Mason v. American Prospect, Inc.
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Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CHATAQUOA NICOLE MASON,
Plaintiff, Civil Action No. 23-2238 (LLA) v.
AMERICAN PROSPECT, INC., et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Chataquoa Nicole Mason brings this action against Defendants The American
Prospect (“TAP”) and Julianne McShane. Dr. Mason alleges that TAP and Ms. McShane defamed
her and tortiously interfered with her business relations when they published an article (written
and reported by Ms. McShane) covering her tenure as President and Chief Executive Officer of
the Institute for Women’s Policy Research (“IWPR”). ECF No. 1 ¶ 1. Pending before the court
is Defendants’ Motion to Dismiss, ECF No. 4, and Motion for Judicial Notice, ECF No. 5. For
the reasons explained below, the court will partially grant the motion for judicial notice and fully
grant the motion to dismiss.
I. Factual Background
The following factual allegations from Dr. Mason’s complaint, ECF No. 1, are accepted as
true for the purpose of evaluating the motion before the court. Wright v. Eugene & Agnes E. Meyer
Found., 68 F.4th 612, 619 (D.C. Cir. 2023). The court further includes facts from the article itself and several of Defendants’ exhibits to their motion to dismiss, which are properly considered as
incorporated by reference into Dr. Mason’s complaint.1
A. Dr. Mason’s Tenure at IWPR
IWPR is a “national think tank” that “build[s] evidence to shape policies that grow
women’s power and influence, close inequality gaps, and improve the economic well-being of
families.” ECF No. 1 ¶ 7 (alteration in original). The organization was founded by Dr. Heidi
Hartmann, who served as its long-time President and Chief Executive Officer. Id. ¶ 15. In 2019,
IWPR’s Board of Directors removed Dr. Hartmann from these roles because she was “abusing
staff and otherwise creating a toxic work environment, engaging in racist behavior . . . and failing
to adequately fundraise.” Id. ¶ 19.
IWPR searched for a new President and Chief Executive Officer and hired Dr. Mason in
fall 2019. Id. ¶¶ 20, 22, 25. Dr. Mason is an African American woman who holds a Ph.D. in
Political Science, boasts “more than twenty years of research and advocacy experience focused on
women’s economic security,” and has a “long track record of success in leadership positions.” Id.
¶ 24. She entered her new role in a time of tumult, facing budget shortfalls, staff discontentment,
and racism. Id. ¶ 26. Nevertheless, “she worked tirelessly to achieve major goals,” like “dealing
with the toxic work environment,” raising sorely needed funds (including closing a budget shortfall
of more than one million dollars), and increasing the public profile of the organization. Id.
¶¶ 27-28. Dr. Mason “participate[d] in public forums and networking events,” id. ¶ 31,
“spearhead[ed] two major conferences,” won an industry award, and “was named one of the
World’s Greatest Leaders by Fortune Magazine,” id. ¶ 27.
1 The court explains the legal basis for its decision with respect to these materials in Part IV(A). 2 Despite her efforts, Dr. Mason continued to face challenges at IWPR. Because of the
aforementioned budget shortfall, she was “forced to delay critical staff hires.” Id. ¶ 28. Within
her first week, she “documented racial discrimination and bias” in the organization. Id. ¶ 44. Some
employees bristled at her leadership, and another executive agreed that “race played a critical role
in how Dr. Mason was treated.” Id. Further, Dr. Hartmann—who aimed to “maintain her power
and influence” at IWPR even after her ouster from leadership—sought to undermine Dr. Mason’s
authority “and sabotage her leadership and management.” Id. ¶¶ 33-34; see id. ¶¶ 32-43. As a
result, Dr. Mason banned Dr. Hartmann from IWPR’s offices. Id. ¶ 36. She also terminated three
individuals “closely associated with Dr. Hartmann”: Chandra Childers, Jeff Hayes, and Ariane
Hegeswich. Id. ¶ 42. Some other employees with close ties to Dr. Hartmann “left of their own
volition.” Id.
B. The Article
At some point, Ms. McShane, a freelance reporter, began investigating Dr. Mason’s
leadership of IWPR. Id. ¶¶ 3, 45. While Ms. McShane had “initially pitched” the story to The
Washington Post, the outlet ultimately did not publish it, but TAP did. Id. ¶¶ 48, 50, 56. In the
course of her reporting, Ms. McShane interviewed twenty-seven former IWPR employees and
reviewed many of the organization’s internal documents, including emails, grant proposals, and
records of board meetings. Id. ¶ 47; ECF No. 4-5 at 2. She also communicated directly with
Dr. Mason via email. ECF No. 1 ¶ 69; ECF No. 4-9 and 4-10.
In November 2022, TAP published the article, titled “A Women’s Policy Giant Struggles
Amid New Leadership.” ECF No. 4-5; Julianne McShane, A Women’s Policy Giant Struggles
Amid New Leadership, The American Prospect (Nov. 29, 2022), https://perma.cc/P9CY-3V3V.
The article highlighted several of Dr. Mason’s and IWPR’s key accomplishments, including her
3 recognition by Fortune magazine and IWPR’s successful fundraising efforts. Id. at 2-5. The
article also includes the following statements relevant to Dr. Mason’s claims:
• “[W]ithin weeks after this reporter sent Mason and two executive board members separate lists of detailed questions based on the reporting in this story, a law firm [was] retained by the board to assist with an independent review of IWPR’s workplace environment [and] began contacting former staffers for interviews, according to three sources.” Id. at 3.
• “[Dr.] Mason fired Childers last fall after seven years at the organization . . . [and] did not respond to a specific inquiry about why Childers was fired.” Id. at 4.
• “[R]ecords and interviews with former staffers suggest that Mason has struggled to [‘get on a winning team’ or ‘follow through on projects and complete tasks’] during her nearly three years leading IWPR, instead contributing to a toxic work environment that led them to leave the organization.” Id. at 5.
• “[IWPR]’s turnover rate was 80 percent last year and is 72 percent [UPDATE: 78 percent] so far this year, according to the Prospect’s analysis of staff departures. IWPR currently has only three full-time researchers on staff, compared to 14 who were on staff in the fall of 2020, according to a written record of a board meeting from that time.” Id. at 5 (second alteration in original).
• “[Dr.] Mason did not respond to a question from the Prospect about what she believes has caused the turnover [of employees].” Id. at 6.
• “[Michelle Cueller Hawks2] worked alone and struggled to get Mason’s attention, even though Mason was her direct supervisor[.] When she and Mason did interact, it was often fraught . . . . [Cuellar] said Mason sometimes had what [other employees] considered unfair expectations that she sometimes expressed by screaming at staffers, or in other demeaning ways.” Id. at 6.
• “Former staffers say the high turnover has undermined the organization’s capacity to conduct the research it once pioneered—and records of board meetings show Mason has admitted as much.” Id. at 7.
• “Representatives for the Kresge Foundation, the Children’s Defense Fund, and the Women’s Foundation of Florida declined requests for comment on the IWPR projects they funded.” Id. at 8.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
CHATAQUOA NICOLE MASON,
Plaintiff, Civil Action No. 23-2238 (LLA) v.
AMERICAN PROSPECT, INC., et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Chataquoa Nicole Mason brings this action against Defendants The American
Prospect (“TAP”) and Julianne McShane. Dr. Mason alleges that TAP and Ms. McShane defamed
her and tortiously interfered with her business relations when they published an article (written
and reported by Ms. McShane) covering her tenure as President and Chief Executive Officer of
the Institute for Women’s Policy Research (“IWPR”). ECF No. 1 ¶ 1. Pending before the court
is Defendants’ Motion to Dismiss, ECF No. 4, and Motion for Judicial Notice, ECF No. 5. For
the reasons explained below, the court will partially grant the motion for judicial notice and fully
grant the motion to dismiss.
I. Factual Background
The following factual allegations from Dr. Mason’s complaint, ECF No. 1, are accepted as
true for the purpose of evaluating the motion before the court. Wright v. Eugene & Agnes E. Meyer
Found., 68 F.4th 612, 619 (D.C. Cir. 2023). The court further includes facts from the article itself and several of Defendants’ exhibits to their motion to dismiss, which are properly considered as
incorporated by reference into Dr. Mason’s complaint.1
A. Dr. Mason’s Tenure at IWPR
IWPR is a “national think tank” that “build[s] evidence to shape policies that grow
women’s power and influence, close inequality gaps, and improve the economic well-being of
families.” ECF No. 1 ¶ 7 (alteration in original). The organization was founded by Dr. Heidi
Hartmann, who served as its long-time President and Chief Executive Officer. Id. ¶ 15. In 2019,
IWPR’s Board of Directors removed Dr. Hartmann from these roles because she was “abusing
staff and otherwise creating a toxic work environment, engaging in racist behavior . . . and failing
to adequately fundraise.” Id. ¶ 19.
