Page 1 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
------------------------------------JOSEPH MICHAEL ARPAIO
Plaintiff,
v.
MICHELLE COTTLE, et al.
Defendants.
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: Case No. No. 1:18-cv-02387-APM
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DEFENDANTS’ REPLY MEMORANDUM OF LAW
IN SUPPORT OF MOTION TO DISMISS
BALLARD SPAHR LLP
Jay Ward Brown (D.C. Bar No. 437686)
Chad R. Bowman (D.C. Bar No. 484150)
Dana R. Green (D.C. Bar No. 1005174)
1909 K Street, NW, 12th Floor
Washington, DC Telephone: (202) 661-Fax: (202) 661-brownjay@ballardspahr.com
bowmanchad@ballardspahr.com
greendana@ballardspahr.com
Counsel for Defendants
Date: February 27, 2019Page 2 TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .....................................................................................................ARGUMENT ........................................................................................................................
II.
THE COMPLAINT FAILS TO PLEAD FACTS PLAUSIBLY
ESTABLISHING CONSTITUTIONAL “ACTUAL MALICE” ........................................A.
Arpaio Misstates The Applicable Legal Standard ...................................................
B.
Arpaio Pleads No Facts That Plausibly Establish Actual Malice and
Offers No Rebuttal To The Public Record That Demonstrates He
Cannot Do So ...........................................................................................................
ARPAIO ALSO HAS NO CLAIMS FOR STATEMENTS OF OPINION ........................
CONCLUSION ........................................................................................................................
iPage 3 TABLE OF AUTHORITIES
Cases
Page(s)
Agster v. Maricopa Cty. Sheriff’s Office,
144 F. App’x 594 (9th Cir. 2005) ..............................................................................................Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ...................................................................................................................Ashcr
v. Iqbal,
556 U.S. 662 (2009) .......................................................................................................4, 5, 6, Atencio v. Arpaio,
161 F. Supp. 3d 789 (D. Ariz. 2015) .........................................................................................Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ...............................................................................................................4, Biro v. Conde Nast,
807 F.3d 541 (2d Cir. 2015).......................................................................................................Biro v. Conde Nast,
883 F. Supp. 2d 441 (S.D.N.Y. 2012)......................................................................................Boley v. Atl. Monthly Grp.,
950 F. Supp. 2d 249 (D.D.C. 2013) ...........................................................................................Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485 (1984)
v. Gibson,
355 U.S. 41 (1957) .....................................................................................................................Der
v. Associated Press,
282 F. Supp. 3d 133 (D.D.C. 2017) ...................................................................................2, 3, Farah v. Esquire Magazine,
736 F.3d 528 (D.C. Cir. 2013) .............................................................................................3, Flanders v. Maricopa Cty.,
54. P.3d 837 (Ariz. Ct. App. 2002) ............................................................................................Flowers v. Carville,
310 F.3d 1118 (9th Cir. 2002) ...................................................................................................Garrison v. Louisiana,
379 U.S. 64 (1964) .................................................................................................................3,
iiPage 4 Graves v. Arpaio,
48 F. Supp. 3d 1318 (D. Ariz. 2014) .........................................................................................Harte-Hanks Commc’ns, Inc. v. Connaughton,
491 U.S. 657 (1989) ...............................................................................................................4, Henry v. Collins,
380 U.S. 356 (1965) ...................................................................................................................Hensl
v. Union Planters Nat’l Bank & Trust Co.,
335 U.S. 595 (1949) .................................................................................................................Herbert v. Lando,
441 U.S. 153 (1979) ...................................................................................................................Hopki
v. Women’s Div., Gen. Bd. of Glob. Ministries,
284 F. Supp. 2d 15 (D.D.C. 2003) .............................................................................................Hourani v. Psybersolutions LLC,
164 F. Supp. 3d 128 (D.D.C. 2016) .......................................................................................5, Hustler Magazine, Inc. v. Falwell,
485 U.S. 46 (1988) .....................................................................................................................Hut
v. Proxmire,
443 U.S. 111 (1979) ...................................................................................................................Janko
v. Int’l Crisis Grp.,
822 F.3d 576 (D.C. Cir. 2016) ...............................................................................................3, Kahl v. Bureau of Nat’l Affairs, Inc.,
856 F.3d 106 (D.C. Cir. 2017) ...................................................................................................Mayfield v. NASCAR, Inc.,
674 F.3d 369 (4th Cir. 2012) .....................................................................................................McFarlane v. Esquire Magazine,
74 F.3d 1296 (D.C. Cir. 1996) ...................................................................................................Michel v. NYP Holdings, Inc.,
816 F.3d 686 (11th Cir. 2016) ...............................................................................................5, Milkovich v. Lorain Journal Co.,
497 U.S. 1 (1990) .....................................................................................................................Mol
v. New York Times,
15 F.3d 1137 (D.C .Cir. 1994) .................................................................................................
iiiPage 5 Moldea v. New York Times,
22 F.3d 310 (D.C. Cir. 1994) ...................................................................................................N.Y. Times Co. v. Sullivan,
376 U.S. 254 (1964) ...................................................................................................................Nurri
v. Bolden,
818 F.3d 751 (D.C. Cir. 2016) ...................................................................................................Ollman v. Evans,
750 F.2d 970 (D.C. Cir. 1984) ...................................................................................................Parisi v. Sinclair,
845 F. Supp. 2d 215 (D.D.C. 2012) ...........................................................................................Parsi v. Daioleslam,
890 F. Supp. 2d 77 (D.D.C. 2012) .............................................................................................Pippen v. NBCUniversal Media, LLC,
734 F.3d 610 (7th Cir. 2013) .....................................................................................................Schatz v. Republican State Leadership Comm.,
669 F.3d 50 (1st Cir. 2012) ........................................................................................................Spiller v. District of Columbia,
302 F. Supp. 3d 240 (D.D.C. 2018) .......................................................................................4, St. Amant v. Thompson,
390 U.S. 727 (1968) ...................................................................................................................Tavou
v. Piro,
817 F.2d 762 (D.C. Cir. 1987) ...............................................................................................7, White v. Fraternal Order of Police,
909 F.2d 512 (D.C. Cir. 1990) .................................................................................................Wilson v. Maricopa Cty.,
463 F. Supp. 2d 987 (D. Ariz. 2006) .........................................................................................
ivPage 6 The New York Times Company and its editorial board member Michelle Cottle
(together, “The Times”) respectfully submit this reply to Plaintiff Sheriff Arpaio’s Opposition to
Defendants’ Motion to Dismiss, ECF Dkt. 11 (“Opposition” or “Opp.”).
PRELIMINARY STATEMENT
The most revealing thing about the Opposition is what is missing from it. The
Opposition is devoid of citation to any pleaded factual allegations plausibly demonstrating that
The Times knew any particular factual statement in the column was either false or likely false.
This is a dispositive failing. Instead, Arpaio alternately contends that he need not plead facts
supporting constitutional actual malice to state a claim, Opp. at 10-15, argues that, if he is
required to so plead, the conclusory pleading of generalized “ill will” is sufficient, id. at 11-12,
and, finally, maintains that the column’s assertions were so inherently improbable that The
Times “could not possibly have believed” them, id. at 15. Arpaio is wrong on all counts, and
dismissal is warranted on this basis alone.
