stated that

Proxmire could not turn Hutchinson into a public figure by virtue

of Proxmire’s own allegations, because that would permit a

| oo

defendant to create a public figure defense through the

defendant’s own conduct. Jd. at 135-36. And pointing to

Wolston’s emphasis on the term “public controversy” as

limited to matters of public debate, the Court noted that

Hutchinson did not thrust himself into the public eye “to

influence others.” Jd.

This trilogy of post-Gertz cases — Firestone, Wolston, and

Hutchinson — appears to take virtually all of the oxygen out of

the one-sentence musing in Gertz hypothesizing the possibility

of involuntary public figures. And for good reason — the

suggestion in Gertz that an involuntary public figure could exist

was never well-considered, and was entirely out of synch with

the larger values that appropriately drove the Gertz decision.

C. The District of Columbia Circuit’s Expansive View

of Involuntary Public Figures

It is a fair characterization of the defamation jurisprudence

of the District of Columbia Court of Appeals to say that it has

been more extreme than any other American jurisdiction in its

willingness to shear public figure doctrine from the moorings

of voluntary entry into public debate. The expansive position

of the District of Columbia Court of Appeals began with its

highly controversial decision in Dameron v. Washington

Magazine, Inc., 779 F.2d 736 (D.C. Cir. 1985). In its decision

below, the Court of Appeals tried to distance itself from

Dameron, claiming that it need not declare Lohrenz an

“Involuntary” public figure to declare her a public one.

But the Court of Appeals doth protest too much. For in the

end, the only voluntary action undertaken by Lohrenz was to

volunteer for naval combat aviation. Whether one calls this, in

formal terms, the “involuntary public figure doctrine,” or instead

labels it as a doctrine permitting “constructive” public figure

status by “voluntary acceptance of a job,” the substance is the

same. May a person, by the happenstance of job position alone,

be forced to assume public figure status?

The Dameron case is worth specific attention. The case

was brought by Merle Dameron, an air traffic controller.

PP dS ALR GN NOT OME

The alleged defamation arose from an article in

The Washingtonian magazine published on the crash of Air

Florida Flight 90 at Washington’s National Airport in 1982.

Merle Dameron, however, had nothing whatsoever to do with

the Air Florida crash. The offending article had ranged widely,

and included a sidebar discussion of other plane crashes. In the

course of that discussion the article asserted that air traffic

controller error was assigned “partial blame” for the crash, eight

years earlier, of aTWA 727 into Mt. Weather on its approach to

Dulles Airport, killing 92 people. Dameron was the sole air

traffic controller on duty at Dulles during the crash. In actual

fact, controller error played no role in the crash. Dameron,

779 F.2d at 738. The Court of Appeals clearly regarded Merle

Dameron as just an ordinary person, a good government

employee, trying to do his job:

He is an ordinary citizen who was completely

unknown to the public before the Mt. Weather crash,

never sought to capitalize on the fame he achieved

through the Mt. Weather crash, and never acquired

any notoriety apart from the crash.

Id. at 741. But despite Dameron’s status as an “ordinary citizen,”

despite his undisputed failure to inject himself voluntarily into

any public controversy, the Court held that he was a public figure,

stating: *

Injection is not the only means by which public-

figure status is achieved. Persons can become

involved in public controversies and affairs without

their consent or will. Air-controller Dameron, who

had the misfortune to have a tragedy occur on his

watch, is such a person.

Jd. The Court in Dameron then proceeded to adopt what has

come to be known as the “sheer bad luck” doctrine, after what

is probably the most famous (or infamous) passage of the

opinion, in which the Court observed: “By sheer bad luck,

Dameron happened to be the controller on duty at the time of

the Mt. Weather crash.” Jd. at 742.

Carey Lohrenz was just a good naval aviator trying to do

her job. That some segments of the public might be interested

in how someone does one’s job does not mean that one becomes

a public figure for defamation purposes just by doing one’s job.

Many of us have jobs that might attract public attention, but

this is not the same as voluntarily entering the arena of public

discourse to attempt to influence the outcome of specific public

controversies. Gertz itself stands solidly against this. Elmer Gertz

was a very well-known Chicago attorney, a civil rights activist

lawyer and author of several books. Gertz had taken on a case

likely to generate media exposure. Despite all of this, the Court

held that Gertz’s actions were not enough to place him in the

public domain: “He plainly did not thrust himself into the vortex

of this public issue, nor did he engage the public’s attention in

an attempt to influence its outcome.” Gertz, 418 U.S. at 352.’

The First Amendment should require that a public

controversy be more than a generalized topic of public interest,

such as “women in combat.” To the extent there is an identifiable

controversy here, it was triggered by the Hultgreen crash.

Tellingly, Lohrenz’s only connection to the Hultgreen crash was

2. Lohrenz argued unsuccessfully to the Court of Appeals that there

was a gigantic difference between Dameron and the case here,

a difference that can be reduced to one poignant and pivotal point: Merle

Dameron was on duty when a plane crashed, Carey Lohrenz was not.

Merle Dameron was the air traffic controller handling the TWA flight

that crashed into Mt. Weather; in contrast, when Kara Hultgreen crashed

her plane while attempting a carrier landing, Carey Lohrenz was at the

Miramar air base waiting to take off, and had no responsibility for or

involvement in the Hultgreen incident. Even if this Court still finds the

“sheer bad luck” doctrine persuasive, there is a giant divide between the

“sheer bad luck” of being swept into an actual newsworthy event and

the “sheer bad luck” of being swept into a defamatory vendetta. At most,

Dameron ought stand for the proposition that if through misfortune a

person plays a central role in a newsworthy event that triggers a public

controversy, such as plane crash, he or she may become a public figure.

It is wrong to extend the jurisprudence of the Dameron notion of “sheer

bad luck” to instances such as those here, where the plaintiff played no

role whatsoever, let alone no central role, in the precipitating event.

vat

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iii

that Lohrenz was, with Hultgreen, one of the first female naval

combat aviators. If this were the only nexus required by the

First Amendment, however, the scope of involuntary public

figures would become all but boundless. This would be to

embrace a kind of guilt by association, in which mere

membership in a similarly situated class would place one in a

kind of defamation-free fire zone. That such a class will typically

be defined by such identity characteristics as gender or ethnicity

or race makes this extension of public figure doctrine especially

indefensible. Lohrenz did not suffer the “sheer bad luck” of

direct personal involvement in a tragic incident but “sheer bad

luck one step removed.” The connecting tissue was her gender,

nothing more.

When Lt. Hultgreen died, Carey Lohrenz tried to simply

remain quietly focused and go about her business. Exactly what

more (or less) would society have her do? To treat Lohrenz as a

public figure is far beyond any plausible understanding of what

this Court’s rulings in Gertz, Firestone, Wolston, or Hutchinson

must have contemplated.

This Court ought not be deterred from addressing this

important question by the manipulation of nomenclature. The

ruling below is not grounded in anything other than the

involuntary public figure doctrine, however much effort there

was to obscure that fact. A rose is a rose by any other name. The

Court of Appeals below did not claim that Lohrenz became a

public figure through any voluntary entry into a public

controversy to attempt to influence its outcome. As emphasized

throughout this Petition, the flawed reasoning of the opinion

below was that when Lohrenz suited up to fly naval jets in

combat, public figure status came with the territory, and Lohrenz

was appropriately swept into the fray when Lt. Hultgreen crashed

and died. From Lohrenz’ persepctive, this is nothing more nor

less than the sheer bad luck doctrine and nothing more nor less

than sheer bad law.

D. The Conceptual Flaws in Opinion Below

The analysis of the Court of Appeals was both quantitatively

and qualitatively flawed. Quantitatively, the analysis allows for

too many public figures. In setting the doctrinal parameters of

the public figure concept in terms far too elastic, the Court of

Appeals’ analysis invites acceptance of a class of public figures

far more expansive than anything that might plausibly have been

contemplated by this Court in Gertz. The Court in Gertz must

have intended that the class of involuntary public figures, if it

existed at all, would be extremely small, as manifest in the

Court’s use of the word “hypothetically,” and the phrase

“exceedingly rare.” Gertz, 418 U.S. at 345.

If all that is required to qualify as an involuntary public

figure is the bad luck of some central connection to newsworthy

event, involuntary figures are not by any calculation exceedingly

rare, but exceedingly common, and growing more common all

the time. See with Wells v. Liddy, 186 F.3d 505, 538-39

(4th Cir. 1999) (“We are hesitant to rest involuntary public figure

status upon ‘sheer bad luck.’ Gerz tells us that involuntary public

figures ‘must be exceedingly rare,’ and, unfortunately, bad luck

is relatively common.”) (internal citation omitted). Any of us,

at any moment, might find ourselves swept up in some dramatic

or traumatic event that becomes the focus of intense public

inquiry or debate. The sad fact is that bad luck is relatively

common, as the Fourth Circuit observed. New technologies

make it increasingly routine, in this epoch of the “media feeding

frenzy,” the “fifteen minutes of fame,” or the “media firestorm,”

for an obscure person who is just going about his or her business

to suddenly be placed in a “central role” in some breaking story

du jour. An ostensibly private person’s life may be transformed

into a public amusement park, the sudden subject of broadcasts

around the world on satellite, radio, television, cable, and the

Internet. Our First Amendment law must settle on whether it

should serve as the hapless vassal to such phenomenon, or will

instead assert itself, and anchor public figure doctrine in firmer

moral and policy sensibilities.

