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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 22-CV-0262 & 22-CV-0300
CAPITOL INTELLIGENCE GROUP, INC., et al., APPELLANTS/CROSS-APPELLEES,
V.
GERALD WALDMAN, APPELLEE/CROSS-APPELLANT.
Appeal from the Superior Court of the District of Columbia (2018-CA-005052-B)
(Hon. Fern Flanagan Saddler, Motions Judge)
(Argued January 16, 2025 Decided March 12, 2026)
Mark I. Bailen, with whom Ariana Woodson was on the briefs, for appellants/cross-appellees.
Brandon R. Nagy, with whom Michael E. Tucci was on the briefs, for appellee/cross-appellant.
Before BECKWITH and DEAHL, Associate Judges, and LONG, Senior Judge, Superior Court of the District of Columbia. ∗
DEAHL, Associate Judge: Gerald Waldman is a developer who purchased
property in the Brookland neighborhood that is home to a historic mural and an
∗ Sitting by designation under D.C. Code § 11-707(a). 2
adjoining parking lot that provided clear sightlines to the mural. Peter Semler
wanted to purchase the same land, ostensibly to help preserve the mural and its
sightlines. He had a contract with the property owner to buy it, but that contract
ultimately fell through, and Waldman quickly swept in and bought it at a foreclosure
sale that he initiated as a creditor. Semler blames Waldman for cheating him out of
the property and for new construction on the land that substantially obstructs
sightlines to the mural. As a result, Semler referred Waldman to federal authorities
for prosecution for fraud and had some unkind things to say about Waldman—he
publicly accused Waldman of “corruption,” “having problems with the DOJ,” and
taking the land “by theft and fraud.” Semler also published similar statements on
his Capitol Intelligence Group website, a media outlet and co-appellant here.
Waldman sued Semler for defamation. Semler moved to dismiss the claims
against him under the District’s Anti-SLAPP Act—a statute designed to protect
individuals against strategic lawsuits targeting free speech—which is “essentially an
expedited summary judgment motion.” Am. Studies Ass’n v. Bronner, 259 A.3d 728,
740 (D.C. 2021); D.C. Code § 16-5502. The trial court largely denied that motion,
dismissing only one of Waldman’s claims targeting comments outside the applicable
statute of limitations period. Semler now appeals. 3
We agree with Semler that Waldman did not adduce sufficient evidence to
survive the Anti-SLAPP motion to dismiss on any of his claims. As to most of the
statements that Waldman complains about, no reasonable jury could conclude on
this record that they are in fact false. For the remaining statements that are perhaps
false, the worst that can be said of Semler is that he unreasonably accused Waldman
of a fraud that he did not in fact engage in. But mere negligence is not enough to
sustain a defamation claim against a limited-purpose public figure like Waldman.
Waldman must instead prove, by clear and convincing evidence, that Semler acted
with actual malice when he published his statements. The record, including Semler’s
contemporaneous actions that indicate he sincerely believed that Waldman cheated
him out of the land and had some bases for those beliefs (even flimsy ones), cannot
reasonably support that conclusion by clear and convincing evidence.
We therefore reverse the partial denial of Semler’s Anti-SLAPP motion to
dismiss and remand the case for further proceedings.
I. Background
This dispute between Peter Semler and Gerald Waldman centers on a piece of
property in the Brookland neighborhood that features a historic mural, A Survivor’s
Journey by Joel Bergner. The mural was painted on the southern side of the
Brookland Inn & Café, a building on the property’s northern lot. An undeveloped 4
parking lot abutted the southern side of the Inn, thus providing clear sightlines to the
mural. Gerald Waldman held a promissory note on the property that encompassed
both the Brookland Inn and its adjoining parking lot, and his note was secured by a
first deed of trust. When the Inn’s owner fell behind on his debt to Waldman,
Waldman sought to foreclose on the property. Peter Semler, in turn, sought to
purchase the property in a self-professed effort to preserve the mural. That is when
the ensuing yearslong dispute between Waldman and Semler kicked off.
Foreclosure and contract dispute
Shortly after Waldman initiated foreclosure proceedings on the property in
2014, Rabindranauth Ramson, the owner of the Brookland Inn, filed for bankruptcy
on the Inn’s behalf and thereby triggered an automatic stay of any foreclosure sale.
While the bankruptcy proceedings were pending, Ramson entered into a contract to
sell the property to Semler for $1.6 million—an anticipated voluntary sale that would
have staved off Waldman’s foreclosure sale. That agreement eventually fell through
after Semler accused Ramson of (1) adding an amendment under which Ramson
would retain ownership of the vacant lot and be permitted to build a three-story
condo complex, and (2) forging Semler’s signature on that unapproved modified
contract and submitting it to the bankruptcy court. Semler’s attorney copied 5
Waldman’s attorney on emails as the dispute between Semler and Ramson unfolded,
and Waldman was aware of Semler’s allegations about Ramson’s forgery at the time.
In the meantime, Waldman successfully moved in the bankruptcy proceedings
to lift the automatic stay so that the foreclosure sale could go forward. A few weeks
after that, as Semler and Ramson’s agreement unraveled, Semler reached out to
Waldman in search of a “side deal,” cutting Ramson out of the equation. Semler
sought to purchase the property directly from Waldman and to possibly have
Waldman partially fund that purchase as an investor. At Semler’s behest, he and
Waldman then met at the Army and Navy Club of Washington to discuss his interest
in buying the property from Waldman instead of Ramson. Semler claims that during
that meeting, the two “formulated a plan of action” whereby Waldman would buy
the property at the foreclosure sale and then sell it to Semler. Waldman does not
dispute that the two men discussed something along those lines, though he contends
that Semler’s pitch was unreasonable and that the two men never reached any sort
of deal.