IWPR searched for a new President and Chief Executive Officer and hired Dr. Mason in
fall 2019. Id. ¶¶ 20, 22, 25. Dr. Mason is an African American woman who holds a Ph.D. in
Political Science, boasts “more than twenty years of research and advocacy experience focused on
women’s economic security,” and has a “long track record of success in leadership positions.” Id.
¶ 24. She entered her new role in a time of tumult, facing budget shortfalls, staff discontentment,
and racism. Id. ¶ 26. Nevertheless, “she worked tirelessly to achieve major goals,” like “dealing
with the toxic work environment,” raising sorely needed funds (including closing a budget shortfall
of more than one million dollars), and increasing the public profile of the organization. Id.
¶¶ 27-28. Dr. Mason “participate[d] in public forums and networking events,” id. ¶ 31,
“spearhead[ed] two major conferences,” won an industry award, and “was named one of the
World’s Greatest Leaders by Fortune Magazine,” id. ¶ 27.
1 The court explains the legal basis for its decision with respect to these materials in Part IV(A). 2 Despite her efforts, Dr. Mason continued to face challenges at IWPR. Because of the
aforementioned budget shortfall, she was “forced to delay critical staff hires.” Id. ¶ 28. Within
her first week, she “documented racial discrimination and bias” in the organization. Id. ¶ 44. Some
employees bristled at her leadership, and another executive agreed that “race played a critical role
in how Dr. Mason was treated.” Id. Further, Dr. Hartmann—who aimed to “maintain her power
and influence” at IWPR even after her ouster from leadership—sought to undermine Dr. Mason’s
authority “and sabotage her leadership and management.” Id. ¶¶ 33-34; see id. ¶¶ 32-43. As a
result, Dr. Mason banned Dr. Hartmann from IWPR’s offices. Id. ¶ 36. She also terminated three
individuals “closely associated with Dr. Hartmann”: Chandra Childers, Jeff Hayes, and Ariane
Hegeswich. Id. ¶ 42. Some other employees with close ties to Dr. Hartmann “left of their own
volition.” Id.
B. The Article
At some point, Ms. McShane, a freelance reporter, began investigating Dr. Mason’s
leadership of IWPR. Id. ¶¶ 3, 45. While Ms. McShane had “initially pitched” the story to The
Washington Post, the outlet ultimately did not publish it, but TAP did. Id. ¶¶ 48, 50, 56. In the
course of her reporting, Ms. McShane interviewed twenty-seven former IWPR employees and
reviewed many of the organization’s internal documents, including emails, grant proposals, and
records of board meetings. Id. ¶ 47; ECF No. 4-5 at 2. She also communicated directly with
Dr. Mason via email. ECF No. 1 ¶ 69; ECF No. 4-9 and 4-10.
In November 2022, TAP published the article, titled “A Women’s Policy Giant Struggles
Amid New Leadership.” ECF No. 4-5; Julianne McShane, A Women’s Policy Giant Struggles
Amid New Leadership, The American Prospect (Nov. 29, 2022), https://perma.cc/P9CY-3V3V.
The article highlighted several of Dr. Mason’s and IWPR’s key accomplishments, including her
3 recognition by Fortune magazine and IWPR’s successful fundraising efforts. Id. at 2-5. The
article also includes the following statements relevant to Dr. Mason’s claims:
• “[W]ithin weeks after this reporter sent Mason and two executive board members separate lists of detailed questions based on the reporting in this story, a law firm [was] retained by the board to assist with an independent review of IWPR’s workplace environment [and] began contacting former staffers for interviews, according to three sources.” Id. at 3.
• “[Dr.] Mason fired Childers last fall after seven years at the organization . . . [and] did not respond to a specific inquiry about why Childers was fired.” Id. at 4.
• “[R]ecords and interviews with former staffers suggest that Mason has struggled to [‘get on a winning team’ or ‘follow through on projects and complete tasks’] during her nearly three years leading IWPR, instead contributing to a toxic work environment that led them to leave the organization.” Id. at 5.
• “[IWPR]’s turnover rate was 80 percent last year and is 72 percent [UPDATE: 78 percent] so far this year, according to the Prospect’s analysis of staff departures. IWPR currently has only three full-time researchers on staff, compared to 14 who were on staff in the fall of 2020, according to a written record of a board meeting from that time.” Id. at 5 (second alteration in original).
• “[Dr.] Mason did not respond to a question from the Prospect about what she believes has caused the turnover [of employees].” Id. at 6.
• “[Michelle Cueller Hawks2] worked alone and struggled to get Mason’s attention, even though Mason was her direct supervisor[.] When she and Mason did interact, it was often fraught . . . . [Cuellar] said Mason sometimes had what [other employees] considered unfair expectations that she sometimes expressed by screaming at staffers, or in other demeaning ways.” Id. at 6.
• “Former staffers say the high turnover has undermined the organization’s capacity to conduct the research it once pioneered—and records of board meetings show Mason has admitted as much.” Id. at 7.
• “Representatives for the Kresge Foundation, the Children’s Defense Fund, and the Women’s Foundation of Florida declined requests for comment on the IWPR projects they funded.” Id. at 8.
• “Records of board meetings show that at least four current and one former board member have raised concerns about staffing and turnover and offered to intervene. . . . [B]oard member Joan Marsh . . . asked ‘if the staffing challenges
The court will defer to the complaint’s spelling of Ms. Cueller Hawks’s name. Compare 2
ECF No. 1 ¶ 71, with ECF No. 4-5, at 6. 4 undermine[] the commitments made to our funders,’ according to a written summary of the meeting.” Id. at 8.
• “None of IWPR’s six research priority areas, including the Center for the Economics of Reproductive Health, currently have leaders. . . . IWPR was supposed to produce three original research reports using the initial Hewlett grant money . . . [b]ut none of those reports were released after the center’s founding director left IWPR in March 2020.” Id. at 8-9.
• “IWPR’s Student Parent Success Initiative . . . , [which] launched in 2010 with $1 million from the Bill and Melinda Gates Foundation, . . . has remained unstaffed since its last staffer, a research associate, left in February.” Id. at 9. “[The SPSI’s] Student Parent Policy Working Group has seemingly disbanded.” Id. at 10.
• “IWPR received a $225,000 donation from Daniel Snyder, the owner of the Washington Commanders football team, according to notes from a board meeting.” Id. at 11.
C. The Aftermath
After publication, individuals associated with TAP and anonymous sources from the article
“contacted IWPR’s Board, funders, and other key stakeholders to disparage Dr. Mason.” ECF
No. 1 ¶ 99. IWPR employees also began to “question[] Dr. Mason’s leadership . . . due to the
controversy.” Id. ¶ 102. In January 2023, roughly two months after the article’s publication,
IWPR’s Board fired Dr. Mason. Id. ¶ 101; see id. ¶ 56.
Since then, Dr. Mason has been unable to find employment. Id. ¶ 110. In addition to
incurring expenses to rehabilitate her reputation, she “has also suffered severe emotional distress”
as a result of the article’s publication. Id. ¶ 114.
II. Procedural History
In August 2023, Dr. Mason sued TAP and Ms. McShane for defamation and tortious
interference with business relations. ECF No. 1. TAP and Ms. McShane moved to dismiss under
Federal Rule of Civil Procedure 12(b)(6), ECF No. 4, and also asked the court to take judicial
notice of several articles, orders, and email exchanges, ECF No. 5. After both motions were fully
5 briefed, ECF Nos. 4, 5, 10, 11, 12, the case was reassigned to the undersigned in December 2023,
Docket, No. 23-CV-2238 (D.D.C. Dec. 15, 2023).
III. Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), the “complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is facially plausible when the plaintiff pleads facts that are more than “‘merely consistent
with’ a defendant’s liability” and that “allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 557); see
Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (“Plausibility requires
‘more than a sheer possibility that a defendant has acted unlawfully.’” (quoting Iqbal, 556 U.S. at
678)). “A complaint survives a motion to dismiss even ‘[i]f there are two alternative explanations,
one advanced by [the] defendant and the other advanced by [the] plaintiff, both of which are
plausible.’” Banneker Ventures, 798 F.3d at 1129 (alterations in original) (quoting Starr v. Baca,
652 F.3d 1202, 1216 (9th Cir. 2011)). The court will only “assume [the] veracity” of “well-pleaded
factual allegations.” Iqbal, 556 U.S. at 679. Conclusory allegations are “not entitled to the
assumption of truth.” Id. at 680-81.