ARNE i RBar sates Si faa a

The Court of Appeals’ reasoning is also qualitatively flawed.

For not only does it capture too many plaintiffs, it captures

plaintiffs who do not deserve to be captured. It should take more

to become a public figure than the misadventure of finding

one’s identity coercively commandeered by mass culture.

A fundamental axiom of modern defamation law is that the

media cannot “bootstrap” itself into the higher level of First

Amendment protection granted in public figure cases by itself

turning the plaintiff into a public figure by focusing attention

on the plaintiff. See Hutchinson v. Proxmire, 443 U.S. 135-36

(1979). The ruling below is in irreconcilable tension with this

axiom.

“Sheer bad luck” is a capricious and errant substitute for

principles originally grounded in sound moral sensibilities and

thoughtful constitutional policies. By definition luck (good or

bad) is not the same as pluck. The public figure doctrine

established in Gertz was properly grounded in a First

Amendment balance of equity. If you can’t stand the heat of the

fire, stay out of the kitchen. If you enter the arena of discourse,

expect the arena of discourse to enter you. The First Amendment

is all about facilitating free expression, and those who voluntarily

seek to influence events and issues may appropriately be forced

to accept as part of the bargain a greater risk of defamation. But

when public figure doctrine status is triggered by sheer

happenstance, First Amendment doctrine loses its tie to these

constitutional equities.

E. The Opinion Below is a Silent Retreat to

Rosenbloom

As many courts and commentators have argued, the

involuntary public figure construct seems more philosophically

simpatico with the repudiated philosophy of Rosenbloom vy.

Metromedia, 403 U.S. 29 (1971), than the careful balance struck

in Gertz. See Wells v. Liddy, 186 F.3d at 539 (“The Dameron

definition of an involuntary public figure, someone who by bad

luck is an important figure in a public controversy, runs the risk

of returning us to the Rosenbloom plurality’s conception of

defamation law.”). Rosenbloom was overkill. Under its

formulation, too many plaintiffs would be saddled with the actual

malice standard, and the saddling of those plaintiffs would bear

no relation to either their assumption of risks or their access to

channels of media communication. Rosenbloom took the goal

of facilitating free debate and discourse regarding resolution of

public controversies out of the picture, by eliminating any nexus

between the “newsworthiness” of a story and the plaintiff’s role

in voluntarily entering the arena of public debate regarding the

story. This was the nexus that first Gertz, and later Firestone,

Wolston, and Hutchinson restored.

F. Treating Lohrenz as a Private Figure Does Not

Harm First Amendment Values

To repudiate the decision below will work no harm to central

First Amendment values, to the free flow of information, or to

the structural integrity of defamation law. Defendants will still

be protected, under the negligence standard, the workhorse

liability rule of tort law that is designed to assign liability to

unreasonable behavior and excuse behavior that is reasonable.

The negligence standard is hardly punitive or unfair. It is the

standard approved for private figures in Gertz, and followed in

all but a handful of American jurisdictions. It is not asking too

much of defendants to exercise ordinary reasonable care before

publishing defamatory statements about a private person. It is

not asking too much of defendants such as Elaine Donnelly and

the Center for Military Readiness to exercise ordinary reasonable

care before targeting a conscientious naval aviator for a brazen

defamation campaign that would drum her from the service and

ruin her career.

Even if this Court is unwilling to take the step of rejecting

outright the notion that there can ever be such a thing as an

“involuntary” public figure, the Court ought to interpret that

construct in a manner that will restrict its reach to only a tiny

class of “exceedingly rare” plaintiffs. This Court might feel it

safer to “never say never,” and thus avoid absolutely foreclosing

the possibility that in some exceptional case, an involuntary

public figure could exist. When, for example, a plaintiff has

engaged in surreptitious illegal conduct, and is then exposed

and caught out, the person might properly be deemed a public

figure, although in a surface sense there was no voluntary entry

into a public controversy. At most, however, this Court should

only countenance the notion that a person may be an involuntary

public figure when the plaintiff has played a central role in a

public controversy, even if an involuntary one, and

circumstances exist from which it may be said that the plaintiff

deliberately assumed the risk of media attention, such as by

either taking action to “prime the pump” of media attention or

failing to take reasonable steps to deflect such attention.

See Wells v. Liddy, 186 F.3d at 539-40. Most importantly, the

reach of any such doctrine should be limited to the exceptionally

narrow class of cases in which, notwithstanding the involuntary

status of the plaintiff, the plaintiff may still fairly be said to

have satisfied the moral and public policy rationales that

undergird Gertz, both assuming the risk of media attention and

possessing ready access to the channels of public discourse.

See Khawar v. Globe Int'l, Inc., 19 Cal. 4th 254, 79 Cal. Rptr.

2d 178, 965 P.2d 696, 702 (1998) (holding that the

characterization of someone as involuntary public figure must

be reserved for those individuals who satisfy both of Gertz’

supporting grounds), cert. denied, 526 U.S. 1114 (1999).

Il. THE PETITION SHOULD BE GRANTED TO

RESOLVE A CONFLICT BETWEEN FEDERAL

CIRCUITS AND AMONG MANY FEDERAL AND

STATE COURT DECISIONS

Lower court decisions are in conflict and confusion

regarding involuntary public figure status. As one academic

commentator recently summed up the state of play on this issue:

The involuntary public figure was mentioned in one

sentence in Gertz v. Robert Welch, Inc. Confusion

Over involuntary public figures was almost

instantaneous. Some lower appellate courts held that

the Supreme Court had created two categories of

public figure status; others said there were three.

Unfortunately, arguments can be made for either

interpretation and, as a result, libel law is done a

disservice by the absence of clear guidance.

The involuntary public figure — in whatever form

it takes — has become an important part of libel

law, though courts are having a difficult time

deciphering its form. Had the Supreme Court dealt

more substantively with the idiom, it could have

provided a significant additional piece in the libel

puzzle. The time has come for the Court to do

just that.

W. Wat Hopkins, The Involuntary Public Figure: Not So Dead

After All, 21 Cardozo Arts & Ent. L. J. 1, 2 (2003) (Footnote

citations omitted). At least twenty-three lower court decisions

have attempted to apply the involuntary public figure doctrine

since Gertz, and the pattern of decisions 1s in doctrinal disarray.’

Among the federal Circuits, the most sharply-defined

conflict is that between the Court of Appeals for the District of

Columbia and the Court of Appeals for the Fourth Circuit.

3. By Professor Hopkins’ calculations,

over the quarter-century following Gertz, some twenty-three

courts have struggled with the involuntary public figure

doctrine in more than thirty cases, identifying plaintiffs as

involuntary public figures nine times and applying an

involuntary public figure examination, but ruling that libel

plaintiffs were private persons rather than involuntary public

figures, another nine times. In yet another nine cases, courts

have recognized the viability of involuntary public figure

status, but held that the category of public figure status did

not apply to the facts in the cases at bar. Two other courts

have acknowledged that involuntary public figures may

have once existed, at least hypothetically, but indicated that

the Supreme Court, in effect, abandoned that category in

its Firestone, Wolston, and Hutchinson rulings.”

W. Wat Hopkins, The Involuntary Public Figure: Not So Dead After All,

21 Cardozo Arts & Ent. L. J. 1, 21-22 (2003) (Footnote citations omitted).

| ——

Compare Dameron v. Washington Magazine, Inc., 779 F.2d 736,

741-42 (D.C.Cir.1985) with Wells v. Liddy, 186 F.3d 505, 538-

40 (4th Cir. 1999) (“The district court . . . concluded that Wells

was an involuntary public figure. ..., applying Dameron ....

Because we conclude that ‘misfortune’ is but one aspect of the

considerations that should be weighed before concluding that

an individual is an involuntary public figure, we are not

persuaded... .”).

The United States Court of Appeals for the Ninth Circuit

has characterized this as an “‘intercircuit conflict.” See Flowers

v. Carville, 310 F.3d 1118, 1129 n.7 (9th Cir. 2002). (“By tape

recording Clinton’s phone calls and holding a press conference

to play them, Flowers voluntarily injected herself into the fray,

or at least threw kerosene on the flames once the conflagration

was underway. We can therefore stay clear of the intercircuit

conflict over purely involuntary public figures.”), citing and

contrasting Dameron v. Wash. Magazine, Inc., 779 F.2d 736,

741-42 (D.C. Cir. 1985) with Wells yv. Liddy, 186 F.3d 505,

538-40 (4th Cir. 1999)

Many courts and many commentators have noted the

confusion in the decisional law. A sampling of the holdings and

comments from various lower court decisions testifies to the

depth of this confusion. See, e.g., Wells v. Liddy, 186 F.3d 505

(4th Cir. 1999), (“[s]o rarely have courts determined that an

individual was an involuntary public figure that commentators

have questioned the continuing existence of that category.”

