Ida Maxwell Wells v. G. Gordon Liddy, Phillip MacKin Bailley, Movant

OPINION

Ida Maxwell “Maxie” Wells, who was a secretary at the Democratic National Committee (DNC) for a short time in 1972, filed a defamation action against G. Gordon Liddy stemming from his advocation of an alternative theory explaining the purpose of the June 17, 1972, Watergate break-in. During several public appearances and on a world wide web site Liddy stated that the burglars’ objective during the Watergate break-in was to determine whether the Democrats possessed information embarrassing to John Dean. 1 More specifically, Liddy asserted that the burglars were seeking a compromising photograph of Dean’s fiance that was located in Wells’s desk among several photographs that were used to offer prostitution services to out-of-town guests.

*513 Upon Lidd/s motion for summary judgment, the district court determined that Wells was an involuntary public figure who could not prove actual malice by clear and convincing evidence. Additionally,the district court determined that Louisiana law applied to all of Wells’s defamation counts and that Louisiana law would require even a private figure to prove actual malice. On the basis of these rulings, the district court entered judgment in Liddy’s favor. Because we determine that Wells is not a public figure for purposes of the ongoing public debate regarding Watergate and we also conclude that Louisiana law does not apply to two of Wells’s defamation counts, we reverse the district court’s grant of summary judgment and remand for further proceedings consistent with this opinion. ■ ■

I.

In February of 1972, the then-twenty-three-year-old Wells moved from her hometown of Jackson, Mississippi to Washington, D.C. and began work at the DNC as the secretary to Spencer Oliver, Executive Director of the Association of State Democratic Chairmen. Wells continued in the employ of the DNC and Oliver until late July 1972. Throughout her employment, the DNC offices were located in the Watergate complex.

A few months after Wells started her job at the DNC, Frank Wills, a security guard, noticed a piece of tape propping open the door to the DNC offices while making his routine rounds during the early morning hours of June 17, 1972. See David Behrens, Day by Day, Newsday, June 17, 1992, at 63. Wills removed the tape. See id. When he made his next scheduled rounds, however, the tape had been returned to the doorway. See id. Suspecting that something was afoot, Wills called the police. See id. Shortly thereafter, the police arrived and apprehended five men: James W. McCord, Frank Stur-gis, Eugenio R. Martinez, Virgilio R. Gonzalez, and Bernard L. Barker. See Alfred E. Lewis, Five Held in Plot to Bug Democrats’ Office Here, Wash. Post, June 18, 1972, at Al. Of these five, one was a recent CIA retiree, three were Cuban emigres, and the fifth had trained Cuban exiles for possible guerrilla activity after the failed Bay of Pigs invasion. See id. The men were wearing business attire and surgical gloves. They were carrying $2,300 in sequentially numbered one hundred dollar bills, sophisticated electronic surveillance equipment, lock picks, door, jimmies, one walkie-talkie, a short wave receiver, forty rolls of thirty-five millimeter film, three pen-sized tear gas guns, see id., and the White House phone number of E. Howard Hunt. 2 When initially asked about the events at the Watergate, White House spokesman Ronald Ziegler dismissed the incident as “A third-rate burglary attempt.” Gaylord Shaw, Watergate Third Rate Burglary, Newsday, June 17, 1992, at 62.

In the wake of the burglary, the FBI determined that Spencer Oliver’s telephone conversations were being electronically monitored from a listening post located in room 723 of the Howard Johnson’s Motor Inn across the street from the Watergate. Because Wells often used Oliver’s phone to make personal calls, some of her conversations were intercepted. 3 Additionally, a drawer of Wells’s desk was opened during the break-in. As a result, she was questioned by the FBI. Although there is some factual dispute between the parties over whether the FBI informed Wells of the discovery, the FBI also deter *514 mined that a key found in a burglar’s possession fit the lock on Wells’s desk.

