Matthew Couch v. Verizon Communications Inc., Et Al .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 12, 2023 Decided June 21, 2024
No. 22-7114
M ATTHEW COUCH ,
APPELLANT
v.
VERIZON COMMUNICATIONS I NC., ET AL .,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-02151)
Eden P. Quainton argued the cause and filed the briefs for
appellant.
Jean-Paul Jassy argued the cause for appellees Verizon
Communications, Inc. and Michael Isikoff. With him on the
brief was William T. Um.
Matthew E. Kelley argued the cause for appellee National
Public Radio, Inc. With him on the brief was David J. Bodney.
Before: PILLARD, W ALKER and GARCIA, Circuit Judges.

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Opinion for the Court filed by Circuit Judge W ALKER.
W ALKER, Circuit Judge: In 2016, a young man named
Seth Rich was murdered in Washington, D.C. Although D.C.
police have concluded Rich was the victim of a botched
robbery, the crime was never solved. Some online
commentators claimed the murder was a politically motivated
hit orchestrated and covered up by the victim’s own friends and
family.
A few years later, an investigative journalist produced a
podcast that discussed the murder and the conspiracy theories
surrounding it. One of the online commentators named in the
podcast sued the journalist and his publishers for defamation
and other related torts.
The district court granted judgment to all defendants after
finding that the online commentator failed to plausibly allege
actual malice or verifiable facts that were defamatory. It also
denied leave to file an amended complaint after concluding that
the proposed amendments would not fix the deficient
pleadings.
We affirm.
I. Background
Matthew Couch is a self-described investigative journalist,
blogger, and political commentator. He operates a news and
opinion website called “The DC Patriot” and maintains active
profiles on social media platforms such as X (formerly known
as “Twitter”), Facebook, Instagram, and TikTok. He also
labels himself “one of the foremost . . . independent

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investigators seeking to uncover the truth of what happened to
Seth Rich” — the victim of an unsolved murder. JA 32.
Seth Rich worked for the Democratic National Committee
during the 2016 presidential primaries. On July 10, 2016, Rich
was murdered near his home in Washington, D.C. Shortly after
the murder, some people publicly speculated that Rich was the
victim of a politically motivated murder and cover-up. One
theory was that Rich leaked internal DNC emails showing that
the DNC favored former Secretary of State Hillary Clinton
over Senator Bernie Sanders, so Clinton ordered his
assassination.
Matthew Couch contributed to that speculation. He
theorized that Rich might have been paid to “download[ ] DNC
emails and transfer[ ] the emails and other data to Wikileaks.”
JA 610. He publicly accused Rich’s brother of impeding the
murder investigation and “helping cover things up.” JA 108.
And he claimed that Rich’s friend, local bartender Joe Capone,
was somehow involved in the murder.
In 2019, Yahoo! News and its chief investigative reporter,
Michael Isikoff, launched a new podcast called
Conspiracyland. The first season of Conspiracyland focused
on the Seth Rich murder and the conspiracy theories that spread
following his death. Two of the episodes — “Episode 6:
‘Collateral damage’” and “Bonus Episode 5” — specifically
discussed Couch and the role he played in disseminating
theories about Rich’s death. Isikoff interviewed both Capone
and Mark Mueller — one of Rich’s neighbors — who both
accused Couch of harassing them and blaming them for Rich’s
death. At various points during the podcast, Isikoff and his
guests labeled Couch a “conspiracy entrepreneur,” “troll,”
“crankster,” and “bully.” Couch v. Verizon Communications,
Inc., 2022 WL 3016755, at *2 (D.D.C. July 29, 2022).

