Zimmerman v. Al Jazeera America, LLC

• Court: District Court, District of Columbia
• Decided: March 31, 2017
• Docket: Civil Action No. 2016-0013
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) RYAN W. ZIMMERMAN, et al., ) ) Plaintiffs, ) ) v. ) No. 16–cv–0013 (KBJ) ) AL JAZEERA AMERICA, LLC, et al., ) ) Defendants. ) )

MEMORANDUM OPINION

In any lawsuit claiming defamation of character, the status of the individual who

was allegedly defamed is one key determinant of the applicable legal standard.

Whereas a private individual can maintain a suit for defamation if the publisher of the

allegedly false and defamatory statement has acted negligently in disseminating the

falsehood, public figure plaintiffs must demonstrate that the allegedly false and

defamatory statement was made with “actual malice.” New York Times Co. v. Sullivan,

376 U.S. 254, 27980 (1964); see Gertz v. Robert Welch, Inc., 418 U.S. 323, 345

(1974). In this case, there is no dispute that the plaintiffs—two Major League Baseball

(“MLB”) players—are public figures. The question is whether their complaint contains

allegations of fact that, if true, are sufficient to permit a reasonable jury to conclude

that the named defendants—a major media conglomerate, one of the company’s news

producers, and an independent consultant—published a false and defamatory statement

about these plaintiffs, and did so with the requisite intent.

The allegedly false and defamatory statements at issue here are expressed in a

documentary film called “The Dark Side,” which purports to investigate the supply chain of illicit performance-enhancing drugs (“PEDs”) that exists for elite athletes.

(See First Am. Compl. (“Compl.”), ECF No. 9, ¶ 37.) Plaintiffs Ryan Zimmerman and

Ryan Howard claim that the film’s producers (Al Jazeera 1 and Deborah Davies), and

also Liam Collins, one of the individuals who is featured prominently in the

documentary (collectively, “Defendants”), are liable for defamation and the related tort

of false light invasion of privacy because of allegedly false PED-related representations

that are made about Plaintiffs in the film. Specifically, the complaint alleges that

Defendants elicited from an alleged supplier of steroids false and defamatory statements

about Zimmerman’s and Howard’s use of PEDs, captured those statements on video via

a hidden camera, and then incorporated the supplier’s false allegations into “The Dark

Side[,]” despite Defendants’ knowledge of facts that cast doubt on the truthfulness of

the supplier’s representations, including the fact that the supplier had recanted the

allegedly defamatory accusations prior to the film’s release. (See Compl. ¶¶ 1, 73;

Howard Compl., Dkt. No. 10, in Civ. Action No. 16 -cv-0014, ¶ 1.)

Before this Court at present are two motions to dismiss: one that Al Jazeera and

Davies have filed jointly (see Defs. Al Jazeera and Davies’ Mot. to Dismiss (“Defs.’

Mot.”), ECF No. 26), and another that Collins has submitted on his own behalf (see

Def. Collins’s Mot. to Dismiss (“Def. Collins’s Mot.”), ECF No. 24) . 2 Al Jazeera and

Davies argue that “The Dark Side” does not contain actionable defamatory statements

1 Three Al Jazeera-related corporate entities are named as defendants in this action: (1) Al Jazeera America, which is a U.S.-based news channel that ceased operations a s of January 2016; (2) Al Jazeera Media Network, which is the parent company of Al Jazeera America; and (3) Al Jazeera International, which is a U.S.-based subsidiary of Al Jazeera Media Network. (See Compl. ¶¶ 35.) For ease of reference, the Court refers to these three corporate entities collectively as “Al Jazeera.” 2 Page-number citations to documents the parties have filed refer to the page numbers that the Court’s electronic filing system assigns.

2 about Zimmerman or Howard, because the pertinent representations are not reasonably

capable of conveying a defamatory meaning, and in any event, the complaint fails to

plead facts that would support an inference of actual m alice. (See Defs. Al Jazeera and

Davies’ Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), ECF No. 26 -1, at 2645.) 3

Collins—who is not an Al Jazeera employee—incorporates the arguments that Al

Jazeera and Davies make into his motion by reference, and he further contends that the

complaint does not adequately allege that he has published any defamatory statements

at all, much less that he acted with actual malice pertaining to any such publication.

(See Def. Collins’s Mem. in Supp. of Def. Collins’s Mot. (“Def. Collins’s Mem.”), ECF

No. 24-1, at 6 n.1, 1219.) Zimmerman and Howard oppose Defendants’ motions,

arguing that a reasonable viewer could have understood “The Dark Side” to convey the

message that Plaintiffs have used PEDs (see Pls.’ Consolidated Opp’n to Defs.’ Mot.

and Def. Collins’s Mot. (“Pls.’ Opp’n”), ECF No. 30, at 18–21), and they further

maintain that Defendants’ knowledge of the supplier’s recantation supports the

inference that all three Defendants published the statements with actual malice (see id.

at 2127).

For the reasons explained below, this Court concludes that the complaint that

Zimmerman and Howard have filed contains sufficient allegations to state defamation

and false light claims against Al Jazeera and Davies, but only with respect to the

statements contained in the film; the statements made in the accompanying news article

do not convey a defamatory meaning. The Court further finds that the complaint does

3 Notably, in defamation cases, “actual malice” is a term of art that “focuses on what the defendan t knew about the veracity of the statements,” and should not “be confused with . . . ill will or ‘malice’ in the ordinary sense of the term.” Montgomery v. Risen, 197 F. Supp. 3d 219, 259 (D.D.C. 2016), appeal docketed, No. 16-7096 (D.C. Cir. Aug. 15, 2016).

3 not state a defamation claim or a false light claim against Collins, because the

complaint does not contain facts from which a reasonable jury might conclude that

Collins published a false and defamatory statement about Zimmerman or Howard.

Accordingly, Al Jazeera’s and Davies’s motion will be GRANTED IN PART and

DENIED IN PART, and Collins’s motion will be GRANTED in full. A separate Order

consistent with this Memorandum Opinion shall follow.

I. BACKGROUND

Plaintiffs’ complaints, and the exhibits attached to them, allege pertinent

background facts, which are described briefly below. Notably, although Zimmerman

and Howard initially filed two separate legal actions, this Court has consolidated the

cases with the parties’ consent, and the instant Memorandum Opinion primarily

analyzes the complaint and motions that have been filed in Zimmerman’s case. 4

A. The Making Of “The Dark Side”

“The Dark Side: Secrets of the Sports Dopers” is a 49-minute documentary that

Al Jazeera produced in 2015. (See “The Dark Side: Secrets of the Sports Dopers”

(“Film”), Ex. L to Compl., ECF No. 9-12; see also Tr. of “The Dark Side: Secrets of the

4 The complaints that Zimmerman and Howard have filed are substantively identical and differ only with respect to the factual allegations regarding each Plaintiff’s personal background ( compare Compl., ECF No. 9, ¶ 2 (“Zimmerman is a citizen and resident of Virginia, and a first baseman for the Washington Nationals MLB team.”), with Howard Compl., Dkt. No. 10, in Civ. Action No. 16 -cv-0014, ¶ 2 (“Howard is a citizen and resident of Florida, and the starting first baseman for the Philadelphia Phillies MLB team.”)), and the specific defamatory statements at issue ( compare Compl. ¶ 44 (recounting accusation that Zimmerman has used performance -enhancing drugs), with Howard Compl., ¶ 47 (recounting accusation that Howard has used performance -enhancing drugs)). Likewise, Defendants filed substantively identical motions to dismiss and replies thereto across both actions, which Plaintiffs responded to by filing materially identical oppositions. Thus, while there are technically two separate complaints and four pending motions to dismiss—two filed in Zimmerman’s case, and two initially filed in Howard’s case —this Court has concluded that it can properly evaluate the complaints and the motions together in the context of the now -consolidated action.

4 Sports Dopers” (“Film Tr.”), Ex. A to Defs.’ Mot., ECF No. 26-4.) 5 “The Dark Side”

purports to reveal little-known facts about the supply chain of elicit performance-

enhancing drugs in professional sports (see Film. Tr. at 2), and the film features an

undercover investigation that Al Jazeera producers allegedly conducted over a period of

eight months (see id.). Using a combination of taped confessionals and hidden camera

footage that is intended to “capture what athletes call the dark side[; i.e.,] the secret

world of doping” (id.), the film primarily details and displays the producers’ efforts to

“catch” on film individuals who purport to distribute PEDs to athletes—people such as

“[d]octors, chemists, [and] chiropractors”—as they talk about the substances and “the

players” they “claim[] [they’ve] doped to fame” (id.).

Deborah Davies, a British reporter employed in Al Jazeera’s Investigative Unit,

served as the lead reporter of the investigation that is featured in the film (see Compl. ¶

33) and is also the principal narrator in the documentary (see generally Film Tr.).

Although much of “The Dark Side” consists of hidden camera footage of secretly-

record discussions with various alleged medical professionals, it is Davies’s voice-

overs that help to explain the contours of the undercover investigation; consequently,

her remarks provide the context for the photos, video clips, and statements in the film

that expressly link certain professional athletes to the underground world of

5 Plaintiffs attached to their complaint a copy of the documentary at issue (see Film), and Al Jazeera and Davies attached to their motion a detailed transcript of this film ( see Film Tr.), the accuracy of which is not in dispute. For the purpose of the pending moti ons to dismiss, this Court considers both exhibits as incorporated into the complaint. See Farah v. Esquire Magazine, 736 F.3d 528, 534 (D.C. Cir. 2013) (“[I]n determining whether a complaint states a claim, the court may consider the facts alleged in the complaint, documents attached thereto or incorporated therein, and matters of which it may take judicial notice.” (internal quotation marks and citation omitted)); see also Bogie v. Rosenberg, 705 F.3d 603, 60809 (7th Cir. 2013) (noting that district court reviewing motion to dismiss properly considered video recording incorporated by reference, and physically attached to, amended complaint). Finally, in the interest of providing more precise citations, the Court will cite primarily to the transcript.

5 performance-enhancing drugs. (See, e.g., Film Tr. at 3 (during a scene depicting fans at

a professional football game, Davies suggests that the investigation seeks to explore

“extraordinary claims that raise questions” about whether a particular “American

sporting hero”—who she mentions by name—is “linked” to PEDs).)