Id. at 538, citing Rodney A. Smolla, Law of Defamation § 2.14

(1998); Schultz v. Reader s Digest Ass'n, 468 F. Supp. 551, 559

(E.D. Mich. 1979) (Firestone “forecloses the possibility” of the

involuntary limited-purpose public figure); Wilson v. Daily

Gazette Company, 588 S.E.2d 197, 208 (W. Va. 2003)

(“The involuntary public figure doctrine has its origins in one

sentence from the United States Supreme Court decision in

Gertz: .. . only a handful of courts have ever found a plaintiff to

be an involuntary public figure.”); Carson v. Allied News Co.,

529 F.2d 206, 210 (7th Cir. 1976) (wife of Johnny Carson held

to be an involuntary public figure); Zupnik v. Associated Press,

Inc., 31 F. Supp.2d 70, 73 (D. Conn. 1998) (wife involuntary

public figure because of spouse’s notoriety); Daniel Goldreyer,

Ltd. v. Dow Jones & Co., Inc., 259 A.D.2d 353, 687 N.Y.S.2d

64, 65 (1999) (art restorer held to be involuntary public figure);

Bay View Packing Co. v. Taff, 198 Wis.2d 653, 543 N.W.2d

522, 532-34 (Ct. App. 1995) (holding food processing company

was involuntary public figure, noting that “[g]enerally, to be

considered a limited purpose public figure, a person must have

‘thrust themselves to the forefront of particular public

controversies in order to influence the resolution of the issues

involved’” but then holding that “This one factor, however, is

not the be-all and end-all of public figure status.”); Scaccia v.

Dayton Newspapers, Inc., 2001 WL 1517043, *9 (Ct. App.

Ohio 2d Dist. Nov. 30 2001) (holding it may be possible for an

individual to become a public figure through no purposeful

action of his own.); Meeropol v. Nizer, 560 F.2d 1061, 1066

(2d Cir. 1977), cert. denied, 434 U.S. 1013 (1978) (Finding

that children of notorious Rosenberg defendants were cast

into the limelight and became public figures under the

Gertz standards); Brewer v. Memphis Pub. Co., Inc., 626 F.2d

1238 (Sth Cir. 1980) (husband of a woman who once dated

Elvis Presley was a public figure for purposes of an article

claiming, incorrectly, that the couple were divorced and that

she had reunited with Presley); Wagstaff v. The Morning Call,

41 Pa. D. & C. 4th 431, 439 (Ct. Com. Pl. 1999) (involuntary

public figures may exist); Jacobson v. Rochester

Communications Corporation, Inc., 410 N.W.2d 830, 835

(Minn. 1987) (allowing involuntary public figures would not

be consistent with Gertz, Firestone, and Wolston.); Franklin v.

Lodge 1108, Benevolent and Protective Order of Elks, 159 Cal.

Rptr. 131, 138 (Cal. Ct. App. 1979) (holding that, hypothetically,

it may be possible for there to be an involuntary public figure,

but that the Supreme Court seemed to retreat from that

suggestion in Firestone); Dombey v. Phoenix Newspapers, Inc.,

150 Ariz. 476, 480, 724 P.2d 552, 566 (1986) (involuntary public

figure doctrine has never been applied by the Supreme Court

and may have been abandoned); Della-Donna yv. Gore

Newspapers Company, 489 So.2d 72, 77 (Fla. D. Ct. App. 4th

Dist. 1986) (“Della-Donna forgets that ‘it may be possible for

someone to become a public figure through no purposeful action

of his own....”); Atlanta Journal-Constitution v. Jewell,

252 Ga. App. 808, 820, 555 S.E.2d 175, 186, cert denied,

537 U.S. 814 (2002) (citing Dameron involuntary public figure

construct with approval).*

The scholarly commentary mirrors these divisions. See, e.g.,

David Elder, Defamation: A Lawyer s Guide, § 5:8 at 57 (1993)

(“case law and majoriatiran view of the commentators correctly

view this category as not merely ‘exceedingly rare’ but extinct.”’);

Gerald Ashdown, Gertz and Firestone: A Study in Constitutional

Policy-Making, 61 Minn. L. Rev. 645, 681 n.175 (1977)

(Supreme Court “eliminated the possibility that a person may

become an involuntary public figure’’); Mark Rosen, Media

Lament-The Rise and Fall of Involuntary Public Figures,

54 St. John’s L. Rev. 487, 502 (1980) (stating that involuntary

public figure classification is “‘all but extinct’); David Wallis,

The Revival of Involuntary Limited-Purpose Public Figures-

Dameron v. Washington Magazine, Inc., 1987 B.Y.U. L. Rev.

313, 319 (describing Wolston as “further evidence of the demise

of the involuntary public figure category”); Mark Karinja,

Comment, Defamation: Conflict in the Definition of ‘Public

Figure,” 10 Seton Hall L. Rev. 822, 846 (1980) (describing

Supreme Court as rejecting the involuntary public figure concept

4. The Jewel case, in which this Court denied a Petition for a Writ

of Certiorari, did not present the conflict with a clean record such as

that presented here. See Atlanta Journal-Constitution v. Jewell,

252 Ga.App. 808, 555 S.E.2d 175, cert denied, 537 U.S. 814 (2002).

In Jewel, Mr. Jewel had participated in a series of high-profile media

interviews, including television interviews on major network news

programs, following the bombing incident at the Atlanta Olympics. The

Georgia state court judgment rested primarily on these voluntary media

appearances. In contrast, the Court of Appeals here did not rely at all on

media appearances or any other voluntary participation in media debate

by Lohrenz.

“sub silentio”’); Dale Nichols, Note, The Involuntary Public

Figure Class of Gertz v. Robert Welch: Dead or Merely

Dormant?, 14 U. Mich. J. L. Reform 71, 84 (1980) (suggesting

that combination of Firestone, Hutchinson, and Wolston have

dealt the involuntary public figure classification a “death blow”);

Clay Calvert & Robert D. Richards, A Pyrrhic Press Victory:

Why Holding Richard Jewell Is a Public Figure Is Wrong and

Harms Journalism, 22 Loy. L.A. Ent. L. Rev. 293, 310-13 (2002)

(discussing the state of the involuntary public figure doctrine in

defamation law in the context of whether Richard Jewell should

be held to be an involuntary public figure for purposes of his

defamation action against the Atlanta Journal Constitution);

Aureliano Sanchez-Arango, Casenote, The Elusive ‘Involuntary

Limited Purpose Public Figure”: Why the Fourth Circuit Got

it Wrong in Wells v. Liddy, 9 Geo. Mason L. Rev. 211, 221-227

(2000); W. Wat Hopkins, The Involuntary Public Figure:

Not So Dead After All, 21 Cardozo Arts & Ent. L. J. 1 (2003)

(demonstrating that involuntary public figure doctrine is alive

and that lower courts are split).

The conflict among lower courts as what to make of the

mention of the involuntary figure notion in Gertz is

understandable. In fairness to the nation’s lower courts, to a

significant degree this is a conflict of this Court’s own making.

This is all the more reason for this Court to straighten matters

out. Such clarification of the language of Gertz would not mark

the first time this Court has stepped in to pull in the reigns on

some of the Gertz opinion’s more expansive language. Another

famous passage in Gertz, opining that “[u]nder the First

Amendment there is no such thing as a false idea,” Gertz, 418

U.S. 338, similarly set sail a whole body of lower court precedent

announcing a free-standing First Amendment guarantee

protecting the expression of “opinion.” In Milkovich v. Lorain

Journal Company, 497 U.S. 1 (1990), this Court trimmed that

sail, explaining that this one rhetorical statement in Gertz was

never intended to generate any such doctrine. /d. at 19 (““We are

not persuaded that, in addition to these protections, an additional

a na ls

separate constitutional privilege for ‘opinion’ is required to

ensure the freedom of expression guaranteed by the First

Amendment.”).

The stakes here are actually much higher. Milkovich was

largely a nuanced case that fine-tuned one aspect of Gertz,

making a relatively minor adjustment between the protections

independently emanating from the First Amendment and the

protections that already existed at common law. The public figure

doctrine, however, is unknown to the common law. An overly

generous interpretation of the scope of the public figure doctrine

has a profound negative impact on the capacity of individuals

who chose to serve society but who do not choose to enter the

arena of public debate. The need for this Court to intervene and

pull back on an overly exuberant strain of public figure doctrine

is thus even more compelling than the need for this Court’s

intervention that existed in Milkovich.

The high level of constitutional protection produced by the

actual malice standard applicable to defamation actions brought

by public officials and public figures is unquestionably justified

by our profound national commitment to freedom of speech.

But as this Court saliently observed in Milkovich, “there is also

another side to the equation; we have regularly acknowledged

the ‘important social values which underlie the law of

defamation,’ and recognized that ‘[s]ociety has a pervasive and

strong interest in preventing and redressing attacks upon

reputation.’” Jd., quoting Rosenblatt v. Baer, 383 U.S. 75, 86

(1966). |

The “other side to the equation” is especially worth

preserving in these times. Millions of quiet, hard-working

Americans serve in the public and private sector as police

officers, firefighters, servicemen and servicewomen, corporate

employees, teachers, lawyers, medical providers — a virtually

infinite parade of people holding a virtuzily infinite array of

jobs. They are not by any common parlance or understanding

“public figures.” Yet we live in a world in which at any given

moment events may suddenly and without warning place them

in the glare of a media feeding frenzy, as some tragic or heroic

action puts them on millions of Internet or television screens.

