The Volokh Conspiracy
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From yesterday's Fourth Circuit decision in Virginia Citizens Defense League v. Couric, the facts:
… In 2016, journalist Couric and filmmaker Soechtig released a documentary titled Under the Gun. The documentary concerns gun policy in America, and it takes a perspective favoring regulation. Couric narrated the film, interviewed participants, and served as an executive producer….
Although the film advocates for gun control, its creators assertedly sought to present viewpoints from organizations that opposed measures like universal background checks. To that end, a producer employed by Atlas Films contacted the Virginia Citizens Defense League ("VCDL"), a non-profit gun-rights organization, and set up an interview with members of the VCDL. Nine members, including Hawes and Webb, agreed to participate.
The final cut of the film includes portions of Couric's interview with these VCDL members. The segment lasts just over three minutes…. [T]his suit centers on a twelve-second clip at the close of the three-minute VCDL interview. In it, Couric asks the following question: "If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?" Approximately nine seconds of silence follow, during which the VCDL members, including Webb, a gun store owner, and Hawes, an attorney, sit in silence and shift uncomfortably in their seats, averting their eyes. The film cuts to a revolver chamber closing. Couric then says: "The background check is considered the first line of defense, and 90% of Americans agree it's a good thing." …
Although the film accurately portrays most of the interview with VCDL members, the twelve-second clip described above did not transpire as depicted. In the unedited footage, Couric's background check question prompted approximately six minutes of responses from the VCDL members. Hawes responded by suggesting that the government cannot, consistent with the Constitution, prevent crimes through prior restraint. Webb commented that background checks are unlikely to prevent motivated criminals from obtaining guns or committing crimes. These responses were followed by approximately three minutes of related discussion between Couric and the panel. Rather than use these responses, the filmmakers spliced in b-roll footage taken prior to the interview in which Couric asked the VCDL interviewees to sit in silence while technicians calibrated the recording equipment.
Shortly after the film's showing at various film festivals, the VCDL released unedited audio of the interview. In the public backlash that followed, Couric issued a statement admitting that the edited version of the film did "not accurately represent [the VCDL members'] response" and that the segment was "misleading." Believing the misleading segment to be defamatory, the VCDL and two of its featured members, Hawes and Webb, brought this action. The district court dismissed their complaint for failure to state a claim, reasoning that the film was neither false nor defamatory and that, as to claims brought by the VCDL, the film was not "of and concerning" the organization. This appeal followed….
For a harsh but, I think, accurate critique by Washington Post media critic Erik Wemple, see here; an excerpt:
Moments ago, the film's people released this statement from Soechtig: "There are a wide range of views expressed in the film. My intention was to provide a pause for the viewer to have a moment to consider this important question before presenting the facts on Americans' opinions on background checks. I never intended to make anyone look bad and I apologize if anyone felt that way."
Here the Erik Wemple Blog stroke our gray beard and reflect: In the years we've covered and watched media organizations, we've scarcely seen a thinner, more weaselly excuse than the one in the block above. For starters, it appears to count as an admission that this segment of the documentary was edited. The artistic "pause" provides the viewer not a "moment to consider this important question"; it provides viewers a moment to lower their estimation of gun owners. That's it….
But, to be libelous, it's not enough that a statement is false (or, in some situations, carry a false implication); as the Fourth Circuit correctly notes,
To state a claim for defamation under Virginia law, a plaintiff must plead … [among other things, that the statement is] "both false and defamatory." … "Defamatory words are those 'tend[ing] so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'" The Supreme Court of Virginia has held that actionable defamatory language is that which "tends to injure one's reputation in the common estimation of mankind, to throw contumely, shame, or disgrace upon him, or which tends to hold him up to scorn, ridicule, or contempt, or which is calculated to render him infamous, odious, or ridiculous." …
Applying Virginia law, a court "must decide as a threshold matter of law whether a statement is reasonably capable of defamatory meaning before allowing the matter to be presented to a finder of fact." This "reasonable capability" test recognizes that defamatory meaning is often implied….
Plaintiffs argued that the video "can reasonably be understood to suggest that a person is unfit in his or her trade," which is generally seen as particularly likely to "so harm the reputation of another" as to be legally defamatory; but the Fourth Circuit said no:
There must be a "nexus between the content of the defamatory statement and the skills or character required to carry out the particular occupation of the plaintiff." Turning first to Hawes, appellants argue that because Hawes "is an attorney whose practice focuses on firearms and self-defense," the edited footage "is reasonably capable of being understood" as suggesting "that Hawes lacks the required competencies and abilities for his profession, including oral advocacy skills." But unlike the cases on which appellants rely, the questions posed to Hawes had nothing to do with his legal practice or expertise. Reading appellants' suggested meaning into the film would stretch the footage well "beyond its ordinary and common" meaning. Although we must construe inferences and innuendo in appellants' favor, we may not "introduce new matter, nor extend the meaning of the words used, or make that certain which is in fact uncertain." Accepting Hawes' defamation per se claim would require us to extend mere silence into professional ineptitude. Thus, his claim fails.