At the outset of the film, Davies asserts that “[t]he best way to understand the

dark side of sport is to meet an athlete who’s been there—and back.” (Id.) Davies then

introduces the audience to a former track star who had been banned from his sport for

using PEDs, and who claims that he first obtained PEDs from a particular Bahamian

doctor. (Id. at 45.) In order to investigate this claim, Al Jazeera’s producers decided

to “[w]ork[] with a British athlete” to “infiltrate a network [of suppliers] who claim

their scientific expertise can cheat the system.” (Id. at 2.) Plaintiffs’ complaint alleges

that the athlete Al Jazeera and Davies enlisted—Liam Collins—is “a former hurdler,

would-be bobsledder, and bankrupt real-estate promoter” who has “no known news

reporting training or experience.” (Compl. ¶¶ 8, 40.) However, Davies explains in the

film that Al Jazeera’s producers considered Collins to be “perfectly placed to go

undercover” (Film Tr. at 6), and that the producers approached him with a “proposal”:

“help us to investigate doping in sport . . . by claiming to be an athlete desperate to

qualify for the Rio Olympics.” (Id.)

After Collins agreed to participate in Al Jazeera’s investigation, the producers

helped to “test out [his] cover story” by connecting him with the Bahamian doctor

previously mentioned. (Id.; see also id. at 7.) From there, Collins spent six months in

an undercover capacity, chasing leads and trying to contact various alleged suppliers of

PEDs in the Bahamas, Canada, and Texas. (See Compl. ¶ 40.) According to the

6 complaint, Collins’s modus operandi generally involved “[f]alsely claiming to be a

potential client[,]” and “induc[ing] people he came into contact with to discuss the topic

of performance-enhancing substances and to provide him with [such substances],” al l

while he was secretly recording the interactions with a hidden camera. (Id.) Collins

solicited the allegedly defamatory statements at issue in the instant case when he was

speaking with a central figure in the documentary: a purportedly notorious supplier of

PEDs named Charlie Sly. (See Film Tr. at 2728.)

The broad investigatory narrative that Davies presents in “The Dark Side”

focuses in large part on Sly. He is featured and discussed at multiple points in the film,

and Davies repeatedly comments on her impressions of him, mostly casting him in a

favorable light. For example, Davies characterizes Sly as a “doctor of pharmacy” when

he is first introduced (see id. at 15), 6 and when Sly is heard discussing a particular

banned substance (growth hormone) at one point in the film, Davies states, “Charlie Sly

appeared knowledgeable about the drug—he knows it’s severely restricted even as legal

medication.” (Id. at 33; see also id. at 3334 (Davies comments that “[w]e checked

[Sly’s claim regarding growth hormones] with one of America’s leading experts.

Professor Alan Rogol is an endocrinologist . . . He confirmed [Sly’s claim].”).) The

documentary also includes several comments from Davies indicating that her

investigatory team had confirmed certain details regarding Sly’s background. (See,

e.g., id. at 33 (“We’ve confirmed Charlie Sly worked in their pharmacy in 2011.”).)

Davies’s voice-over also makes clear that Sly’s reputation as a “chemical

mastermind” (id. at 2) precedes him: Collins contacts Sly precisely because two other

6 The complaint disputes this contention. ( See Compl. ¶ 58.)

7 suppliers are captured on tape calling Sly “a genius at outwitting” the World Anti-

Doping Agency, and someone who’s “taken smart drugs to a whole new level.” (Id. at

14, 15; see also id. at 15 (Davies remarks that “[s]omeone who’s taken drugs to a new

level—was someone we needed to meet”).)

Davies explains in the film that, after Collins established contact with Sly, Al

Jazeera set up hidden cameras at a café and in a hotel room to capture Collins’s initial

meeting with him. (See id. at 15.) During the ensuing exchange, which is shown in the

film, Sly offers Collins “[o]ne anabolic,” and says that he can “give [Collins] something

to use right now” that will be “great for . . . strength gains.” (Id.) Sly also says that

“[t]here’s a bunch of football players who take this. And a bunch of baseball players

who take it too . . . [,]” and he adds that “it was recently added to the MLB banned list.”

(Id.) In the film, this conversation between Collins and Sly continues inside Sly’s

apartment, where, according to Davies’s voiceover, Collins “discovers [Sly’s] fridge is

full of drugs[,] [i]ncluding a half filled syringe—which Sly offers for immediate use.”

(Id. at 16; see also id. (Davies asserts that Collins “declines the offer, saying he wants

to read up on Delta 2[,]” which Davies describes as the “designer steroid” that Sly

handed to Collins).) Collins then “takes the syringe away” (id.), and in a confessional

spoken directly to the camera, Collins asserts that Sly had talked to him about a famous

professional football player (by name), and had told him that the player “buys all [the]

stock” of Delta 2 from the only company that sells it on the internet (id. at 16–17).

“The Dark Side” proceeds to feature other aspects of Collins’s investigation into

doping, but Collins’s multiple meetings with Sly are a central component of the film.

Recorded hidden-camera footage of several conversations between Collins and Sly are

8 shown at various points, and in nearly every video clip, Sly brags about his connections

to famous players, who he names specifically in the course of promoting his services,

drugs, and business to Collins. (See, e.g., id. at 17, 19, 28, 29.) Eventually, Davies

states that the producers “wanted to test [Sly’s] doping expertise and his level of

connections” (id. at 23), and a video clip of the foyer of Sly’s apartment follows (see

id.). Then, as viewers gaze upon the entry to Sly’s residence, Davies remarks that Sly

“proved his link to one sportsman very quickly[,]” because “[w]aiting at his building is

a baseball player, Taylor Teagarden.” (Id.; see also id. at 23–24 (Davies comments that

Teagarden has played on professional teams “in Chicago, Texas, New York, and

Baltimore[,]” and that Sly has “guided him on a mix of clean and banned substances—

including the steroid Delta 2”).) 7

Significantly for present purposes, at one point about 35 minutes into the film,

Sly is shown driving in a car with Collins. According to Davies’s narration, during this

drive, Sly casually started to “name[] more sportsmen he claims are linked to Delta 2—

in baseball and football[,]” and then asserted that “he coached them on what to take and

how to avoid testing positive.” (Id. at 27.) Davies notifies the audience that her

production team had “primed Liam [Collins] with questions to dig into the claims” (id.),

and the subsequent discussion between Sly and Collins is captured by Collins’s hidden

camera. It is in response to Collins’s questions that Sly maintains that Howard and

Zimmerman use PEDs. (See id. at 2728.)

7 In the hidden camera video footage that follows, Teagarden admits to his use of banned steroids. He states: “I used it last year” and “I was scared to be honest with you. I took it for like two weeks, and I had a test four weeks after my last administration of it.” (Film Tr. at 24.)

9 B. The Film’s Allegedly Defamatory Statements About Plaintiffs

The following is a description of the segments in “The Dark Side” that feature a

specific conversation between Collins and Sly about Howard, with background

narration by Davies:

Davies [off-screen narration over video clip of Sly and Collins driving]: Back in Texas, the pharmacist Charlie Sly names more sportsmen that he claims are linked to Delta 2, in baseball and football. He says he coached them on what to take and how to avoid testing positive. In a series of conversations crisscrossing Texas, we primed Liam [Collins] with questions to dig into the claims.

[The video then cuts to a stylized clip of Howard running the bases in his Phillies uniform, with voiceover as follows.]

Sports Announcer: That is well hit, it is way back, 50 home runs for Ryan Howard.

[The shot then rests on a backdrop of a stylized Howard baseball card. Against this backdrop, the following recorded conversation is played while the text of the speakers’ words appear in subtitle-like fashion.]

Collins: So with the likes of Howard, once you’ve set him off is there like a maintenance thing?

Sly: He is somebody that you cannot overwhelm with stuff. You just make sure you have everything in bags. He knows to take stuff twice a day. Usually I just have him like teach it back to me.

Collins: What did he notice in his hitting?

Sly: With the D2?

Collins: Yeah.

Sly: I think maybe some more explosiveness. He had a couple of years where he had just a ton of home runs.

(Film; see also Film Tr. at 2728.)

10 A discussion of Zimmerman follows immediately; it features a conversation

between Collins and Sly during this same road trip:

[The video cuts to a stylized clip of Zimmerman batting in his Nationals unif orm, with voiceover as follows:]

[Sports] Announcer: That’s a seeing-eye single for Ryan Zimmerman. 3 for 4 on the day.

[The shot then rests on a backdrop of a stylized Zimmerman baseball card. Across this backdrop, the following conversation is played while text of the conversation scrolls across the screen.]

Collins: How long have you known Zimmerman?

Sly: Probably six years . . . I worked with him in the off-season. That’s how I get him to change some stuff.

Collins: Is he on the D2 as well?

Sly: Yeah.

Collins: What does he think of the D2?

Sly: It does its job.

Collins: Does he notice a lot more power or not?

Sly: Yeah, I think some guys have just kinda gotten used to it.

Collins: Yeah[.]

Sly: It’s the new normal.

(Film Tr. at 28; see also Film.)

After a short clip in which Sly and Collins discuss another professional athlete (a

football player who is also purportedly “in the D2 club”), Davies’s voice states that

11 Zimmerman, Howard, and the football player “each . . . emphatically denies taking

Delta 2 or any PED and say whoever claims that, is lying.” (Film Tr. at 29.) While

these denials are being referenced, the film features graphics of Zimmerman, Howard,

and the football player over the stylized words “Emphatically denies[.]” (Id.; see also

Film.)

C. Sly’s Recorded Recantation, And Al Jazeera’s Unstinting Efforts To Disseminate And Publicize The Film

In the complaint, Zimmerman and Howard assert that “[a]ll of [Sly’s] statements

concerning [them] are categorically untrue.” (Compl. ¶ 47; see also Howard Compl. ¶

50 (alleging that,“[b]ut for the reference to Mr. Howard’s prowess as a home run

hitter,” the statements about Howard that Sly makes in the film are false).) Moreover,

and importantly, the complaint alleges that, before the documentary was distributed, Al

Jazeera was aware of certain facts that cast doubt on Sly’s credibility, and this

knowledge demonstrates that the film’s producers either knew Sly’s statements were

false, or recklessly disregarded the falsity of the statements. ( See Compl. ¶¶ 506l, 73.)

In this regard, the complaint makes various assertions regarding problems with the

quality of the reporting underlying the film. (See, e.g., id. ¶ 57.) However, the primary

fact that Plaintiffs say was known to Al Jazeera and that should have undermined the

producers’ confidence in Sly’s statements was the fact that Sly later expressly rescinded

the remarks that he had made about athletes in “The Dark Side.” (See id. ¶¶ 1, 54.)