In September of 1972, Wells was subpoenaed to appear as a witness before the federal grand jury investigating the break-in. On September 15,1972, the grand jury indicted the five burglars as well as the two men who allegedly had coordinated the break-in, E. Howard Hunt, a White House aide, and G. Gordon Liddy, counsel for the Committee to Reelect the President. Watergate Chronology, News & Observer (Raleigh, N.C.), June 17, 1992, at A4. Appearing before Judge John Sirica in United States District Court for the District of Columbia in early January of 1973, the five Watergate burglars pleaded guilty to a variety of burglary, conspiracy, and wiretapping charges. See John Berlau & Jennifer G. Hickey, List of Jailbirds is Long, but Sentences are Short, Insight Mag., June 23, 1997, at 10. Each of the five burglars was sentenced to a prison term. 4 See A Watergate Scorecard, Wall St. J., Jan. 26, 1998, at A19. E. Howard Hunt also pleaded guilty to six counts of burglary, conspiracy, and wiretapping. See Berlau & Hickey, supra. As a result, he was imprisoned for thirty-three months. See A Watergate Scorecard, supra. Liddy neither pleaded guilty nor cooperated with the prosecution. He was tried on multiple counts of burglary, conspiracy, and interception of wire and oral communications, was found guilty, and received a sentence of six to twenty years imprisonment. See Berlau & Hickey, supra. Liddy served fifty-two months in jail as a result of his convictions. See Watergate Scorecard, supra.

Shortly after pleading guilty, James McCord wrote a letter from prison stating that he had been pressured to plead guilty and to lie during the district court proceedings relating to the Watergate incident. See Watergate Timeline, Cin. Enquirer, June 17, 1997, at A6. In his letter, McCord implicated John Dean, the president’s counsel, and John Mitchell, the Attorney General, as the individuals who had been pressuring the Watergate burglars to withhold information. See Watergate Time Line (visited April 29, 1999), <http://vcepolitics.com/wgate/time-line.htm >.

As a result of McCord’s revelations implicating high level administration officials, in February of 1973 the United States Senate voted (77-0) to establish a Select Committee on Presidential Campaign Activities to be chaired by Senator Sam Er-vin of North Carolina. See id. Wells, who had by this time relocated to Atlanta, Georgia, returned to Washington on June 20, 1974 to testify before the Committee. Wells’s testimony was not part of the televised Watergate hearings. During its investigation, the Senate Committee discovered a campaign of political “dirty tricks” of which the Watergate break-in was a part. The White House’s effort to cover up its involvement led to the imprisonment of several high ranking White House officials and ultimately to the resignation of President Nixon in August of 1974.

Wells returned to Washington in 1976 and served as a secretary to President Carter. After she left that post, she entered a Ph.D. program in English at Louisiana State University and at the time of this lawsuit planned to pursue a career as a college professor. Liddy was released from prison in 1977, and since that time he has become a successful radio talk show personality. He has also published his autobiography, Will, and is a frequent speaker on the lecture circuit.

In 1991, Len Colodny and Robert Gett-lin authored a book entitled Silent Coup: The Removal of a President. Len Colod-ny & Robert Gettlin, Silent Coup: The Removal of a President (1991). In Silent *515 Coup, Colodny and Gettlin discussed new evidence regarding the Watergate break-in and concluded that the purpose of the break-in was not simply to replace a malfunctioning listening device that had been installed in an earlier break-in at the DNC in May 1972. 5 Rather, Colodny and Gett-lin concluded that John Dean had personally authorized the Watergate break-in to protect his own reputation and the reputation of his now-wife, Maureen Biner. 6