The Opposition also conspicuously ignores The Times’s showing that any amendment
would be futile because the challenged column summarized and commented upon an extensive
public record about Arpaio’s controversial law enforcement practices. Those practices have
resulted in court decisions subject to judicial notice and tens of millions of dollars of government
payments; Arpaio has largely admitted to and even bragged about such practices; and they have
been a longstanding topic of national discussion. See generally Defs.’ Mem. of Law in Supp. of
Mot. to Dismiss, ECF Dkt. 8 (“Mem.”) at 6-27. Arpaio ignores this entire record, as if doing so
will somehow make it disappear. Also noticeably absent from Arpaio’s Opposition is any
explanation of how any specific statement in the column is allegedly factually inaccurate.
Instead, Arpaio simply block-quotes passages that he deems actionable, Opp. at 3-4, and alleges
unstated implications he now claims the column conveys, e.g., id. at 2 (alleging readers would
1Page 7 conclude “Arpaio is a killer, a disgrace to law enforcement, a crook, a criminal, and worse”); id.
at 17 (same); id. at 9 (alleging implication of murder), id. at 19 (same).
At bottom, this is a misguided defamation lawsuit by a public figure over a newspaper
“op-ed” column summarizing well-known, pre-existing public controversies and offering views
about them in the context of a U.S. Senate primary election. This type of publication lies at the
core of protected political speech under the First Amendment. It therefore implicates the Court’s
constitutional responsibility to subject resulting claims to “close judicial scrutiny” to ensure that
protected expression is not penalized, and robust debate not discouraged, by the burdens of
litigation. Ollman v. Evans, 750 F.2d 970, 996-97 (D.C. Cir. 1984) (Bork, J., concurring); see
also Kahl v. Bureau of Nat’l Affairs, Inc., 856 F.3d 106, 109 (D.C. Cir. 2017) (“To preserve First
Amendment freedoms and give reporters . . . the breathing room they need to pursue the truth,
the Supreme Court has directed courts to weed out unmeritorious defamation suits.”), cert.
denied, 138 S. Ct. 366 (2017). Because Arpaio has not and cannot plausibly allege a required
element of his claim—constitutional “actual malice”—for any factual statement in the column,
this lawsuit should be dismissed.
ARGUMENT
A significant portion of Arpaio’s response to the motion by The Times is devoted to
arguing that the column is harmful to his reputation, see, e.g., Opp. at 7-10, 16-19, and that he
adequately has alleged the common law elements of tortious interference and false light, id. at
20-23. In contrast to these strawman arguments, Arpaio devotes only six pages to the principal
basis for dismissal argued by The Times—his failure to plead constitutional actual malice, id. at
10-15, a failure that forecloses all of his claims. See, e.g., Deripaska v. Associated Press, 282 F.
Supp. 3d 133, 144 (D.D.C. 2017) (dismissing claim where pleaded facts failed to establish actual
2Page 8 malice), appeal dismissed, 2017 WL 6553388 (D.C. Cir. 2017); Farah v. Esquire Magazine, F.3d 528, 540 (D.C. Cir. 2013) (same with respect to other causes of action); see also Mem. at
32-40. It is telling that Arpaio fails to dispute—or even to address—this authority. See Hopkins
v. Women’s Div., Gen. Bd. of Glob. Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well
understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and
addresses only certain arguments raised by the defendant, a court may treat those arguments that
the plaintiff failed to address as conceded.”), aff’d sub nom. Hopkins v. Women’s Div., Gen. Bd.
of Glob. Ministries, United Methodist Church, 98 F. App’x 8 (D.C. Cir. 2004). At bottom,
Arpaio offers no basis whatsoever to forestall the prompt dismissal of this lawsuit.
I.
THE COMPLAINT FAILS TO PLEAD FACTS PLAUSIBLY
ESTABLISHING CONSTITUTIONAL “ACTUAL MALICE”
Arpaio does not dispute that he qualifies as a public official or public figure under the
First Amendment, and therefore must adequately plead “actual malice,” the applicable standard
of fault, in order to state a claim arising from the column. See generally Opp.
The actual malice standard in public-figure defamation lawsuits such as this one has been
part of this nation’s constitutional fabric for more than a half-century, since the Supreme Court
recognized that unchecked litigation threatened the type of “uninhibited, robust and wide open”
debate about public issues at the core of the First Amendment and necessary in a democracy.
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Such political speech includes at times
“vehement, caustic, and sometimes unpleasantly sharp attacks on government and public
officials.” Id. To give protected speech essential “‘breathing space’” from liability, id. at 271-(citation omitted), and in light of our “profound national commitment” to the debate of public
issues, Jankovic v. Int’l Crisis Grp., 822 F.3d 576, 584 (D.C. Cir. 2016) (quoting Sullivan, U.S. at 270), cert. denied, 137 S. Ct. 1434 (2017), actionable defamation about public figures is
3Page 9 limited to “calculated falsehood[s].” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). In other
words, “the defendant must have made the false publication with a ‘high degree of awareness of
. . . probable falsity.’” Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 667 (1989)
(quoting Garrison, 379 U.S. at 74). As the D.C. Circuit has noted, because this constitutional
balance favors speech when public figures assert claims such as those at issue here, this actual
malice standard is quite intentionally “a daunting one.” McFarlane v. Esquire Magazine, F.3d 1296, 1308 (D.C. Cir. 1996).
Contrary to Arpaio’s argument in his Opposition, he has an obligation to adequately
plead actual malice, not just an obligation ultimately to prove it—and his Complaint falls
woefully short in this regard.
A.
Arpaio Misstates The Applicable Legal Standard
Arpaio first errs in urging that actual malice “cannot properly be resolved on a motion to
dismiss.” Opp. at 10. Following the Supreme Court’s decisions in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), every civil litigant
has an obligation to allege in a complaint facts sufficient to render a claim “plausible on its face”
in order to survive a motion to dismiss. Twombly, 550 U.S. at 570. Thus, Arpaio misstates the
applicable law when he cites the defunct “no set of facts” standard, Opp. at 5, first articulated in
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Supreme Court expressly abrogated that
standard in Twombly. See 550 U.S. at 561-63 (“[T]his famous observation has earned its
retirement.”); see also, e.g., Spiller v. District of Columbia, 302 F. Supp. 3d 240, 256 (D.D.C.
2018) (rejecting “no set of facts” standard because “[s]ince Twombly and Iqbal were decided, …
4Page 10 the standard for evaluating a motion to dismiss for failure to state a claim has shifted
significantly”).Arpaio seeks to evade this obligation by arguing that, because Rule 9(b) of the Federal
Rules of Civil Procedure provides that “[m]alice, intent, knowledge, and other conditions of a
person’s mind may be alleged generally,” Opp. at 12 (citation omitted), no “heightened”
pleading rule applies to actual malice, id. This, again, is a misstatement of applicable law. The
Supreme Court itself in Iqbal directed that the plausibility demanded by Rule 8 includes the
pleading of “malice, intent, knowledge, and other conditions of a person’s mind” under Rule
9(b). 556 U.S. at 686-87 (alteration omitted). As the Supreme Court explained, “Rule 9 merely
excuses a party from pleading [malice] under an elevated pleading standard. It does not give him
license to evade the less rigid—though still operative—strictures of Rule 8.” Id. As such, in
order to state a claim that survives a motion to dismiss, a public figure defamation plaintiff must
allege facts plausibly establishing each element of his cause of action, including actual malice.