Specifically, the complaint points to a television interview of Davies that was

recorded shortly after “The Dark Side” was publicly released; in the interview, Davies

both “admitted that Al Jazeera heard from Sly ‘48 hours ago’”—i.e., before “The Dark

Side” was made available to the public—and reported “that ‘Charlie Sly now says that

12 anything he said to us wasn’t true.’” (Id. ¶ 60; see also Dec. 27, 2015 Al Jazeera

Interview With Davies (“Davies Interview”), Ex. V. to Compl., ECF No. 9 -22.) The

recantation statement of Sly’s that Davies references in the interview was itself

videotaped (see Sly Recantation Video, Ex. R to Compl., ECF No. 9 -18), and in the

taped remarks, Sly faces the camera directly and says:

The statements on any recordings or communications that Al Jazeera intends to air are absolutely false and incorrect. To be clear, I am recanting any such statements and there is no truth to any statement of mine that Al Jazeera plans to air. Under no circumstances should any of those statements, communications, or recordings be aired.

(Compl. ¶ 54.) 8

Thus, Davies’s recorded interview confirms the complaint’s contention that Al

Jazeera was aware of Sly’s recantation prior to releasing the film. (See id. ¶ 1

(“Defendants knew full well that their ‘source’ had recanted his scandalous and untrue

allegations[.]”).) But Al Jazeera did not forego its planned distribution of “The Dark

Side” or investigate further after receiving word of the recantation; instead, it appears

that Davies makes a reference to Sly’s recantation in one narrated sentence at the end of

the film, in which she mentions that one other purported supplier of PEDs had failed to

comment, and that Sly had disavowed his own statements. (See Film Tr. at 36 (Davies

remarks that “Dr. Guyer didn’t respond to our request for a comment” and “Charlie Sly

said his statements about athletes were false and incorrect[,]” while the film displays a

graphic of Sly next to the words “false and incorrect”).)

8 Sly’s “55-second long video recantation” is quoted i n its entirety in the complaint ( see Compl. ¶ 54) and referenced as an exhibit (see Sly Recantation Video). The complaint alleges that Al Jazeera provided an advance copy of “The Dark Side” to The Huffington Post, and that that media company published an online story about “The Dark Side” that contained a link to the video of Sly recanting. (See Compl. ¶ 53.)

13 When Zimmerman and Howard learned that Al Jazeera was planning to

disseminate a film that accused them of taking illegal supplements—which they say

happened on December 9, 2015—they immediately contacted Al Jazeera’s counsel,

through their own lawyer, to inform Al Jazeera that they “unequivocally and

emphatically de[ny] using or having used Delta 2 or any other performance-enhancing

drug[.]” (Compl. ¶ 50 (internal quotation marks omitted).) Plaintiffs’ counsel again

reiterated Plaintiffs’ denials to Al Jazeera on December 23, 2015 (see id. ¶ 51), and

three days later, Plaintiffs allegedly learned that “Sly had unequivocally advised Davies

and Al Jazeera’s counsel, in writing, that the purported statements were false” (id. ¶ 52

(emphasis omitted)). Plaintiffs’ counsel then wrote to Al Jazeera’s counsel again, this

time on December 26, 2015, emphasizing that, in light of Sly’s recantation, “[t]here can

be no conclusion but that the sources for Al Jazeera’s statements regarding [Plaintiffs’]

use of performance enhancing drugs are patently unreliable[.]” ( Id. ¶ 52 (first alteration

in original) (internal quotation marks omitted).) Nevertheless, Al Jazeera posted the

full documentary to YouTube at 9:01 p.m. on December 26, 2015 (see id. ¶ 53), and it

formally aired the documentary on its television network the next day (see id. ¶ 61).

Meanwhile, Al Jazeera also posted on its website a news article that described

“The Dark Side” and included an embedded link to the film. (See id. ¶¶ 37, 38; see also

“The dark side: The secret world of sports doping” (“Print Article”), Ex. M to Compl.,

ECF No. 9-13, at 2.) The brief article describes the investigation and highlights some

of the pharmacists and doctors that Al Jazeera’s Investigative Unit encountered . It also

states that the investigation “exposed the crucial role of pharmacists and doctors in

creating and prescribing programmes of performance-enhancing drugs[,]” and that the

14 film “raises questions about some well-known athletes in American football and

baseball who the medical professionals claim to work with.” (Print Article at 3.)

With respect to Zimmerman and Howard specifically, the article makes the

following statement:

Sly also named baseball players Ryan Zimmerman, of the Washington Nationals, and Ryan Howard, of the Philadelphia Phillies, raising questions about whether they use the hormone supplement Delta 2. Both have denied the allegations. In a statement to the Philadelphia Inquirer on Sunday, Zimmerman and Howard’s lawyer William Burck said: ‘The extraordinarily reckless claims made against our clients in this report are completely false and rely on a source who has already recanted his claims.’ The Nationals also issued a statement in support of Zimmerman. The Phillies subsequently issued a statement supporting Howard[.]

(Id. at 34.)

D. Procedural History

Plaintiffs filed the instant two-count complaint against Defendants on January

20, 2016, alleging that Defendants had recklessly published false and defamatory

statements concerning Plaintiffs when Defendants aired “The Dark Side” on Al

Jazeera’s television network and posted the aforementioned news article describing the

documentary on Al Jazeera’s website. (See Compl. ¶ 37.) 9 Plaintiffs contend that the

documentary and news article “state outright and also carry the unmistakable message

that [Plaintiffs have] taken or [are] taking illegal p erformance-enhancing substances,”

an allegation that Plaintiffs claim “[is] per se defamatory, as [it] falsely accuse[s]

9 Count One of Plaintiffs’ complaint claims “Libel” (Compl. at 21); however, this Memorandum Opinion refers to this claim by the generic term “defa mation.” See 1 Rodney A. Smolla, Law of Defamation § 1:10 (2016) (“Defamation is the generic term for the twin torts of libel and slander.”); see also Tagliaferri v. Szulik, No. 15 Civ. 2685, 2015 WL 5918204, at *3 (S.D.N.Y. Oct. 9, 2015) (“Generally, spoken defamatory words are slander; written defamatory words are libel.” (internal quotation marks and citation omitted)). Count Two makes the closely -related claim that “The Dark Side” and the news article “place [Plaintiffs] in a false light highly offens ive to a reasonable person[.]” (Compl. ¶ 80.)

15 [Plaintiffs] of illegal acts, as well as acts injurious to [their] professional and business

reputation[.]” (Id. ¶¶ 48, 69.) Plaintiffs further allege that Defendants knew that the

underlying allegations were “based on uncorroborated accusations by a third party that

had been unequivocally recanted prior to Defendants’ publication.” (Id. ¶ 1 (emphasis

in original).)

Al Jazeera and Davies filed a motion to dismiss Plaintiffs’ complaint on April

11, 2016; Collins filed a separate motion to dismiss on April 8, 2016. (See generally

Defs.’ Mot.; Def. Collins’s Mot.) In their motion to dismiss, which is brought under

Federal Rule of Civil Procedure 12(b)(6), Al Jazeera and Davies argue that “The Dark

Side” as a whole is not reasonably capable of conveying the message that Plaintiffs

have used PEDs, and that the complaint fails to state a plausible claim that Defendants

published the allegedly defamatory statement with actual malice. (See Defs.’ Mem. at

2645.) Defendant Collins incorporates these arguments into his own motion, in which

he further argues that Plaintiffs have failed to allege plausible facts from which one

could infer that he published the documentary or news article, or did so with actual

malice. (See Def. Collins’s Mem. at 6, 1220.)

In their opposition, Plaintiffs maintain that a reasonable viewer could have

understood “The Dark Side” to convey the message that Plaintiffs have used PEDs, and

furthermore, that Defendants’ knowledge of Sly’s recantation prior to publication

supports the inference that Defendants published the statements with actual malice.

(See Pls.’ Opp’n at 18–24.) With respect to Collins, Plaintiffs contend that they have

adequately alleged that Collins participated in the publication of the defamatory

statements based on his extensive role in the eight-month investigation, and in addition,

16 that they have proffered sufficient facts to suggest that Collins acted with the same

degree of recklessness as Al Jazeera and Davies. (See id. at 27–30.)

Both motions are ripe for this Court’s review. (See Defs.’ Mem.; Def. Collins’s

Mem.; Pls.’ Opp’n; Defs. Al Jazeera and Davies’ Reply Mem. in Supp. of Defs.’ Mot.

(“Defs.’ Reply”), ECF No. 31; Def. Collins’s Reply Mem. in Supp. of Def. Collins’s

Mot. (“Def. Collins’s Reply”), ECF No. 32.) The Court held a hearing on the motions

on September 13, 2016.

II. LEGAL STANDARDS

A. Motions To Dismiss Under Rule 12(b)(6)

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint by

raising the question of whether or not the complaint contains “sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Harris v. D.C.

Water & Sewer Auth., 791 F.3d 65, 68 (D.C. Cir. 2015) (internal quotation marks

omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

When evaluating a Rule 12(b)(6) motion, the “court must accept as true all of the

allegations contained in a complaint[,]” Harris, 791 F.3d at 68 (internal quotation

marks omitted) (quoting Iqbal, 556 U.S. at 678), and “grant plaintiff the benefit of all

inferences that can be derived from the facts alleged,” Sparrow v. United Air Lines,

Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal quotation marks and citation

omitted). However, this tenet “is inapplicable to legal conclusions.” Harris, 791 F.3d

at 68 (internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 678). This means

17 that “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. (alteration in original) (internal quotation

marks omitted) (quoting Iqbal, 556 U.S. at 678).

