"Hatchet Wielding Hitchhiker" / Convicted Murderer Caleb McGillvary Loses Defamation Case Against Rolling Stone

From yesterday's opinion in McGillvary v. Rolling Stone, LLC, by Judges Richard Wesley, Richard Sullivan, and Steven Menashi:

McGillvary alleges that Rolling Stone defamed him in a 2023 article, "DARK TALE: A Hatchet Wielding Hitchhiker Went Viral. Then He Killed Someone," that, by way of reviewing a forthcoming television documentary, described his involvement in thwarting a high-profile attack in 2013 (for which he was cleared of any wrongdoing) and in committing a later unrelated murder for which he was convicted and is now serving a fifty-seven-year sentence….

McGillvary contends that the article contained four libelous statements: (i) "[t]hose who knew [McGillvary] describe [him] as prone to fits of rage" (the "fits of rage" statement); (ii) "[McGillvary] tried to start a fire in the family home and was subsequently sent into foster care at the age of 13" (the "fire starter" statement); (iii) "[McGillvary] began bragging to Fresno locals that he'd handed [McBride] a joint laced with a number of drugs" (the "laced-joint" statement); and (iv) McGillvary told McBride "that they were both ghosts" and encouraged him to drive his truck into a crowd of people "right now" since "nobody could see us" (the "ghosts" statement). We address each statement in turn.

We agree with the district court that the "fits of rage" statement was not defamatory because it was non-actionable opinion…. The statement read: "Those who knew him describe … McGillvary[ ] as prone to fits of rage." The article went on to quote McGillvary's cousin, who said that he "honestly believe[s McGillvary] has mental issues." Taken in context, the "fits of rage" statement clearly signaled to readers that it was relaying the opinions of those who knew McGillvary, not conveying a historical fact about McGillvary's personality or behavior. At the very least, the statement would signal that the author was conveying an opinion that he had formed based on statements provided by others.

The "fire starter" statement was likewise not defamatory, but for a different reason. The article stated that McGillvary "tried to start a fire in the family home and was subsequently sent into foster care at the age of [thirteen]." Because McGillvary acknowledged in his amended complaint that he "attempted to commit suicide at [four] years of age[ ] by drinking a bottle of cough syrup and lighting a sleeping bag on fire," the district court concluded that McGillvary had admitted to the truth of the "fire starter" statement, which is an absolute defense to defamation.

McGillvary counters that the "fire starter" statement arguably implied that he attempted to start a fire in the family home when he was thirteen—the same year that he was sent to foster care—an allegation that he denies. But the "fire starter" statement contains no such temporal limitation. It merely says that he "tried to start a fire in the family home and was subsequently sent into foster care at the age of 13." Suppl. App'x at 53 (emphasis added). When read in context, the disputed statement was not "reasonably susceptible to the defamatory meaning imputed to it"—namely, that McGillvary had attempted to start a fire in the family home when he was thirteen.

With respect to the "laced-joint" and "ghosts" statements, McGillvary argues they implied that (i) he bore fault for McBride's driving into a group of bystanders with his truck, and (ii) he had perjured himself during subsequent state-court proceedings in which he testified about the incident. The two statements appeared in the same section of the article:

Then there was the matter of the incident itself. [McGillvary] began bragging to Fresno locals that he'd handed the driver, Jett McBride, a joint laced with a number of drugs but he "couldn't handle his shit." (A toxicology report only found marijuana in McBride's system.) According to Fresno cop Jeff Stricker, [McGillvary] and McBride smoked a joint in the vehicle, prompting [McGillvary] to tell McBride that "they were both ghosts," adding, "I bet we could drive through that truck right now and nobody could see us."

"He's not perfectly clean in this incident," Stricker maintains….

McGillvary argues that the "laced-joint" and "ghost" statements were clearly defamatory …. We need not reach this question, however, because McGillvary has conceded on appeal that he is a limited-purpose public figure with respect to his role in the February 1, 2013 hitchhiking incident. Thus, he was required to plead that Rolling Stone's statements were made with actual malice—"that is, with knowledge that the statements were false or with reckless disregard as to their falsity." …

McGillvary says that Rolling Stone, "acting in their established habit or usual business practice, researched and read the record of [McBride's criminal proceedings based on the 2013 incident] in advance of publishing the article," and that no reference is made in those proceedings to McGillvary ever giving McBride a laced joint or saying anything about ghosts. This, he says, was "sufficient reason to cause [Rolling Stone] grave doubts as to the veracity" of the claims in the article.

McGillvary does not allege that the defendants actually harbored such doubts, or that they even reviewed the underlying proceedings. And we have explained that "the reckless conduct needed to show actual malice 'is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing,' but by whether there is sufficient evidence 'to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.'"

In any event, the larger context of the article belies a finding that Rolling Stone acted with actual malice. The laced-joint statement is followed by a parenthetical about the contradictory findings of the toxicology report, suggesting that the joint was not in fact found to be "laced." The comment about the toxicology report directly undercuts McGillvary's claim: rather than making a false statement with actual malice, Rolling Stone reported the evidence relevant to the allegation without drawing a conclusion. Moreover, the "ghost" statement is clearly attributed to a police office, Stricker—who purported to repeat what McGillvary said to him in 2013. {McGillvary has not alleged that the article falsified or mischaracterized the statements attributed to Stricker.}

Lynn B. Oberlander and Sasha Dudding (Ballard Spahr LLP) represent Rolling Stone.