In Silent Coup, Colodny and Gettlin assert that an attorney, Phillip Mackin Bail-ley, assisted a woman named Erica L. “Heidi” Rikan expand her preexisting call-girl operation located at the Columbia Plaza apartments, near the Watergate, by promoting Rikan’s services to Bailley’s DNC connections. The book also notes that Maureen Biner was a close friend' of Rikan. According to Silent Coup, when Bailley came to visit the DNC, he asked for Spencer Oliver, but because Oliver was out of the office at the time, his secretary, Wells, gave him a tour of the DNC facilities. As a result of Bailley’s contact with the DNC, Silent Coup reports that one client per day was referred to Rikan from DNC headquarters. Colodny and Gettlin state that meetings with call girls were arranged on Oliver’s phone while he was out of the office, and that Oliver’s telephone was the target of the first, May 1972, Watergate break-in during which the wiretaps were initially installed. According to Silent Coup Bailley was eventually arrested and indicted for violations of the Mann Act (transporting under-age females across state lines for immoral purposes), extortion, blackmail, pandering, and procuring. As a result, Bailley’s address books were seized. Silent Coup also notes that Maureen Biner’s name appeared in Bailley’s address books.

After news of Bailley’s arrest appeared in the newspaper, together with information regarding a Capitol Hill call-girl ring staffed by secretaries, office workers, and a White House secretary, Silent Coup reports that John Dean called the Assistant United States Attorney investigating the Bailley case and summoned him to the White House. During the meeting, Dean reportedly told the Assistant United States Attorney that he thought the Democrats had leaked the prostitution ring story. Thereafter, Dean made a pihotocopy of Bailley’s address books and proceeded to compáre the names from the book to a list of White House staff. Colodny and Gettlin state that Dean immediately would have recognized Maureen Biner’s name as well as the alias of her good friend Rikan during this examination.

The implication of Colodny and Gettlin’s narrative is that the June 17, 1972, Watergate break-in was ordered by Dean so that he could determine whether the Democrats had information linking Maureen Biner to the Bailley/Rikan call-girl ring and whether they planned to use such information to embarrass him. After the break-in was ordered, Alfred Baldwin, the man who was operating the listening post at the Howard Johnson’s motel, visited DNC headquarters in order to “case” the layout of the offices. Because he posed as a friend of Oliver to gain admittance to the office, he was referred by the receptionist to Wells, who gave him a tour of the facility. During the visit, Silent Coup concludes “Baldwin either somehow obtained a key from Wells, or stole one.” Colodny & Gettlin, supra at 149. Colodny and Gettlin contend that the purloined key was *516 found on Watergate burglar Martinez. Although Silent Coup posits the question, “Why would a Watergate burglar have a key to Wells’s desk in his possession and what items of possible interest to a Watergate burglar were maintained in Wells’s locked desk drawer?” id. at 159, the book never proffers a specific answer. 7

Liddy had extensive conversations with Colodny regarding the theory of the break-in promulgated in Silent Coup beginning in 1988. By 1991, Liddy had reached the conclusion that Colodny and Gettlin’s theory was correct. As a result, in 1991 Liddy published a special paperback edition of his autobiography Will that included a discussion and endorsement of the Silent Coup theory. On June 8, 1991, Liddy had a meeting with Phillip Mackin Bailley, during which Bailley discussed his involvement with the Rikan prostitution ring. During the meeting, Bailley told Liddy that tasteful photographs of the Rikan call-girls wearing see-through negligees were kept in a desk at the DNC in the Oliver/Wells/Governors area. According to Bailley, various personnel at the DNC would show the photos to DNC visitors and would arrange rendezvous. Bailley also stated that several DNC employees were compensated for making referrals.

After he reissued his autobiography, Liddy began routinely incorporating Co-lodny and Gettlin’s Silent Coup theory, including the additional information garnered from Bailley, into his public speeches. He would do so either by informing the listeners of the recent developments in the Watergate case as part of his prepared remarks or in response to questions raised by audience members during a question-and-answer period at the end of the program. Several of Liddy’s public appearances during which he presented this theory are the subject of Wells’s defamation suit. He delivered one such speech at James Madison University in Harrisonburg, Virginia on April 2, 1996 (JMU speech).