B. Defamation And False Light Invasion Of Privacy Claims

The defamation and false light invasion of privacy claims in this case are both

common law tort claims that have been brought under District of Columbia law. 10 To

state a claim for defamation under District of Columbia law, a plaintiff must allege “(1)

that he was the subject of a false and defamatory statement; (2) that the statement was

published to a third party; (3) that publishing the statement was at least negligent; and

(4) that the plaintiff suffered either actual or legal harm.” Farah v. Esquire Magazine,

736 F.3d 528, 53334 (D.C. Cir. 2013) (citations omitted). Relatedly, under District of

10 The parties appear to agree, without much elaboration, that District of Columbia law applies to this legal action. (See Defs.’ Mem. at 32 (“For purposes of this motion, Defendants agree that the Court should apply the substantive law of the District of Columbia.”); Pls.’ Opp’n at 17 18 (citing District of Columbia case law for the substantive law that governs Plaintiffs’ claims).) To determine which jurisdiction’s laws govern Plaintiffs’ claims, this Court applies the choice-of-law rules of the jurisdiction in which it sits. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). The District of Columbia’s choice-of-law rules “require that [courts] apply the tort law of the jurisdiction that has the most significant relationship to the dispute[,]” taking into account the jurisdiction “where the injury occurred, where the conduct causing the injury occurred, the domicile, residence, nationality, place of incorporation and place of business of th e parties[.]” Abbas v. Foreign Policy Grp., LLC (Abbas II), 783 F.3d 1328, 1338 n.6 (D.C. Cir. 2015). With respect to Plaintiff Zimmerman, who plays for the Washington Nationals and arguably experienced reputational harm in the District of Columbia, it is reasonable to assume that District of Columbia law should apply. But the same cannot be said for Plaintiff Howard, who formerly played for the Philadelphia Phillies and presumably experienced reputational harm predominantly in Pennsylvania. Although th e parties have not addressed this discrepancy, this Court has examined Pennsylvania defamation law and discerns no meaningful difference between the defamation law of that jurisdiction and the defamation law of the District of Columbia. Compare Tucker v. Fischbein, 237 F.3d 275, 281 (3d Cir. 2001) (“Under Pennsylvania law, a defamation plaintiff bears the burden to show: (1) The defamatory character of the communication[;] (2) Its publication by the defendant[;] (3) Its application to the plaintiff[;] (4) The understanding by the recipient of its defamatory meaning[; and] (5) The understanding by the recipient of it as intended to be applied to the plaintiff.”), with Farah v. Esquire Magazine, 736 F.3d 528, 53334 (D.C. Cir. 2013) (naming substantially similar elements). Accordingly, this Court will embrace the parties’ agreement and apply District of Columbia law to this matter. See, e.g., Abbas II, 783 F.3d at 1338 n.6 (“[The plaintiff] alleges that the conduct that caused his i njury took place in the District of Columbia. The defendants agree that D.C. law should govern. The parties relied on D.C. defamation law in briefing this appeal. We conclude that D.C. defamation law governs this dispute.”).

18 Columbia law, “[a] false light claim . . . requires a showing of: (1) publicity; (2) about a

false statement, representation or imputation; (3) understood to be of and concerning

the plaintiff; and (4) which places the plaintiff in a false light that would be offensive to

a reasonable person.” Doe v. Bernabei & Wachtel, PLLC, 116 A.3d 1262, 1267 (D.C.

2015) (alteration in original) (internal quotation marks and citation omitted). These two

torts share similar elements, and are often “analyzed in the same manner[,]” at least

“where the plaintiff rests both his defamation and false light claims on the same

allegations[.]” Blodgett v. Univ. Club, 930 A.2d 210, 223; see also id. at 222.

Nevertheless, they are two different claims, as the D.C. Circuit has recognized. See

Weyrich v. New Republic, Inc., 235 F.3d 617, 628 (D.C. Cir. 2001).

1. Defamation

“When confronted with a motion to dismiss [a defamation claim], a court must

evaluate ‘[w]hether a statement is capable of defamatory meaning,’ ” which is a

threshold “question of law[,]” Jankovic v. Int’l Crisis Grp. (Jankovic I), 494 F.3d 1080,

1091 (D.C. Cir. 2007) (second alteration in original) (quoting Weyrich v. New Republic,

Inc., 235 F.3d 617, 627 (D.C. Cir. 2001)), and must also determine whether the

statement is false, see White v. Fraternal Order of Police, 909 F.2d 512, 520 (D.C. Cir.

1990) (“Defamatory meaning and falsity are distinct elements of the tort of defamation

and are considered separately.”). To evaluate whether a statement is capable of

defamatory meaning, courts employ a two-part framework that asks: “‘(a) whether a

communication is capable of bearing a particular meaning, and (b) whether that

meaning is defamatory.’ The jury then determines whether the communication was in

fact so understood by its recipient.” Moldea v. N.Y. Times Co. (Moldea I), 15 F.3d

1137, 1142 (D.C. Cir. 1994) (quoting Restatement (Second) of Torts § 614 (1977)),

19 modified on reh’g on other grounds, 22 F.3d 310 (D.C. Cir. 1994) (Moldea II).

“[T]he defamatory meaning inquiry focuses only on whether a reasonable reader

could understand a statement as tending to injure a plaintiff’s reputation.” Moldea I, 15

F.3d at 1142 (emphasis added). “Assuming a statement is reasonably capable of a

defamatory meaning, the trier of fact must determine if it was actually understood by

the recipient in that sense.” Id. (internal quotation marks and citation omitted).

Ultimately, then, “[i]t is only when the court can say that the publication is not

reasonably capable of any defamatory meaning and cannot be reasonably understood in

any defamatory sense that it can rule as a matter of law, that it was not libelous.”

White, 909 F.2d at 518 (quoting Levy v. Am. Mut. Ins. Co., 196 A.2d 475, 476 (D.C.

1964)); see also Jankovic I, 494 F.3d at 1091.

The next element of a defamation claim—publication—requires a defendant to

have “published or knowingly participated in publishing the defamation.” Tavoulareas

v. Piro (Tavoulareas I), 759 F.2d 90, 136 (D.C. Cir. 1985) (emphasis in original),

vacated in part on other grounds on reh’g, 763 F.2d 1472 (D.C. Cir. 1985)

(Tavoulareas II), and on reh’g, 817 F.2d 762 (D.C. Cir. 1987) (Tavoulareas III) (en

banc). “Publication” is the communication of defamatory matter “intentionally or by a

negligent act to one other than the person defamed.” Restatement (Second) of Torts §

577(1) (1977); see also id. cmt. a (“Any act by which the defamatory matter is

intentionally or negligently communicated to a third person is a publication.”). A valid

claim for defamation also requires a showing of legal harm (i.e., defamation per se) or

special harm as a result of the publication. As relevant here, a statement constitutes

defamation per se when it “imput[es] to a person a . . . matter affecting adversely a

20 person’s fitness for trade, business, or profession[.]” Carey v. Piphus, 435 U.S. 247,

262 n.18 (1978).

Another significant element of a defamation claim is the defendant’s state of

mind, that is, if the defendant publishes a statement that is capable of a defamatory

meaning and that causes the plaintiff legal or special harm, the court must next

determine whether the defendant made the defamatory statement with the requisite

intent. The state of mind element is one the “[v]arious doctrinal protections [that]

preserve ‘the breathing space which freedoms of expression require in order to

survive[,]’” Farah, 736 F.3d at 534 (quoting Milkovich v. Lorain Journal Co., 497 U.S.

1, 19 (1990)), and the Supreme Court has managed to “reshape the common-law

landscape to conform to the First Amendment[,]” Phila. Newspapers, Inc. v. Hepps, 475

U.S. 767, 775 (1986), by enunciating two circumstances in which a heightened level of

intent will be required. “The first is whether the plaintiff is a public official or figure,”

and “[t]he second is whether the speech at issue is of public concern.” Id.

Courts have long held that, if the subject of the defamatory statement is a public

official or figure, the complaint must allege fault in the making of the defamatory

statement that rises to the level of “actual malice,” rather than mere negligence, see

Sullivan, 376 U.S. at 27980; see also Gertz, 418 U.S. at 345, which means that the

defendant must have “knowledge that [the statement] was false or [must act] with

reckless disregard of whether it was false or not[,]” Sullivan, 376 U.S. at 280. 11 The

actual malice standard is subjective; it is satisfied only when there is “sufficient

11 Plaintiffs—two MLB players—do not contest that they are public figures and that the appropriate standard of fault in this matter is therefore actual malice ( see Sept. 16, 2016 Hr’g Tr. (“Hr’g Tr.”), ECF No. 36, at 13:15), and this Court agrees, see Tavoulareas III, 817 F.2d at 772 (characterizing well- known athletes as the “archetypes of the general purpose public figure”).

21 evidence” to suggest 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). In

addition, when the speech at issue is of public concern and the defendant is a media

member, there is no common law presumption that the defamatory speech is false, and

the plaintiff instead bears the burden of demonstrating both falsity and fault before

recovering damages. Hepps, 475 U.S. at 77677.

2. False Light Invasion Of Privacy

Notably, “[t]hough invasion of privacy false light is distinct from the tort of

defamation, the same First Amendment protections apply.” Weyrich, 235 F.3d at 627

(internal quotation marks and citation omitted). This means that “[a] false light claim

involving a public figure, like a defamation claim, requires proof of actual malice.”

Parsi v. Daioleslam, 890 F. Supp. 2d 77, 92 (D.D.C. 2012). The publicity element of a

defamation claim also exists in the false light context; that is, “a false light claim . . .

[requires] knowledge of or . . . reckless disregard as to the falsity of the publicized

matter and the false light in which the other would be placed.” Weyrich, 235 F.3d at

628 (internal quotation marks and citations omitted); see also Moldea I, 15 F.3d at 1151

(“Publicity that is actionable in a false light claim generally will be actionable in

defamation as well.”).

Thus, because the elements of a false light claim are similar to those of a

defamation claim, courts often analyze the two claims in the same manner, particularly

where a plaintiff rests both claims on the same underlying allegations. However, what

is being remedied is at least conceptually distinct: “ a defamation tort redresses damage

to reputation while a false light privacy tort redresses mental distress from having been

22 exposed to public view.” White, 909 F.2d at 518 (emphasis added). Moreover, the

character of the statements that are actionable with respect to the two torts is also

different. To state a false light claim, a plaintiff must demonstrate that the false

statement, representation, or imputation at issue “places the plaintiff in a false light that

would be offensive to a reasonable person.” Doe, 116 A.3d at 1267 (internal quotation

marks and citation omitted). This requirement is satisfied if a plaintiff “is given

unreasonable and highly objectionable publicity that attributes to him characteristics,

conduct or beliefs that are false, and so is placed before the public in a false position.”

Restatement (Second) of Torts § 652E cmt. b (2016); see also Moldea I, 15 F.3d at

115051.

III. ANALYSIS

Zimmerman and Howard claim that the statements about their use of PEDs in

“The Dark Side” and in Al Jazeera’s promotional article constitute actionable

defamation and false light invasion of privacy, and that all three defendants should be

held accountable for committing these common law torts. In their separate motions to

dismiss, Al Jazeera, Davies, and Collins respond that the statements at issue do not

qualify as defamatory and were not published with the requisite intent, and Collins

further maintains that he has not published any statements at all. For the reasons

explained below, this Court concludes that the complaint that Zimmerman and Howard

have filed states defamation and false light claims as to Al Jazeera and Davies, but only

with respect to the statements contained in the documentary itself, and that the

complaint does not contain sufficient allegations of fact to support any defamation or

false light claim against Collins. Accordingly, the motion to dismiss that Al Jazeera

23 and Davies have filed will be granted in part and denied in part, and Collins’s motion to

dismiss will be granted in full.

