FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

P LA N E T A I D , I N C

. , A Massachusetts Corporation which has its principal place of business in Howard County, Maryland; L I S B E T H T H O M S E N , An alien and perm anent resident of Chilangom a, Malawi,

Plaintiffs-Appellants
,

v

.

REVEAL ; C E

N T E R F O R I N VE S T I G A T I VE RE P O R

T I N G ; M A T T S M I T H ; A M

Y WAL T E R S , Defendants-Appellees. No. 21-15690

D.C. No. 3:17-cv-03695- MMC

OPINION

Appeal from

the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding

Argued and Subm itted June 14, 2022 San Francisco, California

F iled August 11, 2022

Before: Sidney R. Thom as, Ronald M. Gould, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge S.R. Thom asP LA NE T A I D V

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SUMMARY *

California’s Anti-SLAPP Statute

The p anel affirm ed the district court’s order granting the Reporters w ith the C enter for Investigative Reporting (“CIR”)’s anti-SLAPP m otion to strike a com p laint alleging defam ation under California law.

Matt Sm ith and Amy W aters were reporters with CIR (“Reporters”) and they p ub l ished stories alleging m isuse o f funds by two charitable organizations, Planet Ai d
, I n c ., and Developm ent Aid from People to People Malawi (“DAPP Malawi”). In response, Planet Aid and the director o f DAPP Malawi, Lisbeth Thom sen, filed a defam ation suit.

In a num

ber o f decisio n s, the U .S. Suprem e Court

e s t ab lished that public officials and public figures claim ing defam ation m

ust pr o v e that an allegedly defam atory statem ent was m ade with “actual m alice.” The Suprem e Court identified two types o f public figures: all purpose public figures and lim ited-purpose public figures. Allpurpose public figures m

ust prove actual m alice for virtually any subject of defam ation, while lim ited-purpose public figures, who h ave assum ed p rom inence on a lim ited range o f issues, need o nly prove actual m alice for speech t o u ch ing
upon those issues. In Makaeff v. Trump Univ., L LC
, 715 F.3d 242 (9th Cir. 2013), this court articulated a three-prong test to determ ine whether an individual or entity is a lim ited-purpose figure.

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.P LA NE T A I D V

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The p anel held that the district court correctly f o und that Planet Aid and Thom sen were lim ited-purpose public figures and that the Reporters d id not act with “actual m alice” within the m eaning of New York Times Company v. Sull i van , 376 U.S. 254 (1964). The p anel agreed with the district c o urt ’s determ ination in applying the Makaeff test that: (i) there was

an existing public controversy with respect to Planet Aid and Lisbeth Thom sen’s u se of charitable funds; (ii) the Reporters’ alleged defam ation was relevant to this p reexisting controversy; and (iii) the voluntariness requirem ent—which

exam ines whether the plaintiff voluntarily injected itself into the controver s y for the purpose of influencing the controversy’s ultim ate resolution—was satisfied. The panel further agreed with the district court, for the reasons stated by the district court in its order, that a re a sonable factfinder could not find, by clear a nd convincing evidence, that the Reporter s a c ted with actual m alice. The panel therefore affirm ed the district court’s grant of the R eporters’ m otion to strike the complaint under California’s anti-SLAPP statute.

C OUNSEL

Sa m ue l Ro s e n t h a l ( a r g u e d )
, N e l s o n M u l l i n s LLP, W ashington, D.C.; Jam es M. W agstaffe and Michael von Loewenfeldt, W agstaffe von Loewenfeldt Busch & Radwick LLP, San Francisco, California; for Plaintiffs-Appellants.

Thom as R. Burke (argued), Davis Wright Trem aine LLP, San Francisco, Californ i a ; A m bike K. Doran, Davis Wright Trem aine LLP, Seattle, W ashington; Brendan Charney and Andrew G. Row, Davis Wright Trem aine LLP, Los Angeles, Californ i a ; Sim on J. Frankel, Alexa H ansen, Alison W all, An n ie Shi, and Miriam Arghavani, Covington & BurlingP LA NE T A I D V

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LLP, San Fran c i s co, California; E ric C hung, Covington & Burling LLP, W ashington, D.C.; for Defendants-Appellees.

Deborah J. Dewart, Hubert, North Carolina, for Ami cu s Curiae Liberty, Life, and Law Foundation.

Elizabeth M. Locke, Joseph R. O liveri, and Daniel D. Mauler, Clare Locke LLP, Alexandria, Virginia, for A m icus Curiae Clare Locke LLP.