During the JMU speech, an audience member asked Liddy:

Mr. Liddy, I have a question ... I want your in put [sic] on one of the theories surrounding the mystery of Watergate. [I]t specifically related to James McCord. There are some who believe that maybe he wasn’t working along with you, he had ulterior motives. And *517 what gives ... credit to this theory is that an ex-CIA agent ... made two critical mistakes that really ... caused you all to be caught. What do you think about that?

(J.A. at 996.) In response to the question, Liddy began to explain the Silent Cowp theory of Watergate to the audience. During the explanation, he noted that the Howard Johnson’s listening post “looked directly down at a desk of a secretary named Maxine Wells, and her telephone. And they had a telescopic lens camera pointed at that. And that is where the wiretap was subsequently found by the democrats on that phone.” (J.A. at 998.) After explaining the Bailley/Rikan prostitution ring and Maureen Biner’s connection to the ring, Liddy stated:

[S]ome members of the DNC were using the call girl ring as an asset to entertain visiting firemen. And to that end they had a manila envelope that you could open or close by wrapping a string around a wafer. And in that envelope were twelve photographs of an assortment of these girls and then one group photograph of them. And what you see is what you get. It was kept he said in that desk of Ida Maxine Wells. Thus, the camera [and] all the rest of it. And what they were doing is as these people would be looking at the brochure, if you want to call it that, and making the telephone call to arrange the assignation that was being wiretapped, recorded and photographed.

(J.A. at 998-99.) Liddy gave a similar speech while on a Mediterranean cruise (cruise ship speech) in August 1997. 8

Liddy also discussed Watergate during an appearance on the Don and Mike Radio show on April 25, 1997. During the Don and Mike broadcast, Don’s son Bart, who was doing research for a school project, asked Liddy questions about Watergate:

Bart: I was wondering what was your role in the Watergate breakup [sic] scandal?

Liddy: Okay. I was the political intelligence chieftain, as well as the general counsel of the Committee to Reelect the President.... Now what I did not know is that John Dean did not trust me any more than I trusted him. And so my men were told, although I was not, that they were to go in there and, what, the telephone that was wired was not Mr. O’Brien’s but was the telephone that was on the desk of a woman named ... Ida Maxwell Wells ... and she was the secretary to a man named R. Spencer Oliver.

Liddy: Well next door to the Watergate was a place called the Columbia Plaza Apartments and operating in there was what is known as a call girl ring and the lawyer who represented those girls was arrested by the FBI and they found his address book that had the names of his clients and also that included the call girl and there was a woman in there whose code name was “clout.”

Liddy: Now to make a long story short. That was kind of what it was all about and if you want a secondary source on Watergate, you know to read about what was going on and everything. There is a book called Silent Coup.

(J.A. at 1021,1022,1023.)

The fact of Liddy’s belief in the Colodny and Gettlin Watergate theory also appeared on the Accuracy in Media site on the world wide web 9 in a review of the Oliver Stone directed film Nixon. Nixon (Cinergi, Hollywood Pictures, Illusion Entertainment 1995). The Accuracy in Media review criticized Stone for failing to seize an opportunity to adopt the Silent Coup theory of the Watergate break-in and for speculating that the Watergate *518 burglars were looking for information linking Nixon to the Bay of Pigs invasion and the assassination of President Kennedy. In support of its argument that Stone should have pursued the Silent Coup theory, the web site characterized the theory as plausible and provided Liddy’s explanation of the value of the Silent Coup theory:

Not until Colodny and Gettlin wrote Silent Coup did Liddy realize that the true objective of this second raid was to get into the desk of Maxie Wells, Spencer Oliver’s secretary, said to be the key figure in arranging dates with the call girls. Unknown to Liddy at the time, one of the burglars carried a key to Wells’[s] desk.

(J.A. at 1016.)

II.

