REVELL v. HOFFMAN
FILED
United States Court of Appeals
Tenth Circuit
OCT 30 2002
PATRICK FISHER
Clerk PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
OLIVER "BUCK" REVELL,
Plaintiff - Appellant,
v. No. 01-6169
DAVID HOFFMAN, an individual;
ALEXANDER B. MAGNUS, an individual;
AMERICANS FOR RESPONSIBLE MEDIA,
a foreign corporation,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D. Ct. No. CIV-99-637-C)
Stan Twardy, Oklahoma City, Oklahoma, appearing for the Appellant.
J. Michael Johnston, Oklahoma City, Oklahoma, appearing for the Appellees.
Before TACHA, Chief Judge, ALDISERT(1), and McWILLIAMS, Circuit Judges.
TACHA, Chief Circuit Judge.
(1) The Honorable Ruggero J. Aldisert, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
I. Background
Oliver "Buck" Revell brought suit in federal district court against the
defendants, David Hoffman, Alexander B. Magnus, and Americans for
Responsible Media ("ARM"), seeking damages for defamation and civil
conspiracy under Oklahoma law. Revell also included two other individuals,
Gene Wheaton and Paul Hudson, and a foreign corporation, Feral House.
Wheaton and Feral House were dismissed, and Hudson declared bankruptcy. On
September 5, 2002, this court received the appellee's suggestion of death of
Alexander B. Magnus. Thus, only David Hoffman and ARM remain as
defendants on appeal.
Plaintiff-Appellant, Oliver "Buck" Revell served in the Federal Bureau of
Investigation ("FBI") for thirty years, rising to the position of Associate Deputy
Director. Revell also served on the Vice-President's Task Force on Terrorism,
the National Foreign Intelligence Board, and the Terrorist Crisis Management and
Deputies Committee of the National Security Council. In addition, he served as
Vice-Chair of the Interagency Group for Counterintelligence and the President's
Commission on Civil Aviation Security and Terrorism. Revell has testified
before committees in both the House and Senate and has previously appeared on
various national news programs, including 60 Minutes, Face the Nation, and
Nightline.
David Hoffman is the author of two books, The Oklahoma City Bombing
and the Politics of Terror (hereinafter "Oklahoma City Bombing") and the
unfinished book Murdergate. Alexander B. Magnus, through the not-for-profit
organization Americans for Responsible Media (hereinafter "ARM"), funded
Hoffman's work on both books. Oklahoma City Bombing and Murdergate both
contain statements concerning Revell's activities during his tenure at the FBI.
The following passages are from Oklahoma City Bombing:
1. In 1985, Wheaton was approached by security consultants
to Vice President Bush's "Task Force on Combating
Terrorism" who were working for USMC Lt. Colonel
Oliver North and Associate Deputy FBI Director Oliver
"Buck" Revell. "They wanted me to help create a `death
squad' that would have White House deniability to
assassinate people they would identify as terrorists," said
Wheaton. . . .Wheaton claims the program continues to the
present day. (p. 63).
2. On December 5, 1998, a Palestinian named Samra
Mahayoun warned authorities in Helsinki that a Pan Am
747 leaving Frankfurt was to bombed [sic] within two
weeks. (p. 170).
What is interesting is that Oliver "Buck" Revell, former
Counter-Terrorism chief of the FBI, pulled his son and
daughter-in-law off Pan Am 103 minutes before the flight.
Did Revell know something the rest of us did not? (p. 170,
n. **).
3. Several minutes before flight 103 took off from London's
Heathrow airport, FBI Assistant Director Oliver "Buck"
Revell rushed out to the tarmac and pulled his son and
daughter-in-law off the plane. (p. 313).
4. "A number of VIPs were pulled off that plane. A number
of intelligence operatives were pulled off that plane."
* * *
South African president Peter Botha and several high-
ranking officials were advised by state security forces to
change their reservations at the last hour. The South
African State Security forces have a close relationship
with the CIA.
* * *
As in Oklahoma City, this would become the catch-all
phrase that would set everything right and prove the
government had no involvement. Of course, this would be
somewhat difficult in Revell's case, since he pulled his
son and daughter-in-law off the plane minutes before it
took off. . . . Interestingly, Revell was the FBI's lead
investigator in the crash of an Arrow Air DC-8 which
exploded on December 12, 1985 in Gander,
Newfoundland, with the loss of all 248 personnel. (p. 317).
5. It was also an act that the U.S. shadow government,
responsible for precipitating, was anxious to cover up.
Had the true cause of the crash - [Oliver] North's double-
dealing with the Iranians - been revealed, the Iran-Contra
scandal would have surfaced two years before it had. . . .
"Buck" Revell would be on hand to make sure it didn't.
(p. 318).
6. Oliver North and "Buck" Revell helped develop the policy
of militarizing our law-enforcement. One example is the
FBI, which is now being given sniper training in the
military. That training helped the Bureau massacre 86
people at Waco, the first time in recent history that the
government violated the Posse Comitatus Act by using
federal troops on American citizens. (p. 382).