See, e.g., Deripaska, 282 F. Supp. 3d at 144 (dismissing claim where pleaded facts failed to
establish “that [defendant] acted with actual malice”); Hourani v. Psybersolutions LLC, 164 F.
Supp. 3d 128, 144 (D.D.C. 2016) (same), aff’d, 690 F. App’x 1 (D.C. Cir. 2017); Boley v. Atl.
Monthly Grp., 950 F. Supp. 2d 249, 262-63 (D.D.C. 2013) (same); Parisi v. Sinclair, 845 F.
Supp. 2d 215, 218-19 (D.D.C. 2012) (same). Every Circuit to consider actual malice pleading
For this reason, Arpaio’s reliance on cases decided before Iqbal and Twombly, such as
Flowers v. Carville, 310 F.3d 1118 (9th Cir. 2002) (cited at Opp. at 10), is misplaced. Moreover,
the 1979 Supreme Court footnote relied upon by Arpaio, Opp. at 10 (citing Hutchinson v.
Proxmire, 443 U.S. 111, 120 n.9 (1979)), did not bear the weight placed on it by Arpaio in his
Opposition—even before Iqbal and Twombly. The Supreme Court subsequently rejected that
footnote, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 n.7 (1986), and made clear that a
court’s obligation to evaluate actual malice is “a constitutional responsibility that cannot be
delegated to the trier of fact.” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, (1984) (emphasis added).
5Page 11 after Iqbal has reached the same conclusion. See, e.g., Michel v. NYP Holdings, Inc., 816 F.3d
686, 701-02 (11th Cir. 2016); Biro v. Conde Nast, 807 F.3d 541, 544-46 (2d Cir. 2015); Pippen
v. NBCUniversal Media, LLC, 734 F.3d 610, 614 (7th Cir. 2013); Mayfield v. NASCAR, Inc., F.3d 369, 377-78 (4th Cir. 2012); Schatz v. Republican State Leadership Comm., 669 F.3d 50, (1st Cir. 2012).
As such, it is not “premature” for a court to dismiss a claim without discovery into actual
malice, as Arpaio argues. Opp. at 15. Under the modern pleading standard, plaintiffs may not
“unlock the doors of discovery… armed with nothing more than conclusions.” Iqbal, 556 U.S. at
678-79.2 They must first allege facts sufficient to state the elements of a plausible claim. The
Complaint here does not.
B.
Arpaio Pleads No Facts That Plausibly Establish Actual Malice and
Offers No Rebuttal To The Public Record That Demonstrates He
Cannot Do So
Arpaio dubs it “disingenuous[]” for The Times to have pointed out that, in his Complaint,
he “has not even attempted to allege facts that … could support a finding that The Times
deliberately published a falsehood about him in the column.” Opp. at 10 (quoting Mem. at 30).
This grievance apparently rests on a misunderstanding of the term “facts”: Arpaio emphasizes in
his Opposition that the Complaint does repeatedly allege “actual malice.” Id. (citing Compl.
¶¶ 23, 24, 28, 42). But these talismanic recitations are precisely the kind of “unadorned” and
“[t]hreadbare recitals of the elements of a cause of action” that, as a matter of law, fail to satisfy
The Opposition cites Herbert v. Lando, 441 U.S. 153, 169 (1979), for the proposition that
defamation plaintiffs are “entitled” to discovery into actual malice. Opp. at 14-15. However, that
case involved a claimed editorial privilege during discovery. 441 U.S. at 157-58. Moreover, the
Supreme Court in Iqbal expressly declined to create any entitlement to discovery based on
conclusory pleadings of “[m]alice, intent, knowledge, and other conditions of a person’s mind,”
556 U.S. at 686-87 (citation omitted).
6Page 12 Rule 8. Iqbal, 556 U.S. at 678-79; see also Hourani, 164 F. Supp. 3d at 143-44 (rejecting
“conclusory allegations” of actual malice); see also Mem. at 29-31. Bald assertions that the
column was published “with malice” or with “knowledge of falsity,” absent supporting factual
allegations plausibly establishing that conclusion, are insufficient. They are merely “legal
conclusions couched as factual allegations,” Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir.
2016), cert. denied, 137 S. Ct. 2159 (2017), and need not be credited.
Alternately, Arpaio urges that actual malice should be assumed because “Defendant New
York Times’ political partisanship and liberal bias knows no reasonable bounds,” and therefore
knowledge of falsity or probable falsity exists based on this “ill will.” Opp. at 11-12. The
Complaint offers no facts to support this assertion, which itself is fatal. Iqbal, 556 U.S. at 68687. But the Opposition also errs on the law in urging that Connaughton “expressly recognized
that motive is ‘supportive,’ probative, and admissible evidence.” Opp. at 13. The Supreme
Court did allow that “it cannot be said that evidence concerning motive … never bears any
relation to the actual malice inquiry.” Harte Hanks Commc’ns, 491 U.S. at 668 (emphasis
added). However, the Court also made clear that “it is worth emphasizing that the actual malice
standard is not satisfied merely through a showing of ill will or ‘malice’ in the ordinary sense of
the term.” Id. at 666. As this Court has noted, “[i]f ideological opposition alone showed actual
malice, valuable investigative journalism would be threatened by defamation laws.” Parsi v.
Daioleslam, 890 F. Supp. 2d 77, 91 (D.D.C. 2012). The Court of Appeals has recognized that,
while a speaker “may have adopted an adversarial stance” toward the subject of a challenged
statement, that “attitude is not ‘antithetical to the truthful presentation of facts.’” Jankovic, F.3d at 597 (quoting Tavoulareas v. Piro, 817 F.2d 762, 795 (D.C. Cir. 1987)); see also id. at
596 (noting that “motive-based evidence” is not “probative of actual malice” unless “the
7Page 13 publisher’s alleged motive shows an intent to inflict harm through falsehood, a willingness to
publish unsupported allegations, or a desire to publish with little or no regard for the report’s
accuracy”) (internal marks, alterations, and citations omitted).
It is subjective knowledge of falsity that serves as proof of constitutional actual malice,
not common-law, “ill will” malice. Henry v. Collins, 380 U.S. 356, 357-58 (1965) (per curiam)
(reversing defamation judgment where jury instruction could be read merely to require intent to
inflict harm rather than intent to do so through false statements); see also Hustler Magazine, Inc.
v. Falwell, 485 U.S. 46, 51 (1988) (“[O]ne of the prerogatives of American citizenship is the
right to criticize public men and measures. Such criticism, inevitably, will not always be
reasoned or moderate; public figures as well as public officials will be subject to vehement,
caustic, and sometimes unpleasantly sharp attacks.”) (internal marks and citation omitted). In
any event, “defamation plaintiffs cannot show actual malice in the abstract; they must
demonstrate actual malice in conjunction with a false defamatory statement.” Tavoulareas, F.2d at 794. Arpaio, with the broad-brush allegations he has adopted in his Complaint here,
makes no actual attempt to do so.
Finally, Arpaio urges that The Times “must have known” that the column was false.
Opp. at 15. Although clear and convincing evidence that a “publisher’s allegations are so
inherently improbable that only a reckless man would have put them in circulation” may
constitute actual malice, St. Amant v. Thompson, 390 U.S. 727, 731-32 (1968), Arpaio once
again offers only this bald conclusion: He fails to point to any specific factual allegation in his
Complaint that would explain why The Times “must have known” that specific statements in the
column were false.