Based upon the foregoing statements, Wells filed a defamation suit in the United States District Court for the District of Maryland on April 1, 1997. 10 Wells asserted that Liddy defamed her by stating to public audiences on several occasions that she acted as a procurer of prostitutes for men who visited the DNC. Particularly, Wells asserted that Liddy defamed her during the JMU speech, during the cruise ship speech, on the Don and Mike Show, and in the Accuracy in Media web site. 11 The complaint sought one million dollars in damages for injury to reputation, one million dollars in damages for mental suffering and three million dollars in punitive damages. Liddy filed his Answer on April 28, 1997, and the case proceeded to discovery.

Discovery did not progress smoothly, and Wells filed several motions to compel interrogatory answers and document production. The motions to compel asserted that Liddy had given inadequate answers to the interrogatories, failed to sign the interrogatory answers, and failed to provide a privilege log for the requested documents. Wells voluntarily dismissed the motions to compel based upon Liddy’s interrogatory answers, and the district court held a hearing on Wells’s remaining motion to compel document production by conference call on October 16, 1997. At the close of the hearing, the district court denied Wells’s motion because the initial document request was overly broad and not narrowly tailored. 12

Liddy filed a summary judgment motion on October 10, 1997. After various responses, replies and surreplies were filed, the summary judgment motion was ripe for disposition. After a hearing, the district court issued an opinion granting summary judgment to Liddy on April 13, 1998. See Wells v. Liddy, 1 F.Supp.2d 532 (D.Md.1998). In its opinion the district court first applied Maryland’s lex loci de-licti tort choice-of-law rule and concluded that the law of Louisiana, Wells’s domicile, should apply to all of Wells’s defamation claims. See id. at 536-37. The district court then reviewed each of the alleged defamatory statements to determine *519 whether each one was capable of defamatory meaning under Louisiana law. See id. at 537-39. After considering each of the statements as a whole, the context in which each was made, and the effect each would have upon the listener, see id. at 537 (citing Kosmitis v. Bailey, 685 So.2d 1177, 1180 (La.Ct.App.1996)), the district court held that only the JMU speech was capable of defamatory meaning, see id. at 537-38.

Next, the district court considered whether Wells was required to prove that Liddy acted with actual malice. See id. at 539. In evaluating that question, the district court examined Wells’s situation under the standard established in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), that, inter alia, established a First Amendment-driven public figure doctrine for determining which level of a defendant’s culpability a defamation plaintiff must prove. After rejecting Liddy’s contention that Wells had voluntarily injected herself into a public controversy, the district court concluded that Wells’s participation in Watergate was such that she was one of the rare involuntary public figures envisioned by Justice Powell in Gertz. See Wells, 1 F.Supp.2d at 540-41. Applying this reasoning, the district court held that Wells was required to prove actual malice. In the alternative, the district court examined Louisiana law and determined that Louisiana required all plaintiffs, whether public or private figures, to prove actual malice in defamation cases against a media defendant when the publication was on a matter of public concern. See id. at 541-42.

Turning to the application of the actual malice standard, the district court determined that Wells was unable to prove by clear and convincing evidence that Liddy knew that the information regarding her connection to a prostitution ring was false or that he recklessly disregarded the truth or falsity of the information. See id. at 542, 545. Specifically, the district court ruled that although Bailley, the sole source of Liddy’s information that Wells had prostitution-related pictures in her desk, was extremely unreliable, there was sufficient factual verification of his information to preclude Wells, as a matter of law, from establishing that Liddy acted with actual malice. See id. at 543-45.

As a result of these rulings, the district court granted Liddy’s summary judgment motion and entered judgment on his behalf. See id. at 545. Wells' immediately filed a motion for reconsideration of the ruling under Rule 59 of the Federal Rules of Civil Procedure. (J.A. at 2076.) In the motion, Wells contended that she had projected sufficient evidence to raise a genuine issue of material fact on the actual malice issue, and that the district court had erred in granting summary judgment to Liddy. The district court considered the motion, and issued a memorandum opinion and order in which it confirmed the grant of summary judgment to Liddy. The district court noted that Wells had not pointed to error in its previous ruling, but rather merely raised the argument that the district court drew the wrong legal conclusion on the actual malice question. As a result, the district court denied Wells’s motion to reconsider. Wells appealed.