When ruling on a motion to dismiss, the court may only consider “the facts alleged in the
complaint, any documents either attached to or incorporated in the complaint and matters of which
[the court] may take judicial notice.” Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C.
Cir. 2017) (alteration in original) (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d
621, 624 (D.C. Cir. 1997)). “If the district court considers other facts, it must convert the motion
to dismiss into a motion for summary judgment and ‘provide the parties with notice and an
opportunity to present evidence in support of their respective positions.’” Id. (quoting Kim v. 6 United States, 632 F.3d 713, 719 (D.C. Cir. 2011)). “The decision to convert a motion to dismiss
into a motion for summary [judgment] . . . is committed to the sound discretion of the trial court.”
Flynn v. Tiede-Zoeller, Inc., 412 F. Supp. 2d 46, 50 (D.D.C. 2006).
IV. Discussion
The court begins by addressing Defendants’ Motion for Judicial Notice, ECF No. 5, which
it will grant in part and deny in part. It then addresses whether Dr. Mason’s claims for defamation
and tortious interference with business relations can survive Defendants’ motion to dismiss. While
some of the allegedly defamatory statements can support a defamation claim, the court concludes
that Dr. Mason cannot plead actual malice. And because her tortious interference claim rises and
falls with her defamation claim, the court will dismiss the complaint in its entirety.
A. Defendants’ Motion for Judicial Notice
As a threshold matter, the court must address Defendants’ motion requesting that the court
take judicial notice of several exhibits attached to their motion to dismiss, ECF No. 5: the article
giving rise to Dr. Mason’s claims, ECF No. 4-5; a subsequent article published by TAP covering
Dr. Mason’s departure from IWPR, ECF No. 4-6; news articles about or quoting Dr. Mason
(including several written by Ms. McShane), ECF Nos. 4-7 & 4-8; emails exchanged between
Dr. Mason and Ms. McShane through the reporting process for the TAP article, ECF Nos. 4-9 to
4-11; and an order and a news article that were part of the record in an unrelated case in the
Superior Court of the District of Columbia, ECF Nos. 4-12 & 4-13. Dr. Mason “does not formally
oppose the motion but urges the court to exercise extreme caution in deciding whether and how to
use the materials,” and she notes that they “should not be used to decide any issue of contested
fact” related to the case. ECF No. 11, at 1. The court will partially grant the motion and take
judicial notice of most of the materials, subject to the constraints and exclusions described below.
7 1. The TAP article and subsequent article covering Dr. Mason’s departure
“Incorporation by reference can . . . amplify pleadings where the document is not attached
by the plaintiff, but is ‘referred to in the complaint and [] integral to [the plaintiff’s] claim.’”
Banneker Ventures, 798 F.3d at 1133 (D.D.C. 2015) (alterations in original) (quoting Kaempe v.
Myers, 367 F.3d 958, 965 (D.C. Cir. 2004)). The TAP article—which is the source of Dr. Mason’s
defamation claim—is extensively quoted from and referred to in the complaint. See generally
ECF No. 1. Thus, the article has been incorporated by reference. Such a conclusion is
unsurprising; courts routinely consider the publication containing an alleged defamatory statement
when resolving a motion to dismiss. See, e.g., BYD Co. Ltd. v. All. for Am. Mfg., 554 F. Supp. 3d
1, 8-9 (D.D.C. 2021), aff’d, No. 21-7099, 2022 WL 1463866 (D.C. Cir. May 10, 2022) (per
curiam). The court notes, however, that it does not adopt the factual contents of the article as true.
See Libre By Nexus v. Buzzfeed, Inc., 311 F. Supp. 3d 149, 154 (D.D.C. 2018). Cf. Hourani v.
Psybersolutions LLC, 164 F. Supp. 3d 128, 132 n.1 (D.D.C. 2016) (“The Court takes judicial
notice of the articles not for their truth but merely for the fact that they were published.”).
The same is true of a subsequent TAP article titled “Leader of Women’s Policy Giant Out
Following Prospect Investigation.” Dr. Mason references this follow-up article in her complaint,
ECF No. 1 ¶ 106, and includes a link to it (effectively attaching it to her complaint). She references
this article to support her theory that the initial TAP article led to her termination from IWPR, so
it is “integral” to her theory of damages for the defamation claim. See id. ¶¶ 106-14. Accordingly,
the court may consider it at the pleading stage without converting Defendants’ motion to dismiss
into one for summary judgment.
2. News articles about or quoting Dr. Mason
The court additionally concludes that it can take judicial notice of news articles for the
“existence or nature of the articles”—and may do so without converting the motion into one for
8 summary judgment—but it may not consider the articles for the truth of their assertions. Fridman
v. Bean LLC, No. 17-CV-2041, 2019 WL 231751, at *5 n.1 (D.D.C. Jan. 15, 2019); see Shive-
Ayala v. Pacelle, No. 21-CV-704, 2022 WL 782412, at *2 n.1 (D.D.C. Mar. 15, 2022) (taking
judicial notice of news articles without converting the motion to dismiss into a motion for summary
judgment); Hourani, 164 F. Supp. 3d at 132 n.1 (“The Court takes judicial notice of the articles
not for their truth but merely for the fact that they were published.”). Neither party disputes that
these articles were published, and news articles are a classic subject of judicial notice. Wash. Post
v. Robinson, 935 F.2d 282, 291 (D.C. Cir. 1991). But, as with all judicially noticed materials, it
would not be proper to accept the assertions in the articles for the truth of the matters asserted.
See, e.g., Hurd, 864 F.3d at 686 (“[A] court cannot take judicial notice of the truth of a document
simply because someone put it in the court’s files” (alteration in original) (quoting 21B Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 5106.4 (2d ed. 2017))); Masek
v. United States, No. 22-CV-3574, 2024 WL 1240093, at *7 (D.D.C. Mar. 24, 2024) (taking
judicial notice of publicly filed pleadings but not “consider[ing] the factual matters within the
pleadings as true”). Accordingly, the court will take judicial notice of the articles as demonstrating
the existence of news coverage related to Dr. Mason’s leadership and public outreach while
serving as President and Chief Executive Officer of IWPR—which Dr. Mason openly alleges in
her complaint, ECF No. 1 ¶¶ 27, 31—but not for the truth of any statements contained in the
articles.
3. Emails exchanged between Dr. Mason and Ms. McShane throughout the reporting process
Next, Defendants seek to include three separate email exchanges between Dr. Mason and
Ms. McShane, arguing that they have been incorporated by reference into Dr. Mason’s complaint.
ECF No. 5, at 2. The court concludes that two of them are properly incorporated.
9 The first exchange occurred on October 4, 2022, and consists of Dr. Mason’s on-the-record
statement, a statement from IWPR’s Board, and several attachments providing “background
information for context” for what would become the TAP article. ECF No. 4-9, at 2-24. Dr. Mason
references this exchange extensively in her complaint, including by directly quoting it twice. ECF
No. 1 ¶¶ 69-70, 75. The second exchange occurred on November 23, 2022. ECF No. 4-10, at 2-4.
In it, Dr. Mason provided more background materials and on-the-record statements, questioned
Ms. McShane’s calculation of the staff turnover rate at IWPR, and denied any accusations of
yelling at IWPR employees. Id. at 3. Ms. McShane then replied to explain how she had calculated
the turnover rate. Id. at 2-3. Dr. Mason references this exchange several times in her complaint.
ECF No. 1 ¶¶ 55, 69-70, 123(a), 134(a). Both email exchanges are integral to Dr. Mason’s
defamation claim because they go to the truth or falsity of the allegedly defamatory statements, as
well as to Defendants’ culpability.
In the last email exchange, ECF No. 4-11, Dr. Mason forwarded Ms. McShane an
internship application from several years earlier, when Ms. McShane had “applied to work for an
organization Dr. Mason led before being hired by IWPR.” ECF No. 1 ¶ 66. Ms. McShane was
not hired for the role. Id. This email exchange is not relevant to the court’s analysis of Dr. Mason’s
claims. Accordingly, the court will disregard it.
4. Order and a news article from a D.C. Superior Court case
Finally, Defendants seek to introduce an order and a news article from the record in Berry
v. Current Publication, No. 2020-CA-4366-B (D.C. Super. Ct. 2021). It is well established that
the court may take judicial notice of another court’s proceeding, and the court will do so here. See
Jankovic v. Int’l Crisis Grp., 494 F.3d 1080, 1088 (D.C. Cir. 2007) (“Jankovic I”) (taking judicial
notice of exhibits in the record of another court’s proceedings).
10 B. Defamation (Count I)
Dr. Mason raises one count of defamation based on eight groups of statements in the TAP
article. ECF No. 1 ¶ 122. Under District of Columbia law,
to state a claim of defamation, [a] “plaintiff must allege and prove four elements: (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.”