We must not lose our compass here. The public figure

doctrine was grounded in two laudable rationales that serve our

robust commitment to freedom of speech, the notions that when

one enters the fray of public discourse one “assumes the risk”

of critique and also reaps the benefit of access to channels of

communication. When we turn otherwise private persons into

public figures for reasons divorced from these rationales, we

put matters out of kilter. The benefits to a healthy public

discourse from such a forced march are minimal, the sacrifices

to human dignity severe. The opinion below partakes of this

imbalance, and the time has come for this Court to set the

balance right.

CONCLUSION

For the foregoing reasons, Petitioner Carey Lohrenz

respectfully urges this Court to grant this Petition for a Wnt of

Certiorari.

Respectfully submitted,

RoDNEY A. SMOLLA SuSAN G. BARNES

Counsel of Record 50 South Steele Street

University of Richmond Suite 820

School of Law Denver, CO 80209

Richmond, VA 23173 (303) 420-5928

(804) 289-8197

NEVILLE L. JOHNSON

BRIAN A. RISHWAIN

JAMES T. RYAN

JOHNSON & RISHWAIN LLP

12121 Wilshire Boulevard

Suite 1201

Los Angeles, CA 90025

(310) 826-2410

Counsel for Petitioner

APPENDIX

“4

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT DECIDED

DECEMBER 12, 2003

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 19, 2003 Decided December 12, 2003

No. 02-5294

Carey Duna LOHRENZ,

APPELLANT

ELAINE DONNELLY, CENTER FOR MILITARY READINESS, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 96cv00777)

Before: Rocers and Roserts, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

Appendix A

Rocers, Circuit Judge: The principal issue in this appeal

is the scope of the voluntary limited-purpose public figure

doctrine. 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

appropriateness 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

Readiness (““CMR’”’), Lohrenz contends that, because she was

simply 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

doctrine 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

Appendix A

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 vy. Fairchild Publications, Inc., 627 F.2d 1287

(D.C. Cir. 1980), cert. denied, 449 U.S. 898 (1980), in ruling

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.

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 y. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986); Fed. R. Civ. P. 56(c), shows the following:

Appendix A

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 graduated

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 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 4 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.

Appendix A

The Navy’s decision to assign Lt. Lohrenz and

Lt. Hultgreen as the first women to pilot United States armed

forces combat aircraft occurred amidst an ongoing public

controversy about the appropriateness of women serving in

combat roles in the military. A subcontroversy concerned

whether the military should relax physical strength and other

standards 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 newspapers

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 response

to Navy encouragement that Lt. Lohrenz did not feel at iberty

to decline, she granted an interview to KNSD-TV, a local

San Diego, California station. Also, The Compass, a

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

Appendix A

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

fshe] wasn’t going to have [her] chance.” Scott D. Williams,

First Women Join Fleet Fighter Squadron: The Jet Doesnt

Know the Difference, The Compass, Sept. 9, 1994, at Al.

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, Donnelly

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

incorporated the Center for Military Readiness and served

Appendix A

as its president; the CMR has regularly published articles

and issued press releases opposing women serving in combat

positions, including as combat pilots. As relevant here,

Donnelly and CMR published four allegedly defamatory

publications about Lt. Lohrenz.

First, on January 16, 1995 Donnelly wrote on CMR

letterhead to Senator Strom Thurmond to alert the then-

Chairman of the Senate Armed Services Committee to

“certain practices 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 characterized 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; however, 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

standards in naval aviation. The Donnelly Report included

excerpts 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

Appendix A

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

conclusions. 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 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

Washington, 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

“instigated 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

Communications, Inc. (d/b/a The Washington Times), and

John Does 1-100 (retired officers of the Navy and other

Appendix A

military services, who allegedly assisted Donnelly and

republished her statements). 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 promoting them despite their substandard performance.”

Appellant’s Br. at 2. Lt. Lohrenz sued the three non-press

defendants, 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, and should have her flight status reinstated but be

assigned to a different aircraft, she had been unable to obtain

reinstatement 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.

10a

Appendix A

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.” /d. 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.” Jd. 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 figure. Jd. 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 substantially true, id. at 59, and did not reach the fair

reporting defense based on the Navy Inspector General’s

lla

Appendix A

Report, id. at 60. The district court had previously dismissed

the complaints 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 dismissal). News World Communications, Inc.

settled Lt. Lohrenz’s complaint against it. Lohrenz, 223 F.

Supp. 2d at 30.

Il.

On appeal, Lohrenz contends that the district court erred

in ruling, under Waldbaum y. 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, acknowledging 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

12a

Appendix A

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

does not challenge the district court’s resolution of her

invasion 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.” Jd. at 1290. He held several meetings to which

the press and public were invited, and his policy of

consolidation to eliminate unprofitable outlets generated

considerable comment in the affected area and in trade

journals as well as general interest publications, such as the

Washington 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.’” Jd. The district court

13a

Appendix A

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. /d. at 1291.

This court affirmed. In concluding that “a person has

become a public figure for limited purposes if he has

attempted 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 threepart test: (1) The court must isolate the public

controversy, that is, ‘‘a dispute that in fact has received public

attention because its ramifications will be felt by persons

who are not direct participants.” Jd. at 1296. (2) The court

must analyze the plaintiff’s role in it. “Trivial or tangential

participation is not enough. ... [To be a limited-purpose

public figure, a plaintiff] must have achieved a ‘special

prominence’ in the debate.” Jd. 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. /d. The court noted that a plaintiff “would be a

public figure if the defamatin pertains to the subcontroversy

in which he is involved bu* would remain a private person

for the overall controversy and its other phases.” /d. at 1297

n.27. (3) Finally, the court must determine whether the alleged

defamation was germane to the plaintiff’s participation in

the controversy. Jd. 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. Jd. at 1300.

—a

—

14a

Appendix A

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 ... [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 Rosenbloom 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 whether the persons involved are famous or

anonymous.” /d. at 44.

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.” /d. at 345.

7 4

zie

ae,

15a

Appendix A

As applied here, Waldbaum’s analysis is faithful to Gertz.

The first and third prongs of the Waldbaum test are essentially

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 Appellant’s Br. at 32-33, and the alleged defamatory

statements b» Donnelly and CMR plainly were germane to

the subcontroversy 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 Waldbaum’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. /d.

To satisfy the Waldbaum inquiry’s “ ‘special

prominence’ ” requirement, “[t]he plaintiff must either have

been purposefully 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.”

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

(1967), as well as Gertz’s general observation that the media

is entitled to act on the assumption that public officials and

public figures have exposed themselves to increased risk of

l6a

Appendix A

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 “chose . . . combat

aviation” by indicating her preference 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 receiving 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

17a

Appendix A

combat roles].” Waldbaum, 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 Waldbaum inquiry is satisfied, and she is a

voluntary public figure 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 subcontroversy about whether the Navy

was applying double standards for its women combat pilots.

At both points, when she was assigned to the F-14 and in

the aftermath of Lt. Hultgreen’s crash, Lt. Lohrenz was a

public figure whose performance 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

hobnobbed 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 undeniable ‘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

18a

Appendix A

Br. at 32, she ignores that the substance of the controversy

about the appropriateness 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 wellknown 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 pilot training, which did not

render her “fam[ous]” or “notori[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 allegedly 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.

ee 6

19a

Appendix A

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 Amendment 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 principle that, unless a plaintiff accepted a

role in which she reasonably could have been expected to

play a role in resolving 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. Proxmire, 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 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.

20a

Appendix A

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

combat 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

assignment 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 statements 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 presented “highly probative” evidence

of actual malice by showing that “Donnelly and CMR were

on a mission to advance a preconceived story line, and may

2la

Appendix A

have targeted Lohrenz to ‘get’ her out of their more

generalized zeal to drum women from combat positions.”

Appellant’s Br. at 38-39.

In a civil action where the subjective state of mind

determination 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 agreeing 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 determined by the defendant’s testimony that

he published the statement in good faith and

unaware of its probable falsity.... 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

22a

Appendix A

would protect against selfcensorship and thus

adequately implement First Amendment policies.

Neither lies nor false communications 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

elaborated on the evidentiary thresholds that a plaintiff must

meet to prove actual malice in a defamation claim. The court

explained in Zavoulareas, 817 F.2d at 788-98, that the

plaintiff 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.” Jd. at 790 (internal quotations omitted). Viewing

the evidence in the light most favorable to Lohrenz as the

nonmoving 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

ieee

23a

Appendix A

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

performance 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

assertions and evidence that Lt. Lohrenz was a qualified

F-14 combat pilot were credible. If the mere proffering of

purportedly credible evidence that contradicts a publisher’s

story were enough to meet the Zavoulareas 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

unreasonable conduct constituting an extreme departure from

the standards of investigation and reporting ordinarily

adhered to by responsible publishers.” Harte-Hanks

Communications, Inc. v. Connaughton, 491 U.S. 657, 666

(1989) (internal quotation omitted). Lohrenz’s evidence also

must show Donnelly’s and CMR’s “reckless disregard for

the truth, ... [such as] a high degree of awareness oe

probable falsity, or. . . serious doubts as to the truth of [their]

publication.” Connaughton, 491 U.S. at 667 (internal

citations omitted).