A. The Complaint States A Defamation And A False Light Claim Against Al Jazeera And Davies With Respect To “The Dark Side,” But Not The News Article

As explained above, to survive Defendants’ motions to dismiss, the complaint

that Zimmerman and Howard have filed must allege facts that are sufficient to support

the elements of that pleading’s defamation and false light claims. This Court has

determined that a methodical march through an analysis of the facts relating to each of

the elements of both claims is not required here, because there is substantial overlap

between the elements of a defamation claim and a false light claim, as explained above

(see also Sept. 16, 2016 Hr’g Tr. (“Hr’g Tr.”), ECF No. 36, at 44:78) (concession by

Plaintiffs’ counsel that the defamation and false light claims rise and fall together) , and

also because Al Jazeera and Davies (in contrast to Collins) do not challenge the

adequacy of the instant complaint with respect to the elements of publication or

defamation per se. 12 Thus, the key questions to be resolved with respect to the motion

that Al Jazeera and Davies have filed are: (1) whether the complaint adequately alleges

that Al Jazeera and Davies have made a false and defamatory statement, and (2)

whether the complaint contains sufficient facts to suggest that Al Jazeera and Davies

published any such false and defamatory statement with actual malice. This Court

answers “yes” to the first question, but only insofar as the statements in the film are

12 This concession on the part of Al Jazeera and Davies appears to be a wise one. See Restatement (Second) of Torts § 577 cmt. a (“Any act by which the defamatory matter is intentionally or negligently communicated to a third party is a publication.”); see also Carey, 435 U.S. at 262 n.18 (explaining that defamation per se consists of statements “imputing to a person a . . . matter affe cting adversely a person’s fitness for trade, business, or profession”).

24 concerned, and although actual malice is a close question, the Court sees sufficient

allegations in the complaint and the accompanying exhibits to support a jury finding

that Al Jazeera and Davies published the statements in the film with the required intent.

1. Plaintiffs Have Adequately Alleged That Al Jazeera And Davies Made A False And Defamatory Statement In “The Dark Side”

In order for a challenged statement to be actionable as defamation, “it must at a

minimum express or imply a verifiably false fact about [an individual].” Weyrich, 235

F.3d at 624; see also Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1292

(D.C. Cir. 1988). In addition, the falsehood must be “capable of bearing” a particular

meaning as a “reasonable reader” would understand the communication. Moldea I, 15

F.3d at 1142. A false statement that “‘tends to injure plaintiff in his trade, profession

or community standing, or lower him in the estimation of the community,’” id. (quoting

Afro-Am. Publ’g Co. v. Jaffe, 366 F.2d 649, 654 n.10 (D.C. Cir. 1966) (en banc)), when

“both the words themselves and the entire context in which the statement occurs” are

taken into account, Tavoulareas III, 817 F.2d at 779, qualifies as defamation. “Context

is critical because ‘it is in part the settings of the speech in question that makes their

. . . nature apparent, and which helps determine the way in which the intended

audience will receive them.’” Farah, 736 F.3d at 535 (emphasis and alteration in

original) (quoting Moldea II, 22 F.3d at 314); see also id. (“‘Context’ includes not only

the immediate context of the disputed statements, but also the type of publication[.]”).

The complaint that Zimmerman and Howard have filed alleges that the

statements made in “The Dark Side” regarding their use of PEDs are false, and that

when viewed in context, the statements are also defamatory. (See, e.g., Compl. ¶¶ 68–

69 (asserting that the statements at issue “state outright and also carry the unmistakable

25 message that Mr. Zimmerman has taken or is taking illegal performance -enhancing

substances, including Delta 2, in contravention of the MLB ban on such substances”).)

Notably, it is clear beyond cavil that if the documentary’s producers had directly

accused Zimmerman and Howard of using PEDs, that accusation would constitute a

defamatory statement. See Pacquiao v. Mayweather, 803 F. Supp. 2d 1208, 1213 (D.

Nev. 2011) (“[D]efendants’ alleged statements are actionable defamatory statements

because they falsely assert an objective fact; namely that Pacquiano was using and had

used PEDs.”). (See also Pls.’ Opp’n at 18 (observing that Defendants “do not contend

that an accusation that Zimmerman used performance-enhancing drugs is not

defamatory”).) The argument that Al Jazeera and Davies make is more nuanced; they

maintain that because it is Sly who has made the accusations as reported in the film, a

reasonable viewer would not interpret “The Dark Side” to convey a defamatory

message. (See Defs.’ Mem. at 2630; see also id. at 29 (“The Documentary makes clear

that the statements that Sly and his partners made about working with professional

athletes are only ‘claims[.]’”); Defs.’ Reply at 6 ( asserting that, in the film, “Al Jazeera

does not endorse any of Sly’s statements but repeatedly states that they are only what

he has ‘claimed’ or ‘said.’”).)

In this Court’s view, the argument that the challenged statements are not capable

of conveying a defamatory meaning because the film establishes that Sly is the

messenger, and that Al Jazeera and Davies are merely reporting that message, is

unpersuasive, because a reasonable viewer could certainly have understood the

documentary as a whole to be an endorsement of Sly’s claims. When the Court looks

beyond “the immediate context of the disputed statements,” Farah, 736 F.3d at 535, it

26 is readily apparent that the film includes many scenes that are capable of

communicating not only that Sly made the disputed allegations, but also that Sly’s

statements are credible and should be believed. This implicit endorsement occurs at

various points during Davies’s narration, such as when she contends approximately 29

minutes into the film that the producers undertook “to test [Sly’s] doping expertise and

his level of connections[,]” and then immediately states that “[h]e proved his link to one

sportsman very quickly.” (Film Tr. at 23.) Similarly, at the 43-minute mark, Davies

endorses Sly as “knowledgeable” about certain drugs (id. at 33), and she repeatedly

suggests that the production team independently researched Sly’s background and

various claims he made about certain drugs, and that the details checked out ( see id. at

3334 (“We checked [Sly’s claim regarding growth hormones] with one of America’s

leading experts. . . . He confirmed [Sly’s claim].”); id. at 33 (“We’ve confirmed Charlie

Sly worked in their pharmacy in 2011.”).) Thus, the film does more than merely report

that Sly made certain allegations; rather, it provides contextual clues that could lead a

reasonable viewer to believe that Sly is credentialed and trustworthy, and that his

statements—including those regarding Plaintiffs’ use of illegal PEDs—are true.

For these reasons, Defendants’ reliance on Abbas v. Foreign Policy Group, LLC

(Abbas I), 975 F. Supp. 2d 1 (D.D.C. 2013), is misplaced. The court in that case was

reviewing several allegedly defamatory statements that were published in a magazine

article, including a statement that “several Palestinians” had made to the author, and

also the contention that the plaintiff had “socked away $100 million in ill -gotten gains.”

Id. at 18. The Abbas court concluded that the first statement was “not an assertion of

false fact, or indeed of any fact” because the author “is reporting on what people in the

27 region have said to him, and does not otherwise take any position on what he has

heard.” Id. at 21 (emphasis in original). Similarly, the court reasoned that the second

statement also could not be considered defamatory, because it “is not reported as fact,

and is instead put in context, making it clear to the reader that [the] statement is merely

the latest in an ongoing exchange of charge and countercharge.” Id. at 19 (internal

quotation marks omitted).

“The Dark Side” does much more than that. Rather than simply reporting third-

party allegations without “otherwise tak[ing] any position on” the statements , id. at 21,

the film weaves Sly’s statements into a broader narrative about doping in sports that the

producers themselves have purportedly confirmed through their own investigation . (See

Film Tr. at 6 (“[W]e had a proposal [for Collins], help us to investigate doping in

sport.” (statement of Davies)).) And the narrative that is presented also contains

statements that seem aimed at burnishing Sly’s “chemical mastermind” credentials and

bolstering his credibility (id. at 2; see also, e.g., id. at 23), which makes it even more

likely that a reasonable viewer would be left with the impression that the filmmakers

believe that what he says in the film is accurate.

It is also significant that, unlike in Abbas I, the statements at issue in the instant

case were published as part of an editorialized documentary that features a discernable

theme and a story line—circumstances that, together, more readily imply that the

reported statements represent the tested positions of the investigators . Cf. White, 909

F.2d at 526 (“Television touches more senses than does the print media, and the

standards for finding defamation cannot be woodenly applied without taking into

account the kind of medium by which the message was delivered.”). And in further

28 contrast to Abbas I, “The Dark Side” does not place Sly’s allegations in the context of

any comparable “exchange of charge and countercharge[,]” 975 F. Supp. 2d at 19;

instead, the bulk of the documentary is aimed at airing the allegations made by Sly and

other purported suppliers of PEDs regarding specific athletes who allegedly use these

substances. (See Film Tr. at 2 (explaining that, by “[w]orking with a British athlete[,]”

Al Jazeera’s producers were able to “catch the chemical mastermind and hear about

players he claims he’s doped to fame”).)

Thus, when the allegations in the complaint and the statements in the

documentary itself are viewed in the light most favorable to Plaintiffs, see Kowal v.

MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994), a reasonable viewer could

perceive “The Dark Side” itself to convey the message that Zimmerman and Howard

used PEDs, which constitutes a defamatory statement and unquestionably places

Plaintiffs in a “light that would be offensive to a reasonable person.” Doe, 116 A.3d at

1267. Furthermore, the complaint unequivocally alleges that “[a]ll of these statements

concerning [Plaintiffs] are categorically untrue[,]” because Plaintiffs have “never taken

Delta 2, human growth hormone, or any other steroid or other performance-enhancing

substance banned by the MLB.” (Compl. ¶ 47.) Therefore, the complaint’s allegations

as to the message conveyed by the “The Dark Side,” if in fact so understood by a jury,

are sufficient to give rise to actionable defamation and false light claims. 13

13 At this stage of the litigation, the Court is called upon only to test the sufficiency of the complaint’s allegations, and thus, it expresses no opinion regarding whether a jury wo uld ultimately conclude that “The Dark Side” actually does convey the message that Zimmerman and Howard in fact used PEDs. It suffices to say here that the documentary is at least reasonably capable of communicating such a message, and that this message would be defamatory. See Klayman v. Segal, 783 A.2d 607, 613 (D.C. 2001) (“If it appears that the statements are at least capable of a defamatory meaning, whether they were defamatory and false are questions of fact to be resolved by the jury.” (internal quotation marks and citation omitted)). Moreover, this Court does not perceive Defendants to be making any argument that the complaint is insufficient with respect to its allegations of falsity. See White, 909 F.2d at 520

29 2. The Statements Contained In The News Article Cannot Reasonably Be Understood To Convey A False And Defamatory Message

Whereas the statements in the film regarding Zimmerman’s and Howard’s

alleged use of PEDs are capable of conveying a defamatory meaning, this Court

concludes that similar statements made in the context of Al Jazeera’s film -related

promotional news article do not carry with them the same defamatory message. The

short article, which an unidentified member of the “Al Jazeera Staff” authored,

describes the overall premise of Al Jazeera’s investigation—i.e., to “expose[] the

crucial role of pharmacists and doctors in creating and prescribing programmes o f

performance-enhancing drugs”—and also recounts some of the statements that various

pharmacists and doctors made to Collins in the film. (Print Article at 3.) According to

the article, the suppliers’ statements “raise[] questions about some well-known athletes

in American football and baseball who the medical professionals claim to work with.”