After the meeting, Semler emailed Waldman a “draft deal proposal.”
Waldman expressed some confusion about what exactly Semler was proposing, and
inquired whether the proposal was for Semler to purchase the property at foreclosure
and then have Waldman and another investor buy back a 50% interest in it. Semler 6
responded that he would sit out the foreclosure sale, and that the proposal was for
Waldman to purchase the property and “clear Ramson out,” then sell the property to
Semler. Semler further opined that “for all our sakes we need to have an agreement
before the foreclosure auction.” There were no further email communications
suggesting that Waldman actually agreed to Semler’s proposal, and Waldman
contends that he “did not accept” any deal with Semler.
The foreclosure sale was held the following week, and Waldman purchased
the property for $1.67 million, slightly more than the $1.6 million that Semler had
previously agreed to pay Ramson. Semler emailed Waldman with his
congratulations, noting “[a]ll we need to [do] now is chase out Ramson and reach a
fair and equitable deal.” Waldman did not respond, but Semler’s attorney followed
up with Waldman’s attorney the next day recommending that the auctioneer include
“assignment” language in the auction paperwork to avoid any double tax payment
“on the assumption that [Waldman] plans to sell the property to [Semler].”
Waldman’s attorney responded that they “already included” the proposed language
and added that “[g]reat minds think alike” but did not otherwise comment on the
prospect of any sale to Semler.
About two weeks later, Semler emailed Waldman with another proposed
outline of a deal, reiterating that he “remain[ed] very interested in buying the 7
Brookland property.” Waldman responded that he was “interested in some
arrangement as suggested by you,” but Waldman insisted on “maintain[ing]
ownership of the adjoining vacant portion of the property,” and advised Semler that
“if you care to do anything you need to move quickly.” Their talks again appeared
to hit a standstill from there.
Semler’s attorney, Benny Kass, sent a letter to an attorney in the U.S.
Trustee’s Office (USTO) about a month later. Kass asked the USTO to investigate
the apparent forgery that scuttled Semler’s contract to buy the property from
Ramson. That letter outlined Semler’s allegations that he had a contract to purchase
the property from Ramson and that Ramson later doctored and submitted to the
bankruptcy court a “substitution of contract” that Semler never agreed to, describing
that as “at best an irregularity or at worst a forgery.” The letter noted Semler “was
unable to go to closing and the property was sold at a foreclosure sale” to Waldman
due to Ramson’s machinations. The letter also asserted that Waldman “was aware
of the [contract] problem . . . prior to the foreclosure sale.” Semler forwarded the
letter to Waldman, claiming it would help get Ramson—who apparently had not yet
vacated the Inn—“out of the picture.” He further made a new purchase offer for just
the northern lot of the property, with Waldman holding onto the southern parking lot
as he had previously insisted. Waldman did not respond, and that was the end of 8
any discussion between the men about Waldman selling Semler any portion of the
lot.
A year later, Semler began personally contacting the USTO. Semler called
and emailed Bradley Jones, the USTO attorney Kass had previously reached out to,
and offered “to file criminal charges or supply . . . a signed affidavit” about the
“fraud” related to the property’s sale. Semler was now claiming that Waldman must
have been in on the fraud with Ramson, and he alleged that Waldman “reneged on
his promise to resell the property” to him, knew about Ramson’s forgery, and told
Semler that “Ramson did it and has done it before.” Semler also revealed his
attorney initially refused to report the “irregularities” to the bankruptcy court and
sent the earlier letter to USTO only at Semler’s urging. A different USTO attorney,
Joseph Guzinski, responded. Guzinski emailed Kass about Semler’s email and
asked to meet about the “alleg[ed] criminal acts in connection with” Semler’s efforts
to purchase the property. Guzinski indicated that he wanted “to arrange a conference
call with [Kass] and [Semler] to discuss the matter.” But Kass, who unbeknownst
to Guzinski no longer represented Semler, never responded.
Later that year, Semler emailed Jones and Guzinski, claiming that “a person
close to . . . Ramson[] indicated that Mr. Ramson is willing to testify against 9
Mr. Waldman.” Semler again offered his availability if the office decided to “pursue
further investigation or criminal charges in the matter,” but received no response.
The 2017 Askale Café confrontation
Several weeks after Semler’s more recent outreach to the USTO—and now
two years after the foreclosure sale—Semler confronted Waldman at Brookland’s
Askale Café. Semler filmed the encounter, which lasted about a minute. Semler
approached Waldman, asking “you know that whole issue with Brookland Inn is still
in U.S. Trustees?” Semler told Waldman that “the neighborhood doesn’t want you
to bring down the mural,” while an apparently exhausted Waldman first asked
Semler to “please leave me alone,” and then told him to “get away from me,” adding
“there’s something wrong with you” and “you’re a sick person.” Semler went on to
accuse Waldman of “mortgage fraud,” and Waldman responded that if Semler was
going to make those allegations “public” he would “end up in court.” Semler said
he “would love to” end up in court, adding that he had already “brought it to Justice,
to its trustee,” an apparent reference to his outreach to USTO.
A few months later Semler went to the USTO’s office to try to meet with
Guzinski in person, but he was told they could not formally discuss the matter.