8Page 14 For example, Arpaio argues without explanation that The Times must have known it was
false to assert that abuses in his jails were “lethal.” Opp. at 15. But it is a matter of judicially
noticeable public record that numerous inmates died in custody after being shocked by police
with Taser guns, restrained, stripped, subjected to “dog piles,” and/or beaten. See, e.g., Agster v.
Maricopa Cty. Sheriff's Office, 144 F. App’x 594, 596 (9th Cir. 2005); Atencio v. Arpaio, 161 F.
Supp. 3d 789, 794-96 (D. Ariz. 2015); see generally Mem. at 15-19. Courts have also
determined that Arpaio failed to show that detainees with serious health needs received
appropriate medical care, Graves v. Arpaio, 48 F. Supp. 3d 1318, 1341-42 (D. Ariz. 2014), and
that he otherwise purposefully designed dangerous jail conditions, Flanders v. Maricopa Cty.,
54. P.3d 837, 846 (Ariz. Ct. App. 2002) (“The jury could properly determine that the Sheriff was
callously indifferent to … the exposure of Tent City inmates to serious injury.); Wilson v.
Maricopa Cty., 463 F. Supp. 2d 987, 994 (D. Ariz. 2006) (“Plaintiffs have presented sufficient
evidence for a reasonable jury to find deliberate indifference on the part of Sheriff Arpaio” to
dangerous conditions); see also Mem. at 8-15. In this context, bald allegations that The Times
“must have known” his jails were actually safe cannot satisfy Arpaio’s burden to plead facts that
plausibly establish The Times possessed such knowledge but proceeded nonetheless to publish
false statements to the contrary in the column.
The Complaint is properly dismissed in its entirety, with prejudice, on this ground alone.
See Mem. at 32-38.
II.
ARPAIO ALSO HAS NO CLAIMS FOR STATEMENTS OF OPINION
Arpaio closes his Opposition by urging that the column’s views are not protected opinion,
including because, without citing to any specific statements, “[t]he impression that Defendants
maintain is that Plaintiff is a cold-hearted, and brutal sadist who has no respect for human life,”
9Page 15 and that such alleged “statements” “reasonably imply that Plaintiff murders inmates for sport.”
Opp. at 25. This cursory line of argument fails for several reasons.
First, with regard to the statements actually contained in the column, Arpaio does not
focus on any particular language in the column but, rather, argues that challenged statements as a
whole are actionable because they “imply the existence of undisclosed defamatory facts which
can be proven false,” id. at 24—also without identifying those purportedly undisclosed facts.
But this is not a situation like the one presented in Milkovich v. Lorain Journal Co., 497 U.S. (1990), where a potentially provable statement that someone committed perjury came in the
context of implied undisclosed facts regarding the specific events surrounding the alleged
perjury. Here, the column’s characterizations of Arpaio’s activities as “medieval,” “brutal,” and
“bare-knuckle” and of Arpaio as “a disgrace,” “a sadist” and “a true American villain,” for
example, are all either “so imprecise or subjective that [they are] not capable of being proved
true or false,” and therefore not actionable, Farah, 736 F.3d at 534-35, or the bases for these
opinions are fully disclosed, Moldea v. New York Times, 22 F.3d 310, 317 (D.C. Cir. 1994)
(where “the reader understands that such supported opinions represent the writer’s interpretation
of the facts presented, and because the reader is free to draw his or her own conclusions based
upon those facts, this type of statement is not actionable in defamation”) (citation omitted).Again, Arpaio simply ignores the extensive public record regarding his conduct that is discussed
in the column. See Mem. at 42-43.
Arpaio misleadingly cites to and relies upon an earlier opinion in that case as reversing a
district court judgment for the defendant, Opp. at 16-17 (discussing Moldea v. New York Times,
15 F.3d 1137 (D.C .Cir. 1994))—an opinion that in fact was withdrawn. Upon reconsideration,
the Court of Appeals reached the contrary result—affirming judgment for The Times. Moldea,
22 F.3d at 312 (“Wisdom too often never comes, and so one ought not to reject it merely because
it comes late.”) (quoting Henslee v. Union Planters Nat’l Bank & Trust Co., 335 U.S. 595, (1949) (Frankfurter, J., dissenting)).
10Page 16 Second, unable to challenge the actual statements in the column, Arpaio essentially seeks
to amend his Complaint through briefing to assert that supposed implications conveyed by the
column are defamatory. Opp. at 18-19. His contention that the column implies that Arpaio
“murders inmates for sport,” for example, is nowhere to be found in the actual Complaint. More
importantly, though, the implication is not reasonably conveyed by the column. Defamation by
implication is “an area fraught with subtle complexities,” and “courts must be vigilant not to
allow an implied defamatory meaning to be manufactured from words not reasonably capable of
sustaining such meaning.” White v. Fraternal Order of Police, 909 F.2d 512, 518-19 (D.C. Cir.
1990). Even where an alleged defamatory implication can reasonably be read from a challenged
report—and a charge that Arpaio personally “murders inmates for sport” is not one that can
reasonably be read from the column—the challenged publication must also reasonably show on
its face that a defendant intended to convey the defamatory implication. Id. at 520 (“if a
communication, viewed in its entire context, merely conveys materially true facts from which a
defamatory inference can reasonably be drawn, the libel is not established,” absent language
showing that “the defendant intends or endorses the defamatory inference”). Arpaio cannot point
to anything in the column that would support such an intention here.
Moreover, just as stated conclusions drawn from disclosed facts are protected opinions,
Mem. at 43, the unstated implications allegedly drawn from those facts are themselves nonactionable opinions. “If the Constitution protects an author’s right to draw an explicit conclusion
from fully disclosed facts, then an unstated inference that may arise in a reader’s mind after
reading such facts is also protected as an implicit expression of the author’s opinion.” Biro v.
Conde Nast, 883 F. Supp. 2d 441, 468 (S.D.N.Y. 2012).
11Page 17 Third, even if the Court were to credit Arpario’s argument and deem every word and
alleged implication in the column to be a defamatory statement of fact, Arpaio still must plead
facts demonstrating that The Times made particular statements with knowledge of falsity or
probable falsity—i.e., actual malice. For all the reasons outlined in Part I, he fails to do so and,
in light of the overwhelming public record that gave The Times every reason to believe its
statements were true, he cannot do so.
CONCLUSION
For each and all the foregoing reasons, defendants respectfully request that this Court
grant their motion and enter an order dismissing the Complaint, with prejudice, and grant such
other and further relief as the Court deems just and proper.
Dated: February 27,
Respectfully submitted,
BALLARD SPAHR LLP
/s/ Jay Ward Brown
Jay Ward Brown (D.C. Bar No. 437686)
Chad R. Bowman (D.C. Bar No. 484150)
Dana R. Green (D.C. Bar No. 1005174)
1909 K. Street, NW, 12th Floor
Washington, D.C. 20006-Telephone: (202) 661-Fax: (202) 661-brownjay@ballardspahr.com
bowmanchad@ballardspahr.com
greendana@ballardspahr.com
Attorneys for Defendants
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Case 1:18-cv-02387-APM Document 14 Filed 02/27/19 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
------------------------------------JOSEPH MICHAEL ARPAIO
Plaintiff,
v.