Theodore J. Boutrous Jr. and Michael H. Dore, Gibson Dunn & Crutcher LLP, Los Angeles, California; Katie Townsend, Sarah S

. Matthews, and Charles H ogle, Reporters Comm ittee for Freedom of the Press, W ashington, D .C.; for Am ici Curiae Reporters Comm ittee for Freedom of t h e Pr ess and 32 Media Organizations.

OPINION

S.R. THOMAS, Circuit Judge:

In th i s appeal we m

ust determ ine whether a charity and
t h e director of a charity are lim ited-purpose public figur e s under the F irst Am endm ent. R eporters with th e Ce n t e r for Investigative Reporting published stories alleging m isuse o f funds by two charitable o rganizations, Planet A id, Inc. (“Planet Aid”) and Developm ent Aid from People to People Malawi (“DAPP Malawi”). In response, Planet Aid and the dire ctor of DAPP Malawi, Lisbeth Thom sen, f iled a defam ation suit. The dist r i c t court granted the Reporters’

m otion to strike the com

plaint under C alifornia’s anti-SLAPP
statut e , correctly finding that Planet A id and Thom sen are lim ited-purpose public figures and t h at the reporters did notP LA NE T A I D V

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act with “actual m alice” within the m eaning of New York Times Company v. Sullivan
, 3 76 U.S. 254 (1964). W e affirm

.

I

The Center fo r Investigative Reporting (“CIR”) is a California-based, n onprofit, investigative news organization. CIR publish e s its reporting on various platform s, including its

news website R eve a l (www.revealnews.org), national radio show, and podca s t

. Matt Sm ith and Am y W alters were rep o rt e rs with CIR. Between 2014 and 2017, CIR, Sm ith, and W alters (collective ly, “CIR” or the “Reporters”) investigated and published a seri e s of articles and p o dcasts reporting on the m isuse of charitable funds by P lanet Aid and its affiliate organization DAPP Malawi.

A

Planet Aid is a nonprofit charitable organization headquartered in Maryland with the stated m ission of helping im poverished populations throughout the world. P lanet Aid is recognized b y t h e U.S. Internal Revenue Service (“IRS”)

a s a 501(c)(3) tax-exempt charity. It resells used cl o t h i n g donated b y the public, obtains governm ent grants, and solicits corporate donations to generate funds. Since its inception in 1997, Planet Aid claim s to have p r ovided m ore than $100 m illion to support p rojects o n three continents in the

areas o f ed

u catio n , teach er training, nutrition, and agricultural and econom ic developm ent.

Planet Aid’s fundraising efforts are h ighly successful and recognizable. It fundraises b y going door to d o o r t o solicit d o nations as well as setting up clothing donation bins tha t h ave becom e n early ubiquitous across the United Stat e s

. I nP LA NE T A I D V

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partnership with schools, business groups, religious institutions, nonprofits, and various organizations across the country, Planet Aid placed over 2 0, 0 0 0 donation bins nationwide. It s signature, b right-yellow bins are p resent in 20 states and have achieved a degree o f celebrity in po p u lar culture. For exam

ple, the bins were featured in an episode o f the popular television series “The Big Bang Theory,” which Planet Aid eagerly prom oted on its social m edia pages.

Planet Aid regularly engages with the press and actively cultivates a public im age. It issues frequent p ress releases to generate attention regarding its ch a ritable program s and

a c tivities. For instance, P lanet Aid issued num erous press releases o v er th e y ears to advertise the environm ental benefits of its efforts to collect and resell donated clothing. Other

exam p les o f Planet Aid’s p ub l ic self-prom otion abound. In March o f 2014, Planet Aid dis tr ibuted press releases regarding a teacher train i n g p r o gram it helped fund in Malawi. In June of 2 016, it issued press releases regarding dignitaries’ visits to a nutritional p rogram it was running for schoolchildren in Mozam bique. It has hosted large galas to celebrate its charitable successes and prom oted those galas to the press. Planet Aid also publicizes itself through s o c i al

me d i a. It has a YouTube page featuring videos abou t i t s charitable activities, som e of which have thousands of views. Additionally, it regularly p osts on Facebook and Twitter to its thousands of followers.