On appeal Wells makes several assignments of error: (1) that the district court erred in applying Louisiana libel law to all counts of the complaint; (2) that the district court erred in denying her motion to compel document production; (3) that the district court erred in ruling that Wells was an involuntary public figure; (4) that the district court erred in ruling that Lid-dy’s cruise ship speech, Don and Mike show statements, and Accuracy in Media web site statements were not capable of defamatory meaning; and (5) that the district court erred when it ruled that Wells failed to forecast sufficient evidence from which a reasonable jury could conclude that Liddy acted with actual malice when publicizing Wells’s connection with the *520 DNC prostitution ring during the JMU speech.

Summary judgment is appropriate when a party, who would bear the burden on the issue at trial, does not forecast evidence sufficient to establish an essential element of the case, see Laughlin v. Metropolitan Washington Airports Auth., 149 F.3d 253, 258 (4th Cir.1998), such that “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). Viewing the facts in the light most favorable to the non-moving party, we review a grant of summary judgment de novo. See Laughlin, 149 F.3d at 258. When, as here, the non-moving party must produce clear and convincing evidence to support its claim, that higher evidentiary burden is considered as part of the summary judgment calculus. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 244, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (noting that the New York Times Co. v. Sullivan requirement of clear and convincing evidence of malice must be considered on a motion for summary judgment). Additionally, because defamation claims raise First Amendment issues, we have “an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 17, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) (internal quotation marks omitted). These principles guide our evaluation of Wells’s claims.

III.

An individual’s interest in protecting his good reputation from being falsely impugned, the interest at the core of modern defamation law, has been carefully guarded from time immemorial. See Rodney A. Smolla, Law of Defamation § 1.01 (1998) (citing Exodus 20:16, “Thou shalt not bear false witness against thy neighbour”). The common law “has afforded a cause of action for damage to a person’s reputation by the publication of false and defamatory statements” since the second half of the sixteenth century. Milkovich v. Lorain Journal Co., 497 U.S. 1, 11, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). Since the founding of the United States, state governments primarily have been responsible for developing defamation law adequate to protect citizens’ reputational interests; “[t]he protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments.” Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966)(Stewart, J., concurring) (cited with approval in Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)). “Prior to 1964, the common law of defamation strongly favored the State’s interest in preventing and redressing injuries to individuals’ reputations, and the prevailing view gave little or no weight to First Amendment considerations.” Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1551 (4th Cir.1994).

In 1964, however, the landmark decision New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), changed the course of defamation law. In New York Times Co., the Court first determined that the First Amendment limits state law remedies available to a defamation plaintiff. See id. at 269, 84 S.Ct. 710. The Court announced that the First Amendment, as incorporated and applied to the states through the Fourteenth Amendment, prohibited “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’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80, 84 S.Ct. 710. The limits of the New York Times Co. standard have been further explored and defined in a series of High Court defamation cases: Curtis Publ’g Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 *521 S.Ct. 1811, 29 L.Ed.2d 296 (1971), overruled by Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979); Hutchinson v. Proxmire, 443 U.S. 157, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979); and Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986).

Because a Constitutional defamation jurisprudence has developed, the state law of defamation has been displaced to the extent that the state law conflicts with Constitutional law. The primary framework of a defamation claim, however, continues to be a state law tort claim. This commingling of state law and Constitutional law has created a complex jurisprudence of interlocking and overlapping Constitutional and state law inquiries. On appeal, Wells has raised questions of both state and Constitutional defamation law. We first address the state law issues.

