The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Judge in Katie Couric 'Under the Gun' libel case calls argument against background checks 'sophistry'
Last year, Katie Couric's "Under the Gun" documentary was called out for highly misleading editing; let me quote The Post's own Erik Wemple on the facts:
It looks as though Katie Couric stunned her interviewees. Knocked them out with a bombshell inquiry: "Let me ask you another question: If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?" Now check out the blank stares:
Nearly 10 seconds of silence, as if no one has an answer to Couric's rather straightforward question. The scene comes from "Under the Gun," a film written, produced and directed by Stephanie Soechtig and narrated by Couric, the global anchor for Yahoo News; Couric also serves as executive producer. The session depicted in the video above features Couric and members of the Virginia Citizens Defense League, a group whose motto is "Defending Your Right to Defend Yourself."
And to hear the VCDL tell the story, those awkward seconds are a fabrication, a byproduct of deceptive editing. To prove the point, VCDL President Philip Van Cleave has released an audiotape of the session, which is available on the site of the Washington Free Beacon as part of a story by Stephen Gutowski. In that recording, the question from Couric is a bit different from the one in the video. She says, "If there are no background checks, how do you prevent—I know how you all are going to answer this, but I'm going to ask it anyway. If there are no background checks for gun purchasers, how do you prevent felons or terrorists from walking into, say, a licensed gun dealer and purchasing a gun?"
On the audiotape, a reply comes immediately from one of the VCDL members: "Well, one—if you're not in jail, you should still have your basic rights." More chatter follows.
In an interview with the Erik Wemple Blog, Van Cleave said, "My teeth fell out of my head when I saw that." The result of the editing, he says, is that folks who view the documentary are "going to say these people are idiots. It affects all the gun owners."
And here's the transcript from the audio of the response (by another interviewee, Daniel Hawes) that immediately follows the "if you're not in jail, you should still have your basic rights" response:
The fact is we do have statutes, both at the federal and state level that prohibit classes of people from being in possession of firearms. If you're under 18, in Virginia, you can't walk around with a gun. If you're an illegal immigrant, if you're a convicted felon, if you've been adjudicated insane, these things are already illegal. So, what we're really asking about is a question of prior restraint. How can we prevent future crime by identifying bad guys before they do anything bad? And, the simple answer is you can't. And, particularly, under the legal system we have in the United States, there are a lot of Supreme Court opinions that say, "No, prior restraint is something that the government does not have the authority to do." Until there is an overt act that allows us to say, "That's a bad guy," then you can't punish him.
The VCDL people sued for libel, claiming the deceptive editing was a knowing falsehood that damaged their reputations; I think that argument is legally insufficient—to be libel, a false statement has to "throw contumely, shame, or disgrace upon [its target], or … tend[] to hold him up to scorn, ridicule, or contempt, or [be] calculated to render him infamous, odious, or ridiculous." Falsely showing activists as being stumped by a question doesn't do that; the strongest argument for libel is that it holds them up to "ridicule," but in context "ridicule" in the legal sense seems to require more than just an "Oh, those people don't have a good answer to that" reaction. (Again, the editing is still dishonest; I just don't think it's libelous.)
On Wednesday, a federal judge dismissed the claim, partly on the ground I just mentioned, but also on a different ground—the editing, he said, was not dishonest:
The VCDL members, including Hawes and Webb, did not answer Couric's question. Instead, they articulated their opposition to any gun control, but never said how to keep guns out of the hands of felons and terrorists. One VCDL member said that felons should have the right to own a gun after serving their time. Hawes responded by discussing existing laws related to firearms. Webb responded by saying why she opposed background checks. While they offered views on gun control, they did not answer Couric's query about how to stop the wrong people from getting guns without background checks. …
The plaintiffs' defamation claims fail because the interview scene is not false. Under the Gun portrays members of the VCDL not answering the question posed by Couric. In reality, members of the VCDL did not answer the question posed by Couric. They talked about background checks and gun laws generally, but did not answer the question of how to prevent felons or terrorists from purchasing guns without background checks. The editing simply dramatizes the sophistry of the VCDL members.
I think this is just flat wrong. Hawes's response—that there are laws banning felons from possessing guns—is most certainly an "answer [to the] query about how to stop the wrong people from getting guns without background checks." In fact, it is the normal answer that our legal system usually gives. How do we stop people from robbing people? In large part, by having laws that punish robbery. How do we stop journalists from libeling people? In large part, by having laws that punish libel (though usually through civil liability rather than criminal liability).
These of course aren't perfect solutions, and they don't literally "stop" the misconduct by stopping 100 percent of it; but of course background checks wouldn't do that, either. But they are eminently plausible responses to the question "How do we stop people from doing something bad?"—"Make it a crime [or a tort] for them to do that bad thing." That's Deterrence 101, and deterrence is a deeply established (even if at times controversial) theory within the legal system. So Webb definitely did "sa[y] how to keep guns out of the hands of felons." (The discussion didn't focus on the terrorists, in part because even background checks won't keep the guns out of hands of terrorists who have no criminal record and who aren't identifiable as terrorists; and the calls for background checks that would block purchases by merely suspected terrorists is understandably controversial on other grounds.)
Likewise, there is no "sophistry" in either Hawes's response or the response about felons having the right to own a gun after serving their time. Hawes's response is simply that we should prevent misconduct by the threat of punishment, not by prescreening—of course, a controversial position, but hardly a sophistic one. The other response is a legitimate, and not at all sophistic, challenge to the premise of the question.
Consider a simple analogy. Say that, in an anti-illegal-immigration documentary, the host asks some activists:
Let me ask you another question: If we don't build a wall on the border with Mexico, how do you prevent aliens from entering the country illegally?
One activist responds, "Well, one—if you want to come to America, you should have the right to do that." Another says, "The fact is we do have statutes that prohibit people from entering the country illegally, or that impose liability on employers for hiring people who are in the country illegally. These things are already illegal." Yet instead of quoting this material, the documentary makers just replace it with eight seconds of blank stares and silence.
Would we think that this "is not false," because the activists "did not answer [the interviewer's] query about how to stop [people from coming into the country illegally]"? Would we say that the activists "did not answer the question posed by [the interviewer]"? Would we think that the responses are just "sophistry," so that replacing the responses with silencing was legitimate editing that "simply dramatizes the sophistry"?
I would think not—I would think that, though the editing may not be libelous (again, because it merely falsely portrays people as unprepared or lacking a good argument, not as contemptible or deserving of hatred), it would be dishonest. The resulting interview scene would indeed be false; to be true, it would have had to show the answers, and let the viewers decide for themselves whether the answers were adequate.
But here, the trial judge—who routinely enforces the laws that are precisely intended to "prevent" misconduct by making the misconduct illegal or punishable—concludes that a prevent-by-threat-of-punishment answer is somehow unresponsive and sophistic. Not the right way, I think, to deal with this libel case.
UPDATE: I slightly edited the discussion of what is required for libel, to go into a bit more detail; thanks to reader Serge Krimnus for an e-mail that prompted me to do that.
