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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 18-12999 Non-Argument Calendar
D.C. Docket No. 5:14-cv-00684-MHH
JUDSON A. LOVINGOOD,
Plaintiff-Appellant,
versus
DISCOVERY COMMUNICATIONS, INC., SCIENCE CHANNEL, THE, DISCOVERY CHANNEL, THE, BBC FILMS, KATE GARTSIDE,
Defendants-Appellees,
OPEN UNIVERSITY, THE,
Defendant,
DISCOVERY COMMUNICATIONS, LLC,
Interested Party-Appellee. Case: 18-12999 Date Filed: 02/07/2020 Page: 2 of 21
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(February 7, 2020)
Before WILSON, BRANCH, and JULIE CARNES, Circuit Judges.
PER CURIAM:
More than thirty years after the seven Challenger astronauts “‘slipped the
surly bonds of Earth’ to ‘touch the face of God,’”1 a former NASA manager seeks
$14 million in damages after he was depicted in a made-for-TV movie about the
Challenger investigation. Because we decline to carve out an exception to well-
established defamation law for this claim, and because the plaintiff has failed to
overcome the broadcaster’s First Amendment rights in the film, we affirm the
district court’s grant of summary judgment against him.
I
The space shuttle Challenger broke apart 73 seconds after it launched on
January 28, 1986, killing all seven astronauts on board. A presidential commission
was convened to investigate the cause of the disaster and recommend corrective
action. The commission’s investigation, which included televised public hearings,
1 President Ronald W. Reagan, Address to the Nation (Jan. 28, 1986) (quoting John Gillespie Magee, Jr., “High Flight,” in Respectfully Quoted: A Dictionary of Quotations Requested from the Congressional Research Service 117 (1989)). 2 Case: 18-12999 Date Filed: 02/07/2020 Page: 3 of 21
would reveal that the disaster was caused by a rubber O-ring that, because of low
ambient air temperatures at the time of launch, failed to seal a joint in the shuttle’s
solid-fuel rocket booster. More fundamentally, the investigation highlighted
problems with risk assessment and decision-making at NASA, particularly after it
emerged that outside contractors had recommended delaying the shuttle launch due
to concerns about the effect of the cold weather on the rocket booster seals.
In 2012, the British Broadcasting Corporation (“BBC”), Discovery
Communications, Inc. (“Discovery”), and The Open University co-produced a
made-for-TV film about the Challenger investigation titled The Challenger
Disaster. The film centers on Richard Feynman, Ph.D., the well-known Nobel
laureate physicist who served on the presidential commission. Although the film
uses some historical video footage, most of the film involves actors portraying the
people and events of the Challenger investigation, and the film is shot in a
dramatic, rather than documentary, style.
The film was based in part on Feynman’s posthumously published memoir,
“What Do You Care What Other People Think?”: Further Adventures of a
Curious Character, and in part on the book Truth, Lies, and O-Rings by space
shuttle engineer Allan McDonald. The film was executive produced, researched,
and written in the United Kingdom by the BBC, and it was filmed in South Africa
in late 2012. The BBC broadcast the film in the United Kingdom in March 2013.
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Discovery had a master agreement with the BBC that granted Discovery the option
to co-produce and rebroadcast BBC programming in the United States, though the
BBC would retain final artistic and editorial control over the programming.
Discovery had contributed 40% of the production cost of The Challenger Disaster
and received the license to rebroadcast the film in the United States. It rebroadcast
the film, very slightly modified, on the Discovery Channel and the Science
Channel on November 16, 2013.
The film opens with historical video and audio from the moments before
Challenger’s launch, with the following title cards interspersed:
“This is a true story.”
“It is based on the book ‘What Do You Care What Other People Think?’ by
Richard and Gweneth Feynman and Ralph Leighton and on interviews with key
individuals.”
“Some scenes have been created for dramatic purposes.”
The plaintiff–appellant, Judson Lovingood, Ph.D., was the deputy manager
of the space shuttle projects office at NASA’s Marshall Space Flight Center in
1986. In the film, he appears in one short scene near the end. In that pivotal scene,
Lovingood and two other NASA managers testify in the commission’s televised
hearing after being sworn. One of the managers is reciting dry, technical
information when Feynman, visibly dismayed that they are getting nowhere,
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interjects.2 “I have a question. Can you remind me what NASA calculates the
probability of shuttle failure to be? Failure meaning the loss of the vehicle and the
deaths of the entire crew.”