24a

Appendix A

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

publication was based on a knowledgeable, non-anonymous

source. Under the circumstances, ZJavoulareas does not

require more of a publisher. 817 F.2d at 790. Additionally,

by the time she published The Donnelly Report, Donnelly

also had portions of Lt. Lohrenz’s training records that

supported Lt. Burns’ assertions that the Navy made special

accommodations 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

Publishing 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).

25a

Appendix A

Donnelly and CMR never discovered any facts sufficient

to cause them to doubt their conclusion about Lt. Lohrenz’s

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

demonstrated 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, produced

in reaction to Donnelly’s letter to Senator Thurmond,

confirmed Lt. Burns’ allegations that Lt. Lohrenz had

received 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.

26a

Appendix A

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, however

vehement; such denials are so commonplace in the world of

polemical charge and countercharge that, in themselves, they

hardly alert the conscientious reporter to the likelihood of

error.’ ” Connaughton, 491 U.S. at 691 n.37 (citing Edwards

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

verified, 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 interviewed 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,

27a

Appendix A

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.

Donnelly, 187 F.R.D. 1, 10 (D.D.C. 1999). Lohrenz has

pointed to no authority establishing that publishers must

withhold publication 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 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

release 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 publisher’s own, “tend[ ] to rebut a claim of malice, not

to establish one.” McFarlane, 74 F.3d at 1304. Donnelly’s

28a

Appendix A

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

confirming 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

Donnelly 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.

29b

APPENDIX B — MEMORANDUM OPINION OF THE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

DATED AUGUST 16, 2002

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF COLUMBIA

Civil No. 96-777

(RCL)

CAREY DUNAI LOHRENZ

Plaintiff,

ELAINE DONNELLY, et al.

Defendants.

MEMORANDUM OPINION

Now before the Court is defendants’ Motion .o Strike

Declaration and Report of Captain Charles Nesby, plaintiff’s

Memorandum of Points and Authorities in Opposition to

defendants’ Motion to Strike Declaration and Report of

Captain Charles Nesby, defendants’ Reply in Support of

Motion to Strike Declaration and Report of Captain Charles

Nesby, defendants’ Motion for Summary Judgment and

Motion for Oral Hearing, plaintiff's Opposition to

defendants’ Motion for Summary Judgment, defendants’

Reply in Support of Motion for Summary Judgment,

plaintiff’s Cross-Motion for Partial Summary Judgment,

30b

Appendix B

defendants’ Opposition to plaintiff’s Cross-Motion for Partial

Summary Judgment, and plaintiff’s Reply in Support of

Cross-Motion for Summary Judgment. Upon consideration

of the pleadings, relevant decisions of prior federal and state

courts, and the record of this case, the Court will DENY

defendants’ Motion to Strike, GRANT defendants’ Motion

for Summary Judgment, DENY defendants’ Motion for Oral

Hearing, and DENY plaintiff’s Cross-Motion for Partial

Summary Judgment.

I. Background

Plaintiff Carey Dunai Lohrenz alleges that defendants

Elaine Donnelly and the Center for Military Readiness

(CMR) are liable for libel and slander (Count I) and for

invasion of privacy (Count IV). Ail of these claims are

governed by the law of the District of Columbia. Plaintiff

Lohrenz had originally brought her case against four specified

defendants: Donnelly, CMR, Copley Press, News World

Communication Incorporated, and John Does 1-100.

This Court granted the motion by Copley Press to dismiss

the complaint for lack of jurisdiction, and defendant News

World Communication has settled with plaintiff. Defendants

Donnelly and CMR now move for summary judgment, and

plaintiff Lohrenz has filed a cross-motion for partial summary

judgment.

Defendant Donnelly is the President and primary

spokesperson of defendant CMR, a public policy organization

concerned with military personnel issues. CMR was

incorporated in Michigan in 1992. Plaintiff alleges that CMR

is supported by a small group of retired military officers

named as defendants John Does 1-100.

ee ee ee

31b

Appendix B

Plaintiff Lohrenz was sworn into the Navy as an officer

candidate in November 1990; after training, she received her

commission in May 1991. In 1993, plaintiff Lohrenz received

her designation as a naval aviator; shortly thereafter, plaintiff

was assigned to the F-14 Tomcat. In July 1993, plaintiff

reported to the Fleet Replacement Squadron (FRS) VF 124,

based at Miramar Naval Air Station, for F-14 training.

Plaintiff was one of two women assigned to VF 124 for F-14

training; the other was the late Lt. Kara Hultgreen. Plaintiff

received approximately eleven months of instruction in

piloting the F-14 and in August 1994, plaintiff joined fighter

squadron 213, then attached to the U.S.S. Abraham Lincoln

in the Pacific Fleet.

Throughout her training at Miramar and when she was a

member of fighter squadron 213, plaintiff was evaluated for

her performance and fitness as an F-14 pilot. Lohrenz asserts

that her evaluations show that she was an average to above-

average F-14 pilot; defendants assert that Lohrenz’s

evaluation record shows that she was a sub-standard pilot

who often received benefits and training that her male

counterparts did not receive. The training records will be

discussed at more length infra sections Iil and IV.

On October 25, 1994, Lt. Hultgreen was killed while

landing an F-14 on the U.S.S. Abraham Lincoln. This tr. zic

event signaled the beginning of a series of events which led

to the instant lawsuit. After the death of Lt. Hultgreen, there

was a barrage of media articles about the wisdom of the

military’s recent decision to allow women in combat; many

commentators were critical of the military’s decision.

32b

Appendix B

In mid-December of 1994, defendant Donnelly spoke on

the telephone with and received a letter from a Lt. Patrick

Jerome “Pipper’” Burns asserting that both Hultgreen and

plaintiff had been promoted because of political pressure to

incorporate more women into the Navy, and that neither was

a qualified pilot. On January 6, 1995, defendant Donnelly

met with Adm. Stanley Arthur who was one officer

responsible for the training of F-14 pilots; at that meeting,

she informed Arthur of her belief that Hultgreen and plaintiff

had been carrier-qualified as F-14 pilots only because they

were women, and that both should actually have failed out

of the program. Admiral Arthur promised to investigate her

suspicions, but he neither confirmed nor denied the facts in

defendant Donnelly’s possession. On January 16, 1995,

defendant Donnelly sent a letter to Senator Strom Thurmond

(hereinafter the “Thurmond letter’), repeating and describing

the facts and allegations made in the letter from Lt. Burns.

Defendant Donnelly asserted that both Lt. Hultgreen and

plaintiff Lohrenz were unqualified to be fighter pilots, and

had received their positions as a result of political pressure.

In the Thurmond letter, plaintiff Lohrenz was not identified

by name; she was referred to only as “Pilot B” in a purported

effort to protect her identity. It was, however, well known

that there were only two women carrierqualified as F-14

pilots, so plaintiff’s identity as “Pilot B” was no mystery to

other naval aviators, other officers and crew aboard the U.S.S.

Abraham Lincoln, and any other individuals who were

familiar with the naval aviation community. In addition,

plaintiff Lohrenz’s actual identity as “Pilot B” was

subsequently revealed by various newspapers. See Defs. Mot.

for Summary Judgment, Exh. 11 to Lohrenz Dep. (San Diego

UnionTribune article); id., Exh. 14 to Lohrenz Dep.

(Washington Times article).

33b

Appendix B

Sometime between October 28, 1994 and April 1995,

the FRS training records of Hultgreen and plaintiff were

removed from confidential Navy files by fellow officers who

served with them at VF 124 or at fighter squadron 213.!

Portions of those records were transmitted to defendant

Donnelly by Lt. Burns. Defendant Donnelly had two further

meetings with Adm. Arthur (on Febraury 8 and March 24,

1995), one telephone conversation with Adm. Arthur (March

6, 1995), one meeting with Adm. Mike Boorda (on March 6,

1995), who was also involved with the F-14 training program,

and one conversation with Commander Thomas Sobieck

(date unknown), the commanding officer of the FRS. During

those conversations, Arthur, Boorda and Sobieck discussed

defendant Donnelly’s research and information with her; all

three believed that defendant Donnelly was incorrect in her

conclusions, and they communicated this to her. At the March

24, 1995 meeting with Adm. Arthur, defendant Donnelly was

shown a copy of a Report authored by Rear Adm. Lyle G.

Bien, which had been prepared in response to the allegations

made by Donnelly in her March 6 meeting with Arthur. That

report confirmed many of the facts then known to defendant

Donnelly, but concluded that Hultgreen and plaintiff had been

promoted according to the usual Navy standards.

On April 25, 1995, defendants Donnelly and CMR

published a Special Report entitled “Double Standards

in Naval Aviation” (hereinafter “the Donnelly Report”).

See Pl. Cross-Mot. for Summary Judgment, Exh. 17

(Donnelly Report). The Donnelty-Report republished the

letter sent to Senator Thurmond and included additional

1. One officer, Lt. Patrick Burns has admitted his involvement.

Plaintiff alleges that other unknown officers were involved.

34b

Appendix B

excerpts from plaintiff’s training records and comments from

letters from male aviators criticizing plaintiff Lohrenz and

Lt. Hultgreen. The allegations in the Donnelly Report were

that female and male naval aviators were treated differently

because female aviators were promoted on a lower standard,

that female aviators received special concessions, that people

who criticized the Navy’s policy of incorporating women into

combat positions were unfairly attacked, and that plaintiff

was one pilot who received special treatment which permitted

her to advance. In the Donnelly Report, plaintiff Lohrenz

was referred to only as “Pilot B,” but her training records—

with particular dates, locations, and scores—were reported.

