No Malice In The Truth

The District of Columbia Court of Appeals has reversed a plaintiff’s judgment in a loss of contractual opportunity suit, holding that the plaintiff was a public figure and that the allegedly defamatory statements at issue were protected by the First Amendment.

The plaintiff had obtained a “sizable” award of damages based on six letters written by a co-worker that led to the withdrawal of a job offer with the United States Department of Agriculture.

Undisputed facts of record and relevant case authority, including a decision of our own, teach us that Mr. Armstrong was a public official at the time in question. He was an Assistant Special Agent in Charge (ASAC) at TIGTA, supervising five to seven employees. As an ASAC, he was responsible for managing a group of Special Agents investigating mainly fraud involving Internal Revenue Service procurements. His unit presented the results of its investigations either to an “adjudicator” or to the United States Attorney‟s Office if possible criminal prosecution was warranted. His duties required him to carry a firearm and federal law enforcement credentials, and gave him access to sensitive databases and information. In TIGTA‟s own description, which Mr. Armstrong does not question, he occupied “a position of heightened public trust and responsibility” as a “[f]ederal law enforcement officer,” and “[a]s an ASAC [was] held to a higher standard of conduct than non-supervisory employees . . . .”

…Many courts have gone further and held that, because “[l]aw enforcement is a uniquely governmental affair,” an officer “of law enforcement, from ordinary patrolman to Chief of Police, is a „public official‟ within the meaning of federal constitutional law.” Roche v. Egan, 433 A.2d 757, 762 (Me. 1981) (collecting cases).6 Here it is enough for us to conclude that Mr. Armstrong, a supervisory special agent in TIGTA investigating potential criminal fraud, with access to confidential databases and occupying what TIGTA itself considered “a position of heightened public trust and responsibility,” was a public figure within the First Amendment when Ms. Thompson made her statements.

As to malice

The assertions of fact in Ms. Thompson‟s letters, we held, were substantially true as a matter of law, 80 A.3d at 185, and the Supreme Court has “long held . . . that actual malice entails falsity.” Air Wisconsin Airlines v. Hoeper, 134 S. Ct. 852, 861 (2014). For the rest, the letters consisted of expressions of opinion that we concluded “were unverifiable and therefore not actionable in defamation.” Id. at 187. The Supreme Court similarly held in Milkovich v Lorain Journal Co., 479 U.S. 1 (1990), that ¡°a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.¡± Id. at 20. In sum, as a matter of law under the First Amendment, none of the statements in Ms. Thompson.s letters provided a basis for liability. 

Senior Judge Farrell authored the opinion.