Another commission member directs the question. “Dr. Lovingood?”
“Certainly. Uh, that would be—one in ten to the power of five,” Lovingood
calmly replies.
“Really,” Feynman says, incredulous. “Would you explain that?”
“Yes, that the probability of mission success is one hundred percent. Minus
epsilon.”
“Epsilon, that’s a pretty fancy word,” muses Feynman. “Well, let’s put all
that you’ve said there into English. So that’s, um, that’s one failure in every
100,000 flights. So you claim that the shuttle would fly every day for 300 years
before there would be a single failure. That’s crazy, I mean, how would you ever
even test that?”
“NASA arrived at that figure because it was a manned flight,” Lovingood
explains.
“Because there were people on board. But that’s not a scientific calculation;
that’s—that’s—a wish.” Feynman is picking up steam now. “And interesting that
the figure is very different from that of NASA’s own engineers. Based on their
2 This and other transcriptions of the U.S.-aired copy of the film in the record are our own. 5 Case: 18-12999 Date Filed: 02/07/2020 Page: 6 of 21
direct experience and observation of many known component problems, some of
NASA’s engineers calculate the probability of success as only 99.4 percent. In
other words, that’s roughly one flight in every 200 will fail.” The room dissolves
into murmurs as Feynman unfolds a handwritten note that reads “We Think Ivory
Soap (99.4%).”
Following this scene, other characters congratulate Feynman on revealing
NASA’s errors in judgment and risk assessment. Feynman then performs for the
television cameras his famous demonstration of ice water rendering an O-ring
inelastic, which serves as the film’s climax as Feynman finally reveals to the
nation the truth about what caused the Challenger disaster.
Undisputedly, Lovingood’s testimony scene is a fictionalization. Although
Lovingood twice testified before the commission, his testimony covered only
technical background on the shuttle’s propulsion systems and their preflight testing
and discussed the conference calls that took place the day before launch. That
testimony was not depicted in the film. The discrepancies in failure probabilities at
NASA were not the subject of commission testimony, instead appearing in
Feynman’s Appendix F (“Personal Observations on the Reliability of the Shuttle”)
to the commission’s final report.
Feynman learned the 1-in-200 and 1-in-105 figures in two different meetings
that he conducted at the Marshall Space Flight Center in Huntsville. According to
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Feynman’s memoir, NASA range safety officer Louis Ullian told him that NASA
had given him a probability of space shuttle failure of 1 in 105, prompting
Feynman’s response of “crazy!” and his observation that the shuttle could
undertake a flight every day for 300 years between accidents. On another
occasion, Feynman recounted meeting with three NASA engineers and their boss,
Lovingood.3 Feynman asked them each to write down “the probability that a flight
would be uncompleted due to a failure in this [main] engine.” One engineer wrote
“99-44/100% pure,” one wrote something amounting to 1 in 200, and one wrote “1 in
300.” Lovingood wrote, “Cannot quantify.” When Feynman accused him of
weaseling, Lovingood clarified that he meant “100 percent . . . minus epsilon,”
with epsilon being 10-5. Lovingood later sent Feynman the NASA report about
failure probabilities for launches of plutonium-powered space probes, which had
calculated the 1-in-100,000 odds that Feynman found fantastical.
The film dramatizes that second meeting early on, but with Lovingood
absent from the scene. Feynman sits down to a meal in the Marshall cafeteria and
asks two NASA engineers sitting nearby the probability of “an accident on any
single launch.” The engineers are reluctant to reply out loud and Feynman suggests
that they write their response on a piece of paper, but we do not see either engineer
3 In his 2016 deposition, Lovingood noted that Feynman’s recollection of this meeting was so good that he thought he must have had a tape recorder, although he disputed that he ever said “100 percent.” 7 Case: 18-12999 Date Filed: 02/07/2020 Page: 8 of 21
doing so. We see Feynman contemplating the “We Think Ivory Soap” note in two
mid-film scenes; we don’t know where it came from, and Feynman doesn’t know
what it means. Later, when Mrs. Feynman sees the note and absentmindedly
misrecites the old Ivory Soap slogan as “99.4% pure,” Feynman makes the
connection. As the testimony scene finally confirms, the engineers in the Marshall
cafeteria were the source of Feynman’s climactic 99.4% figure.