Copies of the Donnelly Report were circulated on the

U.S.S. Lincoln and among the naval aviation community at

large, the general public, and the national news media.

After the publication and circulation of the Report, plaintiff

Donnelly was contacted by Commander Thomas Sobieck,

commander of VF 124 where plaintiff and Hultgreen received

their F-14 training. Sobieck told Donnelly that he believed

her report to be false and misleading, and he urged her to

withdraw the report because of its falsity and because he

believed that the report would be harmful to the continued

training of plaintiff as an F-14 pilot. Defendant Donnelly

declined, and continued to promote the Report and its

findings through various media sources. In addition to various

press releases by defendants, on March 28, 1996, defendant

Donnelly gave a speech at the ArmyNavy Club in

Washington, D.C., essentially repeating the findings of the

Report and again referring to plaintiff only as “Pilot B.”

35b

Appendix B

After the publication of the Donnelly Report, plaintiff

alleges that her performance declined, and her commanders

became overly critical. Plaintiff was eventually removed

from flight status on May 30, 1995. She then appeared before

a Field Naval Aviation Evaluation Board (FNAEB).

An FNAEB may be convened to evaluate the performance,

potential, and motivation of a particular serviceperson for a

particular assignment. The FNAEB considered the evidence

against plaintiff and concluded that she should retain flight

status but be assigned to fly in a different aircraft. Plaintiff

was not, in fact, returned to flight status at that time because

her commanding officer, Adm. Yakely, recommended that

she be removed from flight status entirely.

On February 10, 1997, the Navy Inspector General

released a report (hereinafter “the Inspector General Report’)

which is the subject of extreme disagreement between the

parties. The Inspector General Report reviewed allegations

by plaintiff and her parents against the FNAEB Report, and

concluded that one of their allegations was substantiated.

In the fall of 1997, the Navy decided to remove Lt. Burns’

name from the promotion list because he had admitted to

sending defendants copies of plaintiff’s training records and

had spoken out against the Navy’s carrier-qualification of

Lt. Hultgreen and plaintiff. In November of 1997, defendants

issued a press release entitled, “Navy Faces Crucial Choice:

Principle or Public Relations?” which criticized the Navy

for disciplining Burns. In that press release, defendants

repeated their allegations that plaintiff was not a qualified

pilot and had benefitted from preferential treatment.

36b

Appendix B

Plaintiff asserts that defendants were aware of, recklessly

disregarded, or were negligent about the possibility that the

allegations against plaintiff were, in fact, false. Defendant

Donnelly never reviewed a complete copy of plaintiff’s

training records, and from January to May of 1995, defendant

Donnelly spoke with various Navy officers who disputed the

conclusions that defendant Donnelly had drawn about the

training of female pilots. After the publication of the Donnelly

Report, plaintiff alleges that defendants were informed that

the allegations were false, and defendants refused to retract

the Donnelly Report and continued to publicize their

allegations. Plaintiff further asserts that in the Donnelly

Report, plaintiff’s training records were selectively edited

and mislabeled to create the impression that plaintiff was

not a qualified pilot. Defendant Donnelly asserts that she

was not aware, did not recklessly disregard, and was not

negligent about the possibility that the allegations might be

false; in fact, defendant continues to assert that the allegations

about plaintiff are true.

Plaintiff asserts that as a result of the actions of

defendants Donnelly and CMR, plaintiff has suffered great

embarrassment and humiliation, irreparable injury to

reputation and good standing in the naval aviation

community, economic losses, and loss of her carcer as both

a naval aviator and any opportunity for a career in civil

aviation.

II. Motions to Strike

The parties have filed various motions to strike materials

submitted in opposition to their motions. In ruling upon these

i i:

37b

Appendix B

i motions to strike, the Court notes that both parties appear to

i be engaged in fairly transparent attempts to use motions to

‘ strike in order to control the merits of the case. A motion to

strike is not an appropriate vehicle through which to contest

the credibility of a witness or to draw further attention to the

fact that one piece of evidence is contradicted by another.

hail Sh

A. Defendants’ Motion to Strike the Declaration and

Report of Captain Charles Nesby

Defendants move to strike the Declaration and Report

of Captain Charles Nesby, included as Exhibit | to plaintiff's

Cross-Motion for Partial Summary Judgment and Opposition

to Defendants’ Motion for Summary Judgment.’ Plaintiff

seeks to designate Nesby as an expert in F-14 training and

piloting, and represents that Nesby will testify about

plaintiff’s training records and evaluations, his own personal

observations of plaintiff’s performance, the validity of the

evaluations by other pilots, general and specific

principles of pilot training and F-14 pilot training, and other

issues related to F-14 pilot training and evaluation

such as terminology, common practices, and standards.

See Pl. Designation of Expert Witnesses, filed August 12,

1999, at 8-11. In his Declaration, Report, and Supplemental

Report, Nesby details his qualifications as an expert witness

in piloting F-14s and training F-14 pilots. Nesby entered

flight school in 1974 and was designated a naval aviator in

2. Defendants have filed a motion to strike the Nesby

Declaration, but give further reasons for their motion to

strike in their Reply in Support of Motion for Summary Judgment.

The Court will address all the arguments given by defendants with

respect to the Nesby Declaration in this section.

38b

Appendix B

1975. In 1977, Nesby was trained to fly the F-14; in 1981,

Nesby became an F-14 flight instructor. Nesby trained F-14

pilots for three years, was in charge of developing and writings

the manual for operating and piloting the F-14, and received

several levels of qualification to train new pilots. Captain

Nesby ascended through various ranks, and has now been

appointed the Director of the Center for Minority Veterans

in the Department of Veterans Affairs. In short, it appears

that Captain Nesby is intimately familiar with flying the

F-14 and training F-14 pilots. His opinions that he now asserts

are based on

my own personal observations of LT Lohrenz

when she went through Advanced Jet Training

course at NAS Kingsville while I was Commander

of Training Air Wing TWO, my own background

and experience as an F-14 pilot, my experience

as an instructor in the F-14 Fleet Replacement

Squadron, the objective facts disclosed by the

Navy’s records pertaining to LT Lohrenz training,

the reports and evaluations of the naval officers

who conducted her FRS training at VF 124, and

the several reports of Navy and Department of

Defense investigations into Ms. Donnelly’s

allegations against LT Lohrenz and the Navy

personnel responsible for her training in the F-14

Fleet Replacement Squadron.

Pl. Opp., Exh. 1 (Nesby Decl.) at 13. Based on those materials

and experiences, Nesby avers that plaintiff was a qualified

pilot and that the practices for which defendants’ report find

fault were actually quite common among F-14 pilots of

experience comparable to plaintiff’s.

39b

Appendix B

Defendants move to strike Nesby’s Declaration on

several grounds: (1) because the declaration does not comply

with Federal Rule of Civil Procedure 26(a)(2)(B); (2) because

Nesby is incompetent to render opinions under Federal Rule

of Evidence 702, which governs testimony by experts; and

(3) because Nesby’s instant Declaration is contradicted by

testimony that he gave before the Navy Inspector General

and other evidence now before the Court.

1. Plaintiff’s Failure to Comply with Federal Rule of

Civil Procedure 26(a)(2)(B)

Federal Rule 26(a)(2)(B) provides a party submitting

expert testimony must provide:

a written report prepared and signed by the

witness, a complete statement of all opinions to

be expressed and the basis and reasons therefor,

the data or other information considered by the

witness in forming the opinions, any exhibits to

be used as a summary of or support for the

opinions, the qualifications of the witness,

including a list of all publications authored by the

witness within the preceding ten years, the

compensation to be paid for the study and

testimony, and a listing of any other cases in which

the witness has testified as an expert at trial or by

deposition within the preceding four years.

Fed. R. Civ. P. 26 (a)(2)(B). It appears plain that plaintiffs

have not complied with this rule. Plaintiffs have failed

completely to disclose a list of all publications authored by

40b

Appendix B

Nesby, the compensation paid to Nesby, and a listing of any

other cases in which Nesby has testified or been deposed.

Plaintiff’s only explanations of the failure to provide this

information are that defendant should have complained about

this earlier, that defendant failed to provide similar

information, and that plaintiff is in the process of compiling

this information. The first two explanations are meritless—

finger-pointing by the parties misunderstands the purpose of

the rule mandating these disclosures. See Nguyen v. IBP, Inc.,

162 F.R.D. 675 (D. Kan. 1995) (“The 1993 amendments to

the Federal Rules of Civil Procedure which instituted the

disclosure requirement were an attempt to assure that all

parties disclosed certain information concerning their expert

witnesses, including certain background facts which would

enable a party to prepare for cross-examination at deposition

or trial’’).

Despite plaintiff’s failure to comply with Rule 26,

the failure to comply with the disclosure rule will not

result in that expert’s testimony being stricken unless the

failure was prejudicial to the party entitled to the disclosure.

See id. Defendants do not aver that any prejudice

resulted from the plaintiff’s failure to make the required

disclosures. Accordingly, the motion to strike will not be

granted for plaintiff’s failure to comply with the terms of

Rule 26(a)(2)(B).