According to Revell, Murdergate contains similar allegations.
Defendants moved for summary judgment, arguing that Revell is a "public
figure" and the First Amendment therefore limits Revell's right to recover for
defamation under Oklahoma state law. See New York Times v. Sullivan, 376 U.S.
254 (1964). The district court agreed and granted defendants' summary judgment
motion. The district court held that Revell failed to offer sufficient evidence
from which a reasonable jury could conclude that defendants acted with "actual
malice," as required under New York Times, 376 U.S. at 279-80. For the reasons
set forth below, we AFFIRM.
II. Discussion
A. Standard of Review
We review the district court's grant of summary judgment de novo. Comm.
for the First Amendment v. Campbell, 962 F.2d 1517, 1521 (10th Cir. 1992). "In
reviewing a grant or denial of summary judgment, we apply the same standard
applied by the district court under Federal Rule of Civil Procedure 56(c)." King
v. Union Oil Co. of Cal., 117 F.3d 443, 444-45 (10th Cir. 1997). Summary
judgment is appropriate only if "there is no genuine issue as to any material fact
and . . . the moving party is entitled to a judgment as a matter of law." Fed. R.
Civ. P. 56(c). In conducting our review, "[w]e view the evidence in the light
most favorable to the nonmovant." Campbell, 962 F.2d at 1521 (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). At the same time, "it is not
enough that the nonmovant's evidence be `merely colorable' or anything short of
`significantly probative.'" Id. (citing Liberty Lobby, 477 U.S. at 248).
In considering whether a fact is material, we must look to the applicable
substantive law. Liberty Lobby, 477 U.S. at 248. To determine whether a dispute
is genuine, we must consider whether a "reasonable jury could return a verdict for
the nonmoving party." Id. In addition, we must incorporate into our summary-
judgment determination any heightened evidentiary standard required under the
applicable substantive law. Pub. Serv. Co. of Colo. v. Cont'l Cas. Co., 26 F.3d
1508, 1517 n.8 (10th Cir. 1994) ("Summary judgment `necessarily implicates the
substantive evidentiary standard of proof that would apply at the trial on the
merits.'") (quoting Liberty Lobby, 477 U.S. at 252). Applying this standard, we
conclude that Revell is unable to establish a genuine issue for trial. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B. Liability for Defamation
Revell seeks to recover damages for defamation under Oklahoma law. The
First Amendment, however, "prohibits a public official from recovering damages
for a defamatory falsehood relating to his official conduct unless he proves that
the statement was made with `actual malice.'" New York Times, 376 U.S. at 279-
80 (emphasis added). Accordingly, we must first consider whether Revell is a
"public official" for First Amendment purposes.
1. Status as Public Official
In Rosenblatt v. Baer, 383 U.S. 75 (1966), the Supreme Court articulated
the test for determining whether a person is a public official under the First
Amendment. The Court held that the "`public official' designation applies at the
very least to those among the hierarchy of government employees who have, or
appear to the public to have, substantial responsibility for or control over the
conduct of governmental affairs." Id. at 85.
The district court found that Revell had a "[thirty-year] career in the
government, in particular the high echelons of the FBI where he had an influential
role in fundamental issues of this country's national and foreign policy." Dist.
Ct. Order at 9. We have no doubt that Revell's various governmental positions
are of "such apparent importance that the public has an independent interest in the
qualifications and performance of the person who holds it, beyond the general
public interest in the qualifications and performance of all government
employees." Rosenblatt, 383 U.S. at 86. Further, we have previously held that
law-enforcement personnel are "public officials" for First Amendment purposes.
See Gray v. Udevitz, 656 F.2d 588, 591 (10th Cir. 1981) (citations omitted).
Revell argues, however, that he is no longer a public official, as he has
now retired from the FBI. We disagree. In Udevitz, we noted:
That the person defamed no longer holds the same position
does not by itself strip him of his status as a public official
for constitutional purposes. If the defamatory remarks
relate to his conduct while he was a public official and the
manner in which he performed his responsibilities is still
a matter of public interest, he remains a public official
within the meaning of New York Times.
Id. at 591 n.3 (citing Rosenblatt, 383 U.S. at 87 n.14).
Under Udevitz and Rosenblatt, we hold that Revell is a public official for
First Amendment purposes. See Rosenblatt, 383 U.S. at 85; Udevitz, 656 F.2d at
591. In order to recover damages for defamation, Revell must therefore prove
that defendants acted with actual malice. See New York Times, 376 U.S. at 279-
80. Further, Revell must prove actual malice by clear and convincing evidence.
See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 511 (1991).
Accordingly, we proceed to consider the actual malice inquiry under New York
Times and its progeny.