II
Lovingood filed this suit against Discovery Communications, Inc., the
Science Channel, the Discovery Channel, BBC Films, the Open University,
screenwriter Kate Gartside, and several unnamed defendants in Alabama state
court in 2014, alleging defamation and invasion of privacy–false light stemming
from his negative portrayal in the film. He sought $7 million in compensatory
damages and $7 million in punitive damages, invoking the memory of the seven
deceased Challenger astronauts. Compl. ¶ 11. Discovery removed to federal court;
several defendants were dismissed; and Discovery eventually moved for summary
judgment.
In 2017, the district court granted summary judgment against both of
Lovingood’s claims and dismissed his complaint with prejudice. Lovingood v.
Discovery Comm’ns, Inc., 275 F. Supp. 3d 1301 (N.D. Ala. 2017). On the
defamation claim, the court found that Lovingood was a public official, id. at 1309,
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and that he failed to show that Discovery acted with actual malice, id. at 1314. On
the invasion of privacy claim, the court found that Lovingood similarly failed to
show that Discovery acted recklessly. Id. Lovingood now appeals the grant of
summary judgment against his defamation claim.
III
We review the district court’s grant of summary judgment de novo “and will
affirm if the evidence, ‘viewed in the light most favorable to the nonmoving party,
presents no genuine issue of fact and compels judgment as a matter of law.’”
Douglas Asphalt Co. v. QORE, Inc., 657 F.3d 1146, 1153 (11th Cir. 2011) (quoting
Swisher Int’l, Inc. v. Schafer, 550 F.3d 1046, 1050 (11th Cir. 2008)).
Alabama law generally allows a plaintiff to recover damages for defamation
against a publisher who negligently publishes a false and defamatory statement
about the plaintiff. See Nelson v. Lapeyrouse Grain Corp., 534 So. 2d 1085, 1091
(Ala. 1988).4 However, the Supreme Court has explained that the First
Amendment’s protections of the right to criticize the government operate to limit
state defamation law when the plaintiff is a “public official.” A plaintiff who is a
“public official” must overcome the First Amendment by proving that a false
4 According to the Restatement (Second) of Torts, upon which the Alabama Supreme Court relied in Nelson, a defendant who merely republishes the work of another can be every bit as liable as the original publisher. Restatement (Second) of Torts § 578 (1977); see also Age-Herald Publ’g Co. v. Waterman, 66 So. 16, 21 (Ala. 1913).
9 Case: 18-12999 Date Filed: 02/07/2020 Page: 10 of 21
statement relating to his official conduct “was made with ‘actual malice’—that is,
with knowledge that it was false or with reckless disregard of whether it was false
or not.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964). 5
Initially, Lovingood briefly disputes the finding of the district court that he is
a “public official” for purposes of this First Amendment analysis. He asserts in
passing that he was merely a “public employee,” without addressing the detailed
analysis of the district court on that issue.6 We affirm the conclusion of the district
court that Lovingood is a public official for purposes of this litigation. “[T]he
‘public official’ designation applies at the very least to those among the hierarchy
of government employees who have, or appear to the public to have, substantial
responsibility for or control over the conduct of governmental affairs.” Rosenblatt
v. Baer, 383 U.S. 75, 85 (1966). We agree with the district court that serving as a
NASA deputy manager with substantial responsibility for the shuttle’s propulsion
systems amounted to control over the conduct of governmental affairs.
We also note that NASA held out Lovingood as a public official when it
asked him to testify about the shuttle before the presidential commission. In his
5 “Actual malice under the New York Times standard should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991). 6 In accordance with his main argument—discussed below—that we should disregard settled case law in this area, Lovingood argues that his allegations should be considered libel per se, regardless of whether he is a public official. 10 Case: 18-12999 Date Filed: 02/07/2020 Page: 11 of 21
2016 deposition, Lovingood explained that he was chosen because Marshall
considered him to be the “‘corporate memory’ about the space shuttle” and “the
person who knew the most about the space shuttle, all three elements.” Apart from
contemporary press coverage of the Challenger investigation, the record also
contains many news articles from the 1980s in which Lovingood was quoted by
local and national media as an authoritative source about the space shuttle
program. Lovingood also continued to hold himself out as one with substantial
responsibility for government affairs following his retirement from NASA. He has
continued to give retrospective interviews about Challenger and appeared in two
separate television documentaries about the disaster. For purposes of the First
Amendment’s protection of speech about the Challenger tragedy, then, Lovingood
was a public official.