Semler sent a follow-up email to Guzinski later that day indicating that Kass no 10
longer represented him and again offered to meet “to discuss the fraud issues.”
Neither Guzinski nor anybody else from USTO ever followed up with Semler.
The 2018 BNCA meeting and Capitol Intelligence Group article
Meanwhile, Waldman sold the vacant parking lot to a different developer,
District Quarters. At a Brookland Neighborhood Civic Association (BNCA)
meeting in 2018, a District Quarters representative presented a proposal for
developing the vacant lot into a nine-unit condominium building. The proposed
building would have left the mural untouched, but it would have largely blocked the
sightlines to it. Waldman attended that BNCA meeting and promoted the
development plans while often assisting the presenter in explaining its contours.
Semler also attended the meeting to oppose the plans and, once again, filmed the
interaction.
Semler and Waldman first mixed it up after one of the meeting’s attendees
asked if the proposed development was on the lot “with the mural?” When Waldman
explained that it was the lot next to the mural, the attendee asked “how are you
building nine units in that parking lot?” Semler interjected that “it’s a landmark of
our neighborhood they’re gonna build up” and stated, “Mr. Waldman has always
planned that . . . and you’re also having problems with the DOJ.” Waldman
responded that he had not always planned to build up on the lot, but that District 11
Quarters “proposed a really nice building” with a “beautiful plan for the property”
and so he sold them the lot. Semler chimed in again about a minute later to say
“nobody here knows . . . Mr. Waldman is blocking a construction hotel at his West
Palm Beach thing,” an apparent reference to an unrelated dispute that saw
Waldman—a West Palm Beach resident—locked in litigation with some of his
neighbors in Florida. Waldman replied “please stop attacking me . . . what’s wrong
with you?” Semler responded “I’m not attacking you, it’s just truth . . . because you
took this by theft and fraud . . . everybody else should know.”
After a ten-minute break in hostilities, Semler jumped in again to say, “this
building will block one of the most iconic” landmarks in Brookland, that “Mr.
Waldman has always been wanting to pop up,” and suggesting that he would “take
it to federal court.” As the discussions continued, another attendee expressed
frustration with District Quarters’ representative, explaining that “we don’t feel like
he’s working with us at all. We feel like he’s telling us what he’s doing . . . instead
of D.C. being run by D.C.” residents. Semler took that as an opening to add, “that’s
why they have to do everything under the table—bribery, corruption—to get this
far.” One of the organizers later told Semler that he was “interrupting the meeting”
and told him to “calm down.” That amped up Semler to add that this was “pure
corruption Brookland style,” and Semler then made his way for the exit. When
Waldman facetiously asked “who was in charge of [the] corruption,” Semler 12
responded on his way out the door, “You are. You are already in the Trustees of the
U.S. Justice Department sir.”
Semler later published both the Askale Café and the BNCA videos to
YouTube. He then embedded both videos in an article on his Capitol Intelligence
Group website, which he bills as a news service, that called Waldman a “vandal”
who wanted to “obliterate” the mural. The YouTube video descriptions and the
article—both authored by Semler—claimed that Waldman “has been cited for real
estate fraud to the US Trustee” and that he “is subject to a criminal bankruptcy fraud
complaint with US Trustee of the Department of Justice” in relation to the property.
Waldman’s suit and the Anti-SLAPP Act motion to dismiss
Waldman sued Semler and Capitol Intelligence Group for defamation and
false light, alleging Semler’s “accusations falsely impute criminal activity and
corruption in the development process” and were “injurious to . . . Waldman
professionally as a developer and personally as a long-time stakeholder and member
of the Brookland community.” Semler filed a special motion to dismiss under the
District’s Anti-SLAPP Act, arguing his speech was protected because it related to
the public’s interest in the mural and development, and that Waldman was a limited-
purpose public figure as to those topics. Semler principally contended that Waldman
could not substantiate his claims that Semler’s statements were false or made with 13
actual malice. Semler also argued that Waldman’s suit was untimely as to the 2017
Askale Café encounter, as the statute of limitations for any claim related to that
confrontation had expired.
As contemplated by the Anti-SLAPP Act, the trial court permitted targeted
discovery on two issues, see D.C. Code § 16-5502(c): (1) whether Waldman was a
limited-purpose public figure, and (2) whether Waldman was under investigation by
the USTO at the time of Semler’s statements, and Semler’s actual knowledge about
any investigation or lack thereof.
Through discovery, Waldman obtained declarations from USTO attorneys
Jones and Guzinski, and neither of them would confirm or deny the existence of any
past or present investigation into Waldman. Jones said that the USTO’s policy was
not to “comment on any ongoing investigations or criminal referrals” and that he did
not know if any criminal referral was made in Waldman’s case. Consistent with that
policy, Jones indicated that he “would not have stated” to Semler or anybody else
whether Waldman was under investigation “for bankruptcy fraud or any criminal
matter” but would have “stated only that [USTO was] reviewing the documents” that
Semler had sent them. Guzinski likewise indicated that he “strictly adhered” to the
same policy and would not have “stated or implied to Mr. Semler that Mr. Waldman
was under any type of civil or criminal investigation.” Guzinski acknowledged that 14
he spoke with Semler about his allegations on two occasions: once when Semler
called Guzinski and another “brief unscheduled meeting at my office”—an apparent
reference to Semler’s drop-in visit to USTO in 2017.