2. Actual Malice
Actual malice exists where a party publishes a defamatory statement "[1]
with [actual] knowledge that it was false or [2] with reckless disregard of whether
it was false or not." Id. at 280. Although reckless disregard "cannot be fully
encompassed in one infallible definition," St. Amant v. Thompson, 390 U.S. 727,
730 (1968), the Supreme Court has made clear that "[t]he mere failure to
investigate cannot establish reckless disregard for the truth." Gertz v. Welch, 418
U.S. 323, 332 (1974). Rather, there must be "sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth of
his publication." St. Amant, 390 U.S. at 731 (emphasis added). This inquiry is "a
subjective one - there must be sufficient evidence to permit the conclusion that
the defendant actually had a `high degree of awareness of . . . probable falsity.'"
Harte-Hank Communications, Inc. v. Connaughton, 491 U.S. 657, 688 (1989)
(emphasis added). Reckless disregard "is not measured by whether a reasonably
prudent man would have published, or would have investigated before
publishing." St. Amant, 390 U.S. at 731.
Revell proffers no evidence indicating that Hoffman entertained doubts
regarding the truth of the statements in Oklahoma City Bombing. Throughout his
brief, Revell characterizes the existence of malice as facially "apparent" and
"obvious" based on the "inherent improbability" of Hoffman's statements.
Revell argues that "malice here is evidenced by both the specific statements and
the totality of the book."
Revell confuses what might be considered some evidence of actual malice
with what, standing alone, will suffice to carry his burden of proving actual
malice. Even if we were to accept that Hoffman's statements were "inherently
improbable," this would merely lessen - rather than meet - Revell's burden of
offering some extrinsic evidence of Hoffman's actual malice. St. Amant makes
quite clear that New York Times requires "either deliberate falsification or
reckless publication `despite the publisher's awareness of probable falsity.'" St.
Amant, 390 U.S. at 731. Actual malice is a subjective inquiry; it is not based on
whether a "reasonably prudent" person would have conducted further
investigation prior to publishing. Harte-Hank Communications, 491 U.S. at 688.
Because Revell fails to offer any evidence concerning defendant's subjective state
of mind, we have before us no "concrete evidence from which a reasonable juror
could return a verdict in his favor." See Liberty Lobby, 477 U.S. at 256.
Further, we have no evidence that Hoffman purposefully avoided the truth.
On the contrary, Hoffman did conduct an investigation prior to publishing,(1) and
we have no facts before us that might call into question the veracity of Hoffman's
sources. Cf. id. at 691 (citing St. Amant, 390 U.S. at 732). In short, Revell has
failed to point to any evidence, aside from his allegations of "inherent
improbability," that would support a jury finding of actual malice. Requiring publishers
to finance trials based on such nebulous allegations would severely
burden First Amendment rights.
Under Rosenblatt, Revell is a public official. See Rosenblatt, 383 U.S. at
85. Accordingly, he may not recover damages for defamation under state tort law
absent a showing of actual malice. See New York Times, 376 U.S. at 279-80.
Revell has failed to offer any evidence that Hoffman published Oklahoma City
Bombing with actual malice. Likewise, Revell has failed to show that ARM acted
with actual malice. See St. Amant, 390 U.S. at 730 (actual malice must be proved
separately as to each defendant). Accordingly, the district court properly granted
the defendants' motion for summary judgment on Revell's defamation claim.
C. Civil Conspiracy
Revell's alleged as part of his complaint that ARM conspired with
Hoffmann to commit defamation. Under Oklahoma law, "[t]here can be no civil
conspiracy where the act complained of and the means employed are lawful."
Brock v. Thompson, 948 P.2d 279, 294 (Okla. 1997). "Constitutionally protected
speech that renders a defamation claim nonactionable also serves to defeat a claim
of conspiracy where the means allegedly employed to achieve that purpose are
lawful." Id. Accordingly, because we affirm the district court's grant of
summary judgment on Revell's defamation claim, Revell's civil conspiracy
claim similarly fails. Thus, the district court properly granted the defendants'
(1) Hoffman relied upon several sources, including: (1) a Public Broadcasting
System-sponsored book and a 1995 documentary, both accusing Revell of efforts
to obstruct justice in collaboration with former Marine Lt. Col. Oliver North; (2)
an essay by Hart Lidov highly critical of Revell, posted on the website Columbia
Journalism Review, USA (www.cjr.org); (3) an article by Gene Wheaton, formerly
with the U.S. Army Criminal Investigation Command, published in 1996 by the
Portland Free Press, in which Wheaton alleges that several security consultants,
including Revell, approached him proposing to create a "Death Squad" a group
to assassinate individuals identified as "terrorists" by the White House; and (4)
statements of Paul Hudson, an attorney and the head of the Pan Am 103
survivor's group, concerning the alleged advance warning of the Pan Am 103
bombing and allegations that Revell pulled his son off of Pan Am 103.
motion for summary judgment on Revell's civil conspiracy claim.
III. Conclusion
For the reasons set out above, we AFFIRM.