Solers, Inc. v. Doe, 977 A.2d 941, 948 (D.C. 2009) (quoting Oparaugo v. Watts, 884 A.2d 63, 76
(D.C. 2005)). The third element, fault, depends on whether the plaintiff is a public figure—subject
to the heightened actual malice standard of proof—or is instead a private individual—subject to
the lower negligence standard. See Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1240 n.33
(D.C. 2016). And the fourth element, harm, can be shown if the statement “tends to injure the
plaintiff in [her] trade, profession[,] or community standing, or to lower [her] in the estimation of
the community.” Farah v. Esquire Mag., 736 F.3d 528, 534 (D.C. Cir. 2013).
For “a challenged statement to be actionable as defamation, ‘it must at a minimum express
or imply a verifiably false fact’” about the plaintiff. Zimmerman v. Al Jazeera Am., LLC, 246 F.
Supp. 3d 257, 276 (D.D.C. 2017) (quoting Weyrich v. New Republic, Inc., 235 F.3d 617, 624 (D.C.
Cir. 2001)). This is because the First Amendment protects statements “that cannot ‘reasonably
[be] interpreted as stating actual facts’ about an individual” in an effort to ensure “that public
debate [does] not suffer.” Milkovich v. Lorain J. Co., 497 U.S. 1, 20 (1990) (first alteration in
original) (quoting Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 50 (1988)). For this reason,
statements of opinion are generally not actionable because they often are “so imprecise or
subjective that [they are] not capable of being proved true or false.” Farah, 736 F.3d at 534-35.
11 Truthful statements, including ones that are “substantially true,” are also not actionable.
Moldea v. N.Y. Times Co., 15 F.3d 1137, 1144, 1150 (D.C. Cir. 1994) (“Moldea I ”). And “[m]inor
inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous
charge be justified.’” Masson v. New Yorker Mag., Inc., 501 U.S. 496, 517 (1991) (quoting Heuer
v. Kee, 59 P.2d 1063, 1064 (Cal. Ct. App. 1936)). In other words, a “statement is not considered
false unless it ‘would have a different effect on the mind of the reader from that which the pleaded
truth would have produced.’” Id. (quoting Robert D. Sack, Libel, Slander, and Related Problems
138 (1980)).
When a plaintiff alleges defamation against a media organization for speech relating to
issues of “public concern,” the “common-law presumption that defamatory speech is false cannot
stand.” Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986). In such cases, the
“plaintiff . . . must make a showing of falsity as an element of his affirmative case.” Montgomery
v. Risen, 875 F.3d 709, 713 (D.C. Cir. 2017). In practice, this means that the plaintiff must allege
sufficient facts to create a plausible inference that an allegedly defamatory statement is untrue.
See id.
Finally, a defamation claim can be sustained either by express words or by the implication
of the defendant’s statements. White v. Fraternal Ord. of Police, 909 F.2d 512, 518 (D.C.
Cir. 1990). A defamation-by-implication claim must establish that the statement, viewed in its
entire context, was capable of defamatory meaning, and that it implied provably false statements
of fact. Fells v. Serv. Emps. Int’l Union, 281 A.3d 572, 586 (D.C. 2022). “[I]t is not enough that
a statement can ‘be reasonably read to impart the false innuendo, but it must also affirmatively
suggest that the author intends or endorses that that inference.’” Id. (quoting Guilford Transp.
Indus., Inc. v. Wilner, 760 A.2d 580, 596 (D.C. 2000)).
12 Defendants begin by arguing that Dr. Mason’s complaint is defective because the
challenged statements in the TAP article are not false and defamatory. ECF No. 4-2, at 14-27.
They further contend that Dr. Mason is a limited-purpose public figure and cannot meet the
heightened “actual malice” standard. Id. at 29-32; see N.Y. Times Co. v. Sullivan, 376 U.S. 254,
279-80 (1964). After considering the relevant arguments, the court concludes that Dr. Mason is a
limited-purpose public figure subject to the actual malice standard, and that she has failed to state
a claim for defamation.
1. Challenged Statements
As discussed, statements that are true or substantially true are not actionable for
defamation. Moldea I, 15 F.3d at 1144, 1150. Thus, when a “trial court can find as a matter of
law that a challenged publication is substantially true, then it may properly grant judgment for the
defendant.” Id. at 1150; see Libre By Nexus, 311 F. Supp. 3d at 154 (dismissing complaint for
failure to state a defamation claim because it “[did] not contain factual allegations that g[a]ve rise
to a plausible inference that the challenged statement in the Article [was] false” (emphasis
omitted)).
Dr. Mason alleges that the TAP article contains “numerous false and defamatory
statements,” ECF No. 1 ¶ 122, that can be grouped into the following categories: (a) Dr. Mason’s
response (or lack thereof) to questions from Ms. McShane; (b) IWPR’s staffing issues; (c) IWPR’s
work environment; (d) Dr. Mason’s relationships with IWPR personnel; and (e) IWPR’s ability to
meet research goals, produce deliverables, and secure funding. Dr. Mason also suggests in her
complaint, and clarifies in her opposition, that her claim is based on the narrative of the TAP article
as a whole. Id.; ECF No. 10-1, at 13-14, 21 (referring to a defamatory narrative or theme in the
TAP article). The court addresses the specific statements first, then considers the narrative of the
article as a whole. 13 a. Dr. Mason’s responses to questions
Dr. Mason alleges that the TAP article “falsely states that [she] did not respond to questions
while insinuating that the alleged failure to respond supported the article’s narrative that [her]
management and leadership of IWPR [were] seriously flawed.” ECF No. 1 ¶ 122(a). Defendants
counter that the article does not contain any falsity and instead makes clear that Dr. Mason
participated in its reporting. ECF No. 4-2, at 14-15. Further, Defendants purport that Dr. Mason
“responded to some questions and declined to respond to others,” which the article truthfully
reflects. Id. at 15. The court agrees with Defendants and concludes that the statements about
Dr. Mason’s level of responsiveness cannot support a defamation claim.
The TAP article makes clear that Dr. Mason did respond to many of Ms. McShane’s
questions and even provided an official statement.3 ECF No. 4-5 at 2-3 (“In statements provided
to the Prospect, both Mason and the board of directors . . . initially rejected former staffers’ claims
that the organization is in crisis.”), 5 (“In her statement provided to the Prospect, Mason rejected
the claim that she has deprioritized research.”), 6 (“Mason said she categorically denies any
allegations of yelling at staff.”). Accordingly, the article does not broadly state that Dr. Mason
declined to respond to questions and no reasonable reader could interpret it that way.
The article instead says that Dr. Mason declined to respond to specific questions, and
Dr. Mason fails to establish the falsity of these statements. Her complaint focuses on two
topics: Dr. Childers’s firing, id. at 4 (“Mason did not respond to a specific inquiry about why
3 The court need not “accept as true the complaint’s factual allegations insofar as they contradict . . . matters subject to judicial notice.” Kaempe, 367 F.3d at 963. Thus, the court does not need to accept Dr. Mason’s description of the article; it may look directly to the source material. 14 Childers was fired.”), and IWPR’s turnover rate, id. at 6 (“Mason did not respond to a question
from the Prospect about what she believes has caused the turnover.”).4 ECF No. 1 ¶ 69.
With respect to Dr. Childers’s firing, Dr. Mason alleges in her complaint that she “provided
Ms. McShane with . . . a statement regarding [her] termination.” ECF No. 1 ¶ 69. To support this,
Dr. Mason quotes from an October 4, 2022 email attachment, id. ¶ 69 (referencing ECF No. 4-9,
at 4-8). This falls short. First, Dr. Mason did not present the statement as attributable to her.
Instead, it was labeled as “on-background information” to be “sourced as ‘a person close to the
organization.’” ECF No. 4-9, at 4. Second, even if Dr. Mason had taken credit for the statement,
it contained language that the speaker “[could not] comment on specific personnel matters” and it
failed to provide any information specific to Dr. Childers. ECF No. 1 ¶ 69; ECF No. 4-9, at 6.
Indeed, the statement does not even mention Dr. Childers by name. That is entirely consistent
with the article’s characterization that Dr. Mason “did not respond to a specific inquiry about why
Childers was fired.” ECF No. 4-5, at 4.