The trial court largely denied Semler’s motion to dismiss. It concluded
(1) that Waldman was a limited-purpose public figure on the topics that Semler
spoke about, given the Brookland community’s interest in new developments and its
narrower interest in the mural, meaning that Waldman would be required to prove
that Semler acted with “actual malice,” but (2) that a properly instructed jury could
nonetheless conclude from the evidence that Semler “made false defamatory
statements concerning” Waldman with actual malice. The court focused on Semler’s
statements suggesting that Waldman was under some investigation and had been
“cited by” the USTO—an apparent reference to Semler’s assertion that Waldman
had been “cited . . . to” the USTO. The court reasoned that a reasonable jury could
conclude by clear and convincing evidence that Semler knew those statements were
false because it was “unlikely” that “Semler would repeatedly attempt to initiate a
criminal investigation against” Waldman by persistently reaching out to USTO
attorneys “if he actually believed that [Waldman] was already being investigated.”
The trial court did, however, partially grant Semler’s motion to dismiss on
statute of limitations grounds as it related to the 2017 Askale Café confrontation, 15
though it originally did so under Super. Ct. Civ. R. 12(b)(6). Then in a subsequent
order partially granting Semler’s motion to reconsider, it dismissed Waldman’s 2017
Askale Café claim under the Anti-SLAPP Act instead, thereby making it easier for
Semler to recoup his attorney’s fees for his partially successful motion.
II. Analysis
Semler now appeals the partial denial of his motion to dismiss. We have
jurisdiction to review that challenge. See Competitive Enter. Inst. v. Mann, 150 A.3d
1213, 1232 (D.C. 2016).
The District’s Anti-SLAPP Act provides defendants with a special motion to
dismiss mechanism to quickly defeat suits “aimed to punish or prevent opposing
points of view.” Fells v. Serv. Emps. Int’l Union, 281 A.3d 572, 579 (D.C. 2022)
(quoting Am. Stud. Ass’n v. Bronner, 259 A.3d 728, 733 (D.C. 2021)). When a
defendant makes a prima facie showing that their speech is protected by the Act, the
plaintiff must show his claims are “likely to succeed on the merits” to survive a
special motion to dismiss. D.C. Code § 16-5502(b). “This standard is akin to the
summary judgment standard . . . except that the non-moving party bears the burden
under the Anti-SLAPP Act.” Fells, 281 A.3d at 580 (citing Mann, 150 A.3d at
1237). That is, we ask “whether a jury properly instructed on the law, including any
applicable heightened fault and proof requirements, could reasonably find for the 16
claimant on the evidence presented.” Mann, 150 A.3d at 1236. And as with appeals
from summary judgment rulings, we conduct a de novo review of the trial court’s
Anti-SLAPP dismissal rulings. Id. at 1240.
We first consider whether Semler made a prima facie showing that the Anti-
SLAPP Act applies. Concluding that he did, we next evaluate whether Waldman
was likely to succeed on the merits. That requires us to first address whether
Waldman is a limited-purpose public figure, and because we conclude that he is,
Waldman’s suit can survive the motion to dismiss only if he proves by clear and
convincing evidence that Semler published his allegedly defamatory statements with
malice. With that standard in mind, we finally assess the alleged defamatory
statements and conclude that Waldman failed to show that he was likely to succeed
on the merits of his claims so that his suit should have been dismissed.
A. Semler made a prima facie showing that the Anti-SLAPP Act applies
Waldman first argues that the Anti-SLAPP Act is not even applicable here
because Semler did not make the required “prima facie showing” that Waldman’s
claims arose “from an act in furtherance of the right of advocacy on issues of public
interest.” D.C. Code § 16-5502(b). In Waldman’s telling, Semler’s statements did
not relate to a topic of “public interest,” but instead concerned only his private
economic interests in personally buying the property. We disagree. 17
What qualifies as an issue of public interest “should be liberally interpreted.”
Saudi Am. Pub. Rels. Affs. Comm. v. Inst. for Gulf Affs., 242 A.3d 602, 611 (D.C.
2020). It includes, among other things, issues “related to . . . economic, or
community well-being.” D.C. Code § 16-5501(3). And activity need not be
exclusively related to issues of public interest to be covered by the Anti-SLAPP
Act—the Act covers statements that “intermix[] public and private interests.” Saudi
Am., 242 A.3d at 611.
Semler’s statements clearly related to a topic of public interest, to wit, the
preservation of a historic mural, urban development, and the potential malfeasance
of a particular developer. Waldman counters that Semler’s statements were
motivated by his own private economic interests, instead of by any public
betterment, but that is beside the point. “A speaker’s self-interested motivations say
little about whether the content of their speech is related to issues of public interest.”
Fells, 281 A.3d at 583. Semler does not need to “disprove any private motivation
here,” id.; he needs only to show that his statements relate to issues of public
concern. He’s done that. His statements dovetail with economic and community
wellbeing broadly and with the mural and condo development more narrowly.
Whatever his motivations were, those statements fall in the heartland of what the
Anti-SLAPP Act covers. 18
B. Waldman is not likely to succeed on his defamation claims
Because the Anti-SLAPP Act applies, Waldman must demonstrate his claims
are “likely to succeed on the merits” to avoid dismissal. D.C. Code § 16-5502(b).
Waldman targets two different threads of statements that Semler made at the 2018
BNCA meeting and in the article where he embedded the video of that meeting. First
are the “government investigation statements” that the trial court focused on, where
Semler suggested that Waldman was embroiled in some non-descript investigation.