From its inception, Planet Aid has drawn public attention and comm ent. For decades, the g lobal press has reported on its relationship with a controversial we b o f charitable organ i za t ions accused of m isusing funds and its association with a Danish cult. In 1993, a few years before Planet Ai d

wa s i ncorporated, the Edmonton Journal reported that “a nP LA NE T A I D V

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international organization that specializes in collecting used clothes for southern Africa,” was “attracting criticism from D enm ark to the Arctic Circle” because m any “E ur o p ean s wh o donate their old [clothes] don’t know the garme n t s end up being sold at m arket prices in Africa—with m u ch of the profit filtered into what seem less than altruisti c c auses.” This organization, known as “Hum ana” was reportedly affi liated with the Developm ent Aid P eople to People ( “ DAPP”) network. According to the article, “[t]hrough a com plex web of financial interests, the Hum ana/DAPP network runs a fi n ancial system out of the Caym an Islands” that includes “holding com

panies,” “Caribbean fruit plantations,” and “a
y acht dealership.” T h e article further alleged that Hum ana and DAPP began as a group o f radical Danish school teachers in the early 1970s, called “Tvind.”

Then, according to a Danish newspaper, “after the Danish governm ent fund slamm ed the door on subsidies,” Tvind “beg[an] an unprecedented, m amm oth expansion d rive in the USA and Canada to raise m illions f or its internationa l activities,” in c l uding “found[ing] the organization Planet Aid.” In 2001, Tvind’s founder, Mogens Am d i Petersen, was prosecuted b y Danish authorities f or “using his control o f Tvind and its related [organizations] to divert funds that were

s upposedly intended for charitable and other pub l ic purposes.”

Multiple m ajor news organizations in the United States and o verseas reported on the trial and raised concerns about Pl a ne t Aid’s connection to T v ind and its u se of charitab le funds. In 2002, the Boston Globe linked Plan et Aid to Petersen, who faced “charges of tax f raud and em

bezzlem ent of m illions of dollars from a v ast international network of charities,” and reported that “only about 6 p er c e nt of theP LA NE T A I D V

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m oney [Planet Aid] raises is spent on charity.” Several other publication s r eported that the Am erican Institute o f Philanthropy and the Better Business Bureau were critical o f Planet Aid’s use of funds. T hese concerns reverberated from The W a s h i n g ton Post (May 2 003 article), to the Chicago Tribune (Feb. 2004 and May 2011 a rt i c les), to the L os Angeles Times (Aug. 2015 article)

. 1 Several international publications also covered the controversy.

B

Lisbeth Thom se n i s the director of DAPP Malawi, a nonprofit charitable organization based in Malawi. Thom sen has worked in Mal a wi for nearly three decades and has worked specifically for DAPP Malawi for over two decades. Tho msen helped lead the organization’s poverty reduction and hum anitarian efforts, establishi n g pre-schools, teacher train in g co l leg es, H IV/AIDs counseling centers, d o o r-to -d o o r educational camp aigns, and other initiatives.

As the director of DAPP Malawi
, Thom sen was its spokesperson. When DAPP Malawi opened a school o r unveiled a new charitable program , she sp o k e a t public gatherings b efore local officials and comm unity m em

bers to prom ote the initiative. T hom sen regularly spoke to the press

1 In a d d ition to the above articles, num erous other U.S. news organizations h ave also r eported on this controvers y , including the following: The Wisconsin State Journal (A pr. 2002); The Brattleboro Reformer i n Verm ont (Apr. 2005); T he Sacramento B ee (Nov. 2006); Lancaster Online i n Pennsylvania (Jul. 2007); the Rochester D emocrat and Chronicle in New York ( Sep. 2007); Citizens’ Voice in Pennsylvania (Dec. 2007); T

he Times-Tribune in Pennsylvania (Dec. 2007); T he Lebanon Daily News in Pennsylvania ( Jan. 2008); The Burlin gt o n Fr ee Press in Verm o nt (Oct. 2008); The Philadelphia Inquirer (Dec. 2012).P LA NE T A I D V

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to g enerate attention regarding the successes of DAPP Malawi’s program s

. S he was featured regularly on DAPP Malawi’s F acebook and Twitter pages a n d ap peared in
pro mo t i onal Y ouTube videos about DAPP Malawi’s work. Thom sen em

ployed a public relations team , which helped her seek out p o sitive press coverage and public appearances, and develop responses to negative publicity.

Like Planet Aid, DAPP Malawi was long em broiled in the Tvind controversy. The press r epeatedly linked DAPP Mal a wi t o the Danish cult leader who was prosecuted for charity fraud. Additionally, sever al articles in Malawi
newspapers raised concerns or m ade allegations about DAPP Malawi’s m isuse of charitable funds under the leadership o f Lisbeth Thom sen. In 2002, the Malawi News linked Tvi n d, Hum ana, and D A P P Malaw i, rep o rtin g allegations that “Dapp Malawi u se s its second hand clothes shops to raise funds which are later transferred ba c k t o De nm ark through

. . . a dubious scholarship s c he me

. ” In 2003, T he Chronicle Newspaper reported that “[i]n Malawi, g o vernm ent is n ow probing activities of DAPP Malawi
, following

. . . [accusations that] schol a r sh ips and other funds m eant for Malawian students allegedly have been chann eled to Denm ark.” In 2011, the Nyasa Ti me s reported that “employees at [DAPP Malawi] have turned against their

em ploye r s , a ccusing them of secretly swindling m oney for unknown activities.”

