von Kahl v. Bureau of National Affairs, No. 16-7033, 7034 (D.C. Cir.) May 9, 2017

von Kahl, an opponent of government and taxation, is spending his life in prison following conviction in 1983 of murdering two United States Marshals in a shootout.  The Bureau of National Affairs (BNA),  in its Criminal Law Reporter, reported that von Kahl’s mandamus petition submitted to the United States Supreme Court included a statement, attributed to von Kahl’s sentencing judge, that von Kahl lacked contrition and believed that he was justified, on philosophical and religious grounds, in killing the marshals.

It was not the sentencing judge, but the prosecutor, who made the comments.  von Kahl complained without offering the source of the commentary.  BNA clarified its comment but, following a second complaint from von Kahl, declined retraction.

The case was before the Court of Appeals for the District of Columbia on certification for interlocutory review following denial of summary judgment.  The Court of Appeals for the District of Columbia Circuit approached von Kahl’s defamation complaint by asking first whether von Kahl is a limited public figure for purposes of applying the heightened “actual malice” standard of New York Times v. Sullivan, 376 U.S. 254 (1964) and its progeny, and second, whether von Kahl had adduced sufficient evidence of “actual malice” to avoid summary judgment.

von Kahl’s 1983 shoot out with federal marshals generated public controversy.  In addition, von Kahl spoke publicly about his views.   The sentencing statements were connected to von Kahl’s conduct and public speech, sufficient to make him a limited public figure.

BNA published statements derived from a transcript attached to a Supreme Court submission, which a reasonable reader would think were made by a sentencing judge. Honest misinterpretation, even if negligent, is not sufficient to establish actual malice. The same principle applies to publication of a clarification in the absence of specificity in von Kahl’s complaint to BNA, which derived from his own source document submitted to the Supreme Court.  Failure to publish a retraction where no retraction was required would likewise not establish actual malice because the critical issue is the publisher’s state of mind at the time of publication.


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