With respect to IWPR’s turnover rate, the article states that Dr. Mason “did not respond to
a question . . . about what she believes has caused the turnover.” ECF No. 4-5, at 6. The
information that Dr. Mason provided on background addresses some of the causes of the turnover,
but again, Ms. McShane was instructed to source this to a “person close to [IWPR],” not to
Dr. Mason herself. ECF No. 4-9, at 4. The “gist” of the article’s statement is that Dr. Mason did
4 The article further reflects that Dr. Mason did not respond to specific inquiries on the topics of: (1) Ms. Cueller Hawks’s and other early career researchers’ departures from IWPR, ECF No. 4-5 at 7; (2) the status of reports for a large grant that had not been released, id. at 9; (3) understaffing on certain projects, id. at 9-10; and (4) former staffers’ concerns about a grant originating with Dan Snyder, id. at 11. Dr. Mason does not address these particular statements in her complaint or her opposition, so the court considers them unchallenged. 15 not respond to a particular question “about what she believes has caused the turnover.” Masson,
501 U.S. at 517 (quoting Heuer, 59 P.2d at 1064). That assertion is substantially true.
Finally, Dr. Mason cannot demonstrate that she was defamed because the statements imply
that her “management and leadership of IWPR [were] seriously flawed.” ECF No. 1 ¶ 122(a).
Defamation can be implied when a statement, viewed in its entire context, is capable of a
defamatory meaning and implies provably false statements of fact. Fells, 281 A.3d at 586. “[I]t
is not enough that a statement can ‘be reasonably read to impart the false innuendo, but it must
also affirmatively suggest that the author intends or endorses that inference.’” Id. (quoting
Guilford Transp. Indus, 760 A.2d at 596). But, as discussed above, the article’s representations
are substantially true and thus not defamatory. In addition, whether Dr. Mason’s “management
and leadership of IWPR [were] seriously flawed,” ECF No. 1 ¶ 122(a), is an opinion, not a
“verifiably false fact,” Weyrich, 235 F.3d at 624. Readers are free to make their own conclusions
based on the article’s truthful representations about Dr. Mason’s responsiveness, but the
challenged statements do not support a claim for defamation. See Farah, 736 F.3d at 539.
b. IWPR’s staffing issues
Dr. Mason alleges that the TAP article “falsely states that IWPR’s turnover was much
higher than it actually was,” that “Dr. Mason ‘admitted’ that the alleged high turnover undermined
IWPR’s research capacity,” and that “one of IWPR’s research areas (SPSI) did not have research
staff and had been abandoned.” ECF No. 1 ¶ 122(b), (c), (h). Defendants argue that each statement
is substantially true. ECF No. 4-2, at 16-22. The court concludes that the article’s statements
about the turnover rate and lack of staffing were sufficiently false and defamatory but holds that
the “admission” statement is not actionable.
First, the article reported IWPR’s turnover rate to be “80 percent” in 2021, and
“72 percent” at the time of publication in November 2022. ECF No. 4-5, at 5. TAP later updated 16 the 2022 figure to “78 percent.” Id. Dr. Mason asserts that “[t]he highest attrition rate for any
year during [her] time as IWPR’s President/CEO was 44 percent, and for all other years, it was
substantially less.” ECF No. 1 ¶ 70. At this stage in the proceedings, the court must accept the
complaint’s 44% figure as true. Iqbal, 556 U.S. at 678. The article’s much higher figures are both
capable of defamatory meaning and false. Defendants do not meaningfully dispute this, instead
arguing that “[t]he ‘gist’ of the statement—that numerous employees left IWPR during
Dr. Mason’s tenure . . . is substantially true.” ECF No. 4-2, at 18 (quoting Air Wis. Airlines v.
Hoeper, 571 U.S. 237, 247 (2014)). But attempting to convey that “numerous” individuals left
IWPR is much different than providing a precise—and as the court must assume, grossly
inaccurate—mathematical figure. Here, reporting a rate of 80% is not the type of “[s]light
inaccurac[y] of expression” that would be “immaterial provided that the defamatory charge is true
in substance.” Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1296 (D.C. Cir. 1988)
(quoting Restatement (Second) of Torts § 581A cmt. f (1977)). Therefore, the incorrect turnover
figures are sufficiently defamatory to support a claim.
Next, Dr. Mason alleges that the article falsely claims that she admitted that the turnover
undermined IWPR’s work. ECF No. 1 ¶ 122(c). Specifically, the article states that “records of
board meetings show Mason has admitted as much.” ECF No. 4-5, at 7. Defendants suggest that
this statement is materially true, ECF No. 12, at 14, and the court agrees. Although Dr. Mason
states that she “has never admitted or otherwise said that high turnover has undermined the
organization[],” ECF No. 1 ¶ 83, she does not dispute records from a board meeting in which she
stated “[IWPR] could be doing more if hired to [its] capacity” in response to a question about
“staffing challenges.” ECF No. 10-1, at 20; ECF No. 4-5, at 8; ECF No. 1 ¶ 84. While Dr. Mason
suggests that these statements are materially different from one another, the court does not see
17 such daylight. They communicate the same “gist”—understaffing prevented IWPR from
maximizing its potential. Accordingly, the statement is not actionable because it is substantially
true.
Finally, Dr. Mason asserts that the article “falsely states that one of IWPR’s research areas
(SPSI) did not have research staff and had been abandoned.” ECF No. 1 ¶ 122(h). Dr. Mason
alleges that, at the time the article was published, “two women of color had already been hired in
the SPSI research area” and that “[t]his information was provided to Ms. McShane prior to
publication.” Id. ¶ 91. While the complaint slightly overstates the article’s language (there is no
claim that SPSI was “abandoned”), the article does assert that the SPSI group was “unstaffed”
beginning in February 2022 and continuing through the time of publication. ECF No. 4-5, at 9.
Defendants counter that the “substance” and “gist” of the article’s assertions—that SPSI did not
have researchers “for a significant part of 2022”—is true. ECF No. 4-2, at 27 (quoting Air Wis.
Airlines, 571 U.S. at 247). But claiming that a research group is “unstaffed” at a specific point in
time when it actually is not can support a defamation claim.
c. IWPR’s work environment
Dr. Mason next takes issue with the TAP article’s statement that some employees attributed
IWPR’s turnover rate to her management style, believed she created a “toxic work environment,”
and claimed that she “engaged in yelling and screaming at employees.” ECF No. 1 ¶¶ 74, 122(b)
& (d); ECF No. 10-1, at 16-20. Defendants argue that these statements are protected opinions
because they are not objectively verifiable as true or false. ECF No. 4-2, at 18-21. The court
agrees with Defendants.
Starting with the statements about the source of IWPR’s turnover, the article recounts that
“several former staffers say Mason herself [was] a key cause” because she contributed to a “toxic
work environment.” ECF No. 4-5, at 5-6. Defendants are correct that these statements are 18 inactionable opinions. “[I]n deciding whether the challenged statements are opinion, ‘the court
must consider whether the allegedly defamatory words are susceptible to proof of their truth or
falsity’ and statements that cannot ‘readily be proven true or false’ are ‘more likely to be viewed
as statements of opinion, not fact.’” Armstrong v. Thompson, 80 A.3d 177, 187 (D.C. 2013)
(quoting Myers v. Plan Takoma, Inc., 472 A.2d 44, 47 (D.C. 1983)). In Armstrong, statements
that the plaintiff had engaged in “serious integrity violations” and “misconduct” reflected the
author’s “subjective view of the underlying conduct and were not verifiable as true or false.” Id.
at 188. The same is true here. The court cannot conclusively determine whether employees left
due to Dr. Mason’s behavior because the statements reflect the former employees’ subjective
opinions about what was driving the exodus. The court also cannot confirm whether the
environment at IWPR was “toxic” due to Dr. Mason’s leadership because that reflects individual
judgment about the workplace. ECF No. 4-5, at 6 And describing Dr. Mason’s expectations as
“unfair” is similarly unverifiable as true or false because each person’s perception of fairness
differs. Id.
For the same reasons, the article’s statements regarding Dr. Mason’s alleged “yelling and
screaming” are also not actionable. The article does not definitively say that Dr. Mason yelled or
screamed at employees. Compare id. (“[S]everal other former staffers . . . said Mason sometimes
had what they considered unfair expectations that she sometimes expressed by screaming at
staffers”; “[Ms. Cueller Hawks] recounted that Mason screamed at her when she took 12 minutes
to return Mason’s phone call[.]” (emphases added)), with ECF No. 1 ¶ 122(d) (“The article falsely
states that Dr. Mason engaged in yelling and screaming at employees.”). It instead reports that
specific employees claimed that Dr. Mason occasionally yelled at staff, and Dr. Mason does not
dispute that employees made such claims. See ECF No. 4-5, at 6. Regardless, whether those
19 employees perceived Dr. Mason’s communications as “screaming” or “yelling” is, again, a matter
of perspective and subjective opinion. Furthermore, the article specifically includes Dr. Mason’s
“categorical[] deni[al]” of such accusations. Id.