C

I n June o f 2005, the U .S. Departm ent of Agriculture (“UDSA”) awarded Planet Aid a grant through its “Food for P ro gress” program

. The grant gave Planet Aid approxim ately $23 m illion t o a dm inister poverty reduction program s inP LA NE T A I D V

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Malawi including building, staffing, and operating schools to train teachers in Malawi; educating the Malawian population about risks associated with HIV and AIDs; teaching farm ers about agricultural techniques to im p rove crop y i elds; and educating the population about nutrition. Planet Ai d asked Thom sen to help adm inister the USDA grant in her role as director of DAPP Malawi.

In 2014, reporters at CIR began to investigate Planet Aid and DAPP Malawi’s use o f the USDA grant funds. Between March and May 2016, they published a podcast, along with several n ews articles and social m edia posts, alleging that Planet Aid, DAPP Malawi, and L isbeth Thom sen m isused the funds. The publications alleged that Planet A id and Lisbeth Thom sen stole USDA funds by d iverting funds from their intended recipients, falsifying invoices, failing to provide livestoc k and agricultural inputs to local farm ers, and extracting kickbacks from the salari e s of DAPP Malawi

em ployees.

In August o f 2016, Planet Aid and Lisbeth Thom sen filed

a defam ation suit against the R eporters. In July of 2018, the Reporters m oved under California’s anti-SLAPP law, Californi a C ode of C ivil Procedure § 425.16, to strike the defa ma t ion claim

. 2 After significant discovery was conducted, in March o f 2021, the d istrict c o urt granted the

m otion to str i k e. The district court found that several
statem ents by the Reporters we r e false, but recognized that Planet Aid and Thom sen are lim ited-purp o s e public figures

2 Planet Aid and Lisbeth T hom sen f orfeited any argum ent t hat California’s anti-SLAPP statute m ay not be applied in federal court b y failing t o specifically and distinctly argue this issue in their opening brief. See Greenwood v. FAA , 28 F.3d 971, 977 (9th Cir. 1994).P LA NE T A I D V

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i n connection with their use of charitable funds and t ha t t h e Reporters did not act wi t h “ a ctual m alice.” N.Y. Times
, 376 U.S. at 280.

II

“California law p r o v ides for the pre-trial dism issal o f certain actions, known as Strategic Lawsuits Against Public Participation, or SLAPPs, that m a s querade as ordinary lawsuits but are intended to deter ordinary peop l e from exercising their political or legal rights or to punish them for doing so.” Makaeff v. T

rump Univ., LLC
, 715 F.3d 254, 261 (9th Cir. 2013) (citations and q u o tation m arks om itted); see also Wilcox v. Super. C

t. , 33 Cal. Rptr. 2d 446, 450 (Cal. Ct. Ap p

. 1994)

. W e have jurisdiction to review the distr i ct

c o urt’s grant of the Reporters’ anti-SLAPP m otion und e r 28 U.S.C. § 1 291. Because the m otion challenges the factual sufficiency of Pl a net Aid and Thom sen’s defam ation claim
, “the m otion m

ust b e t r e ated as though it were a m otion for

summ ary judgm ent.” Planned Parenthood Fed’n o f Am., Inc.

v. Ctr. for Med. Progress
, 890 F.3d 828, 833 (9th C ir. 2 018) (citation om itted).

W e review de novo whether summ ary judgm ent was properly entere d

. L. F

. v. Lake Wash. Sch. Dist. #414
, 947 F.3d 621, 625 (9th Cir. 2020). Whether a plaintiff is a public f igure is a legal question to be reviewed de novo. Manzari v. Associat e d Newspapers Ltd.
, 830 F.3d 881, 888 (9th Cir. 2016). Moreover, w e “m ust m ake an independent

e x am ination of the whole record, so as to assure oursel ve s that the judgm ent does not constitute a forbidden intrusion on the field of free expre s sion.” Suzuki Motor Corp. v. Consumers Union of U.S., Inc.
, 330 F .3d 1110, 1113 (9th Cir.P LA NE T A I D V

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2003) (citing N.Y. Times
, 3 76 U.S. at 284 (internal quotation

m arks om itted)).