With that threshold question resolved, we turn to Lovingood’s main
contention on appeal. Lovingood invites us to create an exception to the well-
established New York Times standard for situations involving the fictionalization of
sworn testimony. He urges us, in view of the sanctity of the testimonial oath and its
centrality to our legal system, to find that the “actual malice” standard articulated
by the Supreme Court does not apply in the context of depictions of perjury.
We are not free to accept Lovingood’s invitation. As the Supreme Court has
instructed, “If a precedent of this Court has direct application in a case . . . the
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Court of Appeals should follow the case which directly controls, leaving to this
Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). And indeed, that Court has
steadfastly refused to create new exceptions in defamation law for the last fifty
years. See, e.g., Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516 (1991)
(declining to create an exception for inaccurate quotations); Milkovich v. Lorain
Journal Co., 497 U.S. 1, 18 (1990) (declining “to create a wholesale defamation
exemption” for opinions).
The Masson decision in particular merits closer examination, for Lovingood
relies heavily upon it. The case involved a journalistic magazine article that printed
quotations attributed to the plaintiff that undisputedly differed from his
audiorecorded interviews with the author. Masson, 501 U.S. at 501–08. The Court
held that some of the alterations were evidence of falsity for purposes of the New
York Times standard because they “result[ed] in a material change in the meaning
conveyed by the statement.” Id. at 517. In so holding, the Court explained that the
appropriate inquiry when examining possibly defamatory quotations is an objective
one: would a reader “reasonably understand the quotations to indicate reproduction
of a conversation that took place”? Id. at 512.
Significantly for our purposes here, the Court explained that, in some
contexts, the answer to that question is no. “In other instances, an acknowledgment
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that the work is so-called docudrama or historical fiction . . . might indicate that the
quotations should not be interpreted as the actual statements of the speaker to
whom they are attributed.” Id. at 512–13. Thus, our “actual malice” inquiry must
take into account how a reasonable viewer would understand the contents of the
scene. We acknowledge that there is some dispute over how this film’s genre
should be formally characterized. Discovery’s corporate representative described it
as a docudrama or a historical drama but distanced himself from a Science Channel
press release’s label of “fictional drama.” But the perspective of the reasonable
viewer encompasses more than a one- or two-word label; it looks to the film itself.
Within the film, Discovery emphasizes the last of the three title cards displayed in
the first minute of the film: “Some scenes have been created for dramatic
purposes.” Lovingood, by contrast, emphasizes the first of those title cards: “This
is a true story.”7
We find most telling, however, the overall format, tone, and direction of the
film. A reasonable viewer would understand within the first two minutes that he is
not watching a documentary film that consists mainly of historical footage and
interviews with the historical figures. He would recognize the parts of the film that
7 In Lovingood’s complaint, he reprints this text in all capitals (“THIS IS A TRUE STORY”), and it may have appeared that way in the BBC-broadcast version of the film shown in the United Kingdom. In the Discovery-broadcast version shown in the United States, which is the only version at issue in this appeal, the title text appears in upper- and lowercase as we have transcribed it. 13 Case: 18-12999 Date Filed: 02/07/2020 Page: 14 of 21
do use historical footage and understand that they are meant to depict literal
history, and he would understand that most of the film uses actors to portray
historical events with some amount of artistic license. He would also understand
that condensing the entire Challenger investigation into a 90-minute dramatic film
required the selective editing of real history not only for time but also for clarity,
flow, and emotional impact. Finally, and most importantly, he would understand
that the film presents the Challenger story not as a disinterested, objective
narrative but through a single critical perspective—that of Feynman, who is
sympathetically portrayed by a recognizable actor and who appears in nearly every
scene. Overall, a reasonable viewer would understand the film as generally not
purporting to present verbatim dialogue from the pages of history.
Thus, as we determine whether Discovery acted with actual malice when it
republished the Lovingood scene, the mere fact that the film contains altered
historical dialogue is not, in itself, evidence that Discovery made statements with
knowledge that they were false, for purposes of the New York Times standard. We
will not apply a novel libel-per-se rule for depictions of sworn testimony, nor are
we invoking an invincible shield of protection for all works characterized as
docudrama or historical fiction. Rather, we will apply the actual malice standard
that the Supreme Court first articulated in New York Times and has applied for
more than fifty years, as did the district court.