Second are what we will call the “fraud and corruption allegations,” where Semler
attributed general malfeasance to Waldman in how he procured and developed the
property at the center of this dispute.
To succeed on his defamation claims, Waldman must prove (1) that at least
one of those statements was false and defamatory; (2) that Semler published the
statement without privilege; (3) that Semler had the requisite culpable mindset when
publishing the statement; and (4) either that the statement was actionable as a matter
of law or that its publication caused Waldman special harm. See Mann, 150 A.3d at
1240. The parties tangle over the first and third elements above, that is, the extent
to which the evidence could prove that Semler’s statements were false and
defamatory and made with the requisite culpable mindset. 19
Before diving into those two central disputes, we first resolve a threshold
debate among the parties about whether Waldman is a private or a public figure in
relation to the topics that Semler was speaking about, as that affects the degree of
culpability that Waldman must prove to sustain his defamation claims. If Waldman
is a purely private figure, he could succeed on a defamation claim if he could prove
by a preponderance of the evidence that Semler, through his media outlet Capitol
Intelligence Group, published false and defamatory statements about Waldman with
mere negligence. See Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 80
(D.C. 1980); Mann, 150 A.3d at 1251-52.
But if Waldman is instead a public figure, he “faces a ‘daunting’ summary
judgment standard” that is “significantly more onerous than the usual preponderance
of the evidence standard” applicable if he were a private figure. Kahl v. Bureau of
Nat’l Affs, Inc., 856 F.3d 106, 116 (D.C. Cir. 2017) (Kavanaugh, J.) (first quoting
Jankovic v. Int’l Crisis Grp., 822 F.3d 576, 590 (D.C. Cir. 2016), then quoting
Tavoulareas v. Piro, 817 F.2d 762, 776 (D.C. Cir. 1987)). When it comes to public
figures and “limited” public figures whose prominence is confined to a narrower
sphere, we jealously guard additional “‘breathing space’ for uninhibited expression,”
even when the speech would otherwise be actionable if aimed at a private individual.
Mann, 150 A.3d at 1251 (quoting NAACP v. Button, 371 U.S. 415, 433 (1963)). We
provide that additional breathing space in two ways where the plaintiff is a public 20
figure: (1) the plaintiff must make a “heightened showing of fault—actual malice,”
id. (citing N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)), which means
they must show the speaker knew that their statements were false or that they in fact
entertained serious doubts about their veracity; and (2) the plaintiff must
demonstrate that actual malice by “clear and convincing evidence,” id. at 1252
(citing N.Y. Times Co., 376 U.S. at 285-86)—a mere preponderance will not suffice.
1. Waldman is a limited-purpose public figure
Our precedents recognize two different types of public figures: There are
“general public figures” who have reached “such pervasive fame or notoriety that”
they are public figures “for all purposes and in all contexts.” Gertz v. Robert Welch,
Inc., 418 U.S. 323, 351 (1974). And then there are “limited-purpose public figures,”
or those people who have assumed some role “‘in the forefront of particular public
controversies in order to influence the resolution of the issues involved,’ and who
are deemed public figures only for purposes of the controversy in which they are
influential.” Moss v. Stockard, 580 A.2d 1011, 1030 (D.C. 1990) (quoting Gertz,
418 U.S. at 345). Everybody agrees that Waldman is not a general public figure.
Semler maintains only that Waldman is a limited-purpose public figure, as the trial
court concluded. 21
We apply a three-part test for assessing whether Waldman is a limited-purpose
public figure in the context of the controversy that Semler’s comments concerned:
(1) whether the underlying debate was the subject of public discussion prior to the
alleged defamation; (2) whether Waldman achieved special prominence in that
debate, either by purposely trying to influence its outcome or because he otherwise
could realistically have been expected to have an impact on its resolution; and
(3) whether the alleged defamation was germane to the role Waldman played in the
debate. See Fells, 281 A.3d at 583. There is no dispute about the first prong: The
condo development and the historic mural’s preservation were the subjects of public
debate prior to Semler’s statements at the 2018 BNCA meeting and the follow-up
article that Waldman’s suit targets.
As to the second prong, we agree with Semler that Waldman had “achieved
special prominence” in the debate about the mural and the development of the
Brookland property. He purchased the land where the mural was housed, paved the
way for the development of the southern parking lot, and was a leading proponent
of the condo proposal. He thus “voluntarily thrust” himself into the debate. See Doe
No. 1 v. Burke, 91 A.3d 1031, 1042-43 (D.C. 2014). Waldman counters that by the
time of the BNCA meeting, he had sold the land to District Quarters so that he had
no more prominence in the debate than any other member of the public who attended
the meeting. The record is to the contrary. Whether Waldman still owned the 22
property or not, he “len[t] his reputation” to the ongoing project and “purposely
tr[ied] to influence the outcome” of the community discussion when he vehemently
advocated for District Quarters’ “beautiful plan” for a “really nice building.” See
Fells, 281 A.3d at 583. And while he was sitting in the audience at the 2018 BNCA
meeting, he might just as well have stood on stage alongside District Quarters’
representative—for all intents and purposes they were jointly advocating for the
proposed development.