III

The Suprem e Court has long ensh r i ned “a profound national comm itm ent to the principle that d e b ate on public issues should be uninhibited, robust, and wide-open and that it m ay well include vehem ent, caustic, and som etim es unpleasantly sh a r

p attacks on governm ent and public officials,” N. Y. Times
, 376 U .S. at 270, as well as “public figures,” Cur t is Publ’g Co. v. Butts
, 388 U.S. 1 30, 154 (1967)

. Thus, an action for defam ation can be m aintained only to the extent it does not interfere with First Am endm ent rights of free expression.

In the landm ark decisions of N ew York Times Co mpany

v. Sullivan
, an d Curtis P u blishing Company v. Butts
, the Suprem e Court estab l i s h ed that public officials and public figures claim ing defa m ation m ust prove that the allegedly defam atory statem ent was m ade with “actual m alic e ” —that is, “with knowledge that it wa s false or w ith reckless disregard of wh e t he r it was false or not.” N.Y. Times
, 376 U.S. at 280; Curtis Publ’g Co.
, 388 U.S. at 134. The Court recognized that actual m alice standard would bar som e plaintiffs from recovering d am ages for erroneous and injurious statem ents. N.Y. Times
, 376 U.S. a t 2 70–72. Nevertheless, the Court concluded that the law of defam ation

m ust p rovide a degree of “breathing space” to avoid chilling constitutionally valuable speech. Id. at 271–72.

S u b s equently, in Gertz v. Robert Welch, Inc.
, th e S u p rem e Court identified two types o f pub l i c figures: (1) all-purpose
p ub lic figures, who occupy “positions of such persuasiv eP LA NE T A I D V

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power and infl u e n c e that they are deem ed public f igures for all purposes,” and (2) lim ited-purpose public figures
, who achieve their s tatu s b y “thrust[ing] them selves to the forefront of p articular public controversies in order to influence the resolution o f the issues involved.” 418 U.S. 323, 345 (1974). Both categories of p ublic figures, the Court note d
, “ h ave

assum ed roles of especial prom inence in the affairs o f society” and “invite[d] attention and comme n t

. ” Id. Allpurpose p ublic figures m

ust prove actual m alice for virtually any subject of defa mation. Lim ited-purpose public figures, who have assum ed prom inence on a lim ited range of issues, need only prove actual m alice for speech touching upon those issues.

The Court articulated two justifications for requiring public figures to show actual m alice. The first was self-help. Public fi g u r es enjoy “greater access to the channels o f effective comm

un i c ation” than private individuals and are therefore b etter able to “ c o ntradict the lie or correct the error.” Id. at 344. The second and “ [m]o re im portant” justification was the notion of assum ption of risk. Id. Public figures, who have thrust them selves int o t he public eye, “m ust accept certain necessary consequences” of that conduct, including “the risk o f closer public scrutin y than

m ight otherwise be the case.” Id. at 344–45. The Gertz Court a lso em

phasized the critical im

portance of “lay[ing] down broad rules of general application” in order to avoid “unpredictable results and uncertain expectations,” which

m ight discourage fr e e d o m of expression. Id. at 343–44; Harte-Hanks Commc’ns, Inc. v. Connaughton
, 491 U.S. 657, 686 (1989) (“Uncertainty as to the scope of the constitutional prote ction can only dissuade protected speech—the m ore elusive the standard, the less protection it affords.”).P LA NE T A I D V

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A

In Makaeff v. Trump University
, drawing from Gertz and other case law, we articulated a three-prong test to determ ine whether an individual or entity is a lim ited-purp ose public figure:

In undertaking this inquiry, we consider whether (i) a p ublic controversy existed when the statem ents were ma d e , (ii) whether the alleged defam ation is related to the plaintiff’s
p a r t i c i p a t i o n i n t h e c o n t r o v e r s y , a n d (iii) whether the plaintiff voluntarily injected i tself into the controversy for the purpose of i n f l u e n c i n g t h e c o n t r o v e r s y ’ s u l t i m a t e resolution.

Makaeff
, 715 F.3d at 266 (citing Gilbert v. Sykes
, 53 Cal. Rptr. 3d 752, 762 ( Ca l. Ct. App. 2007)). In its decision below, applying Makaeff

, the district court determ ined (i) that there was an existing p ublic cont roversy w ith respect to Planet Aid and Lisbeth Thom sen’s use of charitable funds; (ii) that the Reporters’ alleged d efam ation was related to this preexisting controversy; and ( i i i) that the voluntariness requirem ent was satisfied. W e agree.