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But before we may determine whether the “defamatory falsehood relating to
his official conduct . . . was made with ‘actual malice,’” N.Y. Times, 376 U.S. at
279–80, we pause to identify what, exactly, is the defamatory falsehood about
Lovingood that Discovery is alleged to have republished. According to the
complaint, it is “that Lovingood had lied about the probability of total failure being
1 in 100,000 when NASA’s own engineers had said it was 1 in 200.” Compl. ¶ 7.
In other words, Lovingood argues, the film falsely depicts him committing the
crime of perjury.
Discovery insists that the scene does not depict perjury because nothing in
the film suggests that Lovingood’s character lied or deliberately misled the
committee while under oath. With this characterization we agree. Although the
entire film, through Feynman’s dialogue and demeanor, is critical of NASA’s
management and decision-making in general and the 10-5 figure in particular, the
film does not paint Lovingood as a liar. Nor does it imply any intent to mislead; the
Lovingood character’s demeanor as a witness is calm, direct, and frank. And
Feynman responds to Lovingood’s testimony not with an accusation or even a
suggestion that he lied about NASA’s calculation, but instead with incredulity
regarding the calculation itself.
Of course, Lovingood admits that he did in fact report NASA’s 1-in-100,000
figure to Feynman in a private meeting at Marshall. His objection is that the film
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changed the context of that 10-5 figure from “the probability that a flight would be
uncompleted due to a failure in this [main] engine” to the probability of “the loss
of the vehicle and the deaths of the entire crew.” He asserts that those are two very
different situations given the possibility of aborting a launch and saving the crew in
the event of a main engine failure. He argues that this alteration means that,
because NASA never actually calculated the probability of the deaths of the entire
crew as 10-5, his character necessarily committed perjury when he answered the
commission’s question about crew deaths.8 The problem with this argument,
though, is that a viewer of the film does not know what NASA did or did not
actually calculate. Without any basis for believing the calculation to be false, the
reasonable viewer would not perceive this scene as depicting perjury.
Nonetheless, Lovingood’s broader point about altering the meaning of the
10-5 figure has merit. Discovery responds by downplaying the significance of
conflating the failure of the main engine with the deaths of the entire crew. It notes
that, under NASA’s own criticality assessment, main engine failure was classified
as causing catastrophic loss of life or vehicle. And even Feynman seems to
conflate or equate these two situations in his Appendix F to the commission’s
8 Lovingood also objects to the film’s moving the 10-5 discussion to his character’s sworn committee testimony, arguing that sworn testimony should be sacrosanct and must never be altered from historical reality. We have already rejected this argument about the sanctity of the testimonial oath, declining to make a new per se rule that would put dramatic depictions of sworn testimony outside the reach of the First Amendment. 16 Case: 18-12999 Date Filed: 02/07/2020 Page: 17 of 21
report. Nonetheless, for purposes of our summary judgment review, we view the
record in the light most favorable to Lovingood and assume that there is a
meaningful difference between what he actually told Feynman in reality and what
his character testified in the film. 9
Thus, we will assume that Lovingood has alleged that a false and defamatory
statement was republished by Discovery. As a public official speaking on a matter
of public concern, then, Lovingood must show that Discovery acted with
knowledge that the statements about him were false, or with reckless disregard for
whether they were false. N.Y. Times, 376 U.S. at 279–80. We consider each of
these bases for liability in turn.
The first basis is straightforward. The record contains no evidence at all that
Discovery knew that the lines spoken by the Lovingood character in the film were
9 Of course, “[t]ruth is an absolute defense to defamation,” Liberty Loan Corp. of Gadsden v. Mizell, 410 So. 2d 45, 49 (Ala. 1982), and Discovery also argues that the scene was “substantially true” and not defamatory because it was constructed from accurate historical sources. See Masson, 501 U.S. at 516 (defamation law “concentrates upon substantial truth”). But we will assume for the purposes of our review that Lovingood has alleged enough of a departure from the historical record to get him to the next step of our analysis. We do not, however, endorse Lovingood’s out-of-context quotation of the Supreme Court’s observation that “there is no constitutional value in false statements of fact.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974). Importantly, the Court went on: “Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate.” Id. Thus, in order to avoid the chilling of valuable speech, “[t]he First Amendment requires that we protect some falsehood in order to protect speech that matters.” Id. at 341. It is in view of this tension between truth and liberty that the Supreme Court in New York Times articulated the “actual malice” standard for falsehoods involving public officials, and it is that test that we here apply.
17 Case: 18-12999 Date Filed: 02/07/2020 Page: 18 of 21
false. This situation is not like Masson, where the journalist herself conducted and
tape-recorded interviews with the plaintiff that she later quoted in her article. Cf.