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After the final episode of Conspiracyland’s first season
aired, Isikoff appeared on National Public Radio’s Fresh Air
program to discuss the podcast. During this interview, Isikoff
summarized the podcast and generally repeated his claims that
Couch spread conspiracy theories about Rich’s murder and
accused Capone and Mueller of helping with the cover-up.
In August 2020, Couch sued Isikoff, Verizon (the then-
parent company of Yahoo! News), and NPR for defamation.1
He also sued them for defamation per se, intentional infliction
of emotional distress, false light, civil conspiracy for all alleged
torts, aiding and abetting for all alleged torts, and intentional
interference with business relations. And he sued Verizon and
NPR for negligent supervision and retention of Isikoff and
NPR’s Fresh Air hosts.
Isikoff and Verizon jointly filed a motion under Federal
Rule of Civil Procedure 12(b)(6) to dismiss the case against
them for failure to state a claim. The district court granted the
motion and dismissed all claims directed against those two
defendants. Couch v. Verizon Communications, Inc., 2021 WL
4476698, at *1 (D.D.C. Sept. 30, 2021). The district court
determined that Couch was a limited-purpose public figure,
and so must show actual malice to sustain his defamation
claim. Id. at *3 & n.7. It then concluded that Couch failed to
1 Couch also sued Aaron Rich, Joe Capone, Mark Mueller, and
Deborah Sines (a prosecutor who investigated Rich’s murder and
also appeared on Conspiracyland). However, Aaron Rich also sued
Couch, prompting Couch to settle the claims against Rich and issue
a public retraction and apology. Couch also voluntarily dismissed
his claims against Mueller and Sines, and Capone never entered an
appearance in the case.

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plead any facts that could support actual malice, so both the
defamation claim and all derivative claims failed. Id. at *4-6.
NPR moved under Federal Rule of Civil Procedure 12(c)
for judgment on the pleadings, based on the same arguments
Isikoff and Verizon used in their motion to dismiss. See Couch,
2022 WL 3016755, at *1. Couch sought leave to file an
amended complaint against Isikoff, Verizon, NPR, Yahoo!
News, Apollo Global Management, Inc. (the new parent
company of Yahoo! News), and a John Doe, LLP. See id. The
district court granted NPR’s motion for judgment on the
pleadings, denied Couch’s amended complaint as futile, and
dismissed the case with prejudice. See id.
Couch appealed both orders.
II. Couch’s Defamation Claim Fails
Although Couch challenges both the dismissal of his
claims against Isikoff and Verizon and the grant of judgment
on the pleadings to NPR, he concedes that this appeal can be
resolved solely by determining whether the district court erred
when it denied leave to file an amended complaint.
When a district court denies leave to file an amended
complaint for something like untimeliness or undue prejudice
to the defendant, we review for abuse of discretion. Atchinson
v. District of Columbia, 73 F.3d 418, 425-26 (D.C. Cir. 1996).
But when a district court denies leave to amend because of
futility, this means the district court examined the proposed
amended complaint and concluded that even with the new
factual allegations, the plaintiff still failed to state a valid claim.
See In re Interbank Funding Corp. Securities Litigation, 629
F.3d 213, 218 (D.C. Cir. 2010). Our standard of review for
such cases mirrors the standard by which we review a normal

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dismissal under Rule 12(b)(6). That is, we look for whether the
rejected amended complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Xia v. Tillerson, 865 F.3d 643, 649-50 (D.C. Cir.
2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
And we review the district court’s conclusions de novo. Wang
v. Blinken, 3 F.4th 479, 481 (D.C. Cir. 2021).
A. Couch’s Defamation Claim Requires Actual Malice
This case turns on whether Couch sufficiently pleaded a
defamation claim. For that, he needed to plausibly allege that
the various defendants made false and defamatory statements,
published those statements to a third party, acted with (at least)
negligence, and thereby caused a special harm to Couch. See
Rosen v. American Israel Public Affairs Committee, Inc., 41
A.3d 1250, 1255-56 (D.C. 2012).
But even more than that is required here, because Couch
conceded in the district court that he is a limited-purpose public
figure. Couch, 2021 WL 4476698, at *3 & n.7. So proof that
the defamatory statements were made negligently is no longer
enough. A limited-purpose public figure must prove actual
malice to win a defamation suit relating to the “particular
public controversy” that made him a limited-purpose public
figure. Clyburn v. News World Communications, Inc., 903
F.2d 29, 31 (D.C. Cir. 1990) (cleaned up).
We have called this actual malice standard “famously
‘daunting.’” Tah v. Global Witness Publishing, Inc., 991 F.3d
231, 240 (D.C. Cir. 2021) (quoting McFarlane v. Esquire
Magazine, 74 F.3d 1296, 1308 (D.C. Cir. 1996)). It requires
Couch to ultimately prove, by “clear and convincing evidence,”
that the allegedly defamatory statements were made with either
actual “knowledge” that the statements were “false,” or