As for the third prong, Semler’s statements were germane to that public
debate. A “statement is germane unless it is ‘wholly unrelated to the controversy’
for which the plaintiff is a limited” public figure. Fells, 281 A.3d at 583 (quoting
Moss, 580 A.2d at 1031). Here, all of Semler’s statements quite directly related to
the mural and Waldman’s development of the property that housed it. Waldman
once again attempts to frame Semler’s statements as directed only toward a private
contract dispute over the land, distinct from the public debate about the mural and
the condo development next door. That framing fails. Whether a developer privately
acquired property through underhanded tactics, malfeasance, or by defrauding other
potential buyers is of direct interest to a community concerned about gentrification
and historic preservation. Semler’s statements were not “wholly unrelated” to those
public debates. They speak to whether that developer can be trusted going forward. 23
That is all to say that the heightened standards applicable to defamation claims
brought by public figures apply here, so that Waldman must prove that Semler’s
statements were false and further prove, by clear and convincing evidence, that they
were delivered with actual malice. We now examine whether Waldman’s evidence
can clear both of those evidentiary thresholds as to either Semler’s “government
investigation” statements or his “fraud and corruption” statements.
2. Semler’s government investigation statements were not false
We start with the government investigation statements: that Waldman was
“cited for real estate fraud to [the USTO],” “subject to a criminal bankruptcy fraud
complaint with [the DOJ],” and had “problems with the DOJ.” Semler defends these
statements as substantially true because (1) he did in fact report Waldman for
bankruptcy fraud to the USTO, a component of DOJ; and (2) the USTO was at least
interested enough in his allegations to follow-up with Semler in an attempt to
“arrange a conference call with [Kass] and [Semler] to discuss the matter.” We agree
with Semler that these statements were not false, even if we assume that Waldman
could prove that any USTO investigation into him never proceeded past the incipient
stage of briefly looking into Semler’s complaint. 1 Semler did not say or even imply
1 The USTO attorneys’ refusal to indicate the extent to which any investigation into Waldman progressed raises a pretty serious hurdle for Waldman, but we will assume he could surmount it: Waldman points to the fact that he 24
that the investigation had proceeded past a nascent stage, such as to a criminal charge
or an indictment.
Waldman counters that Semler “complaining to the USTO is not a ‘criminal’
‘citation’ or ‘complaint’ as those words are commonly understood,” because of
course Semler “has no legal authority to ‘cite’ or issue a ‘criminal complaint’ to
anyone for anything.” It is true enough that Semler’s complaints to the USTO did
not amount to a criminal citation, but he never said that Waldman was criminally
cited by USTO (contrary to the trial court’s retelling). He said that Waldman was
cited to USTO, which is consistent with Semler bringing a complaint to the USTO’s
attention, as he had done. And while we agree that neither Semler nor anybody else
issued a “criminal complaint” to Waldman—whatever that would mean—Semler
did not say otherwise. He said that Waldman was “subject to” a criminal complaint.
That is a stilted phrase, to be sure, but it comports with the facts on the ground: that
a complainant (Semler) had alerted authorities to suspected criminal wrongdoing.
And Semler’s statement that Waldman had “problems with the DOJ” is both
conducted case searches in both the District’s and in Maryland’s courts which revealed no pending criminal cases against him, and he also argues that, “[h]ad the USTO investigated Waldman and found any wrongdoing, it is inconceivable that the Trustee would not have alerted the bankruptcy court by filing something in the docket,” and yet it never did so. Maybe those facts plus the general difficulty with proving a negative would permit a reasonable factfinder to conclude that any investigation into Waldman never progressed past briefly examining Semler’s complaints. Even on that assumption, Semler’s statements simply were not false. 25
extraordinarily vague—query whether it is even capable of being false—and again
consistent with even a nascent DOJ investigation into Waldman prompted by
Semler’s own complaints.
We acknowledge that Semler was walking a pretty fine line and perhaps on
the edge of stepping into falsehood by implication, but he never stepped over that
line. We are mindful that alleged defamatory “statements must be examined within
the context of the entire article,” Clawson v. St. Louis Post-Dispatch, 906 A.2d 308,
313-14 (D.C. 2006) (brackets omitted) (quoting Heard v. Johnson, 810 A.2d 871,
886 (D.C. 2002)), and the body of Semler’s statements also make it clear that he was
the one who brought a criminal complaint to USTO. As captured in the 2017 Askale
Café video, embedded alongside the BNCA video in Semler’s article, Semler
explained that he was the person who “brought” the complaints “to Justice, to its
trustee.” When viewing Semler’s statements in context, we do not think they assert
anything beyond a nascent investigation prompted by Semler himself, which is
consistent with the facts on the ground, regardless of whether the investigation
moved beyond that incipient stage.
3. Semler’s fraud and corruption statements were not delivered with malice
Waldman next targets Semler’s statements that Waldman “took [the property]
by theft and fraud” and “do[es] everything under the table—bribery, corruption.” 26
Semler argues that these statements were not “capable of a defamatory meaning,”
because listeners would not interpret them literally but would understand them to be
the type of “rhetorical hyperbole” expected in staunch advocacy. See Guilford
Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 594-97 (D.C. 2000). We doubt that all
of Semler’s descriptors could be chalked up to the “imaginative expression” or
“rhetorical hyperbole” that we have previously deemed inactionable, id., but we need
not resolve that question. 2 Even assuming these statements were capable of bearing
defamatory meaning and were in fact false, Waldman cannot show by clear and
convincing evidence that Semler delivered them with actual malice.