MICHELLE COTTLE, et al.
Defendants.
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: Case No. No. 1:18-cv-02387-APM
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DEFENDANTS’ REPLY MEMORANDUM OF LAW
IN SUPPORT OF MOTION TO DISMISS
BALLARD SPAHR LLP
Jay Ward Brown (D.C. Bar No. 437686)
Chad R. Bowman (D.C. Bar No. 484150)
Dana R. Green (D.C. Bar No. 1005174)
1909 K Street, NW, 12th Floor
Washington, DC 20006
Telephone: (202) 661-2200
Fax: (202) 661-2299
brownjay@ballardspahr.com
bowmanchad@ballardspahr.com
greendana@ballardspahr.com
Counsel for Defendants
Date: February 27, 2019
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .....................................................................................................1
ARGUMENT ...................................................................................................................................2
I.
II.
THE COMPLAINT FAILS TO PLEAD FACTS PLAUSIBLY
ESTABLISHING CONSTITUTIONAL “ACTUAL MALICE” ........................................3
A.
Arpaio Misstates The Applicable Legal Standard ...................................................4
B.
Arpaio Pleads No Facts That Plausibly Establish Actual Malice and
Offers No Rebuttal To The Public Record That Demonstrates He
Cannot Do So ...........................................................................................................6
ARPAIO ALSO HAS NO CLAIMS FOR STATEMENTS OF OPINION ........................9
CONCLUSION ..............................................................................................................................12
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TABLE OF AUTHORITIES
Cases
Page(s)
Agster v. Maricopa Cty. Sheriff’s Office,
144 F. App’x 594 (9th Cir. 2005) ..............................................................................................9
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ...................................................................................................................5
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .......................................................................................................4, 5, 6, 7
Atencio v. Arpaio,
161 F. Supp. 3d 789 (D. Ariz. 2015) .........................................................................................9
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) ...............................................................................................................4, 5
Biro v. Conde Nast,
807 F.3d 541 (2d Cir. 2015).......................................................................................................6
Biro v. Conde Nast,
883 F. Supp. 2d 441 (S.D.N.Y. 2012)......................................................................................11
Boley v. Atl. Monthly Grp.,
950 F. Supp. 2d 249 (D.D.C. 2013) ...........................................................................................5
Bose Corp. v. Consumers Union of U.S., Inc.,
466 U.S. 485 (1984) ...................................................................................................................5
Conley v. Gibson,
355 U.S. 41 (1957) .....................................................................................................................4
Deripaska v. Associated Press,
282 F. Supp. 3d 133 (D.D.C. 2017) ...................................................................................2, 3, 5
Farah v. Esquire Magazine,
736 F.3d 528 (D.C. Cir. 2013) .............................................................................................3, 10
Flanders v. Maricopa Cty.,
54. P.3d 837 (Ariz. Ct. App. 2002) ............................................................................................9
Flowers v. Carville,
310 F.3d 1118 (9th Cir. 2002) ...................................................................................................5
Garrison v. Louisiana,
379 U.S. 64 (1964) .................................................................................................................3, 4
ii
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Graves v. Arpaio,
48 F. Supp. 3d 1318 (D. Ariz. 2014) .........................................................................................9
Harte-Hanks Commc’ns, Inc. v. Connaughton,
491 U.S. 657 (1989) ...............................................................................................................4, 7
Henry v. Collins,
380 U.S. 356 (1965) ...................................................................................................................8
Henslee v. Union Planters Nat’l Bank & Trust Co.,
335 U.S. 595 (1949) .................................................................................................................10
Herbert v. Lando,
441 U.S. 153 (1979) ...................................................................................................................6
Hopkins v. Women’s Div., Gen. Bd. of Glob. Ministries,
284 F. Supp. 2d 15 (D.D.C. 2003) .............................................................................................3
Hourani v. Psybersolutions LLC,
164 F. Supp. 3d 128 (D.D.C. 2016) .......................................................................................5, 7
Hustler Magazine, Inc. v. Falwell,
485 U.S. 46 (1988) .....................................................................................................................8
Hutchinson v. Proxmire,
443 U.S. 111 (1979) ...................................................................................................................5
Jankovic v. Int’l Crisis Grp.,
822 F.3d 576 (D.C. Cir. 2016) ...............................................................................................3, 7
Kahl v. Bureau of Nat’l Affairs, Inc.,
856 F.3d 106 (D.C. Cir. 2017) ...................................................................................................2
Mayfield v. NASCAR, Inc.,
674 F.3d 369 (4th Cir. 2012) .....................................................................................................6
McFarlane v. Esquire Magazine,
74 F.3d 1296 (D.C. Cir. 1996) ...................................................................................................4
Michel v. NYP Holdings, Inc.,
816 F.3d 686 (11th Cir. 2016) ...............................................................................................5, 6
Milkovich v. Lorain Journal Co.,
497 U.S. 1 (1990) .....................................................................................................................10
Moldea v. New York Times,
15 F.3d 1137 (D.C .Cir. 1994) .................................................................................................10
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Moldea v. New York Times,
22 F.3d 310 (D.C. Cir. 1994) ...................................................................................................10
N.Y. Times Co. v. Sullivan,
376 U.S. 254 (1964) ...................................................................................................................3
Nurriddin v. Bolden,
818 F.3d 751 (D.C. Cir. 2016) ...................................................................................................7
Ollman v. Evans,
750 F.2d 970 (D.C. Cir. 1984) ...................................................................................................2
Parisi v. Sinclair,
845 F. Supp. 2d 215 (D.D.C. 2012) ...........................................................................................5
Parsi v. Daioleslam,
890 F. Supp. 2d 77 (D.D.C. 2012) .............................................................................................7
Pippen v. NBCUniversal Media, LLC,
734 F.3d 610 (7th Cir. 2013) .....................................................................................................6
Schatz v. Republican State Leadership Comm.,
669 F.3d 50 (1st Cir. 2012) ........................................................................................................6
Spiller v. District of Columbia,
302 F. Supp. 3d 240 (D.D.C. 2018) .......................................................................................4, 5
St. Amant v. Thompson,
390 U.S. 727 (1968) ...................................................................................................................8
Tavoulareas v. Piro,
817 F.2d 762 (D.C. Cir. 1987) ...............................................................................................7, 8
White v. Fraternal Order of Police,
909 F.2d 512 (D.C. Cir. 1990) .................................................................................................11
Wilson v. Maricopa Cty.,
463 F. Supp. 2d 987 (D. Ariz. 2006) .........................................................................................9
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The New York Times Company and its editorial board member Michelle Cottle
(together, “The Times”) respectfully submit this reply to Plaintiff Sheriff Arpaio’s Opposition to
Defendants’ Motion to Dismiss, ECF Dkt. 11 (“Opposition” or “Opp.”).
PRELIMINARY STATEMENT
The most revealing thing about the Opposition is what is missing from it. The
Opposition is devoid of citation to any pleaded factual allegations plausibly demonstrating that
The Times knew any particular factual statement in the column was either false or likely false.
This is a dispositive failing. Instead, Arpaio alternately contends that he need not plead facts
supporting constitutional actual malice to state a claim, Opp. at 10-15, argues that, if he is
required to so plead, the conclusory pleading of generalized “ill will” is sufficient, id. at 11-12,
and, finally, maintains that the column’s assertions were so inherently improbable that The
Times “could not possibly have believed” them, id. at 15. Arpaio is wrong on all counts, and
dismissal is warranted on this basis alone.