Wells’s state law- questions are two-fold. First, Wells appeals the district court’s ruling on choice of law. Second, Wells asserts that the district court erred when it concluded that Liddy’s statements made during the cruise ship speech, the Accuracy in Media web site, and the Don and Mike show appearance were not capable of defamatory meaning. After a brief review of choice-of-law principles, we will address each of Wells’s four defamation claims in turn to review the district court’s conclusion regarding the applicable law and each statement’s possible defamatory meaning.

A.

Wells asserts that the district court misapplied Maryland’s lex loci delicti choice-of-law rule for tort claims when it determined that the JMU speech claim, the cruise ship speech claim, and the Don and Mike show claim were subject to the law of Wells’s domicile, Louisiana, rather than to the law of Virginia. 13 During the proceedings below, the district court applied, -as a default rule, the law.of Louisiana, the place of Wells’s domicile, to all four of her claims of defamation. The district court noted that “[identifying the place of injury is somewhat problematic in a case such as this where the plaintiff does not allege concrete harm.” Wells, 1 F.Supp.2d at 536. Therefore, it determined that under Maryland’s choice-of-law rules the presumptive place of the harm in a defamation action should be the plaintiffs domicile. Wells asserts that the district court erred in applying Louisiana law to the JMU speech claim, the cruise ship speech claim, and the Don and Mike show claim. Instead, Wells asserts that Virginia law, for varying reasons, should have been applied to each of these claims.

A federal court sitting in diversity must apply the choice-of-law rules from the forum state. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). For tort claims, Maryland adheres to the First Restatement of Conflict of Laws rule, lex loci delicti commissi, or the law of the place of the harm, to determine the applicable substantive law. See Naughton v. Bankier, 114 Md.App. 641, 691 A.2d 712, 716 (1997). Under the First Restatement, the place of the harm is defined as “the state where the last event necessary to make an actor liable for an alleged tort takes place.” Restatement (First) of Conflict of Laws § 377 (1934); see generally Eugene F. Scoles & Peter Hay, Conflict of Laws 571 (2d ed.1992) (discussing lex locidelicti); Robert L. Felix, Leflar in the Courts: Judicial Adoptions of Choice-Influencing Considerations, 52 Ark. L.Rev. 35 (1999) (surveying states’ decisions to move away from lex loci delicti regime).In defamation actions, the place of the harm has traditionally been considered to be the place where the *522 defamatory statement was published, i.e., seen or heard by non-parties. See Restatement (First) of Conflicts § 377 n. 5 (“[WJhere harm is done to the reputation of a person, the place of wrong is where the defamatory statement is communicated.”); Lapkoff v. Wilks, 969 F.2d 78, 81 (4th Cir.1992) (applying lex loci delicti rule and concluding that when defamatory statements occurred in Virginia, Virginia law applied); St. Clair v. Righter, 250 F.Supp. 148, 150 (W.D.Va.1966) (stating that the place of publication is the last event necessary to render the tort-feasor liable in a defamation action); see also James R. Pielemeier, Constitutional Limitations on Choice of Law: The Special Case of Multistate Defamation, 133 U. Pa. L. Rev. 381, 393-94 (1985) (noting that as a general rule the place of publication is the place of the harm).

With this framework in mind, we address each of Wells’s four defamation claims and apply the correct law to the legal question of whether the statement is capable of a defamatory meaning.

1.

Applying Maryland’s choice-of-law analysis to the JMU speech is quite straight forward. Liddy delivered the JMU speech on April 2, 1996, in Harrison-burg, Virginia. The record indicates that the speech was never broadcast by any means and was heard only by the audience at JMU. Therefore, publication of the speech occurred solely in Virginia. Applying Maryland’s traditional lex loci delicti rule as discussed above, it is clear that the law of Virginia should have been applied to this claim. The district court erred when it applied the law of Louisiana.

The district court ruled that under Louisiana law the JMU speech was capable of defamatory meaning. Applying Virginia