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United States District Court for the District of Columbia Judge Richard W. Roberts, in Yorie Von Kahl v. Bureau of National Affairs Inc. (Case No. 09-0635(RWR)), denied the pro se plaintiff 's libel per se claim, but also denied the defendant's motion for reconsideration, thereby upholding his September 2011, decision denying both parties' summary judgment motions.
At issue, according to a post by the Legal Times blog, is the CLR August 2005, account of Von Kahl's petition for writ of mandamus to the U.S. Supreme Court that discussed Von Kahl's sentencing hearing in 1983, writing "he showed not a hint of contrition" and indicating he justified the murders to the press based on his religious and philosophical tenets. Von Kahl claimed the CLR summary took statements actually made by a prosecutor and made it appear as if the judge at sentencing had made them in his ruling.
BNA ran a clarification in 2007 saying it was summarizing the judge's decision, but that hasn't prevented Von Kahl from filing suit that seeks a correction and damages of $10 million per count in his Complaint, which could buy a lot of cigarettes in the slammer.
"A trier of fact reasonably may conclude that such statements make plaintiff appear odious, infamous or ridiculous," Judge Roberts wrote in his decision allowing the suit to proceed. He did find Von Kahl to be a limited public figure, which means Von Kahl will have to satisfy the higher burden of proof of actual malice at his defamation trial.
Judge Roberts also said the media defendant may use the fair report privilege defense at trial, which shields media defendants who accurately report on information from public hearings or documents, but that the defense was inapplicable at the summary judgment stage. Judge Roberts specifically held that Von Kahl was not "libel proof." There are a smattering of cases that suggests individuals who engage in anti-social behavior such as committing multiple homicides are incapable of having their reputations besmirched, but Judge Roberts determined Von Kahl's criminal background didn't put him quite that low on the food chain.
When push comes to shove, "TUOL" suspects BNA will avoid liability both because of the fair report defense and because a comment about whether the criminal defendant did or didn't show contrition, regardless of who made it, constitutes non-actionable opinion. Cases such as these happen when inmates skip the weight room and thumb through law books in the prison library.