(Id.) Charlie Sly is described as a “pharmacist” who names certain athletes he

purportedly supplied with PEDs. (Id.) But the very first mention of any athlete by

name appears in a sentence that reports that athlete’s denial of the doping allegations.

(See id.) Indeed, the article states both that “[t]he athletes and medical professionals

who responded to requests for comment denied any wrongdoing” and also that Sly

himself “has disavowed his statements” that were “caught on hidden camera” before the

article names either of the plaintiffs. (Id.) And this sequence is significant because, as

explained above, it helps to provide context for the subsequent mention of Zimmerman

(“Defamatory meaning and falsity are distinct elements of the tort of defamation and are considered separately.”). In light of this apparent concession, the Court assumes that Plaintiffs have sufficiently alleged the falsity of the accusations on the face of the complaint ( see Compl. ¶ 47); it remains to be seen whether Plaintiffs can put forward sufficient evidence to demonstrate the falsity of the statements. See Liberty Lobby, 838 F.2d at 1293 (“[It is the] plaintiff’s burden of proving falsity[.]”).

30 and Howard that the complaint characterizes as a defamatory statement.

Near the end of the article, long after Sly is introduced and his recantation is

noted, the article states: “Sly also named baseball players Ryan Zimmerman, of the

Washington Nationals, and Ryan Howard, of the Philadelphia Philli es, raising questions

about whether they use the hormone supplement Delta 2. Both have denied the

allegations.” (Id.) The article then proceeds to quote an emphatic statement of denial

from Plaintiffs’ counsel. (See id. at 34 (counsel William Burke stating that “[t]he

extraordinarily reckless claims made against our clients in this report are completely

false and rely on a source who has already recanted his claims” ).) Thus, this Court is

persuaded that, when read in context, the statements in the news article regarding PED

use by Zimmerman and Howard are not reasonably capable of conveying a false and

defamatory message, unlike the similar statements made in the film itself.

As an initial matter, the contention that Sly “named” Plaintiffs as users of PEDs

is not false; Sly unquestionably states that Zimmerman and Howard use PEDs in the

videotaped conversations that he has with Collins. (See Film Tr. at 2728.) And as

was true in Abbas I, the article’s statement about what Sly said reads as the mere

reporting of an occurrence rather than the endorsement of a stated fact . See Abbas I,

975 F. Supp. 2d at 19 (the contention that an accusation was made “is not an assertion

of false fact, or indeed, of any fact” if the media is merely reporting on what was said

without otherwise taking any position on those claims).

Nor can the alleged defamation claim rest on the article’s contention that Sly’s

allegations “rais[e] questions about whether [Plaintiffs] use” PEDs. (Print Article at 3.)

The phrase “raising questions”—as it appears in the context of the news article, see

31 Tavoulareas III, 817 F.2d at 779—does not naturally imply that Plaintiffs actually used

PEDs, especially when the “raising questions” statement is sandwiched between Al

Jazeera’s acknowledgment that Sly has “disavowed” his original allegations, on the one

hand, and Plaintiffs’ emphatic denials, on the other. (Print Article at 3.) To be sure,

the comment that an accusation “rais[es] questions” might suffice in some contexts,

such as those in which it is clear from the surrounding narrative that the doubts being

expressed contribute to derogatory insinuations being made about the subject. But such

is not the case with respect to Al Jazeera’s article, because, in stark contrast to the film,

the print article does not purport to carry a message of truth or falsity regarding the

information that is being conveyed, and contains no background narration, graphic

images, or sounds that are capable of bolstering or otherwise endorsing Sly’s claims of

wrongdoing in the mind of a reasonable reader. See White, 909 F.2d at 526.

All things considered, then, and taking into account the entire context of the

article in which the statement appears, this Court concludes that the passage at issue in

Al Jazeera’s written article cannot reasonably be read to imply the assertion of the false

and defamatory fact of which Plaintiffs complain. See Klayman v. Segal, 783 A.2d 607,

614 (D.C. 2001) (“[A] statement in an article may not be isolated and then pronounced

defamatory, or deemed capable of a defamatory meaning. Rather, any single statement

or statements must be examined within the context of the entire article.”). And for

these same reasons, the facts about the article alleged in the complaint fail to

demonstrate that the article places Zimmerman and Howard in a false light that would

be highly offensive to a reasonable person. (See also Hr’g Tr. at 44:68 (Plaintiffs’

counsel acknowledging that Plaintiffs’ defamation and false light claims rise and fall

32 together).) Consequently, Plaintiffs have not adequately alleged a defamation or false

light claim against Al Jazeera and Davies with respect to the statements contained in the

news article.

3. Plaintiffs Have Alleged Sufficient Facts To Support An Inference That Al Jazeera And Davies Published The Defamatory Statements In “The Dark Side” With Actual Malice

Because Zimmerman and Howard are public figures, their defamation and false

light action can only survive Defendants’ motions to dismiss if it adequately alleges

facts that support an inference that Defendants published the defamatory statements in

“The Dark Side” with actual malice. (See supra Part II.B.) Not surprisingly, Plaintiffs

maintain that the complaint’s allegations adequately address the actual malice inquiry;

in this regard, Plaintiffs point to a variety of stated circumstances that were allegedly

known to these Defendants and, in Plaintiffs’ view, demonstrate that Defendants acted

with actual malice with respect to the allegedly defamatory statements at issue. (See

Pls.’ Opp’n at 2127.) Defendants strenuously respond that none of Plaintiffs’

allegations permit a plausible inference that they published the defamatory statem ents

with knowledge of falsity or with reckless disregard as to probable falsity, which is

what “actual malice” means in this context. (See Defs.’ Mem. at 3544.) See also

Montgomery, 197 F. Supp. 3d at 259.

This Court fully acknowledges that the actual malice hurdle is a high bar that

public-figure plaintiffs rarely surmount in cases such as this one, as Defendants

fervently maintain. (See, e.g., Hr’g Tr. at 5557.) However, for the reasons explained

below, the Court concludes that it cannot dismiss the instant complaint on actual malice

grounds, because, when considered in the aggregate, the complaint’s allegations can

33 support a reasonable inference that Al Jazeera and Davies in fact entertained serious

doubts as to the truth of Sly’s allegation.

a. The Actual Malice Standard Can Be Satisfied With Proof Of Reckless Disregard For The Statement’s Truth, Which Can Take The Form Of Obvious Reasons To Doubt A Source’s Veracity

A public figure plaintiff may prevail on a defamation claim only if he offers

proof that the statement was made with actual malice—that is, with “knowledge that

[the statement] was false or with reckless disregard of whether it was false or not.”

Sullivan, 376 U.S. at 280; see also Gertz, 418 U.S. at 334. A defendant acts with

reckless disregard if “the defendant in fact entertained serious doubts as to the truth of

his publication[,]” or acted “with a high degree of awareness of probable falsity.” St.

Amant, 390 U.S. at 731 (internal quotation marks omitted).

“It is well established that the ‘serious doubt’ standard requires a showing of

subjective doubts by the defendant.” Tavoulareas III, 817 F.2d at 789; see also St.

Amant, 390 U.S. at 731 (explaining that “reckless conduct is not measured by whether a

reasonably prudent man would have published, or would have investigated before

publishing” the statement); Jankovic v. Int’l Crisis Grp. (Jankovic II), 822 F.3d 576,

589 (D.C. Cir. 2016) (“[I]t is not enough to show that defendant should have known

better; instead, the plaintiff must offer evidence that the defendant in fact harbored

subjective doubt.”). And it is clear beyond cavil that “[t]he plaintiff can prove the

defendant’s subjective state of mind through the cumulation of circumstantial evidence,

as well as through direct evidence.” Jankovic II, 822 F.3d at 589 (internal quotation

marks and citation omitted).

Notably, although “the ‘serious doubt’ inquiry enunciated by the Supreme Court

is too fact-bound to be resolved on the basis of any single factor or mechanical test[,]”

34 Tavoulareas III, 817 F.2d at 788, several principles gleaned from binding case law help

to guide the analysis. First, it is clear that the defendant’s “failure to investigate will

not alone support” the required degree of recklessness, Harte-Hanks Commc’ns, Inc. v.

Connaughton, 491 U.S. 657, 692 (1989) (emphasis added), nor will “an extreme

departure from the standards of investigation and reporting ordinarily adhered to by

responsible publishers[,]” id. at 666 (internal quotation marks and citation omitted). Of

course, these clear boundaries only illuminate the types of conduct that do not suffice to

show recklessness; the closest the Supreme Court has gotten to defining the affirmative

contours of the recklessness inquiry is the non-exhaustive list in St. Amant of three

examples of the types of circumstantial evidence that may support an inference of

subjective recklessness. See 390 U.S. at 732. Those are: (1) evidence that indicates

the defendant “fabricated” the story, or (2) evidence that suggests the allegedly

defamatory statements are “so inherently improbable that only a reckless man would

have put them in circulation[,]” or (3) evidence that demonstrates that “there are

obvious reasons to doubt the veracity of the informant or the accuracy of his reports.”

Id.; see also Tavoulareas III, 817 F.2d at 790 (“The examples provided [in St. Amant]

. . . constitute useful benchmarks for lower courts to employ in determining whether a

record is sufficient to sustain a finding of constitutional malice.”).

This all means that the reckless disregard standard for establishing actual malice

can be satisfied where the defendant “in fact entertained serious doubts as to the truth

of his publication[,]” and, significantly for present purposes, a plaintiff can demonstrate

this by proffering evidence that indicates that the defendant had “obvious reasons to

doubt the veracity of the informant or the accuracy of his reports .” St. Amant, 390 U.S.

35 at 731, 732. And, fortunately, case law from the Supreme Court and the D.C. Circuit

provides further guidance—albeit in a different context—as to the types of evidence

that might supply a defendant with an obvious reason to doubt his source. See also id.

at 730 (remarking that the “outer limits” of this inquiry “will be marked out through

case-by-case adjudication,” rather than “one infallible definition ”). 14

For example, the D.C. Circuit has suggested that facts that cast doubt on the

source’s reliability may be probative of actual malice, assuming such facts are known to

the defendant at the time of publication. Cf. Tavoulareas III, 817 F.2d at 791

(concluding that a reporter’s reliance on a particular source did not constitute actual

malice, where the reporter knew that the source had also given the same statement to

congressional investigators and had repeatedly demonstrated his “consistency as a

source” (internal quotation marks and citation omitted)); see also St. Amant, 390 U.S. at

733 (finding that the record was insufficient to support actual malice, due in part to the

plaintiff’s failure to offer “evidence to demonstrate a low community assessment of [the

source’s] trustworthiness or unsatisfactory experience with him by [ the defendant]”).