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“reckless disregard” of the statements’ accuracy. Jankovic v.
International Crisis Group, 822 F.3d 576, 589-90 (D.C. Cir.
2016) (cleaned up). Reckless disregard requires proof that at
the time the statements were made, the defendants either had
“a high degree of awareness of probable falsity” or “entertained
serious doubts as to the truth of” their statements. Tah, 991
F.3d at 240 (cleaned up).
When evaluating both ways of proving actual malice, we
look specifically to “the defendant’s state of mind at the time
of publication.” Kahl v. Bureau of National Affairs, Inc., 856
F.3d 106, 118 (D.C. Cir. 2017). So a public figure must do
more than prove that supposed defamatory statements were
factually or objectively incorrect. He must prove that the
defendants subjectively knew their statements were incorrect,
or recklessly published their statements while subjectively
knowing the likely falsity. See id. at 116.
Of course, at the motion-to-dismiss stage, we do not
require Couch to do any more than plead sufficient facts to
plausibly state his claim. But courts may still peer down the
road towards a plaintiff’s eventual evidentiary burden to
deduce whether he plausibly alleged the types of facts that can,
if proven, satisfy that burden. Couch must allege facts that, if
proven, would show that the defendants either knew their
statements were false, had high awareness that the statements
were probably false, or had serious doubts about the accuracy
of the statements.
He has not done so.2
2 On appeal, Couch argues that the district court applied the wrong
standard of review and faulted him for not fully proving “clear and
convincing” evidence at the pleading stage. We disagree. The

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B. Couch Failed to Plead Actual Malice
Between his operative complaint and proposed amended
complaint, Couch identifies fourteen supposed defamatory
statements. The fourteen statements fall into two categories.
The first category contains the eight statements where Isikoff
allegedly accused Couch of implicating Capone and Mueller in
Seth Rich’s murder or accused Couch of harassment. In
essence, these are statements where Isikoff reported that Couch
said or did things that he claims he never said or did.3
As they appear in Conspiracyland, each of those eight
statements consists of Isikoff either quoting Capone and
Mueller word-for-word or accurately summarizing what
Capone and Mueller said. Couch has not alleged the existence
district court simply copied the approach we took in Tah v. Global
Witness Publishing, Inc., 991 F.3d 231 (D.C. Cir. 2021), when it
acknowledged that legal standards require a plaintiff to ultimately
prove his case by clear and convincing evidence and then looked to
see if the plaintiff plausibly alleged any facts that could, if proven,
carry that burden, id. at 239-40, 243.
3 Couch alleges that Isikoff said: (1) Couch accused Joe Capone of
meeting with Hillary Clinton or her aides in the days before Seth
Rich’s murder; (2) Couch accused Joe Capone of plotting Seth
Rich’s assassination with Hillary Clinton or her aides; (3) Couch
peddled the conspiracy theory “that Hillary Clinton murdered Seth
Rich”; (4) Couch doxed Mueller “by publishing the addresses and
phone numbers of his siblings and neighbors”; (5) Couch
superimposed Mueller’s face on pictures of real-life serial killer
Jeffrey Dahmer and fictional serial killer Dexter Morgan; (6) Couch
attempted to rent Mueller’s basement AirBnB “to gain access to
documents relating to Seth Rich”; (7) Couch harassed Mueller “by
relentless phone calls and emails”; and (8) Couch claimed Capone
and Mueller engaged “in a ‘cover-up’” of the murder. JA 650.