Actual malice requires proof that the defendant “actually knew” his
statements were false or acted with “reckless disregard for whether or not [they were]
false.” Mann, 150 A.3d at 1252 (quoting Burke, 91 A.3d at 1044). The “reckless
2 We also reserve judgment on whether the “bribery, corruption” statement could be reasonably understood as describing Waldman at all. Notably, Semler made that comment piggybacking on another meeting attendees’ expressed frustration with District Quarters, not Waldman. After that attendee complained that District Quarters was merely telling the residents what they were doing, rather than working with them, Semler added “that’s why they have to do everything under the table—bribery, corruption.” That comment is perhaps best understood as targeted at District Quarters, or developers in the District more generally, rather than Waldman in particular. In any event, we will assume for the sake of argument— especially in light of the general tenor of Semler’s other comments—that a reasonable listener might understand Semler to have lumped Waldman in with those engaged in bribery and corruption. 27
disregard” measure requires “a showing higher than mere negligence”—the plaintiff
must prove the defendant made the publication with “a high degree of awareness of
[the statement’s] probable falsity” or “entertained serious doubts as to [its] truth.”
Id. at 1252 (quoting Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657,
667 (1989) and St. Amant v. Thompson, 390 U.S. 727, 731 (1968) (cleaned up)).
Critically, a defendant’s sincere belief in the truth of his claims does not
automatically foreclose a finding of actual malice where the claims were “fabricated
by the defendant,” were “the product of his imagination,” or where he in fact had
“obvious reasons to doubt the veracity of” the claims. St. Amant, 390 U.S. at 732.
But neither is reckless disregard “measured by whether a reasonably prudent man
would have published, or would have investigated before publishing.” Id. at 731.
The question is a subjective one: whether the defendant in fact entertained serious
doubts about the truth of what he said. See Mann, 150 A.3d at 1252. Waldman does
not have evidence that could prove Semler knew his statements were false, or
harbored such doubts, by clear and convincing evidence.
Semler’s actions as this dispute unfolded bespeak somebody who sincerely
believed Waldman had cheated him out of the Brookland property, and he had some
(even if flimsy) basis for that belief. Starting in 2015, Semler’s emails outlined the
basis for his belief that Waldman cheated him, or more colloquially “defrauded”
him, during the foreclosure process. He reported his allegations to the USTO—a 28
component of the DOJ—and persisted in those reports over the course of several
years. The USTO attorneys requested a call with Semler and his attorney to discuss
the matter at one point, neither attorney ever informed Semler they were not
investigating his claims, and one of the attorneys told him his office was “looking
into” the matter.
Waldman pushes back on multiple fronts. He notes that Semler’s fraud
accusations evolved over time, starting with complaints about Ramson’s forgery of
the contract addendum and only later implicated Waldman in the alleged
wrongdoing—a logical leap, Waldman contends, that Semler made without any
basis. Waldman further argues that the 2015 emails between Waldman and Semler
plainly show the two men never reached a concrete deal for the property, and that
Semler knew as much, so that any later claim of being “defrauded” out of the
property was a post hoc fabrication. He points to the fact that Semler’s own attorney,
Kass, refused to file fraud allegations in the bankruptcy court and sent the letter to
the USTO only at Semler’s urging, which Waldman characterizes as an “expression
of doubt” about the merits of those claims. And he contends that Semler’s repeated
outreach to the USTO over nearly two years—each time volunteering to file an
affidavit or provide further information—belies the notion that Semler believed an
investigation was already underway. 29
There is some force to these arguments. We agree with Waldman that the
2015 emails between him and Semler show fairly conclusively that the two men
never reached a concrete deal for the property, and they likewise seem to show that
Semler was aware of that fact. There is thus no question that a reasonable jury could
find that Semler’s accusations that Waldman “took” the property “by theft and
fraud” were unreasonable—he did not have a strong basis for those allegations on
this evidence. But there is a substantial gap between unreasonable allegations and
allegations that are knowingly or recklessly false, and that is a gap that Waldman
cannot bridge. See Phillips, 424 A.2d at 83 (upholding summary judgment ruling in
favor of defamation defendant because, despite falsity of published statement, there
was “no evidence of common law malice (ill will) or knowing or reckless publication
in the undisputed facts”); Kahl, 856 F.3d at 116 (directing summary judgment for
defamation defendant, noting that “falsity alone does not equate to malice” and
finding “insufficient evidence, direct or circumstantial” for malice to get to a jury).
Start with the emails. They show that Semler, misguided though he may have
been, believed that he and Waldman had some agreement in principle to work
together going forward, even if the details of the exchange had not yet been finalized.
Waldman expressed interest in “some arrangement as suggested by” Semler;
Waldman’s attorney agreed that the auctioneer should include assignment language
in the auction paperwork and remarked that “[g]reat minds think alike”; and 30
Waldman continued to engage with Semler about a possible sale for weeks after the
auction. A speaker’s “adoption of one of a number of possible rational
interpretations” of ambiguous events is “not enough to create a jury issue of ‘malice’
under New York Times.” Time, Inc. v. Pape, 401 U.S. 279, 290 (1971). Semler’s
conduct at the foreclosure auction further suggests the sincerity of his beliefs,
however unfounded they may have been. If Waldman is right that Semler knew at
the time of the auction that Waldman never agreed to sell him the property, Waldman
has offered no ready explanation for why Semler did not bid on the property at the
foreclosure sale, where it sold for roughly the same amount that Semler had
previously agreed to pay Ramson. The most natural explanation is the one that
Semler offers: He stayed out of the bidding because he believed he already had a
side deal with Waldman. That may well have been a naïve or unreasonable belief,
but it does not bespeak someone who understood that Waldman had not even so
much as informally agreed to work with him.