Additionally, with respect to both categories of statements, “[c]ontext is critical . . . ‘[to]
determin[ing] the way in which the intended audience [would] receive’” them. Farah, 736 F.3d
at 535 (quoting Moldea v. N.Y. Times Co., 22 F.3d 310, 314 (D.C. Cir. 1994) (“Moldea II ”)). The
context of the statements within the article makes clear that Ms. McShane was reporting “an
ongoing exchange of charge and countercharge” between former IWPR staff and Dr. Mason.
Abbas v. Foreign Pol’y Grp. LLC, 975 F. Supp. 2d 1, 18-19 (D.D.C. 2013), aff’d, 783 F.3d 1328
(D.C. Cir. 2015). The article does not definitively say that Dr. Mason caused the turnover or that
she yelled or screamed at staff. Instead, it carefully caveats that these are beliefs held by IWPR’s
former employees, rather than presents them as objective truth. ECF No. 4-5, at 6. And the article
also states, in no uncertain terms, that “Dr. Mason categorically denies any allegations of yelling
at staff.” Id. In other words, it allows readers to reach their own conclusions based on the
presented information. Abbas, 975 F. Supp. 2d at 18-19.
d. Dr. Mason’s relationships with IWPR personnel
Dr. Mason next claims that the article falsely identifies her as Ms. Cueller Hawks’s “direct
supervisor” and suggests that she was “solely responsible for the decision to terminate
Dr. Childers.” ECF No. 1 ¶ 122(e). Defendants argue that the first statement is not defamatory
because it does not injure Dr. Mason and that the second is not an accurate description of what
was said in the article. See Kaempe, 367 F.3d at 963 (explaining that the court need not “accept
as true the complaint’s factual allegations insofar as they contradict . . . matters subject to judicial
notice”). Again, Defendants have the better of the arguments.
20 “A statement is ‘defamatory’ if it tends to injure the plaintiff in [her] trade, profession[,] or
community standing, or to lower [her] in the estimation of the community.” Farah, 736 F.3d at
534. Dr. Mason does not explain how being identified as Ms. Cueller Hawks’s “direct supervisor”
harms her reputation, and it is not apparently obvious that such a statement would have any impact
on the public’s perception of her. ECF No. 4-5, at 6.
As for Dr. Childers’s termination, the article does not state that Dr. Mason “was solely
responsible for the decision to terminate Dr. Childers,” as the complaint suggests. ECF No. 1
¶ 122(e). It states, much more vaguely, that “Mason fired Childers.” ECF No. 4-5, at 4; see ECF
No. 1 ¶ 42. Nonetheless, Dr. Mason takes issue with the article’s failure to clarify that terminating
Dr. Childers was a collective board decision. ECF No. 10-1 at 23-24. But Defendants are not
obligated to publish their story on Dr. Mason’s preferred terms. See Robert D. Sack, Sack on
Defamation § 2:4.1 (5th ed. 2023). And, as was the case above, it is unclear how firing an
employee because “she wasn’t doing the work she was hired for” would injure Dr. Mason’s
reputation. ECF No. 4-5, at 4.
Dr. Mason does not seriously contend with these arguments, instead pivoting her focus to
the overall narrative of the article, ECF No. 10-1, at 23-24, which the court addresses below.
Accordingly, the court concludes that these statements are not defamatory as a matter of law.
e. IWPR’s performance, deliverables, and funding
Finally, Dr. Mason challenges the allegedly false statements that, under her leadership,
“IWPR was failing to fulfill its obligations to produce reports and other deliverables” and “had
lost funding from a foundation (NoVo) due to [a] failure to provide deliverables.” ECF No. 1
¶ 122(f) & (g). In a familiar refrain, Defendants argue that the article does not convey such
statements and that Dr. Mason also fails to allege defamation by implication. The court again
agrees with Defendants. 21 According to the complaint, the article says that “IWPR was failing to fulfill its obligations
to produce reports and other deliverables” and that “[r]esearch was not produced or performed.”
Id. ¶¶ 77, 122(f). But the article simply does not contain these statements. The closest it comes is
claiming that “IWPR was supposed to produce three original research reports using the initial
Hewlett grant money . . . [b]ut none of those reports were released after the center’s founding
director left IWPR in March 2020.” ECF No. 4-5, at 9. Just a few lines later, the article reports
that IWPR and Hewlett made “adjustments to their initial research plan” and that “Hewlett staffers
were ‘satisfied that the terms of the grant were met.’ (IWPR produced four out of five other
briefing papers it also proposed for the grant.).” Id. Contrary to the complaint’s assertions, the
article does not make a blanket statement that “[r]esearch was not produced or performed.” ECF
No. 1 ¶ 77. Dr. Mason does not dispute this in her opposition and therefore concedes that the
article did not contain the “precise words” she initially claimed. Ali v. D.C. Court Servs., 538 F.
Supp. 2d 157, 161 (D.D.C. 2008) (“If a plaintiff . . . files an opposition to a motion to dismiss
addressing only certain arguments raised by the defendant, a court may treat those arguments that
the plaintiff failed to address as conceded.”). And even if Dr. Mason claims that the complaint’s
allegations accurately captured the “meaning conveyed by the article,” ECF No. 10-1, at 24, she
does not allege that the article’s representation of the Hewlett grant and its deliverables was
actually false.
As to the NoVo grant money, the complaint also does not accurately reflect the article’s
actual statements. Dr. Mason alleges that the article “falsely insinuates that IWPR . . . lost funding
from [NoVo] due to a failure to provide deliverables,” ECF No. 1 ¶ 122(g), but the article reports
that the NoVo grant “was not tied to the completion of specific reports,” ECF No. 4-5, at 8. To be
sure, it goes on to say that NoVo “is no longer funding IWPR” and that a NoVo representative
22 “did not elaborate as to why.” Id. But the court is not convinced that this implies a connection
between undelivered reports and a cessation of funding, especially when the article expressly
disclaims such a connection, id. (stating that the loss of funding “was not tied to the completion of
specific reports”), and does not speculate as to the reason why NoVo stopped funding IWPR’s
work.
f. Overall narrative
Looking past specific statements, Dr. Mason claims in her opposition that the article as a
whole pushes a “defamatory narrative . . . that [she] was doing a bad job of leading IWPR.” See,
e.g., ECF No. 10-1, at 27. This appears to be a defamation-by-implication argument, where a
plaintiff alleges that a collection of statements implies provably false facts when understood in
context. But Defendants argue that Dr. Mason did not advance such a theory in her complaint,
instead choosing to focus on particular groups of statements. ECF No. 12, at 4-5 (citing ECF No. 1
¶ 122). Defendants are correct that a plaintiff “cannot amend her complaint through her opposition
briefing.” Sloan v. Urban Title Servs., Inc., 689 F. Supp. 2d 94, 114 (D.D.C. 2010). But even
though Dr. Mason does not allege this theory with the utmost clarity, the court finds that there is
enough in the complaint to support it. See ECF No. 1 ¶ 122(a) (referencing the “article’s narrative
that Dr. Mason’s management and leadership of IWPR [were] seriously flawed”).
Assuming that Dr. Mason has properly pleaded an “overall narrative” theory, the argument
fails. As previously mentioned, context is critical in defamation claims and the court must take
the “publication . . . as a whole[] and in the sense in which it would be understood by the readers
to whom it was addressed.” Farah, 736 F.3d at 535 (quoting Afro-Am. Publ’g Co. v. Jaffe, 366
F.3d 649, 655 (D.C. Cir. 1966)). Dr. Mason may believe that the article presents an overarching
defamatory narrative. But when viewed holistically, it presents “an ongoing exchange of charge
and countercharge” that provides readers with plenty of information from which they can make 23 their own judgments. Abbas, 975 F. Supp. 2d at 19. The article sources each of its assertions,
credits quoted sources and materials, and includes Dr. Mason’s and IWPR’s counterpoints when
available. See ECF No. 4-5, at 6 (“[Dr. Mason] categorically denies any allegations of yelling at
staff.”), 8 (“A statement from the board said . . . [e]ach of IWPR’s current research projects is well-
managed, with personal oversight by Dr. Mason”; “[Board member Joan] Marsh said . . .
Dr. Mason has had an open, frequent[,] and productive dialogue with the Board about her
progress[.]”). With very few exceptions, the article explains that it is recounting how former
employees feel or what they believe about the organization, rather than presenting specific
statements as objective truth. For these reasons, the court concludes that the article’s overall
narrative does not support a defamation-by-implication claim.
