Franchini v. Investor's Bus. Daily, Inc.

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: LYNCH, Circuit Judge.
• Citation: Franchini v. Investor's Bus. Daily, Inc., 981 F.3d 1 (1st Cir. 2020)
• Decision Date: 13 November 2020
• Docket Number: No. 19-1389,19-1389
• Parties: Thomas FRANCHINI, Plaintiff, Appellee, v. INVESTOR'S BUSINESS DAILY, INC., d/b/a Investor's Business Daily, Defendant, Appellant, and Bangor Publishing Company, Inc., d/b/a Bangor Daily News; Meg Haskell; Edward Murphy; Gannett Company, Inc., d/b/a USA Today; Donovan Slack; Sally Pipes; MTM Acquisition, Inc., d/b/a Portland Press Herald, Defendants.

981 F.3d 1

Thomas FRANCHINI, Plaintiff, Appellee,

v. INVESTOR'S BUSINESS DAILY, INC., d/b/a Investor's Business Daily, Defendant, Appellant,andBangor Publishing Company, Inc., d/b/a Bangor Daily News; Meg Haskell; Edward Murphy; Gannett Company, Inc., d/b/a USA Today; Donovan Slack; Sally Pipes; MTM Acquisition, Inc., d/b/a Portland Press Herald, Defendants.

No. 19-1389

United States Court of Appeals, First Circuit.

November 13, 2020

Russell B. Pierce, Jr., with whom Norman, Hanson & DeTroy, LLC, Portland, ME, were on brief, for appellant.

Raymond W. Belair, with whom Belair & Associates, P.C., New York, NY, were on brief, for appellee.

Before^* Lynch, Circuit Judge, and Saris^** , District Judge.

LYNCH, Circuit Judge.

Investor's Business Daily (IBD) appeals from the denial of its special motion to dismiss under Maine's anti-SLAPP law Thomas Franchini's defamation suit against it for publishing an Op-Ed by Sally Pipes. Because Franchini failed timely to serve process on Sally Pipes, originally named as a defendant, the only defendant from which he seeks relief for this Op-Ed is IBD. The district court relied on its reading of language from Gaudette v. Mainely Media to deny the motion. 160 A.3d 539 (Me. 2017). We exercise our interlocutory jurisdiction and certify the underlying questions of law to the Maine Law Court. Me. R. App. P. 25(a).

I. Background

A. Facts.

IBD is a subscription news service with a national circulation. By uncontested affidavit, IBD's chief content officer, Chris Gessel, states that, beginning in 1990, IBD's founder gave "[IBD] the explicit charge ... of not merely criticizing policies and programs, but also, where possible, putting forward reasonable solutions or policy responses." As part of that effort, "starting in the mid-to-late 1990s, [IBD] began writing ... extensively about political, regulatory, economic and health care issues, with particular emphasis on favorably affecting public policy in Washington, D.C." IBD focused much of its commentary on "the debate raging in Washington and the states over how best to reform our health care system." IBD invited columnists and policy makers to participate in the "IBD Brain Trust," which provided regular commentary on policy issues. IBD notes that its editorials and Op-Eds have attracted the attention of government bodies, with "literally dozens" of references to their pieces in the Congressional Record relating to the debate over the Affordable Care Act. Sally Pipes is a regular contributor to IBD's health care commentary. As part of IBD's continued commentary on health care policy, IBD published the December 22, 2017 Sally Pipes Op-Ed.

Sally Pipes submitted to the district court an uncontested declaration detailing at length her biography and stating that she intended her Op-Ed as a "call to action" to enlist public support for the policy reforms she advocates. She states:

[ ] PRI's¹ nonprofit activities are intended to advance PRI's mission of educating the public and advocating for public policy solutions to current issues -- including, but not limited to, publications, events, media commentary, and community outreach. We consider these activities to be within PRI's exercise of its First Amendment rights to advance public policy perspectives and solutions of PRI's staff, scholars, and experts.

[ ] Within my expertise of health care policy, I have appeared as a policy expert in many public forums to address national and international audiences on health care. My appearances have included documentaries, prominent programs and broadcasts of major national networks. I am a regular contributor as an op-ed columnist on health care policy, and a regular columnist or frequent contributor of opinion editorials to a number of publishers, including, but not limited to, a regular column on health care policy to Forbes.com. I am the author of a number of books on health care policy in the United States, including my first book published in 2004, with a foreword by Milton Friedman, Miracle Cure: How to Solve America's Health Care Crisis and Why Canada Isn't the Answer, and my latest book, The False Promise of Single Payer Health Care, published by Encounter Books in March 2018. The intention behind all of my writings and public appearances my intentions [sic] is to inform individuals with scholarship, research, and expertise on current public policy issues under consideration by the government; and to influence public participation in the health care policy debates of our times and advance public policy solutions to those health care policy issues. I endeavor to reach the widest national and international public audiences with my writings and my appearances in prominent programming.