The evolution of Semler’s complaints to the USTO also does not suggest that
he knew his allegations were unfounded, contrary to Waldman’s arguments.
Waldman is correct that Semler’s complaints started with accusations about Ramson
and only later expanded to encompass Waldman. But that history is more consistent
with Semler piecing together what he thought had happened over time, rather than
with any wholesale fabrication by Semler. Months after the foreclosure sale, Semler 31
learned that Ramson and Waldman “had been business partners in the purchase of
other properties.” He also watched as Waldman sold the lot to District Quarters,
which proposed a condo development that bore some resemblance to the kind of
project contemplated by Ramson’s seemingly improper modification to his contract
with Semler. Those events provide a ready explanation for how Semler came to
conclude, perhaps unreasonably, that Waldman had conspired with Ramson to
scuttle Semler’s deal to purchase the property. Even “highly unreasonable conduct
constituting an extreme departure from the standards of investigation and reporting
ordinarily adhered to by responsible publishers” will not alone support a finding of
actual malice. Harte-Hanks, 491 U.S. at 666.
We also note what the record does not contain. While Waldman was
permitted to conduct limited discovery on the question of actual malice, including
Semler’s “actual knowledge” about the extent of any investigations, Waldman never
deposed Semler. There may have been sound strategic reasons for that, but where
the critical question here is whether Semler knew his statements were false or
subjectively entertained grave doubts about that, Waldman’s failure to develop any
record on Semler’s actual state of mind via deposition leaves a glaring gap in the
evidence. See Secord v. Cockburn, 747 F. Supp. 779, 787 (D.D.C. 1990) (noting
“the plaintiff has even failed to depose these three defendants” in granting summary
judgment against public figure plaintiff in defamation suit). Actual malice is a 32
subjective standard that “necessarily contemplate[s] examination of the [speaker’s]
editorial process to prove the necessary awareness of probable falsehood.” Herbert
v. Lando, 441 U.S. 153, 156, 172 (1979). Waldman had the opportunity to directly
probe what Semler actually knew, and he took a pass.
Waldman also failed to supply any affidavit or deposition testimony from
Ramson, who was seemingly the one person who could have testified to whether
Waldman had any involvement with his apparent fraud. Semler directly accused
Waldman of “collud[ing]” with Ramson in the contract modification, and his emails
to USTO make it apparent he formed this belief before ever making his public
statements. Waldman’s only evidentiary response is his own declaration claiming
he “had nothing to do” with the contract dispute and he asks us to infer Semler is
now offering “self-serving” post-hoc explanations. But Waldman’s failure to
adduce anything from Ramson is another glaring omission of evidence that
otherwise might have cast doubt upon Semler’s sincerity in his beliefs that Waldman
had cheated him. Absent a deposition or other proof of Semler’s state of mind, the
circumstantial evidence here is simply not strong enough to clearly and convincingly
prove anything beyond that Semler was perhaps unreasonable in making his
allegations without a sufficient basis. It does not clear the hurdle of actual malice. 33
At bottom, when viewing the evidence in the light most favorable to
Waldman, the worst that can be said of Semler is that he unreasonably accused
Waldman of a fraud that Waldman did not in fact commit. But mere
unreasonableness is not actual malice. Nothing in the record demonstrates that
Semler made up his fraud allegations or was simply trying to punish Waldman
through falsehood he knew or strongly suspected was false. See Tavoulareas, 817
F.2d at 795 (“[P]laintiffs cannot ground their [defamation] claim ‘on a showing of
intent to inflict harm,’ but must, instead, show an ‘intent to inflict harm through
falsehood.’” (quoting Henry v. Collins, 380 U.S. 356, 357-58 (1965))). The
evidence would not permit a factfinder to conclude, by clear and convincing
evidence, that Semler made his statements with actual malice.
Because Waldman failed to produce evidence sufficient to satisfy the
heightened fault and proof requirements applicable to limited-purpose public figures
like him, his claims were not likely to succeed on the merits and should have been
dismissed under the Anti-SLAPP Act. D.C. Code § 16-5502(b). 3
3 Waldman also brought a distinct “false light” claim, but the parties make no independent arguments about that claim—they seem to agree that it rises or falls along with his defamation claims. That claim likewise must be dismissed under the foregoing analysis. “[A] plaintiff may not avoid the strictures of the burdens of proof associated with defamation by resorting to a claim of false light invasion.” Blodgett v. Univ. Club, 930 A.2d 210, 222-23 (D.C. 2007) (quoting Klayman v. Segal, 783 A.2d 607, 619 (D.C. 2001)). 34
III. Conclusion
For the foregoing reasons, we reverse the trial court’s denial of Semler’s
special motion to dismiss under the D.C. Anti-SLAPP Act and remand the case for
further proceedings consistent with our holding. 4
So ordered.
4 The parties dispute whether we have jurisdiction over Waldman’s cross- appeal challenging the dismissal of one of his claims on statute of limitations grounds. That was not a final order disposing of the entire case, and we have never examined whether a plaintiff can appeal a partial dismissal under the Anti-SLAPP Act where the defendant has appealed a partial denial of their motion. Because we conclude that Waldman’s suit should have been dismissed in its entirety regardless, we have no occasion to reach Waldman’s cross-appeal, and we do not resolve whether we would have jurisdiction to entertain it.