1

Under the first Makaef

f prong, we consider whether “a public controversy existed when the [ allegedly defam atory] statem ents were m ade.” Makaeff
, 715 F.3d at 266 (citation

om itted). P ublic interest or attention alone is not sufficient to create a public a controversy. Time, Inc. v. Fir e s t o ne , 424 U.S. 448, 454–55 (1976). A public controversy m ust beP LA NE T A I D V

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“a real dispute, the outcom e of which a ffe c t s the g eneral public or som e segm ent of it.” Makaeff
, 715 F.3d at 267 (quoting Wald

b a u m v. F a irch ild P u b l’n s, Inc.
, 627 F .2d 1287, 1296 (D.C. Cir. 1980)); see also Waldbaum
, 627 F.2d at 1297 ( “ I f the issue w as b eing debated publicly and if it h a d foreseeable and substantial ram ifications for nonparticipants, it was a public controversy.”).

W e have little difficulty in concluding that genuine public controversies existed at the tim e the Reporters published their
statem ents about Planet Aid and Lis b e t h Thom sen. Long before the Reporters p ublished any articles about Planet Aid, countless news outlets published articles questioning Planet Aid’s integrity an d exam ining the extent to which its charitable funds were b eing used f or their intended purposes. Planet Aid was repeatedly linked by the press to the founder of a Danish charity who was prosecuted for illegally diverting charitable funds

. Ad ditionally, Planet Aid raised over a $100 m illion in charitable funds. It received tax exem ptions fr o m the U.S. governm ent to help the poor. This was a genuine p ublic controversy; the extent to which P lanet Aid’s fun d s were b eing used for their intended purposes has

ram ifications both fo r American taxpayers and f or the advertised recipients of those charitable funds. See Makaeff
, 715 F.3d at 267; Waldbaum , 627 F.2d at 1297.

A d d itio n ally
, b e f

o r e C I R ’ s r ep o rtin g o n L i sb eth T h o m sen , num erous articles had been published about DAPP Malawi’s

use of charitable funds under Thom sen’s leadership. DAPP Malawi was linked by the press to the Da n ish crim inal prosecution. Various articles qu estioned its integrity, the
extent to which it was using its funds to aid the p oor, and the
extent to which it w as channeling f unds towards controversial

o rganizations known for m isusing charitable funds. Lik eP LA NE T A I D V

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Planet Aid, D APP Malawi r e ceived donations and grants to aid im poverished comm

un ities in Malawi. T h is too w as a genuine public controversy. See Makaeff
, 71 5 F .3d at 267; Waldbaum , 627 F.2d at 1297.

2

Makaeff also asks us to cons i der “whether the plaintiff voluntarily injected itself into the controversy for the purpose of influencing the co n t r oversy’s ultim ate resolution.” 71 5 F.3d at 266. This v oluntariness requirem ent has been inte r p r e t e d b roadly, both by Makaeff and by other courts. Voluntariness is not confined to those who seek to influence the resolution of a single issue. Rather, voluntariness can also be satisfied by a showing that a person or entity engaged in a

cou rse of conduct that foreseeably put them selves at risk o f public scrutiny with respect to a lim ited range of issues.

In Maka e ff
, we deem ed T rum

p University a lim itedpurpose public figure for issues a ri sing from its advertising efforts. Tru mp University had long been engaged in an “ag g r essiv e ad

v ertising cam

p aig n , ” p ro m o tin g its educational products an d services on “social m edia, local and national
newspaper, [and the] radio.” Id. at 2 6 8

– 69. After a disgruntled form er custom er disparaged Trum p University and sue d i t for deceptive business practices, it f iled a defam ation counterclaim

. Id. at 2 6 7. In classifying Trum p University a lim ite d

- p urpose public figure, we held that “large scale, aggressive advertising can inject a person o r entity into a public controversy that arises from the subject o f that advertising.” Id. at 267. Because T rum p Univers i t y ’s “extensive advertising efforts ‘invited publ i c attention,

comm ent, and criticism ,’” the voluntariness requirem ent was satisfied with resp e c t to issues related to those advertisingP LA NE T A I D V

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efforts. Id. at 269 (quoting Steaks Unlimited, Inc. v. Deaner
, 623 F.2d 264, 274 (3d Cir. 1980)).