In this same vein, the case law suggests that the fact that a defendant undertakes to

verify all or part of a source’s contentions cuts against a finding of actual malice. See

Tavoulareas III, 817 F.2d at 790 (finding significant that “much of [the source’s]

information was independently verified by other sources whose credibility even the

plaintiff does not now challenge” (internal quotation marks and citation omitted)); see

also St. Amant, 390 U.S. at 733 (reasoning that verification of part of a source’s

14 The following opinions regarding the sufficiency of the evidence do not arise at the motion -to- dismiss stage; however, in this Court’s view, these cases provide useful guidance as to the types of evidence that can support an actual malice finding, and thus are instructive regarding the types of facts that a complaint must allege to state a defamation claim where the plaintiff must show actual malice.

36 information was probative of the defendant’s lack of actual malice in relying on the

source for other, uncorroborated information).

Most recently, the D.C. Circuit in Jankovic v. International Crisis Group

(Jankovic II), 822 F.3d 576 (D.C. Cir. 2016), held that the plaintiff—a Serbian

businessman—had failed to demonstrate that the defendant (a non-profit organization)

acted with actual malice when it published a report that linked the plaintiff to the

Slobodan Milosevic regime. Id. at 582. Although the author of the report at issue

relied upon multiple sources to support the allegedly defamatory statement, see id. at

59192, the plaintiff proffered evidence at summary judgment to suggest that only some

of those sources were unreliable, and “nowhere suggest[ed] there was any reason for

[the author] to doubt [the other sources], each of which support [ed] the defamatory

statement[,]” id. at 593. The panel thus rejected the plaintiff’s argument that the author

had an obvious reason to doubt his sources. Id. at 597; see also id. (“[D]espite

weaknesses in some sources on which [the defendant] relied . . . , [the plaintiff] has

failed to establish that the defendant actually possessed subjective doubt about t he

statement published[.]” (internal quotation marks and citation omitted) ). The Jankovic

II court also suggested that “evidence showing that [the defendant’s] report underwent

multiple internal reviews by knowledgeable staff” undermined any conclusion that the

defendant actually harbored subjective doubts about the report’s sources. Id. at 597.

Finally, it appears from this Court’s review of the case law that, while evidence

establishing obvious reasons to doubt the veracity of a defendant’s source can support a

finding of reckless disregard on its own, see St. Amant, 390 U.S. at 732, such evidence

also gives rise to an additional inquiry that may be quite significant with respect to the

37 overall actual malice inquiry. As it turns out, if there is evidence that a defendant had

an obvious reason to doubt the veracity of a source, then the defendant’s failure to

investigate the source’s allegation prior to publication can be probative of actual

malice. See, e.g., McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1507 (D.C.

Cir. 1996) (holding that “a publisher has no duty to investigate unless he has ‘obvious

reasons’ to doubt the veracity of his source” (emphasis added)). In other words,

notwithstanding the general rule that a defendant “has no duty to corroborate [or

investigate] the defamatory allegation[,]” once “a plaintiff offers evidence that a

defendant has reason to doubt the veracity of its source[,]” then the defendant’s “utter

failure to examine evidence within easy reach or to make ob vious contacts in an effort

to confirm a story demonstrate[s] reckless disregard.” Jankovic II, 822 F.3d at 590

(internal quotation marks and citations omitted); see also id. at 59495 (“[The author]

had not discovered anything that caused him to doubt his conclusion about [the

plaintiff], and therefore was under no obligation to investigate further.”).

b. The Instant Complaint Alleges Facts Known To Al Jazeera And Davies That, In The Aggregate, Are Sufficient To Support A Finding That Al Jazeera And Davies Entertained Serious Doubts As To Sly’s Claims

Although actual malice is, admittedly, a close question on the facts presented in

this case, this Court concludes that Plaintiffs’ complaint contains sufficient facts to

support an inference that Al Jazeera and Davies had obvious reasons to doubt Sly’s

claims, and that they proceeded to publish “The Dark Side” with reckless disregard as

to the truth of those claims.

There are a number of alleged facts that point in this direction. The complaint

says, for example, that Al Jazeera and Davies knew that Sly had “questionable”

38 motivations, since he made his allegations “in the context of his sales pitch attempting

to sell his services, his drugs, and his business to Collins.” (Compl. ¶ 56.) In addition,

Plaintiffs allege that Al Jazeera and Davies knew Sly’s allegations lacked any

specificity, because Sly did “not identify when [Plaintiffs are] alleged to have started

taking [PEDs] or for how long, or how [they] received and paid for the drugs.” (Id. ¶

57.) These allegations regarding Sly’s reliability are particularly striking given the fact

that Al Jazeera and Davies neither relied upon on multiple sources to support the

statements at issue, see Jankovic II, 822 F.3d at 59192, nor “independently verified”

Sly’s allegations regarding Howard and Zimmerman with “other sources whose

credibility” is not in question, Tavoulareas III, 817 F.2d at 790; instead, Sly was the

“sole source of the allegations[.]” (Compl. ¶ 52 (emphasis added).) 15

But the primary support for Plaintiffs’ assertion that Al Jazeera and Davies

subjectively doubted Sly’s trustworthiness was the fact that they were indisputably

aware of Sly’s pre-publication recantation. (See id. ¶ 1.) Plaintiffs allege that, prior to

publication, Sly “unequivocally advised Davies and Al Jazeera’s counsel, in writing,

that the purported statements were false.” (Id. ¶ 52.) In addition, Davies herself

confirmed during a subsequent interview that Al Jazeera had “heard from Sly”

regarding his recantation 48 hours before publication (see id. ¶ 60), and during that

same interview, Davies “admit[ted] that Sly is untrustworthy,” stating “[y]ou have to

say, well, is he lying now, [or] was he lying during day upon day upon day of

15 Nothing in the complaint or the film (which is incorporated into the complaint by reference) indicates that Al Jazeera or Davies undertook an independent investigation to verify Sly’s allegations about Zimmerman and Howard, despite Davies’s expressions of intent regarding a broader effort to “test” Sly’s credibility. (See Film Tr. at 23 (“We wanted to test his doping expertise and his level of connections.” (statement of Davies)).)

39 undercover filming, because obviously the two don’t square” (id. ¶ 60 (second

alteration in original) (internal quotation marks and citation omitted)).

The substance of Sly’s unequivocal recantation further supports an inference that

Al Jazeera and Davies had reason to doubt their sole source. (See id. ¶ 54 (Sly states:

“[t]o be clear, I am recanting any such statements and there is no truth to any statement

of mine that Al Jazeera plans to air.”).) Construing these facts in the light most

favorable to Plaintiffs, see Kowal, 16 F.3d at 1276, this Court can hardly conceive of a

more “obvious reason[] to doubt the veracity of the informant or the accuracy of his

reports[,]” St. Amant, 390 U.S. at 732, than a taped statement by the sole source of the

statements in question unequivocally recanting those statements prior to the defendant’s

publication of them. And when Plaintiffs are also afforded “the benefit of the aggregate

of the evidence[,]” this Court finds that Sly’s unequivocal recantation—taken together

with other facts known to Al Jazeera and Davies—gives rise to at least a plausible

inference that Al Jazeera and Davies in fact entertained serious doubts as to Sly’s

credibility. Jankovic II, 822 F.3d at 589.

Notably, Plaintiffs’ complaint also contains allegations regarding Al Jazeera’s

and Davies’s failure to investigate or corroborate Sly’s story, and as explained above,

given the alleged facts that support the inference that Al Jazeera and Davies had reasons

to doubt Sly’s veracity, their alleged failure to investigate may be further proof of

reckless disregard. See Jankovic II, 822 F.3d at 590. In this regard, Plaintiffs allege

that Al Jazeera and Davies “failed to uncover a single reported piece of evidence

corroborating Sly’s outlandish claims[,]” notwithstanding their “six months of

undercover work[.]” (Compl. ¶ 57.) Additional investigative failures purportedly

40 include “contradictions as to even easily verifiable facts[,]” such as Sly’ s employment

status. (Id. ¶ 58; see also id. (“While Davies refers to him as a ‘doctor of pharmacy’

and ‘pharmacist,’ and ‘The Dark Side’ credits him with working at the Guyer Institute

in Indiana in 2011, public records reveal that in 2011 Sly was not licensed in Indiana as

either a doctor of pharmacy or a pharmacist, but rather as a pharmacy intern[.]”).) And

Plaintiffs also contend that Al Jazeera and Davies purportedly “refused to further

investigate the sole source of these allegations[,]” notwithstanding Plaintiffs’ repeated

insistence (through counsel and prior to publication) that Sly’s allegations were false.

(Id. ¶ 73d; see also id. ¶¶ 5052.)

To be sure, the “standard of actual malice is a daunting one,” Jankovic II, 822

F.3d at 590 (internal quotation marks and citation omitted), as it should be, because

defamation claims necessarily implicate a defendant’s First Amendment rights. See

Sullivan, 376 U.S. at 27980. But when this Court grants these Plaintiffs “the benefit

of all inferences that can be derived from the facts alleged,” Sparrow, 216 F.3d at 1113

(internal quotation marks and citation omitted), as it must at this stage of the litigation,

it concludes that their complaint survives the preliminary obstacle that a motion to

dismiss constructs, because the complaint’s allegations of fact support the inference

that Al Jazeera and Davies entertained serious doubts as to Sly’ s claims and failed to

investigate these claims adequately, which, together, suffice to support a plausible

finding of actual malice.

c. Neither Defendants’ Questions About Sly’s Recantation, Nor Their Disclosure Of It In The Film, Eviscerates The Inference Of Actual Malice That A Jury Might Otherwise Draw

Undaunted, Al Jazeera and Davies argue that no actual malice conclusion could

41 be reasonably reached based on the facts as alleged in Plaintiffs’ complaint, because, in

fact, there was no obvious reason to doubt Sly’s veracity. To underscore this point, Al

Jazeera and Davies emphasize that Sly’s recantation was not credible, and that various

scenes from the documentary actually buttressed Sly’s contention that he supplied PEDs

to professional athletes. (See Defs.’ Mem. at 38 (emphasizing that Sly spoke

knowledgeably and accurately about drugs, and that Sly’s colleagues referred to Sly as

someone who takes care of “a few other big, like really big athletes” (internal quotation

marks and citation omitted)); see also id. at 39 (emphasizing that Sly appeared nervous

in his recantation video, which was created only after Sly learned that his conversations

had been recorded and would be aired, thus potentially exposing him to civil and

criminal liability).)