501 U.S. at 502. The BBC writer here, by contrast, relied on 25-year-old historical
materials, including the commission’s hearing transcripts and Feynman’s book,
when she wrote the film’s screenplay. Lovingood himself concedes that
Discovery’s executive producer on the film, Rocky Collins, realized only years
after the film was broadcast that there was a “discrepancy” between the book’s and
the film’s characterization of the 10-5 probability. The “actual knowledge” basis
for actual malice therefore fails.
Lovingood argues instead that Discovery acted with reckless disregard for
whether the statements about him were false. He insists that Collins should have
read the hearing transcripts and Feynman’s book more closely and that he should
have been more aggressive in his pursuit of the BBC’s research notes. To be sure,
we acknowledge that the record contains some discrepancies about what Discovery
subjectively believed its responsibility was for fact-checking the script of The
Challenger Disaster. Discovery’s corporate representative repeatedly asserted that
the BBC had sole responsibility for fact-checking and avoiding defamation
because it actually produced the film. Under its master agreement with Discovery,
the BBC had warranted that “no Co-Produced Programme will defame any
individual or entity” and that “all statements of fact contained in each Co-Produced
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Programme shall, to the best of BBCW’s knowledge and belief having undertaken
diligent research in keeping with generally accepted standards for first class
documentary film makers, be true and accurate.” Collins testified, however, that,
although he mainly relied on the BBC to get the facts right, his job “was to make
sure that they [were] doing it.” He admitted, though, that he personally only
skimmed Feynman’s book. Because we view the record in the light most favorable
to Lovingood, we will assume for purposes of our review that Discovery retained
some responsibility for fact-checking the film.
But even if we accept Lovingood’s view of what fact-checking Discovery
should reasonably have done, the standard for reckless disregard is still higher.
“[F]ailure to investigate before publishing, even when a reasonably prudent person
would have done so, is not sufficient to establish reckless disregard.” Harte-Hanks
Comm’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989). Because actual malice
is not an objective standard, arguments about what a reasonable producer should
have done will not avail. Rather, to show reckless disregard that amounts to actual
malice, a defamation plaintiff must point to evidence that the defendant had real,
subjective suspicions about the veracity of the statement in question. “There must
be sufficient evidence to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his publication,” St. Amant v.
Thompson, 390 U.S. 727, 731 (1968), or that he acted with a “high degree of
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awareness of . . . probable falsity,” Garrison v. Louisiana, 379 U.S. 64, 74 (1964).
Lovingood has identified no such evidence showing that anyone at Discovery had
actual doubts about the scene or real awareness that the scene might be
problematic. To the contrary, the sole Discovery employee who purported to have
even a modicum of responsibility for the content of the film affirmed his complete
satisfaction with the BBC’s fact-checking. “Every time I had any question, they
gave me satisfactory answers. Every time I said what—have you had lawyers look
at this, yes. Every single—I had absolutely no reason to believe that they did not
do their job. . . . I had no reason to—to suspect that they weren’t doing their job.”
Instead of pointing to evidence of reckless disregard, then, Lovingood
argues that Discovery should be liable because it was willfully blind to the
falseness of the scene. “The doctrine of willful blindness,” which provides
culpability equivalent to actual knowledge, “is well established in criminal law.”
Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011). But neither
the Supreme Court nor our Circuit has ever applied that doctrine in the civil
context of defamation, and Lovingood cites no case doing so. Cf. Hard Rock Cafe
Licensing Corp. v. Concession Servs., 955 F.2d 1143, 1149 (7th Cir. 1992)
(equating willful blindness with actual knowledge for purposes of Lanham Act
trademark violations). We need not decide, however, whether to do so here
because Lovingood has presented no evidence that Discovery acted with willful
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blindness to the falsity of the statements. Willful blindness is an even higher
standard than recklessness, involving “deliberate actions to avoid confirming a
high probability of wrongdoing” and nearly amounting to “actually know[ing] the
critical facts.” Global-Tech, 563 U.S. at 769. If Lovingood cannot point to
evidence of recklessness as actual malice, he necessarily cannot establish willful
blindness.
Thus, we conclude that Lovingood has not established a genuine issue of
material fact about whether Discovery acted with actual malice. Discovery is
therefore entitled to the protection of the First Amendment, and the district court’s
grant of summary judgment in favor of Discovery is
AFFIRMED.