41b

Appendix B

2. Defendants’ Objection that Nesby Is Not Qualified

as an Expert

Defendants second objection is that Nesby’s declaration

is incompetent and inadmissible pursuant to Federal Rule of

Evidence 702, which provides as follows:

If scientific, technical, or other specialized

knowledge will assist the trier of fact in issue, a

witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify

thereto in the form of an opinion or otherwise, if

(1) the testimony is based upon sufficient facts or

data, (2) the testimony is the product of reliable

principles and methods, and (3) the witness has

applied the principles and methods reliably to the

facts of the case.

ee ae

ee eed aus mi dy

whe ahd ese

Fed. R. Evid. 702. The Court must ensure that the testimony

of the proffered expert testimony is both relevant and reliable.

Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).

Defendants first assert that Captain Nesby is unqualified

to render the opinions included in his Declaration and

attached letter, and that his Declaration should therefore be

stricken. They assert that Captain Nesby did not observe

plaintiff when she trained at NAS Miramar or while she

served in Fighter Squadron 213 aboard the Abraham Lincoln,

and that Captain Nesby has not published anything about

F-14 training, has never testified anywhere, and is not paid.

: Contrary to defendants’ assertions, it is not necessary for

. Nesby to have had any contact with plaintiff; it is quite

ip nnn PERI Cyt LT A wen 5 IS

te tare bic waded alate peal Ved.

42b

Appendix B

ordinary and, in fact, expected for an expert witness of this

type not to have had long-term, prolonged interaction with a

party. Defendants’ assertions that Nesby is not published

(although apparently Nesby is in the process of compiling a

list of publications for the parties), has not testified, and is

not being paid are similarly unconvincing; these are not

prohibitions on Captain Nesby’s status as an expert witness,

particularly in his asserted area of expertise—piloting F-14s

and training F-14 pilots—because it is certain that this area

would require intense practical experience, and F-14 pilots

are probably not frequently called to testify about their

expertise. According to the uncontested statements in his

Declaration, Captain Nesby has had a long history of piloting

the F-14 and of training and evaluating other F14 pilots.

It appears that he is intimately familiar with the method and

practice of evaluating F-14 pilots, and what may be

reasonably expected from an officer who seeks to become

an F-14 pilot. This is an area of fact where technical expertise

dominates and where the Court and jurors would likely be

inexperienced; Captain Nesby would likely be able to

“assist the trier of fact.” Fed. R. Evid. 702.

Defendants next seek to have the Nesby declaration

stricken from the record because they believe that the plaintiff

has submitted the declaration to prove malice, which would

be a required element of liability for Counts I and IV if

plaintiff were to be found a limited-purpose public figure.

Defendants argue that Nesby is not an expert in libel or

slander, and therefore may not render any opinion on actual

malice. Defendants are correct in asserting that courts have

generally disfavored expert testimony in determining actual

malice, which is essentially a determination of defendants’

OE —— ——

43b

Appendix B

subjective state of mind. See Tilton v. Capital Cities/ABC

Inc., 938 F. Supp. 751, 753 (N.D. Okla. 1995); World Boxing

Council v. Cosell, 715 F. Supp. 1259 (S.D.N.Y. 1989). It is

true that there are some statements in Nesby Declaration and

attachments that could be construed to imply malice by

defendants. For example, Nesby asserts that “Donnelly was

careful to protect the identity of her informant, which

persuades me that she knew when she asked the officer to

provide her with copies of the training records that she was

encouraging him to violate federal law.” Pl. Cross-Mot. for

Summary Judgment, Exh. 1 (Nesby Decl.), Att.2 at 2. Further,

Nesby avers that

[t]he selective use of a few records, the

misrepresentations of the meaning of the records

she did use, and the magnitude of the deception

dictates only one conclusion-that Elaine Donnelly

and the people who helped her intended to deceive

the Senate Armed Services Committee,

LT Lohrenz’ superiors in her chain of command,

and, after release of the CMR report, LT Lohrenz’

fellow officers and the general public.

Id., Exh. 1 (Nesby Decl.), Att. 2 at 2. It is clear that the

plaintiff may not establish malice, a subjective state of mind,

solely through expert testimony, and that an expert in piloting

F-14s and training F-14 pilots may not render legal opinions

concerning defendants’ alleged malicious or deceptive

motives. The Court will therefore not consider any statements

made by Captain Nesby to render any expert opinion as to

whether defendants acted maliciously or deceptively; this

limitation on the Court’s construction and interpretation of

44b

Appendix B

Captain Nesby’s Declaration, however, still falls far short of

supporting the notion that Captain Nesby’s Declaration

should be stricken from the record.

Defendants also assert that Captain Nesby’s Declaration

cannot be used to support any possible conclusions about

damages; that is, Captain Nesby asserts that but for

Donnelly’s statements and the CMR Report, plaintiff would

be a pilot in civil commercial aviation or would be “flying

missions over Afghanistan today.” Jd., Exh. 1 (Nesby Decl.),

Att. 2 at 2. Captain Nesby further opines that “the false

allegations concerning the content of Lohrenz’ FRS training

records made and publicized by Elaine Donnelly created

unusually [sic] stresses on LT Lohrenz which ultimately

caused her to lose her career as a combat pilot.” /d., Exh. 1

(Nesby Decl.), Att. 2 at 13. According to the qualifications

listed in his Declaration, Nesby is not qualified to render

opinions about the standards of piloting in civil commercial

aviation, nor does he have a true basis upon which to draw a

connection between the stress plaintiff felt as a result of the

CMR report and her ultimate termination. Again, though the

Court does not consider Nesby an expert in civil commercial

aviation or in psychology and will not construe any statements

in his Declaration which might support any possible

calculation about damages, defendants do not contest his

expertise in piloting F-14s and training F-14 pilots, and his

Declaration therefore shall not be stricken from the record.

Defendants’ last assertion with respect to Nesby’s

qualification as an expert and his ability to render opinions

is that Nesby relies on hearsay and other forms of

inadmissible evidence. Experts are entitled to rely on

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tect

Crd Dp CS ata oe a ae ANS Nb Rae kre oR ET BOARS

La Nai ga: Sgr Ca a APE RIO Ones h BE .

SUNS Git set nek ARTES EE IE SEs eee ATES

45b

Appendix B

inadmissible forms of evidence, as long as the evidence is

“of a type reasonably relied upon by experts in the particular

field in forming opinions or inferences upon the subject.”

Fed. R. Evid. 703. Therefore, Nesby is entitled to rely on

hearsay and other forms of inadmissible evidence, if those

inadmissible forms of evidence would normally be relied

upon by others with expertise in the area of flying F-14s and

training F-14 pilots.

3. Defendants’ Objection that Nesby’s Declaration and

Opinions Contained Therein Are Contradicted by

Other Evidence

Defendants assert that Capt. Nesby gave contradictory

testimony before the Navy Inspector General, see Defs. Reply

in Support of Mot. for Summary Judgment, Exh. 5 to

Donnelly Suppl. Aff., and that his Declaration in this case is

contradicted by the FNAEB Report, see Defs. Mot. for

Summary Judgment, Exh. 9 to Donnelly Aff., and by the Navy

Inspector General Report, i¢., Exh. 10 to Donnelly Aff. Mere

inconsistency and contradiction is insufficient to support a

motion to strike a document from the record, particularly

where, as here, the document that defendants seek to strike

is a sworn Declaration signed under penalty of perjury.

In sum, the Court finds that defendants have failed to

proffer sufficient reasons that the Declaration of Captain

Nesby should be stricken from the record of this case, and

the Court therefore DENIES the motion to strike.

a ee

46b

Appendix B

B. Plaintiff’s Motion to Strike the Field Naval Aviators

Evaluation Board (FNAEB) Report

In her opposition to the defendants’ Motion for Summary

Judgment, plaintiff moves to strike the FNAEB Report which

was proffered by defendants as exhibit 5 to the Affidavit of

Lt. Burns and as exhibit 9 to the Affidavit of Elaine Donnelly.

See Pl. Opp. to Defs. Mot. for Summary Judgment at 60-61.

Plaintiff asserts that the FNAEB Report was unreliable

hearsay, the product of “unlawful command influence,” and

was subsequently invalidated by the Department of the Navy.

Plaintiff asserts that the FNAEB Record is not an admissible

business record because there has been no witness or affidavit

to aver that the FNAEB Record meets the requirements of

that exception to the hearsay rule. Defendant counters that

the FNAEB Report is admissible under Federal Rule of

Evidence 803(8) as a public record.

It is clear that the FNAEB Record would normally be

considered admissible pursuant to Rule 803(8) because

records of government agencies are normally found

admissible under that provision. See, e.g., Beech Aircraft

Corp. v. Rainey, 488 U.S. 153 (1988); Distaff, Inc. y.

Springfield Contracting Corp., 984 F.2d 108 (4th Cir. 1993).

The Record may, however, be inadmissible if the plaintiff

can show that it is not trustworthy. Factors that may be used

to determine the trustworthiness of the report are: “(1) the

timeliness of the investigation; (2) the special skill or

experience of the official; and (3) possible motivational

problems.” Ellis v. Int’l Playtex, Inc., 745 F.2d 292, 300-01

(4th Cir. 1984). “Other factors may indicate a lack of

trustworthiness: unreliability, inadequate investigation,

ihe Vai a OO seek

pe oA Ro

See SAL tee tra

47b

Appendix B

inadequate foundation for conclusions, invasion of the jury’s

province.” Distaff, Inc., 984 F.2d at 111. If a record is found

to be admissible under Rule 803(8), no foundational

testimony is required. See United States v. Doyle, 130 F.3d

523, 546 (2d Cir. 1997).