Boiled to bare essence, this line of argument is really nothing more than a

rebuttal to the complaint’s allegations of fact, which cannot carry the day at the motion-

to-dismiss stage because this Court must accept the complaint’s allegations as true. Put

another way, even if one could interpret the various Sly-related scenes in “The Dark

Side” and Sly’s recantation video as evidence that Al Jazeera and Davies had reason to

trust Sly’s contentions, as these defendants insist, “[a]t this stage of the litigation, [the

court] must accept as true all material allegations of the complaint, drawing all

reasonable inferences from those allegations in plaintiffs’ favor[.]” LaRoque v. Holder,

650 F.3d 777, 785 (D.C. Cir. 2011) (emphasis added) (internal quotation marks and

citations omitted). This standard means that, when faced with two, equally plausible

interpretations of the record facts—that Sly’s credibility was doubtful given his

unequivocal recantation, on the one hand, and that there was no reason to doubt Sly’s

42 veracity because his assertions were generally corroborated, on the other —“[t]he court

must view the complaint in a light most favorable to the plaintiff.” Mizell v. SunTrust

Bank, 26 F. Supp. 3d 80, 85 (D.D.C. 2014) (first alteration in original) (internal

Al Jazeera’s and Davies’s stronger argument is that their inclusion of

Zimmerman’s and Howard’s denials, along with Sly’s denial, in “The Dark Side”

actually negates any finding of actual malice. (See Defs.’ Mem. at 4445.) It is

generally true that “reporting perspectives at odds with the publisher’s own, ‘tend[s] to

rebut a claim of malice, not to establish one[,]’” Lohrenz v. Donnelly, 350 F.3d 1272,

1286 (D.C. Cir. 2003) (quoting McFarlane v. Esquire Magazine, 74 F.3d 1296, 1304

(D.C. Cir. 1966)), but Al Jazeera’s and Davies’s argument overlooks two pertinent

facts. First, it is not clear to this Court that “The Dark Side” clearly communicates

Sly’s repudiation of the accusations that he makes throughout the film , because the

documentary references Sly’s denial immediately following a reference to another

alleged male supplier, Dr. Guyer, and this hybrid assertion takes the form of the

following cryptic statement by Davies: “Dr. Guyer didn’t respond to our request for a

comment. Charlie Sly said his statements about athletes were false and incorrect.”

(Film Tr. at 36.) In this Court’s view, it is not immediately apparent from this

hodgepodge of contentions whether Sly’s reported assertion—that “his statements about

athletes were false and incorrect”—refers to the falsity of the statements made by Dr.

Guyer (who Davies says did not comment) or the statements previously made by Sly

himself.

Second, even if the documentary clearly communicates Sly’s subsequent

43 recantation, the inclusion of references to the statements of denial by Zimmerman,

Howard, and Sly does not unequivocally absolve Al Jazeera and Davies of liability for

defamation; rather, it simply “tend[s] to rebut a claim of malice[.]” Lohrenz, 350 F.3d

at 1286. Again, the sole question at this point is whether the facts alleged, when

construed in the light most favorable to Plaintiffs, adequately state a claim for

defamation, and if the evidence the parties amass on either side of this issue is legally

sufficient, it is a question that a jury will ultimately have to decide.

Consequently, this Court concludes that Plaintiffs’ complaint adequately pleads

actual malice, and thus, their complaint contains allegations of fact that are sufficient to

state a claim for defamation against Al Jazeera and Davies for the statements regarding

Plaintiffs that are contained in “The Dark Side.”

B. The Complaint Fails To State A Defamation Or A False Light Claim Against Collins Because It Does Not Allege Facts That Suggest Collins Published The Defamatory Statements In “The Dark Side”

For all its talk about what Defendants did and what was known to them,

Plaintiffs’ complaint makes clear that Collins is situated quite differently than Al

Jazeera and Davies vis-à-vis the defamatory statements that “The Dark Side” contains.

Unlike Al Jazeera—the news network responsible for producing the film (see Compl. ¶¶

37, 38)—and Davies—the lead reporter on the production team and the narrator (see id.

¶ 33)—Collins is described as a former athlete with no known news reporting

experience, who was tapped to aid the investigation precisely because he was an

outsider to the investigative journalism world (see id. ¶ 40). In light of Collins’s

unique role in the overall production of the film, there have to be sufficient facts in the

complaint to support an inference that Collins actuall y “published or knowingly

participated in publishing” the defamatory statements in the documentary. Tavoulareas

44 I, 759 F.2d at 136 (emphasis omitted). This Court concludes that Plaintiffs’ complaint

falls short in this regard, because there are no factual allegations in the complaint that,

if true, come anywhere close to establishing that Collins had the level of responsibility

for the film’s production that would be necessary to demonstrate that he “ published or

knowingly participated in publishing the defamation” at issue. Tavoulareas I, 759 F.2d

at 136 (emphasis omitted). 16

Publication “is an infrequent issue in defamation cases, because normally it is

fairly clear who wrote, edited, or published the statement in question .” Id. But when

analyzing publication-related facts in a case that is similar to this one, the D.C. Circuit

concluded that a special correspondent for The Washington Post (Golden) was not

sufficiently responsible for the publication of an allegedly defamatory article in that

newspaper, where he was not involved in the writing of the article or the final editorial

processes, even though he had initially approached the newspaper with the idea for the

story, had conferred with the paper during the course of its investigation, a nd was

ultimately designated a “Special Correspondent[.]” Id. at 101; see also id. at 136 (“The

plaintiffs do not seriously argue that Golden himself took any part in the actual writing

or editing of the . . . article, or that he exercised any influence or co ntrol over the Post

defendants’ handling of the material.” (emphasis in original)). The D.C. Circuit

affirmed the district court’s judgment notwithstanding the verdict in Golden’s favor,

after distinguishing between participation in the investigation and participation in the

16 Because this Court has already determined that the only actionable defamatory statements at issue in this case are the statements about Zimmerman and Howard that appear in the film, as opposed to the news article, see supra Part III.A.2, it only assesses here whether the complaint’s contentions regarding Collins’s role in the publication of the film are sufficient to sustain the claims that Plaintiffs h ave brought against him.

45 actual preparation of the story. See id. at 136 (“While [Golden] participated in the

investigation” he “played no role in the actual preparation of the story.”) . And at the

end of the day, after twice rehearing the case, see Tavoulareas II, 763 F.2d 1472;

Tavoulareas III, 817 F.2d 762, the Circuit eventually affirmed the initial panel’s

conclusion that liability for defamation was not appropriate with respect to Golden due

to his “limited involvement in the ultimate publication” of the defamatory statements.

Tavoulareas III, 817 F.2d at 770 n.7.

So it is here. Despite the complaint’s allegations that Collins, like Golden, was

involved in the initial investigation that was featured in the film, the complaint that

Zimmerman and Howard have filed fails to allege any facts that, if true, support an

inference that Collins took any steps to publish “The Dark Side.” Nothing in the

complaint suggests, for example, that Collins was involved in the production (i.e.,

editing) of the footage that he filmed with the hidden camera that Al Jazeera provided,

nor does the complaint speak to his role in the distribution of the allegedly defamatory

documentary. To the contrary, the factual allegations in Plaintiffs’ complaint actually

tend to suggest that Davies, as opposed to Collins, coordinated the production of the

film (see, e.g., Compl. ¶ 33 (alleging that Davies worked in Al Jazeera’s Investigative

Unit and “was the lead reporter involved in [‘The Dark Side’]”)), and the complaint

also strongly implies that Al Jazeera and Davies, rather than Collins, were responsible

for the public dissemination of the defamatory statements at issue (see, e.g., id. ¶ 38

(“[I]n advance of its televised airing of ‘The Dark Side,’ Al Jazeera posted a video of

the full program on YouTube, and provided the full program to The Huffington Post[.]”

(emphasis added)); id. ¶ 53 (“Al Jazeera posted the full program on YouTube and

46 provided The Huffington Post with an advance copy[.]” (emphasis added)); id. ¶ 57 (“Al

Jazeera published its report despite its inability to gather any corroborating

evidence[.]” (emphasis added)); id. ¶ 62 (“Davies appeared on NBC’s The Today Show

for an interview about ‘The Dark Side.’”).) Furthermore, Plaintiffs point to no

objective facts—such as a producer credit at the end of the documentary—that would

give rise to a reasonable inference that Collins was involved in the editorial preparation

of “The Dark Side,” and this Court is aware of none.

In an attempt to salvage their claims against Collins, Plaintiffs argue that

Collins’s active collaboration with Al Jazeera and Davies throughout their eight -month

investigation renders it “at least plausible that he was participating in the

publication[.]” (Hr’g Tr. at 92:710; see also Pls.’ Opp’n at 27–29.) But in this

Court’s view, it is not plausible that an individual with no news reporting training or

experience would be participating in the editorial processes of a major media company,

even if that individual was recruited to participate in the investigatory phase of the

production in an undercover capacity. Thus, although Plaintiffs’ complaint alleges that

Collins worked with Al Jazeera producers to “catch” PED suppliers on video (see Film

Tr. at 2), this fact alone is not enough to support any inference that Collins

subsequently served as an editor or a producer of the film, and in the absence of any

such facts, Plaintiffs’ defamation and false light claims against Collins cannot proceed.

See Farah, 736 F.3d at 533 (“To meet the requirements for defamation under District of

Columbia law, a plaintiff must prove . . . that the statement was published to a third

party[.]”); see also Doe, 116 A.3d at 1267.

47 IV. CONCLUSION

This Court has carefully reviewed the complaint and the ex hibits that have been

submitted in this case, including the documentary that Plaintiffs say has defamed them

and has cast them in a false light. While it is far from clear that Plaintiffs will

ultimately be able to prove the defamation and false light cla ims they seek to advance

in this action, the Court finds that their complaint alleges facts that would permit a

reasonable jury to find that Al Jazeera and Davies published false and defamatory

statements about Plaintiffs in “The Dark Side,” but not in the news article, and that

these two defendants published such statements with actual malice. With respect to

Collins, the Court concludes that nothing in the complaint suggests that he was involved

in the publication of the film’s allegedly false and defamatory statements, and

therefore, Plaintiffs cannot maintain their claims against him. Accordingly, as set forth

in the Order accompanying this Memorandum Opinion, Davies ’s and Al Jazeera’s

Motion to Dismiss is GRANTED IN PART and DENIED IN PART, and Collins’s

Motion to Dismiss is GRANTED in full.

DATE: April 3, 2017 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge