Fourth Circuit Rejects Libel Claims over Misleading Edits in Katie Couric's "Under the Gun"

The "questionable" "editing choices," the court said, weren't sufficiently injurious to reputation to qualify as libelous (whether or not they conveyed a false message).


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.

NEXT: Have Republicans Been Engaging in "Asymmetric Constitutional Hardball"?

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  1. To be expected since NBC won after their deliberate editing of the George Zimmerman telephone call to make him sound racist. And that was followed by the NYT’s winning for making false claims about Palin, that they themselves had published articles explaining how the claims were false.

    At this point, I’m not sure what DOES count as defamation.

    1. More lying “journalists” get to skate.

      But it is all Trump’s fault for attacking the media and lowering their prestige in the public eye.


      Americans’ Trust in Mass Media Sinks to New Low…..w-low.aspx

  2. If anyone lost “reputation” it was Katie Couric.

    1. Can’t lose what you never had. The only difference between Katie Couric and a streetwalker is the pay scale.

      1. Hey now. There’s no need to defame streetwalkers by comparing them to Katie Couric.

  3. But there’s no such thing as “fake news”, as we’ve been told repeatedly by the liberal media.

  4. I’m assuming, of course that the 4th Circuit interpreted Virginia law correctly.

    That being so, Virginia law certainly makes some really fine distinctions. You can’t even go to a jury if a news organization deceptively edits an interview to make you look either stupid, or so self-evidently wrong that you’re stumped by a simple question?

    You can’t claim defamation for a deceptively edited segment claiming to show you didn’t answer a question which in fact you did answer?

    Virginia law sure is demanding of defamation plaintiffs.

    1. It’s not just Virginia — it’s the general American law of libel. Libel isn’t aimed at imposing liability for all falsehoods (even all knowing falsehoods) about people, or even all knowing falsehoods that make people look bad. It requires that the falsehoods make people look so bad that it materially affects their reputations. Accusing people of crimes would generally qualify; so would accusing them of incompetence in their profession; but there is a threshold level of likely injuriousness to reputation that needs to be passed, and the court held that here it wasn’t enough.

      1. OK, I’m taking your and the court’s word for it. You can’t sue for every falsehood, certainly.

        1. But I’m imagining an article like this:

          “Journalist renders gun nuts SPEECHLESS! Gun ‘rights’ activists literally at a loss for words when asked how to keep guns out of the wrong hands!

          “Leaders of a gun ‘rights’ organization volunteered for an interview with courageous journalist Katie Couric, who asked them how to keep felons and terrorists from buying guns. These activists were STRUCK DUMB as they struggled with the question!”

      2. How much harm is required?

        If a gun rights organization lost donors for a video like this, would that count?
        What if they simply had fewer donations after a video like this?
        As Eddy points out below, if the video is used as anti-gun rights propaganda, is that enough harm?

      3. I don’t see how Couric’s actions are not “…so bad that it materially affects their reputations”. The whole reason the organization exists is to influence the debate around gun laws. The film falsely shows them as being at best uninterested and in at worst ignorant about an important gun legislation issue.

        It’s hard to believe that such ignorance or disinterest would not adversely affect the likelihood of an interested party making a donation.

        If this organization depends on donations for their operating funds, what could possibly be more materially injurious?

  5. Men are women, women are men, words are violence, suppressing only conservatives is impartial, and false representations are not malicious. Got it.

    1. “Malicious” as a term of art under the law is not the same as the common-language meaning, which rounds to “deliberately mean”.

  6. More proof (not that it was needed) that gun control proponents are liars or idiots. Or both.

  7. Yup cheesy and unprofessional on NBC’s part.

    And yup, not libel.

    Anyway…why was this worked through federal courts but applying Virginia law?

    1. To elaborate on the previous response, the case is in Federal court under diversity jurisdiction (plaintiffs completely in one state, defendants in another and the amount in controversy over $75k). However, the underlying state law still applies.

      That is one reason why federal district court judges are generally appointed from their own state. There is no Constitutional reason why a lawyer from Arizona could not be appointed as a judge in the Northern District of West Virginia, but the fact that some knowledge of the relevant state law is necessary makes this (almost) unheard of. In other words, federal district courts spend a lot of time dealing with state law.

      That is also one reason why appointments to the Court of Appeals generally come from lawyers in the state of the circuit. Some knowledge of state law is, if not necessary, beneficial.

    2. The “documentary” was for Yahoo News, not NBC.

  8. Stupidity is not a crime; it is not even a tort.

    We have the First Amendment, and we as a country have made the policy choice to restrict defamation to the most egregious cases. I support that, and I believe it is not even a “close call” that this was not defamation.

    However, as a purely academic question, would this have qualified as defamation under English (UK) law? Would it have resulted in sanctions from the Press Complaints Commission?

    Yes, these are purely irrelevant, hypothetical questions, but I do think they help frame the debate.

  9. Who is Katy Curic and what is this film she worked on?

    Just ignore these propagandists and they wither and cry.

  10. If anyone comes out of this looking worse than Couric, it’s the trial court judge :

    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.

    And let the record show that this judge was John A Gibney Jnr.

    He managed to say this despite the fact, as the Appeal Court noted, that defendants themselves conceded that the scene was inaccurate and misleading :

    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.”

    1. And just for the record we should note that the interview scene is not merely “misleading” it’s actually, straightforwardly and literally “false.” The blank looks of the VCDL members were not their responses to Couric’s question, they were test footage from when the crew was setting up.

      I am inclined to disagree with EV and the Appeal Court that the fake editing did not amount to holding up the VCDL members to scorn or ridicule. That was the point of doing it. Though as a policy matter I should be quite happy for this sort of deceit to be policed by public opinion rather than the courts.

      The public policy question though is ? what the hell is John A Gibney Jnr doing sitting as a federal judge ?

      1. Just another member of our non-partisan and impartial judiciary at work, who according to Wikipedia, was nominated by Obama and approved by the lame duck Senate in 2010.

      2. The public policy question though is ? what the hell is John A Gibney Jnr doing sitting as a federal judge?

        Well, if we’re lucky, he’ll do some yard work this winter, and stumble into a running woodchipper.

    2. I have to agree with you; The plaintiffs, objectively, did answer the question. The judge might not have liked the answers, might have thought them unresponsive, but they did supply answers, not embarrassed silence.

      You can’t “dramatize sophistry” by replacing actual responses with silence. The only sophistry here is the judge’s.

  11. Without lies, distortions and historical revisionism, gun control advocates have no arguments. Forcing them to rely on facts, the truth and history would leave them unable to articulate any support for their nonsensical, ideological beliefs.

    Would not this deny them their First Amendment right to make mouth noises? Or to represent those noises as symbols and thus invoke their freedom of the press?

    Do they not indeed have the right to be lying sacks of putrid shit? I say they do.

  12. Depending on Federal Judges to Protect Your Gun Rights Is a Bad Plan.
    This is a really bad strategy.
    At its core, the Second Amendment exists as a limit on federal authority. When you sue in federal court, you do so in the hope that the federal government will limit itself.
    Remember, federal courts operate as part of the federal government, and federal judges are nothing more than politically connected lawyers drawing federal paychecks. When we keep these facts in mind, it becomes pretty obvious we shouldn’t count on federal courts to limit federal power, and uphold or preserve the Second Amendment.
    James Madison gave us the blueprint. When the federal government commits unwarrantable acts, the Father of the Constitution didn’t say “file a lawsuit in federal court.” Madison advised a refusal to cooperate with officers of the union. Don’t depend on politically connected lawyers to protect your right to keep and bear arms.
    Tenth Amendment Center

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