2. Actual Malice
In the defamation context, “[t]he applicable fault standard ‘turns upon whether the plaintiff
is a public or a private figure.’” Salem Media Grp., Inc. v. Awan, 301 A.3d 633, 645 (D.C. 2023)
(quoting Fridman v. Orbis Bus. Intel. Ltd., 229 A.3d 494, 504 (D.C. 2020)). Private figures may
recover if the defendant is negligent. Id. But public figures must meet the more demanding “actual
malice” standard of liability—meaning they acted “with knowledge that [the relevant statement]
was false or with reckless disregard of whether it was false or not.” Hustler Mag., 485 U.S. at 52
(quoting Sullivan, 376 U.S. at 279-80). The actual malice standard recognizes the tension between
the long-established tort of defamation and the “profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and wide-open.” Sullivan, 376 U.S. at
270. Public figures “have voluntarily exposed themselves to increased risk of injury from
defamatory falsehood” and boast increased access to media to “counteract false statements.” Gertz
v. Robert Welch, Inc., 418 U.S. 323, 344-45 (1974). In contrast, “private individuals are ‘more
vulnerable to injury,’ so the ‘state interest in protecting them is correspondingly greater.’” Salem 24 Media Grp., 301 A.3d at 646-47 (quoting Gertz, 418 U.S. at 344). These different standards
accommodate the need to balance free public discourse and the reputational interests of plaintiffs.
There are three types of plaintiffs who must establish actual malice in a defamation suit:
(1) a public official; (2) an individual who “achieve[s] such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts,” referred to as a general-purpose public figure; and (3) “[m]ore commonly, an individual [who] voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues,” i.e., a limited-purpose public figure.
Id. at 647 (alterations in original) (quoting Gertz, 418 U.S. at 351). Whether a plaintiff falls into
one of these categories “is a question of law for the court to resolve.” Waldbaum v. Fairchild
Publ’ns, Inc., 627 F.2d 1287, 1293 n.12 (D.C. Cir. 1980).
Defendants argue that Dr. Mason is a limited-purpose public figure and thus subject to the
heightened standard of actual malice. ECF No. 4-2, at 29-33. The court first concludes that
Dr. Mason is a limited-purpose public figure and then applies the actual malice standard to her
claims.
a. Limited-purpose public figure
A limited-purpose public figure takes on a central role in a particular public controversy,
“either by virtue of their own voluntary actions or involuntarily” through her involvement in the
controversy at hand. Salem Media Grp., 301 A.3d at 647; see Fells, 281 A.3d at 583. To determine
whether a plaintiff is a limited-purpose public figure, the court first identifies whether a public
controversy exists and defines its scope. Salem Media Grp., 301 A.3d at 647. Then, if one exists,
the court must decide if the plaintiff “[was] shaping or [was] trying to shape the outcome of [the]
public controversy.” Moss v. Stockard, 580 A.2d 1011, 1031 (D.C. 1990). If yes, then the court
must ask “whether the alleged defamation was germane to the plaintiff’s participation in the
controversy.” Id.
25 Defendants argue that there is an ongoing public controversy related to gender equity and
women’s roles in the workforce, that Dr. Mason assumed a prominent role in that controversy, and
that the challenged statements (and article as a whole) relate to her role in the controversy. ECF
No. 4-2, at 30-33. The court agrees.
Public controversy. “A public controversy is ‘not simply a matter of interest to the
public . . . [but] a real dispute, the outcome of which affects the general public or some segment
of it in an appreciable way . . . because its ramifications will be felt by persons who are not direct
participants.’” Salem Media Grp., 301 A.3d at 648 (alterations in original) (quoting Moss, 580
A.2d at 1030-31). “[T]he court ‘must examine whether persons actually were discussing some
specific question,’ looking to ‘see if the press was covering the debate, reporting what people were
saying and uncovering facts and theories to help the public formulate some judgment.’” Jankovic
v. Int’l Crisis Grp., 822 F.3d 576, 585 (D.C. Cir. 2016) (“Jankovic II”) (quoting Waldbaum, 627
F.2d at 1297). Examples of public controversies include “the state of the oil industry,”
Tavoulareas v. Piro, 817 F.2d 762, 773 (D.C. Cir. 1987), and “Russian oligarchs’ involvement
with the Russian government and its activities and relations around the world,” Fridman, 229 A.3d
at 507. Gender equity in the workplace qualifies. The judicially noticeable articles demonstrate
widespread news coverage on this topic, see ECF No. 4-7 & 4-8, and such issues clearly impact
the day-to-day lives of many individuals who are “not direct participants” in the ongoing debate,
Salem Media Grp., 301 A.3d at 648. For example, one article titled “Why Some Women Call This
Recession a ‘Shecession’” discusses how women were disproportionately impacted by job loss.
ECF No. 4-7 at 4. Others cover the impact of the gender wage gap. ECF No. 4-8 at 12, 24.
Dr. Mason does not convincingly contest this prong. In her opposition, she claims that
“gender equity issues” are not a public controversy but fails to explain why. ECF No. 10-1, at
26 30-31. Indeed, her own statements seem to contradict these assertions. In the materials provided
to Ms. McShane, Dr. Mason went on the record as saying that, under her leadership, IWPR was
“active at the center of important conversations for gender equity and [had] position[ed] it[self] as
the go-to think tank of the women’s rights movement.” ECF No. 4-9, at 9. The court disagrees
with Dr. Mason’s suggestion that “gender equity” and the “women’s rights movement” are not
“real dispute[s]” that “affect[] the general public . . . in an appreciable way.” Waldbaum, 627 F.2d
at 1296.
Dr. Mason’s role in the public controversy. A plaintiff voluntarily becomes a limited-
purpose public figure when she “achieve[s] a special prominence in the debate” and “tr[ies] to
influence the outcome or could . . . have an impact on its resolution.” Moss, 580 A.2d at 1031.
Greater access to media is an indicator of public figure status, as is regular and continuing public
outreach. Id. at 1029.
Dr. Mason is a public figure in the controversy. She gained significant public prominence
when she assumed the role of President and Chief Executive Officer of IWPR, a nonprofit that is
actively involved in increasing gender equality in the workplace. ECF No. 1 ¶ 7. Even before
taking on this role, Dr. Mason had “more than twenty years of research and advocacy experience
focused on women’s economic security.” Id. ¶ 24. And upon joining IWPR, she “substantially
raised [the organization’s] public profile,” “participate[d] in public forums and networking
events,” and “spearhead[ed] two major conferences.” Id. ¶¶ 27, 31. She even won an industry
award and “was named one of the World’s Greatest Leaders by Fortune Magazine.” Id. ¶ 27. By
virtue of her role, experience, and activities, Dr. Mason was a prominent figure promoting gender
equality in the workplace.
27 Waldbaum provides a useful point of comparison. There, the former Chief Executive
Officer of a supermarket company was deemed a limited-purpose public figure in a defamation
case concerning an article about his ouster from the company. 627 F.2d at 1290, 1300. The court
explained that the plaintiff had “thrust” himself into a topic of public debate—the supermarket
industry generally—by hosting forum discussions, overseeing the company’s marketing, and
making public statements on the company’s behalf. Id. at 1300. Based on this, the court
determined that he was a limited-purpose public figure on the topics of the company’s policies and
its approach to the industry. Id.
Dr. Mason is similarly situated to the plaintiff in Waldbaum. She injected herself into the
topic of gender equity in the workplace by conducting outreach on behalf of IWPR and raising her
profile as a thought leader in the space. ECF No. 1 ¶¶ 27-29, 31. While Dr. Mason is correct that
“[b]eing an executive within a prominent and influential company does not by itself make one a
public figure,” ECF No. 10-1, at 32 (quoting Waldbaum, 627 F.2d at 1299), she did more than
merely run IWPR. She “substantially raised IWPR’s public profile by taking steps to participate
in public forums and networking events,” led two large conferences, received an industry award,
and was the subject of other press coverage. ECF No. 1 ¶¶ 27, 31. The complaint (and the news
articles, ECF Nos. 4-8 & 4-9) clearly establish that Dr. Mason took on a public role over and above
that of a typical executive.
Germaneness. The statements “must be ‘germane to the plaintiff’s participation in the
controversy.’” See Jankovic II, 822 F.3d at 589 (quoting Waldbaum, 627 F.2d at 1298). “This
[approach] ensures that publishers cannot use an individual’s prominence in one area of public life
to justify publishing negligent falsehoods about an unrelated aspect of the plaintiff’s life.” Id.