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of some smoking-gun evidence that would show Isikoff knew
those statements were false. Nor has he offered specific
allegations of why Isikoff might have had “obvious reasons to
doubt the accuracy of” Capone and Mueller’s accounts.
Lohrenz v. Donnelly, 350 F.3d 1272, 1284 (D.C. Cir. 2003).
Instead, Couch presents four theories of circumstantial
evidence that he believes can support a finding of actual
malice. We find none of these theories sufficient.
First, Couch claims that Isikoff possessed all of Couch’s
relevant tweets and knew that none of those tweets talked about
Capone meeting with Clinton. So, in Couch’s eyes, Isikoff had
an “obvious” reason to doubt the accuracy of Capone’s
statement that Couch publicly spread the conspiracy theory
about Capone meeting with Clinton, and therefore acted with
reckless disregard when he republished Capone’s statement
anyways.
Isikoff indeed filed a motion, in connection with his Rule
12(b)(6) motion to dismiss, urging the court to take judicial
notice of Couch’s tweets from the relevant period. But that
falls well short of proof that Isikoff acted with reckless
disregard. For one thing, the Conspiracyland episodes were
published in 2019. Isikoff’s attorneys submitted the list of
Couch’s tweets in 2021. Isikoff’s filing of a list of Couch’s
tweets two years after making the podcast offers no insight into
whether he had reviewed all those tweets when making the
podcast — and, by continuation, no insight into whether he had
an obvious reason to doubt Capone’s account. See Lohrenz,
350 F.3d at 1284.
For another thing, Couch maintained an active public
presence on many different communication platforms. Even if
Couch hadn’t tweeted about Capone and Clinton, he could have

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easily accused Capone of meeting with Clinton on any of his
other platforms. So even if Isikoff had indeed reviewed all of
Couch’s tweets, that alone would not provide a reason to doubt
Capone’s claim.
Second, Couch argues that he caught Isikoff “fabricat[ing]
out of whole cloth” two different statements about Couch
accusing Capone of conspiring with Clinton. Couch Br. 17. A
fabricated quotation can be strong evidence of actual malice.
But fabricated quotations require some clear indication that the
speaker intended to attribute the fabricated words to the
defamed plaintiff. See Masson v. New Yorker Magazine, Inc.,
501 U.S. 496, 512-13, 518-20 (1991). Merely using rhetorical
devices or editorial paraphrases is not enough. Id.
Here, neither of the statements Couch identifies can be
fairly read as a quotation. The first supposedly fabricated
quotation is: “Matt Couch ‘was saying . . . [Joe Capone] was
conspiring with Hillary Clinton.’” Couch Br. 17. But Isikoff
didn’t say those words in that way. Instead, Couch has
selectively assembled phrases from questions Isikoff posed to
Capone, in which Isikoff did little more than ask for
clarification:
Isikoff: What was Matt Couch saying was the
significance of the fact that you had been to the White
House on July 6?
Capone: That there were secret meetings going on.
Isikoff: Secret meetings with who?
Capone: Hillary . . . You know . . .
Isikoff: That you were conspiring with Hillary
Clinton or?
Capone: Must have been right?

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JA 636-37 (emphasis omitted).
The second supposedly fabricated quotation is: “Matt
Couch said ‘a-ha, you see, why is Joe Capone going to the
White House just a few days before Seth Rich’s death? He
must have been consulting with someone, aides to Hillary
Clinton.’” JA 647, ¶ 106 (emphasis omitted). But the actual
statement was much more vague:
Matt Couch and the Internet horde discover this [that
Capone had visited the White House] apparently from
White House visitor logs. And they say, a-ha, you see,
why is Joe Capone going to the White House just a
few days before Seth Rich’s death? He must have
been consulting with somebody, aides to Hillary
Clinton, and this somehow had something to do with
Seth Rich’s death.
JA 647, ¶ 105 (emphasis added).
At best for Couch’s theory of the case, Isikoff is
paraphrasing Couch, not misquoting him. At worst, Isikoff is
paraphrasing Capone’s paraphrase of Couch and using a
rhetorical device to aggregate the theories of Couch and all the
other online commentators in “the Internet horde.” Neither
option gives Couch the fabricated quotation he needs to show
actual malice.
Third, Couch pivots to another theory of reckless
disregard. He claims Isikoff behaved recklessly by stating that
Couch accused Capone of engaging in a cover up of Rich’s
murder, with no more evidence than one or two “cryptic”
tweets from Couch. Couch Br. 27. But in framing that
argument, Couch gives away the game. As we’ve mentioned,