The Opposition also conspicuously ignores The Times’s showing that any amendment
would be futile because the challenged column summarized and commented upon an extensive
public record about Arpaio’s controversial law enforcement practices. Those practices have
resulted in court decisions subject to judicial notice and tens of millions of dollars of government
payments; Arpaio has largely admitted to and even bragged about such practices; and they have
been a longstanding topic of national discussion. See generally Defs.’ Mem. of Law in Supp. of
Mot. to Dismiss, ECF Dkt. 8 (“Mem.”) at 6-27. Arpaio ignores this entire record, as if doing so
will somehow make it disappear. Also noticeably absent from Arpaio’s Opposition is any
explanation of how any specific statement in the column is allegedly factually inaccurate.
Instead, Arpaio simply block-quotes passages that he deems actionable, Opp. at 3-4, and alleges
unstated implications he now claims the column conveys, e.g., id. at 2 (alleging readers would
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conclude “Arpaio is a killer, a disgrace to law enforcement, a crook, a criminal, and worse”); id.
at 17 (same); id. at 9 (alleging implication of murder), id. at 19 (same).
At bottom, this is a misguided defamation lawsuit by a public figure over a newspaper
“op-ed” column summarizing well-known, pre-existing public controversies and offering views
about them in the context of a U.S. Senate primary election. This type of publication lies at the
core of protected political speech under the First Amendment. It therefore implicates the Court’s
constitutional responsibility to subject resulting claims to “close judicial scrutiny” to ensure that
protected expression is not penalized, and robust debate not discouraged, by the burdens of
litigation. Ollman v. Evans, 750 F.2d 970, 996-97 (D.C. Cir. 1984) (Bork, J., concurring); see
also Kahl v. Bureau of Nat’l Affairs, Inc., 856 F.3d 106, 109 (D.C. Cir. 2017) (“To preserve First
Amendment freedoms and give reporters . . . the breathing room they need to pursue the truth,
the Supreme Court has directed courts to weed out unmeritorious defamation suits.”), cert.
denied, 138 S. Ct. 366 (2017). Because Arpaio has not and cannot plausibly allege a required
element of his claim—constitutional “actual malice”—for any factual statement in the column,
this lawsuit should be dismissed.
ARGUMENT
A significant portion of Arpaio’s response to the motion by The Times is devoted to
arguing that the column is harmful to his reputation, see, e.g., Opp. at 7-10, 16-19, and that he
adequately has alleged the common law elements of tortious interference and false light, id. at
20-23. In contrast to these strawman arguments, Arpaio devotes only six pages to the principal
basis for dismissal argued by The Times—his failure to plead constitutional actual malice, id. at
10-15, a failure that forecloses all of his claims. See, e.g., Deripaska v. Associated Press, 282 F.
Supp. 3d 133, 144 (D.D.C. 2017) (dismissing claim where pleaded facts failed to establish actual
2
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malice), appeal dismissed, 2017 WL 6553388 (D.C. Cir. 2017); Farah v. Esquire Magazine, 736
F.3d 528, 540 (D.C. Cir. 2013) (same with respect to other causes of action); see also Mem. at
32-40. It is telling that Arpaio fails to dispute—or even to address—this authority. See Hopkins
v. Women’s Div., Gen. Bd. of Glob. Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (“It is well
understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and
addresses only certain arguments raised by the defendant, a court may treat those arguments that
the plaintiff failed to address as conceded.”), aff’d sub nom. Hopkins v. Women’s Div., Gen. Bd.
of Glob. Ministries, United Methodist Church, 98 F. App’x 8 (D.C. Cir. 2004). At bottom,
Arpaio offers no basis whatsoever to forestall the prompt dismissal of this lawsuit.
I.
THE COMPLAINT FAILS TO PLEAD FACTS PLAUSIBLY
ESTABLISHING CONSTITUTIONAL “ACTUAL MALICE”
Arpaio does not dispute that he qualifies as a public official or public figure under the
First Amendment, and therefore must adequately plead “actual malice,” the applicable standard
of fault, in order to state a claim arising from the column. See generally Opp.
The actual malice standard in public-figure defamation lawsuits such as this one has been
part of this nation’s constitutional fabric for more than a half-century, since the Supreme Court
recognized that unchecked litigation threatened the type of “uninhibited, robust and wide open”
debate about public issues at the core of the First Amendment and necessary in a democracy.
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Such political speech includes at times
“vehement, caustic, and sometimes unpleasantly sharp attacks on government and public
officials.” Id. To give protected speech essential “‘breathing space’” from liability, id. at 271-72
(citation omitted), and in light of our “profound national commitment” to the debate of public
issues, Jankovic v. Int’l Crisis Grp., 822 F.3d 576, 584 (D.C. Cir. 2016) (quoting Sullivan, 376
U.S. at 270), cert. denied, 137 S. Ct. 1434 (2017), actionable defamation about public figures is
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limited to “calculated falsehood[s].” Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). In other
words, “the defendant must have made the false publication with a ‘high degree of awareness of
. . . probable falsity.’” Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 667 (1989)
(quoting Garrison, 379 U.S. at 74). As the D.C. Circuit has noted, because this constitutional
balance favors speech when public figures assert claims such as those at issue here, this actual
malice standard is quite intentionally “a daunting one.” McFarlane v. Esquire Magazine, 74
F.3d 1296, 1308 (D.C. Cir. 1996).
Contrary to Arpaio’s argument in his Opposition, he has an obligation to adequately
plead actual malice, not just an obligation ultimately to prove it—and his Complaint falls
woefully short in this regard.
A.
Arpaio Misstates The Applicable Legal Standard
Arpaio first errs in urging that actual malice “cannot properly be resolved on a motion to
dismiss.” Opp. at 10. Following the Supreme Court’s decisions in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), every civil litigant
has an obligation to allege in a complaint facts sufficient to render a claim “plausible on its face”
in order to survive a motion to dismiss. Twombly, 550 U.S. at 570. Thus, Arpaio misstates the
applicable law when he cites the defunct “no set of facts” standard, Opp. at 5, first articulated in
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Supreme Court expressly abrogated that
standard in Twombly. See 550 U.S. at 561-63 (“[T]his famous observation has earned its
retirement.”); see also, e.g., Spiller v. District of Columbia, 302 F. Supp. 3d 240, 256 (D.D.C.
2018) (rejecting “no set of facts” standard because “[s]ince Twombly and Iqbal were decided, …
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the standard for evaluating a motion to dismiss for failure to state a claim has shifted
significantly”).1
Arpaio seeks to evade this obligation by arguing that, because Rule 9(b) of the Federal
Rules of Civil Procedure provides that “[m]alice, intent, knowledge, and other conditions of a
person’s mind may be alleged generally,” Opp. at 12 (citation omitted), no “heightened”
pleading rule applies to actual malice, id. This, again, is a misstatement of applicable law. The
Supreme Court itself in Iqbal directed that the plausibility demanded by Rule 8 includes the
pleading of “malice, intent, knowledge, and other conditions of a person’s mind” under Rule
9(b). 556 U.S. at 686-87 (alteration omitted). As the Supreme Court explained, “Rule 9 merely
excuses a party from pleading [malice] under an elevated pleading standard. It does not give him
license to evade the less rigid—though still operative—strictures of Rule 8.” Id. As such, in
order to state a claim that survives a motion to dismiss, a public figure defamation plaintiff must
allege facts plausibly establishing each element of his cause of action, including actual malice.