28 The allegedly defamatory statements at issue here are germane to the controversy. Many
of Dr. Mason’s qualms with the article relate to statements about her ability to lead IWPR and, in
turn, the organization’s ability to fulfill its goals to promote gender equity in the workplace. See
ECF No. 1 ¶ 122. That is certainly germane to the broader controversy. Dr. Mason argues that
the statements “concern IWPR’s internal affairs” and “d[o] not involve any gender equity issues,
i.e., issues involving disparate treatment of men and women.” ECF No. 10-1, at 32. That
misunderstands the test. “Statements, including those highlighting a plaintiff’s ‘talents, education,
experience, and motives,’ can be germane.” Jankovic II, 822 F.3d at 589 (quoting Waldbaum, 627
F.2d at 1298). The allegedly defamatory statements relate to Dr. Mason’s experience and ability
to effectively advocate on issues of gender equality. They are plainly germane.
b. Application of the actual malice standard
“As a limited-purpose public figure, [Dr. Mason] can prevail on [her] defamation claim
only if [s]he ‘proves that the statement[s] [were] made with ‘actual malice’—that is, with
knowledge that it was false or with reckless disregard of whether it was false or not.’” Jankovic II,
822 F.3d at 589 (quoting Sullivan, 376 U.S. at 279-80). Defendants are reckless if they “in fact
entertained serious doubts as to the truth of [the] publication.” Id. (quoting St. Amant v. Thompson,
390 U.S. 727, 731 (1968)).5
5 A complaint must plead facts supporting actual malice with sufficient plausibility. It is not enough for the complaint to flatly state that a defendant acted with reckless disregard for the truth. Dr. Mason cites two cases for the contrary proposition that the court “must . . . assume” actual malice when it is alleged: Weyrich v. New Republic, Inc., 235 F.3d 617 (D.C. Cir. 2001), and Farah v. Esquire Magazine, 736 F.3d 528 (D.C. Cir. 2013). ECF No. 10-1, at 33. But Weyrich was decided before Twombly and Iqbal, and Farah relied on Weyrich without explaining the intervening effect of Twombly and Iqbal. Therefore, “despite [the] ‘seemingly broad pronouncement’ [from Weyrich and Farah], courts still grant motions to dismiss based in part on the failure of a public figure to plausibly allege facts that support an inference of actual malice in a defamation case.” Deripaska v. Associated Press, 282 F. Supp. 3d 133, 143 (D.D.C. 2017). 29 Applying the actual malice standard resolves the remaining aspects of Dr. Mason’s
defamation claim, which concerns the article’s statements about IWPR’s turnover rate and the
unstaffed SPSI research group. See supra, Part IV(B)(1)(b). Dr. Mason has not plausibly alleged
that TAP or Ms. McShane made these statements with a reckless disregard for whether they were
Starting with the turnover rate, the article claims that IWPR’s turnover rate was 80% in
2021 and 78% in 2022. ECF No. 4-5, at 5. Because the actual turnover rate, as alleged in the
complaint, was closer to 40%, ECF No. 1 ¶ 70, the article’s figures are false. Dr. Mason further
alleges that she “told Ms. McShane on two separate occasions by e-mail that [her] calculations
were incorrect and that IWPR’s leadership could not verify Ms. McShane’s calculations.” Id. But
the emails, which have been incorporated by reference into the complaint, do not directly tell
Ms. McShane that her figures are false. The first email only discusses staffing issues generally
and does not specifically address the turnover rate. See ECF No. 4-9, at 5 (“Although IWPR has
seen some staff attrition and turnover through the reorganization process and COVID, [it] has
continued to produce a significant volume of research[.]”). And while the second email does
mention the turnover rate, it states only that “it is important to note the numbers/calculations you
have regarding retention/attrition . . . have not been independently verified/confirmed.” ECF
No. 4-10, at 3. At no point in these emails does Dr. Mason expressly tell Ms. McShane that her
calculations are wrong, false, or inaccurate. And even if she had, reporters “need not accept
‘denials, however vehement [because] 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.’” Tah v. Global Witness Publ’g, Inc., 991 F.3d 231, 242 (D.C. Cir. 2021)
(quoting Lohrenz v. Donnelly, 350 F.3d 1272, 1285 (D.C. Cir. 2003)). In Tah, for example, the
30 D.C. Circuit was not persuaded by the plaintiffs’ attempt to “draw an inference of actual malice
from [the defendant]’s failure to credit their denials,” because the “denials contain[ed] no
‘evidence that could be readily verified’ of the sort that would provide ‘obvious reasons to doubt
the veracity of [the defendant’s] publication.’” Id. (quoting Lohrenz, 350 F.3d at 1285).
Additionally, the emails reveal that Ms. McShane subsequently provided her precise
methodology for calculating the turnover rate. See ECF No. 4-10, at 2-3. She further noted that
her methodology was “confirmed by three different academics who study nonprofit management
at three different universities” and was informed by “more than two dozen interviews, more than
50 internal documents[,] and the staffing information available on [IWPR’s] website and in other
publicly available places online.” Id. These email exchanges contradict Dr. Mason’s assertion
that Ms. McShane had a reckless disregard for the truth of her turnover figures, rendering her
allegations implausible. See Kaempe, 367 F.3d at 963 (explaining that the court need not “accept
as true the complaint’s factual allegations insofar as they contradict . . . matters subject to judicial
notice”).
Turning to the allegation regarding understaffing, the article stated that IWPR’s SPSI
research group was “unstaffed” when, according to Dr. Mason, two individuals had been hired into
the group by the time the article was published. ECF No. 4-5, at 9; ECF No. 1 ¶ 91. As to actual
malice, Dr. Mason alleges that “information [about the staffers’ hiring] was provided to
Ms. McShane prior to publication.” ECF No. 1 ¶ 91. The complaint, however, does not provide
any additional detail as to what was communicated to Ms. McShane. It does not specify who
supplied the information, when it happened (other than, presumably, some time before the date the
article was published), or what was said. If Dr. Mason is referring to the email exchanges
incorporated by reference into the complaint, they are also unilluminating. Unlike the turnover
31 issue, which is at least discussed in the emails, there is no mention of SPSI or the two new
researchers who were hired (Afet Dundar and Jennifer Turner, see ECF No. 1 ¶ 91). At most, the
emails say that IWPR “will be announcing several significant hires in the coming weeks.” ECF
No. 4-9, at 6. That is hardly enough information to provide Ms. McShane with the requisite
knowledge to know that her SPSI-related reporting was false.6
For these reasons, the court concludes that Dr. Mason has not alleged actual malice with
sufficient plausibility to raise her claims “above the speculative level.” Twombly, 550 U.S. at 555.
Therefore, the court will dismiss Dr. Mason’s defamation claim.
C. Tortious Interference with Business Relations (Count II)
Dr. Mason also alleges that Defendants tortiously interfered with her business relationship
with IWPR. ECF No. 1 ¶¶ 127-35. But her tortious interference claim rises and falls with her
defamation claim because “[a] plaintiff may not use related causes of action to avoid the
constitutional requisites of a defamation claim.” Farah, 736 F.3d at 540 (quoting Moldea II, 22
F.3d at 319-20); see, e.g., Arpaio v. Zucker, 414 F. Supp. 3d 84, 93-94 (D.D.C. 2019) (dismissing
a tortious interference claim after the plaintiff failed to sufficiently allege a defamation claim based
on the same conduct); Montgomery v. Risen, 197 F. Supp. 3d 219, 267-68 (D.D.C. 2016) (same,
but at summary judgment), aff’d, 875 F.3d 709 (D.C. Cir. 2017). Therefore, the court will dismiss
this claim.
6 Dr. Mason further claims that actual malice can be shown by Defendants’ “bad faith and ill will,” arguing that Dr. Hartmann and Ms. McShane colluded to publish the article as a “hit piece.” ECF No. 10-1, at 35. But “preconceived notions” or “suspicion[s]” usually do “little to show actual malice.” Tah, 991 F.3d at 241 (alteration in original) (quoting Jankovic II, 822 F.3d at 597). And “‘concoct[ing] a pre-conceived storyline’ by itself is ‘not antithetical to the truthful presentation of facts.’” Id. (alteration in original) (quoting Jankovic II, 822 F.3d at 597). Dr. Hartmann’s purportedly driving role in the article’s production is largely speculative. And even if it were true, that does not create a defamation claim where there otherwise is none. 32 V. Conclusion
For the foregoing reasons, the court will grant in part Defendants’ Motion for Judicial
Notice, ECF No. 5, and grant in full Defendants’ Motion to Dismiss, ECF No. 4. A
contemporaneous order will issue.
/s/ Loren L. AliKhan LOREN L. ALIKHAN United States District Judge
Date: September 30, 2024
Related
Cite This Page — Counsel Stack
Mason v. American Prospect, Inc., Counsel Stack Legal Research, https://law.counselstack.com/opinion/mason-v-american-prospect-inc-dcd-2024.