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for reckless disregard Couch needs to show Isikoff knew of
some obvious reason to have doubted the accuracy of the claim.
Lohrenz, 350 F.3d at 1284. Those “cryptic” tweets (which
Couch himself identified) ask why “Joe Capone” and “many
people involved in and around the Seth Rich murder” “visit[ed]
the White House.” JA 497. The tweets also spoke of
“corruption and cover up” in America. Id. This falls well short
of evidence that would have given Isikoff serious doubts about
the truth of his statement. See Tah, 991 F.3d at 240.
Fourth, and finally, Couch argues that actual malice can
be inferred from Isikoff engaging in “[d]eceptive editorial
juxtaposition.” Couch Br. 30. By this, he means Isikoff
maliciously insinuated that Couch harassed Mueller when
Couch himself had nothing to do with the specific acts of
harassment.
This argument also fails. The line Couch identifies as
defamatory is from another back-and-forth where Mueller (not
Isikoff) attributed the harassment to “trolls” “[l]ike Matt
Couch.” JA 639. Attaching a conclusory label to Isikoff’s
republication of that statement does nothing to prove either that
Isikoff knew the falsity of the statement or had reason to doubt
Mueller’s veracity.
C. Statements of Opinion Are Not Defamatory
We turn therefore to Couch’s second category of supposed
defamatory statements. Here, we find the six statements that
are Isikoff’s descriptions of Couch — that Isikoff called Couch
an “Internet ‘conspiracy entrepreneur,’” an “Internet troll,” an
“Internet crankster,” an “Internet bully,” a “member of the ‘alt-
right,’” and an “associate of a Southern ‘confederate.’” JA
650-51.

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The district court held that Couch lacked support to show
that those six statements were made with actual malice. But in
the alternative, it held that the six statements fail to even qualify
as false because each statement is an opinion, not a verifiable
fact. We agree with this alternative explanation and affirm the
dismissal on that ground. Abbas v. Foreign Policy Group,
LLC, 783 F.3d 1328, 1337 (D.C. Cir. 2015).
For a statement to be defamatory, “it must at a minimum
express or imply a verifiably false fact about” the defamed
individual. Weyrich v. New Republic, Inc., 235 F.3d 617, 624
(D.C. Cir. 2001). A mere “statement of opinion” about a public
figure “which does not contain a provably false factual
connotation will receive full constitutional protection.”
Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990). So
federal courts must dismiss defamation claims when the
statements “cannot reasonably be interpreted as stating actual
facts about an individual.” Weyrich, 235 F.3d at 624 (cleaned
up). We examine the statement “in context” when determining
whether it expressed a verifiable fact or was merely “rhetorical
hyperbole.” Id.
None of the six statements in Couch’s second category
expresses or implies a verifiable fact. The same individual may
be viewed as a “conspiracy entrepreneur” by one person and a
hard-hitting investigative journalist by another, depending
entirely on whether one agrees or disagrees with the asserted
conspiracy. Such a subjective description cannot be proven to
be true or false.
The same goes for “troll,” “crankster,” and “bully.” While
those terms are certainly pejorative and reflect Isikoff’s distaste
for Couch, they are merely subjective descriptors. True, a
statement that an individual bullied someone else by engaging
in specific acts of harassment carries factual connotations that