[ ] I am not an employee of IBD. I submit op-ed columns to IBD in my role as president and CEO of PRI, as described above, or in furtherance of my professional capacity as a health care scholar and expert. My intentions are to inform the debate on health care policy, to encourage informed public participation in government policies on health care, and to influence governmental public policy on health care. At the end of my op-ed ... there is a call to action ("The VA is in shambles. Absent reform that allows vets to seek care in the private sector, our veterans will continue to be subjected to subpar care."), and more information is provided about me and my position at PRI, encouraging readers to follow these issues and to learn more about these health care policy issues at the Department of Veterans Affairs, and referencing available information from PRI and my other publications. This call to action is reflective of my intent to enlist public participation in the health care policy issues under consideration by national and local governmental bodies.

[ ] I submitted the op-ed in issue ... with these intentions. In criticizing the Department of Veterans Affairs’ treatment of our nation's veterans, and the widespread growing concern that the U.S. Department of Veterans Affairs’ recent record of substandard care and unsatisfactory institutional response to those incidents of substandard care, in my opinion the Department is an example of the risks and ill-fated results of governmental controlled health care systems. [sic] Specifically, I was drawing upon information disclosed in two reasonably reliable sources: the GAO report referenced in the article, indicating that several VA medical facilities have ignored an unsatisfactory number of patient complaints; and the USA Today report, which included the reference to the public claims² against Thomas Franchini and the government's inadequate or questionable response to them.

The Pipes Op-Ed, titled "VA Negligence is Killing Our Veterans," published on December 22, 2017, and said to be defamatory, states:

A bombshell report just revealed that a Department of Veterans Affairs hospital knowingly hired a physician with a record of more than a dozen cases of malpractice, including the death of a patient. Other recent VA physician recruits include a known sexual predator and a dangerous felon.

A separate analysis from the Government Accountability Office determined that several VA medical facilities had ignored roughly half of all patient complaints.

These are merely the latest additions to a laundry list of shameful incidents at VA medical centers. The agency seems incapable of delivering high-quality care to the patients it serves -- or even holding its employees accountable. Our nation's heroes are suffering the consequences.

VA medical facilities are infamous for administering low-quality care. The latest GAO report, which examined five VA medical centers from 2013 to 2017, proves as much. Administrators of the medical centers were supposed to monitor and review the performance of 112 doctors "after concerns were raised (by patients) about their clinical care."....

When administrators do find hard evidence of malpractice, they often sweep it under the rug. An October USA Today expose [sic] of VA facilities revealed at least 126 cases in which employees committed fireable offenses. Instead of immediately terminating these doctors and nurses, the VA asked them to resign -- and gave them secret settlements on their way out the door. In about 75% of the settlements, administrators omitted the incidents from employees' records and even recommended them to other employers.

Consider the case of Thomas Franchini, a podiatrist at a Maine VA hospital. Franchini botched 88 procedures. He severed a patient's tendon during one surgery and failed to successfully fuse one woman's ankle in another. The latter's leg had to be amputated as a result.

Franchini wasn't fired for any of these errors. Instead, the VA allowed him to resign and return to private practice....

The VA is in shambles. Absent reform that allows vets to seek care in the private sector, our veterans will continue to be subjected to subpar care.

Pipes listed other examples of allegedly subpar care at the VA, identifying at least one other doctor by name. Midway through the Op-Ed, there is an imbedded IBD banner ad, which advertises: "No Hidden Agenda: Get News From a Pro-Free Market, Pro-Growth Perspective." The Op-Ed describes Pipes as follows: "Pipes is President, CEO, and Thomas W. Smith Fellow in Health Care Policy at the Pacific Research Institute. Her latest book is The Way out of Obamacare (Encounter 2016). Follow her on twitter @sallypipes."

At the bottom of the page, the Op-Ed invites readers to "[c]lick here for more Commentary and Opinion from Investor's Business Daily."

B. Procedural History.

Franchini brought a suit in federal court in the District of Maine against IBD and Pipes, claiming the Pipes Op-Ed defamed him. He also sued other news outlets and reporters for different publications about him. IBD and the other defendants, save Pipes, moved to dismiss for failure to state a claim, on the basis that Franchini failed to adequately plead "actual malice" as required to show...