See, e.g., Deripaska, 282 F. Supp. 3d at 144 (dismissing claim where pleaded facts failed to
establish “that [defendant] acted with actual malice”); Hourani v. Psybersolutions LLC, 164 F.
Supp. 3d 128, 144 (D.D.C. 2016) (same), aff’d, 690 F. App’x 1 (D.C. Cir. 2017); Boley v. Atl.
Monthly Grp., 950 F. Supp. 2d 249, 262-63 (D.D.C. 2013) (same); Parisi v. Sinclair, 845 F.
Supp. 2d 215, 218-19 (D.D.C. 2012) (same). Every Circuit to consider actual malice pleading
1
For this reason, Arpaio’s reliance on cases decided before Iqbal and Twombly, such as
Flowers v. Carville, 310 F.3d 1118 (9th Cir. 2002) (cited at Opp. at 10), is misplaced. Moreover,
the 1979 Supreme Court footnote relied upon by Arpaio, Opp. at 10 (citing Hutchinson v.
Proxmire, 443 U.S. 111, 120 n.9 (1979)), did not bear the weight placed on it by Arpaio in his
Opposition—even before Iqbal and Twombly. The Supreme Court subsequently rejected that
footnote, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 n.7 (1986), and made clear that a
court’s obligation to evaluate actual malice is “a constitutional responsibility that cannot be
delegated to the trier of fact.” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 501
(1984) (emphasis added).
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after Iqbal has reached the same conclusion. See, e.g., Michel v. NYP Holdings, Inc., 816 F.3d
686, 701-02 (11th Cir. 2016); Biro v. Conde Nast, 807 F.3d 541, 544-46 (2d Cir. 2015); Pippen
v. NBCUniversal Media, LLC, 734 F.3d 610, 614 (7th Cir. 2013); Mayfield v. NASCAR, Inc., 674
F.3d 369, 377-78 (4th Cir. 2012); Schatz v. Republican State Leadership Comm., 669 F.3d 50, 58
(1st Cir. 2012).
As such, it is not “premature” for a court to dismiss a claim without discovery into actual
malice, as Arpaio argues. Opp. at 15. Under the modern pleading standard, plaintiffs may not
“unlock the doors of discovery… armed with nothing more than conclusions.” Iqbal, 556 U.S. at
678-79.2 They must first allege facts sufficient to state the elements of a plausible claim. The
Complaint here does not.
B.
Arpaio Pleads No Facts That Plausibly Establish Actual Malice and
Offers No Rebuttal To The Public Record That Demonstrates He
Cannot Do So
Arpaio dubs it “disingenuous[]” for The Times to have pointed out that, in his Complaint,
he “has not even attempted to allege facts that … could support a finding that The Times
deliberately published a falsehood about him in the column.” Opp. at 10 (quoting Mem. at 30).
This grievance apparently rests on a misunderstanding of the term “facts”: Arpaio emphasizes in
his Opposition that the Complaint does repeatedly allege “actual malice.” Id. (citing Compl.
¶¶ 23, 24, 28, 42). But these talismanic recitations are precisely the kind of “unadorned” and
“[t]hreadbare recitals of the elements of a cause of action” that, as a matter of law, fail to satisfy
2
The Opposition cites Herbert v. Lando, 441 U.S. 153, 169 (1979), for the proposition that
defamation plaintiffs are “entitled” to discovery into actual malice. Opp. at 14-15. However, that
case involved a claimed editorial privilege during discovery. 441 U.S. at 157-58. Moreover, the
Supreme Court in Iqbal expressly declined to create any entitlement to discovery based on
conclusory pleadings of “[m]alice, intent, knowledge, and other conditions of a person’s mind,”
556 U.S. at 686-87 (citation omitted).
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Rule 8. Iqbal, 556 U.S. at 678-79; see also Hourani, 164 F. Supp. 3d at 143-44 (rejecting
“conclusory allegations” of actual malice); see also Mem. at 29-31. Bald assertions that the
column was published “with malice” or with “knowledge of falsity,” absent supporting factual
allegations plausibly establishing that conclusion, are insufficient. They are merely “legal
conclusions couched as factual allegations,” Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir.
2016), cert. denied, 137 S. Ct. 2159 (2017), and need not be credited.
Alternately, Arpaio urges that actual malice should be assumed because “Defendant New
York Times’ political partisanship and liberal bias knows no reasonable bounds,” and therefore
knowledge of falsity or probable falsity exists based on this “ill will.” Opp. at 11-12. The
Complaint offers no facts to support this assertion, which itself is fatal. Iqbal, 556 U.S. at 68687. But the Opposition also errs on the law in urging that Connaughton “expressly recognized
that motive is ‘supportive,’ probative, and admissible evidence.” Opp. at 13. The Supreme
Court did allow that “it cannot be said that evidence concerning motive … never bears any
relation to the actual malice inquiry.” Harte Hanks Commc’ns, 491 U.S. at 668 (emphasis
added). However, the Court also made clear that “it is worth emphasizing that the actual malice
standard is not satisfied merely through a showing of ill will or ‘malice’ in the ordinary sense of
the term.” Id. at 666. As this Court has noted, “[i]f ideological opposition alone showed actual
malice, valuable investigative journalism would be threatened by defamation laws.” Parsi v.
Daioleslam, 890 F. Supp. 2d 77, 91 (D.D.C. 2012). The Court of Appeals has recognized that,
while a speaker “may have adopted an adversarial stance” toward the subject of a challenged
statement, that “attitude is not ‘antithetical to the truthful presentation of facts.’” Jankovic, 822
F.3d at 597 (quoting Tavoulareas v. Piro, 817 F.2d 762, 795 (D.C. Cir. 1987)); see also id. at
596 (noting that “motive-based evidence” is not “probative of actual malice” unless “the
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publisher’s alleged motive shows an intent to inflict harm through falsehood, a willingness to
publish unsupported allegations, or a desire to publish with little or no regard for the report’s
accuracy”) (internal marks, alterations, and citations omitted).
It is subjective knowledge of falsity that serves as proof of constitutional actual malice,
not common-law, “ill will” malice. Henry v. Collins, 380 U.S. 356, 357-58 (1965) (per curiam)
(reversing defamation judgment where jury instruction could be read merely to require intent to
inflict harm rather than intent to do so through false statements); see also Hustler Magazine, Inc.
v. Falwell, 485 U.S. 46, 51 (1988) (“[O]ne of the prerogatives of American citizenship is the
right to criticize public men and measures. Such criticism, inevitably, will not always be
reasoned or moderate; public figures as well as public officials will be subject to vehement,
caustic, and sometimes unpleasantly sharp attacks.”) (internal marks and citation omitted). In
any event, “defamation plaintiffs cannot show actual malice in the abstract; they must
demonstrate actual malice in conjunction with a false defamatory statement.” Tavoulareas, 817
F.2d at 794. Arpaio, with the broad-brush allegations he has adopted in his Complaint here,
makes no actual attempt to do so.
Finally, Arpaio urges that The Times “must have known” that the column was false.