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can be proven, or disproven, to a jury. But merely calling
someone a bully is simply “imaginative expression.”
Milkovich, 497 U.S. at 17 (cleaned up).
Of the six statements, the closest to verifiable facts refer to
Couch as a “member of the alt-right” and an associate of a
Southern “confederate.” But when read in proper context,
those statements still fall short. While “member” can refer to
membership in an organization, the “alt-right” is not a formal
organization with defined parameters or for which membership
is provable or disprovable. So that label is still “merely
rhetorical hyperbole, a lusty and imaginative expression of the
contempt” Isikoff felt for Couch. Id. (cleaned up). And while
Couch argues that “confederate” means Isikoff equated him
with the southern Confederacy from the U.S. Civil War, the
actual line from Conspiracyland was that Couch was “with one
of his confederates named Josh” when discussing the Seth Rich
murder. JA 107. In that context, “confederate” means nothing
more than “accomplice” or “ally.” See Confederate (noun, def.
2), Merriam-Webster (2024).
* * *
Our analysis of the defamation claim need go no further
than the conclusion that Couch failed to adequately plead
defamation against Isikoff. While Couch also sued both
Verizon and NPR, he lacks any independent claims against
either Verizon or NPR. Verizon and NPR made no separate
statements about Couch and merely published Isikoff’s
statements. Couch pleaded no facts that would have given
either Verizon or NPR reason to doubt the credibility of
Isikoff’s reporting. Lohrenz, 350 F.3d at 1284. So the
resolution of the defamation claim against Isikoff resolves the
defamation claim against all other defendants as well.

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As such, the district court properly granted judgment to all
three defendants regarding defamation and properly denied
leave to amend Couch’s complaint for futility.
III. Couch’s Other Tort Claims Do Not Survive
Independently
Couch also raised seven other tort claims against the
defendants.4 The district court determined that each of those
other claims was “inherently tied to, or duplicative of,” the
primary defamation claim. Couch, 2021 WL 4476698, at *5.
And because Couch failed to plausibly plead a defamation
claim, all the derivative claims likewise failed. Id.
We agree. Because the actual malice standard effectively
bars most defamation claims raised by public figures, plaintiffs
often seek to repackage their claims into an alternative tort with
a less demanding standard. But “a plaintiff may not use related
causes of action to avoid the constitutional requisites of a
defamation claim.” Moldea v. New York Times Co., 22 F.3d
310, 319-20 (D.C. Cir. 1994); see also Farah v. Esquire
Magazine, 736 F.3d 528, 540 (D.C. Cir. 2013). Each of
Couch’s derivative claims hinges on the allegedly defamatory
speech — without the defamation they fail to plausibly state a
claim for relief and must be dismissed. See Khodorkovskaya v.
Gay, 5 F.4th 80, 84-85 (D.C. Cir. 2021); Teltschik v. Williams
& Jensen, PLLC, 748 F.3d 1285, 1287-88 (D.C. Cir. 2014).
4 These were: (1) defamation per se; (2) intentional infliction of
emotional distress; (3) false light; (4) intentional interference with
business relations; (5) civil conspiracy for all alleged torts; (6) aiding
and abetting for all alleged torts; and (7) negligent supervision and
retention.

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IV. Conclusion
Couch failed to plausibly state any claims against Isikoff,
Verizon, and NPR. Eight of the supposedly defamatory
statements lack any evidence that could prove actual malice,
and the other six lack verifiable facts that could be proven or
disproven to a jury. Because each of his other claims relied on
the success of the defamation claim, they fail as well. And
Couch’s proposed amended complaint does not fix those
problems.
We affirm the district court’s dismissal for failure to state
a claim as to Isikoff and Verizon, its grant of judgment on the
pleadings as to NPR, its denial of leave for Couch to file an
amended complaint, and its dismissal of the case with
prejudice.5
So ordered.
5 On appeal, Couch argued that the district court also erred by
denying his motion for initial discovery into Verizon’s corporate
structure. But because we affirm the district court’s disposition of
the claims against Isikoff, Verizon, and NPR, there are no parties left
against which Couch may seek discovery. Couch also indicated
early on that he intended to challenge the propriety of dismissal with
prejudice, but he later abandoned that argument. See Levine/Schwab
Partnership v. FCC, 61 F.4th 183, 186 n.2 (D.C. Cir. 2023).

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