Other circuits have also interpreted the volu n ta r iness requirem ent broadly. For exam ple, the Third Circuit deem ed

an architect-engineer a lim ited-purpose publi c figure with respect to his participation in controversial public building projects. McDowell v. Paiewonsky
, 769 F.2d 942, 944 (3d Cir. 1985). McDowell regularly contract e d w ith the governm ent of the Virgin Islands to build public projects. Id.
at 945. Subsequently, McDowell was criticized by the m edia for his perform ance on several projects and possible conflicts of interests involved in his being awarded various contracts. Id. at 948. The court designated McDowell a lim ited-purpose public figure for the purpose of his defam ation c la i m. Id.
at 949. By repeatedly working on h igh-profile, controversial public building projects, the court explained, McDowell “can be considered to h a v e voluntarily assum ed a position that invited attention. ” Id. at 950. This was “sufficient to transform h im into a public figure for the lim ited p urpose o f his work on publicly financed building projects.” Id.

The Fifth Circuit likewise deem ed Louis Ros a no va a lim ited-purpose p ublic figure in the context of his connection
to orga n i z ed crim e. Rosanova
, 411 F. Supp. at 440, aff’d
, 580 F.2d at 862. Rosanova had l o ngstanding relationships with various m em

bers of o rganized crim e as well as w ith the Team sters union and its president. Id. at 4 44. Rosanova filed

a defam ation suit after being characterized as a “Cal i fo rnia

m obster” in a m agazine article. The court classified Rosanova as a lim ited-purpose public figure, rejectin g h is argum ent that he had not thrust him self into the vortex o f any single public issue. Id. at 445. By associating with organized crim e, the court explained, “Rosanova voluntarily engaged inP LA NE T A I D V

. REVEAL 18

a course [of conduct] that was b o und to invite attention and

comm ent” w ith respect to those relationships. Id. ; 580 F.2d
at 862; see also Clyburn v. News W or ld C ommc’ns, Inc.
, 903 F.2d 29, 33 (D.C. Cir. 1990) (finding tha t plaintiff, Clyburn, satisfied the voluntariness requirem ent in part by “hobnob[ing] with high officials”).

Under this “course of conduct” approach t o the voluntariness requirem ent reflected in McDowell
, Rosanova
, and the other cases identified above, it is quite clear both Planet Aid and Lisbeth T hom sen actively engaged in conduct that invited public comm ent and attention. Plane t Aid regularly engages with the press i n an effort to cultivate a public im age, including b y is su ing press releases, h osting galas, and publicizing itself to thousands of followers through social m edia. Additionally
, Planet Aid aggressively solicits donations from the p ubl i c. Nat’l Found. for C ancer Rsch., Inc. v. Council of

Better Bus. Bureaus, Inc.
, 705 F.2d 9 8, 101 (4th C ir. 1983) (find in g t h a t a charity “thrust itself into the public eye” by soliciti n g d o n a t ions from the public). It is clear from the record th a t Planet Aid “attempted, through

var i o us m ea ns at its disposal, to put itself and its m ethods before the pub lic.” Id. at 102; see also Ampex Corp. v. Cargle
, 27 C al. Rptr. 3d 863, 8 70 (Cal. Ct. App. 2005) (“[I]t is sufficient that the plaintiff attem pts to thrust him or herself into t h e public eye.”). Thus, by inviting public attention regarding its charitable activities and charitable funds, Planet Aid satisfied the voluntariness requirem ent for those lim ited
purposes.

Sim ilarly, as the director o f DAPP Malawi, Thom sen served as its spokesperson. She spoke at public gatherings to prom ote DAPP Malawi’s program s and initiatives, she spoke
to the press to generate attention regarding its p rogram s, andP LA NE T A I D V

. REVEAL 19

she em p loyed p ublic relations staff to cultivate her public im age. Lik e Pl a n et Aid, DAPP Malawi also solicited donations and grants. By taking on t he role of DAPP Malawi’s spokesperson and regularly engagin g in p ublicfacing and attention-generating activities, Thom sen invited public scrutiny, thereby satisfy i n g the voluntariness requirem ent.

Classifying Planet Aid and L isbeth T hom sen as lim itedpurpose public figures through a course of condu c t t hat invites public attention is consist e n t with the rationales articulated in Gertz

. By actively seeking attention from the
p ress, p ro m o tin g th em selv e s thro u g h so cial m ed ia, em p loying public relations staff, a n d soliciting donations and g rants, Planet Aid a n d T hom sen assum ed a risk of public scrutiny. By regularly providing statem ents to the press, Planet A id a nd Thom sen b o t h d em onstrate a greater access to channels o f effective comm

unication than private individuals, and therefore an ability to c o u n teract false statem ents through self-help. 3