Opp. at 15. Although clear and convincing evidence that a “publisher’s allegations are so
inherently improbable that only a reckless man would have put them in circulation” may
constitute actual malice, St. Amant v. Thompson, 390 U.S. 727, 731-32 (1968), Arpaio once
again offers only this bald conclusion: He fails to point to any specific factual allegation in his
Complaint that would explain why The Times “must have known” that specific statements in the
column were false.
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For example, Arpaio argues without explanation that The Times must have known it was
false to assert that abuses in his jails were “lethal.” Opp. at 15. But it is a matter of judicially
noticeable public record that numerous inmates died in custody after being shocked by police
with Taser guns, restrained, stripped, subjected to “dog piles,” and/or beaten. See, e.g., Agster v.
Maricopa Cty. Sheriff's Office, 144 F. App’x 594, 596 (9th Cir. 2005); Atencio v. Arpaio, 161 F.
Supp. 3d 789, 794-96 (D. Ariz. 2015); see generally Mem. at 15-19. Courts have also
determined that Arpaio failed to show that detainees with serious health needs received
appropriate medical care, Graves v. Arpaio, 48 F. Supp. 3d 1318, 1341-42 (D. Ariz. 2014), and
that he otherwise purposefully designed dangerous jail conditions, Flanders v. Maricopa Cty.,
54. P.3d 837, 846 (Ariz. Ct. App. 2002) (“The jury could properly determine that the Sheriff was
callously indifferent to … the exposure of Tent City inmates to serious injury.); Wilson v.
Maricopa Cty., 463 F. Supp. 2d 987, 994 (D. Ariz. 2006) (“Plaintiffs have presented sufficient
evidence for a reasonable jury to find deliberate indifference on the part of Sheriff Arpaio” to
dangerous conditions); see also Mem. at 8-15. In this context, bald allegations that The Times
“must have known” his jails were actually safe cannot satisfy Arpaio’s burden to plead facts that
plausibly establish The Times possessed such knowledge but proceeded nonetheless to publish
false statements to the contrary in the column.
The Complaint is properly dismissed in its entirety, with prejudice, on this ground alone.
See Mem. at 32-38.
II.
ARPAIO ALSO HAS NO CLAIMS FOR STATEMENTS OF OPINION
Arpaio closes his Opposition by urging that the column’s views are not protected opinion,
including because, without citing to any specific statements, “[t]he impression that Defendants
maintain is that Plaintiff is a cold-hearted, and brutal sadist who has no respect for human life,”
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and that such alleged “statements” “reasonably imply that Plaintiff murders inmates for sport.”
Opp. at 25. This cursory line of argument fails for several reasons.
First, with regard to the statements actually contained in the column, Arpaio does not
focus on any particular language in the column but, rather, argues that challenged statements as a
whole are actionable because they “imply the existence of undisclosed defamatory facts which
can be proven false,” id. at 24—also without identifying those purportedly undisclosed facts.
But this is not a situation like the one presented in Milkovich v. Lorain Journal Co., 497 U.S. 1
(1990), where a potentially provable statement that someone committed perjury came in the
context of implied undisclosed facts regarding the specific events surrounding the alleged
perjury. Here, the column’s characterizations of Arpaio’s activities as “medieval,” “brutal,” and
“bare-knuckle” and of Arpaio as “a disgrace,” “a sadist” and “a true American villain,” for
example, are all either “so imprecise or subjective that [they are] not capable of being proved
true or false,” and therefore not actionable, Farah, 736 F.3d at 534-35, or the bases for these
opinions are fully disclosed, Moldea v. New York Times, 22 F.3d 310, 317 (D.C. Cir. 1994)
(where “the reader understands that such supported opinions represent the writer’s interpretation
of the facts presented, and because the reader is free to draw his or her own conclusions based
upon those facts, this type of statement is not actionable in defamation”) (citation omitted).3
Again, Arpaio simply ignores the extensive public record regarding his conduct that is discussed
in the column. See Mem. at 42-43.
3
Arpaio misleadingly cites to and relies upon an earlier opinion in that case as reversing a
district court judgment for the defendant, Opp. at 16-17 (discussing Moldea v. New York Times,
15 F.3d 1137 (D.C .Cir. 1994))—an opinion that in fact was withdrawn. Upon reconsideration,
the Court of Appeals reached the contrary result—affirming judgment for The Times. Moldea,
22 F.3d at 312 (“Wisdom too often never comes, and so one ought not to reject it merely because
it comes late.”) (quoting Henslee v. Union Planters Nat’l Bank & Trust Co., 335 U.S. 595, 600
(1949) (Frankfurter, J., dissenting)).
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Second, unable to challenge the actual statements in the column, Arpaio essentially seeks
to amend his Complaint through briefing to assert that supposed implications conveyed by the
column are defamatory. Opp. at 18-19. His contention that the column implies that Arpaio
“murders inmates for sport,” for example, is nowhere to be found in the actual Complaint. More
importantly, though, the implication is not reasonably conveyed by the column. Defamation by
implication is “an area fraught with subtle complexities,” and “courts must be vigilant not to
allow an implied defamatory meaning to be manufactured from words not reasonably capable of
sustaining such meaning.” White v. Fraternal Order of Police, 909 F.2d 512, 518-19 (D.C. Cir.
1990). Even where an alleged defamatory implication can reasonably be read from a challenged
report—and a charge that Arpaio personally “murders inmates for sport” is not one that can
reasonably be read from the column—the challenged publication must also reasonably show on
its face that a defendant intended to convey the defamatory implication. Id. at 520 (“if a
communication, viewed in its entire context, merely conveys materially true facts from which a
defamatory inference can reasonably be drawn, the libel is not established,” absent language
showing that “the defendant intends or endorses the defamatory inference”). Arpaio cannot point
to anything in the column that would support such an intention here.
Moreover, just as stated conclusions drawn from disclosed facts are protected opinions,
Mem. at 43, the unstated implications allegedly drawn from those facts are themselves nonactionable opinions. “If the Constitution protects an author’s right to draw an explicit conclusion
from fully disclosed facts, then an unstated inference that may arise in a reader’s mind after
reading such facts is also protected as an implicit expression of the author’s opinion.” Biro v.
Conde Nast, 883 F. Supp. 2d 441, 468 (S.D.N.Y. 2012).
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Third, even if the Court were to credit Arpario’s argument and deem every word and
alleged implication in the column to be a defamatory statement of fact, Arpaio still must plead
facts demonstrating that The Times made particular statements with knowledge of falsity or
probable falsity—i.e., actual malice. For all the reasons outlined in Part I, he fails to do so and,
in light of the overwhelming public record that gave The Times every reason to believe its
statements were true, he cannot do so.
CONCLUSION
For each and all the foregoing reasons, defendants respectfully request that this Court
grant their motion and enter an order dismissing the Complaint, with prejudice, and grant such
other and further relief as the Court deems just and proper.
Dated: February 27, 2019
Respectfully submitted,
BALLARD SPAHR LLP
/s/ Jay Ward Brown
Jay Ward Brown (D.C. Bar No. 437686)
Chad R. Bowman (D.C. Bar No. 484150)
Dana R. Green (D.C. Bar No. 1005174)
1909 K. Street, NW, 12th Floor
Washington, D.C. 20006-1157
Telephone: (202) 661-2200
Fax: (202) 661-2299
brownjay@ballardspahr.com
bowmanchad@ballardspahr.com
greendana@ballardspahr.com
Attorneys for Defendants
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