Similarly, the film is not reasonably capable of suggesting that Webb is unfit to own a gun store. Arguing otherwise, Webb contends that her "business requires her to be knowledgeable … about the right of individuals to purchase firearms," and that the edited footage suggests that "she lacks knowledge regarding integral aspects of her business." But of course, no part of Webb's job as a gun store owner requires her to have nuanced views on gun policy. Had the film suggested that Webb did not know, for instance, whether a gun store owner must perform a background check, this might be a different case. But as the district court explained, "[n]ot having an answer to a specific question about effective alternatives to background checks does not imply anything about fitness to own a gun store and to sell guns."
We also agree with the district court that the edited footage cannot reasonably be construed as implying, as appellants argue, that the VCDL is unfit as a "pro-Second Amendment advocacy organization." At most, the film suggests that a handful of VCDL members, none of whom are identified as leaders within the organization, could not immediately answer a difficult gun policy question.
Resisting this conclusion, the VCDL argues that the footage implies that it "failed to deliver on its mission, thereby casting aspersion on the VCDL's prestige and standing in the field of Second Amendment advocacy." Once again, this argument requires a court to extend the film's meaning well beyond what the clip shows. Even for an organization steeped in gun policy, the essential message that VCDL members failed to respond instantly to a complex question is simply not defamatory. For the same reasons, the film cannot reasonably be understood as defaming Webb and Hawes in their respective capacities as executive members of the VCDL….
The court then rejects plaintiffs' other arguments "that the film implied other actionable defamatory meanings":
To be sure, the film gives the impression that Couric's … question stumped the panelists. But at worst, the plain, ordinary meaning of this edit conveys that these particular members of the VCDL, after answering a series of related questions, did not have a ready-made answer to a nuanced policy question. Even with the benefit of every inference, the edited footage is not reasonably capable of suggesting that the VCDL and its members are, as they contend on appeal, "ignorant and incompetent on the subject to which they have dedicated their organizational mission."
In arguing to the contrary, appellants heavily rely on [an earlier precedent's] description of defamatory language as including that which is calculated to render a person "ridiculous." In doing so, appellants ask us to focus on this single word, at the expense of those surrounding it, eschewing ordinary interpretive principles. Reading the term "ridiculous" in context with the descriptive words preceding it—i.e., language that "tends to hold [one] up to scorn, ridicule, or contempt, or which is calculated to render [one] infamous, odious, or ridiculous"—clarifies what Virginia law makes abundantly clear elsewhere: simple insults are not "actionable" in Virginia….
The crux of appellants' defamation claims is that the edited interview "manufacture[d] a false exchange … that made [appellants] look ridiculous, incompetent, and ignorant about firearm ownership and sales, including the policies surrounding background checks." Although we agree that the filmmakers' editing choices were questionable, the edited footage simply does not rise to the level of defamation under Virginia law….
I think the court's conclusion is correct, as I noted in talking to Asche Schow (Washington Examiner) when the case was filed:
"This is of course a matter of degree, but I'm inclined to say that the deceptive editing here didn't qualify as sufficiently reputation-injuring: Falsely showing people as lacking a good answer to a political debate in which they are involved just isn't enough," Volokh wrote in an email. "Perhaps it might be if the person was being shown as totally incompetent in his chosen profession, e.g., a doctor not having a good answer to the question, 'I'm feeling sudden chest pain, and I have a history of heart disease; should I call 911?'"
He added: "But showing someone — again, even as a deliberate distortion — as being stumped by a political question doesn't really 'throw … shame or disgrace upon him' (though it might throw mild discomfort or unmerited mild disapproval)."
Note that the trial court had concluded that the editing didn't even convey a false implication, a decision that I criticized in this post; the Fourth Circuit declined to reach this question: "Because we conclude that the edited footage is not reasonably capable of defamatory meaning, we need not reach the district court's holdings on the falsity … element of Virginia's defamation test."
I think the case is basically over at this point; I very much doubt that the Fourth Circuit will want to rehear it en banc (i.e., with all the judges considering it, and not just a three-judge panel), or that the Supreme Court will want to review the panel's application of Virginia law to the facts of this case.