3 Pl anet Aid and T hom sen, relying on Hutchinson v. Proxmire , 443 U.S. 111 ( 1979), seek to portray them selves as victim s of the Reporters’ attem

p t to create a defense from d efam ation b y t urning the plaintiffs into public figures. There are two m ajor distinguishing factors between Hutchinson and the present case. First, in Hutchinso n , the plaintiff was a relatively obscure scientist prior to the allegedly defam atory statem ents. By contrast, in this present case, Planet Aid and Thom sen were the subject of significant public notoriety and scrutiny well before the allegedly defam atory publications. Second, unlike t he plaintiff in H u t c h i nson , Planet Aid and Thom sen did not unwittingly becom e the

s u bject of publicity with respect to its charitable activities and use o f funds. To t

he contrary, they both a c t i v e l y t hrust them selves into the public eye.P LA NE T A I D V

. REVEAL 20

3

Finally, under Makaeff

, we consider “whether the alleged defam ation i s r e l a ted to the plaintiff’s participation in the
contr oversy.” Id. at 2 66; see also Waldbaum
, 627 F.2d
at 1298 (“Misstatem ents wholly unrelated to the controversy

. . . do not receive the New Y ork Tim es protection.”). H ere, there was a preexisting public c o n t r oversy about Planet Aid and Lisbeth Thom sen’s m isuse of charitable funds generally. CI R s ubsequently reported on their m isuse of a particular grant from the USDA. Moreover, Pla n et Aid and Lisbeth Thom sen invited public attention regarding their use o f charitable funds through press releases, prom o tion o f charitable p rogram s, solicitin g d onations from the public, and other activit ie s

. Thus, the alleged defam ation is related to Planet Aid and Thom sen’s participation in the controversy. 4

In sum , the district court correctly designated Planet Aid and T hom sen as lim ited-purpose public figures with respect to their use of charitable funds.

4 In an attem

pt to defeat the relatedness requirem ent, Planet Aid and Thom sen advocate for narrow definitions of the r elevant public controversies under the first prong o f Makaeff

. They argue that the preexisting controversies concerned “the u s e of recycling bins f o r used cloth i n g ” and “charges brought against Peterson in Denm ark.” They further argue that the Reporters’ defam atory publications concerned only “USDA funding” and, therefore, t hat the prior controversies a n d the defam ation are unrelated. This argum ent is unpersuasive and un supported by the law. The preexisting p ublic controv ersy need not be narrowly defined o r lim ited to the exact f actual contours of the alleged defam ation. The “narrow co n troversy” about Planet Aid and Lisbeth Thom sen’s

m isuse of U SD A funding is “ a phase of another, broader” controversy about their practice of m isusing of charitable funding generally. Jankovic

v. Int’l Crisis Grp.
, 822 F.3d 576
, 5 8 6 (D

. C. Cir. 2016); see also id. (“Indeed, courts often define t he public controversy in expansive term s.”).P LA NE T A I D V

. REVEAL 21

B

Because Planet Aid and Thom sen are lim ited- purpose p u blic figures, their defam ation claim can survive an an t i

SLAPP o r s u mm ary judgm ent m otion “only if the evidence in the record would perm it a reasonable f inde r o f fact, by clear and convinc i n g evidence, to conclude that [the Reporters] p ublished a defama t o ry statem ent with actual

m alice.” Masson v. New Yorker Mag., Inc.
, 501 U.S. 496, 508 (1991); see also Anderson v. Liberty Lo b b y, Inc.
, 4 77 U.S. 242, 255–256 (1986). Actual m alice is a subjective te s t; it

m eans that the Reporters m ust have p ub lished a statem ent with “knowledge that it was false ” o r “reckless d isregard o f whether it was false or not.” N.Y. Times
, 376 U.S. at 280. Reckless disregard, in turn, m eans that the Reporters “in fact entertained serious doubts as to the truth” of the statem ent in question. St. Amant v. Thompson
, 3 90 U.S. 727, 731 (1968). The district court undertook a thorough and detailed analysis of the actual m ali c e a s sertions. The record supports the district court’s co n clusion. Therefore, we agree with the district cour t t h a t , for the reasons stated by the district court in its order, a reasonable fact finder could not find, b y clear and convincing evidence, that the Reporters acted w ith actual

m alice.

IV

Planet A id and Lisbeth Thom sen are public figures for the lim ited purpose of the p ub l i c controversy surrounding their

use of charitab le f

unds. T he d istrict court correctly concluded that a reasonable f

act finder could not find, by clea r and convincing evidence, that the R eporters acte d wi th actual

m alice in publishing the allegedly defam atory statem ents. W e therefore affirm the district court’s grant of the Reporters’P LA NE T A I D V

. REVEAL 22

m otion to strike the com

plaint un d er California’s anti-SLAPP
statute.

AFFIRMED.