The first relevant factor in this instance is timeliness.

The investigation was timely; it was submitted on May 30,

1995, which is exactly during the time period when the

primary events leading to this lawsuit transpired. The second

relevant factor is the special skill or experience of the

officials. The officials who completed the FNAEB Report

were Lt. Cmdr. Warren S. Ryder, Lt. Cmdr. John Fristachi,

Lt. Robert Roberts, Lt. Brenda Scheufele, and Lt. Sharon

Miller; neither party contests the skills or experience of the

officials.’

The third relevant factor is “possible motivational

problems.” Plaintiff has more fertile ground to plough here;

the FNAEB Report and recommendations were criticized by

a subsequent report by the Navy Inspector General, see Defs.

Mot. for Summary Judgment, Exh. 6 of Burns Dep. (Inspector

Gen. Rept.) 9 415-44. The Navy Inspector General

concluded that an allegation that the FNA&B Report was

tainted by “inconsistencies, inaccuracies and emotionalism”

was “substantiated.” See id., Exh. 6 of Burns Dep. (Inspector

Gen. Rept.) 9§ 415-44. Further, plaintiff proffers the

statement of Cmdr. F.J. Kilian, the commanding officer who

3. Plaintiff Lohrenz specifically stated at the time that the

FNAEB was convened that she did not object to the membership of

the Board. See Defs. Mot. for Summary Judgment, Exh. 5 of Burns

Dep. at 5.

48b

Appendix B

convened the FNAEB and ultimately approved its findings

and recommendations. Kilian asserts that he did not properly

review the plaintiff’s training records, that had he reviewed

the training records he would not have agreed with the

conclusions of the FNAEB, that he was influenced by his

authorities to approve the report, and that he now wishes to

repudiate his approval of the FNAEB Report.‘ See P1. Cross-

Mot. for Summary Judgment, Exh. 2 (Kilian Decl.). Although

the Court certainly notes that both the Navy Inspector General

and the officer who approved the FNAEB have both criticized

the FNAEB Report, these concerns appear to ultimately drive

more at the weight the FNAEB Report should be accorded,

not its admissibility. The fact that the parties so hotly dispute

the credibility of their various sources, and are adept at

pointing out the inconsistencies between various reports and

witnesses, further inclines the Court to admit the FNAEB

Report and the Nesby Declaration. Accordingly, plaintiff’s

motion to strike the FNAEB Report is DENIED.

C. Defendants’ Motion to Strike the Declaration of

Frederick J. Kilian

Defendants move to strike the Declaration of Frederick

J. Kilian, proffered as exhibit 2 to plaintiff’s Opposition to

defendants’ Motion for Summary Judgment and discussed

briefly supra § II.B, asserting that the declaration is “rife”

with inadmissible hearsay and is contradicted by other

documents and evidence, including his own prior sworn

4. Defendants have moved to strike the Kilian Declataion,

asserting that it is actually untrustworthy, perjurious, and includes

facts and conclusions that are blatantly impossible; defendants’

motion to strike the Kilian Declaration is discussed infra § II.C.

49b

Appendix B

statement. Defendants point to one statement which they

allege is inadmissible hearsay; Kilian avers that his

commanding officer “made it clear” to him that Kilian should

give plaintiff the opportunity to discontinue her aviation

career. Although the Court recognizes that there may be

hearsay contained within a single paragraph in a seven-page

Declaration, this is insufficient for the Court to find that the

declaration should be entirely stricken from the record.

Cf. Quality Inns Int'l, Inc. v. Tampa Motel Assoc., Ltd., 154

ERD. 283, 288 (M.D. Fla. 1994) (“Motions to strike are

generally viewed with disfavor and are infrequently

granted.”).

Defendant further asserts that the Kilian Declaration

should be stricken because it contradicts testimony that he

gave to the Navy Inspector General, see Defs. Mot for

Summary Judgment, Exh. 12 to Donnelly Aff., and

contradicts other Navy documents and records. Mere

inconsistency and contradiction is insufficient to support a

motion to strike a document from the record, particularly

where, as here, the document that defendants seek to strike

is a sworn Declaration signed under penalty of perjury.

Accordingly, defendants’ Motion to Strike the Declaration

of Frederick J. Kilian is DENIED.

Ill. Defendants’ Motion for Summary Judgment and

Plaintiff’s Cross-Motion for Summary Judgment

Defendants Donnelly and CMR have moved for summary

judgment on Count I, libel and slander, and Count IV,

invasion of privacy. Plaintiff has filed a cross-motion for

partial summary judgment for (1) an order finding that

50b

Appendix B

plaintiff was a private individual and not a public figure; or,

alternatively (2) an order finding that defendants did act with

‘actual malice” when they published the allegedly defamatory

statements about plaintiff Lohrenz.

Plaintiff’s Count I for libel and slander includes two

distinct but related torts; both fall under the umbrella category

of “defamation.” In order to prevail on a claim of libel in the

District of Columbia, a plaintiff must show: (1) that the

defendant made a false and defamatory statement concerning

the plaintiff; (2) that the defendant published the statement

without privilege to a third party; (3) that the defendant’s

fault in publishing the statement amounted to at least

negligence; and (4) either that the statement was actionable

as a matter of law irrespective of special harm or that its

publication caused the plaintiff special harm. Klayman v.

Segal, 783 A.2d 607 (D.C. 2001). In order to prevail on a

claim of slander in the District of Columbia, a plaintiff must

show that the defendant made an oral statement that was false

and defamatory which tends to injure the plaintiff in his trade,

profession, or community standing, or lower him in the

estimation of the community. Smith v. District of Columbia,

399 A.2d 213 (D.C. 1979).

Both parties now seek summary judgment on the standard

of fault to which defendants may be held in actions for libel

and slander. Defendants assert that plaintiff is a limited-

purpose public figure, and the standard of fault is therefore

governed by New York Times v. Sullivan, 376 U.S. 254 (1964),

which requires plaintiff show that defendants acted with

“actual malice” in publishing the allegedly defamatory

statements. Plaintiff has made a cross-motion for summary

51b

Appendix B

judgment for an order finding that plaintiff was a private

individual, and that the standard of fault that plaintiff must

prove is merely negligence. Because the factual and legal

issues at the heart of these motions for summary judgment

on the issue of whether plaintiff was a “private individual”

or a “public figure” are closely intertwined, the Court will

address the motions together.

If the Court does find that plaintiff was a public figure,

defendants assert that plaintiff will be unable to show “actual

malice,” and that defendants are therefore entitled to

summary judgment on Counts I and IV. Plaintiff moves for

an Order finding that defendants did, in fact, act with “actual

malice.”

In the alternative, defendants have asserted two

additional defenses: (1) that the statements alleged to be

“false and defamatory” were actually “substantially true,”

and defendant may therefore not be held liable for the

statements; or, alternatively (2) that defendants’ statements

were protected by the “Fair Reporting” doctrine that is

recognized in the District of Columbia. These arguments will

be discussed infra section III.B.4.

Defendants’ motion for summary judgment on Count IV,

invasion of privacy, is governed by a distinct but related body

of law. Although there are significant differences between

an action for defamation, which compensates the plaintiff

for damage to reputation, and invasion of privacy, which

compensates the plaintiff for the mental distress associated

with exposing private matters to public view, the heart of

both torts is the harm that a plaintiff suffers from others being

52b

Appendix B

informed of a fact which was actually false and defamatory.

In order to prevail on a claim of invasion of privacy for false

light, a plaintiff must show: (1) publicity (2) about a false

statement, representation or imputation (3) understood to be

of and concerning the plaintiff, and (4) which places the

plaintiff in a false light that would be highly offensive to a

reasonable person. Kitt v. Capital Concerts, Inc., 742 A.2d

856, 859 (D.C. 1999). Because the Supreme Court has held

that New York Times v. Sullivan, 376 U.S. 254 (1964), does

apply to actions for invasion of privacy, Time Inc. v. Hill,

385 U.S. 374 (1967); Cantrell v. Forest City Publishing Co.,

419 U.S. 245 (1974), if defendant is a media defendant (as

is conceded by both parties here) and plaintiff is a public

figure (discussed infra § iII.A), then plaintiff must show that

the defendant committed the tort of invasion of privacy with

“actual malice.” The determination of whether plaintiff is a

public figure is, therefore, highly relevant to both Counts I

and IV.

Summary judgment is appropriate in those cases where

there is no genuine dispute as to any material fact, and where

the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c). In deciding a motion for summary

judgment, the Court must view all evidence in the light

most favorable to the non-moving party, but the non-moving

party must proffer proper evidence to support any material

factual assertions. See Bennett v. Spear, 520 U.S. 154, 168

(1997) (“[A] plaintiff must set forth by affidavit or other

evidence specific facts to survive a motion for summary

judgment ...”).

53b

Appendix B

A. Limited-Purpose Public Figure Doctrine

Both parties agree that plaintiff Lohrenz was neither an

“all purpose” public figure nor a public official. Defe

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