The U.S. Court of Appeals for the Fourth Circuit ruled last week that deceptive editing in Katie Couric’s gun violence documentary did not rise to the level of a defamatory statement to support a defamation action.
The suit centers on a twelve-second clip in the documentary, Under the Gun. The film concerns gun policy in America and takes a perspective favoring regulation. In a three-minute segment of the film, Couric interviews members of the Virginia Citizens Defense League (“VCDL”), a non-profit gun-rights organization. Couric poses a series of questions on gun policy, which prompt detailed responses from the VCDL members. At the close of the segment, Couric asks: “If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?” In the documentary, her question is followed by nine seconds of silence, during which the VCDL members are shown shifting uncomfortably in their seats and averting their eyes and appears to imply that they had no answer for that question.
In the unedited version, however, Couric’s background check question prompted approximately six minutes worth of responses from the VCDL members, and another three minutes of related discussion between Couric and the panel. Rather than use these responses in the documentary, however, the filmmakers spliced in b-roll footage (taken before the interview even began) which depicted the interviewees sitting in silence while technicians calibrated the recording equipment.
Following the release of the film, VCDL produced the unedited audio of the interview. In the public backlash that followed, Couric issued a statement admitting that the documentary did “not accurately represent [the VCDL members’] response” and that the segment was “misleading.”
Members of the VCDL filed a defamation suit in the Virginia district court against Couric and others associated with the production and distribution of the documentary.
To state a claim for defamation under Virginia law, the VCDL interviewees needed to plead three elements: “(1) publication of (2) an actionable statement with (3) the requisite intent.” The case turned on the second element: whether the statement – in this case, footage edited to convey silence and thus imply that the interviewees had no answer for a particular question – is actionable. To be “actionable,” a statement must be “both false and defamatory.”
In the alternative, Plaintiffs argued that the interview portion of the film was defamatory per se to Daniel Hawes (an attorney and member of the VCDL), Patricia Webb (the owner of a gun store), and the VCDL itself as a pro-Second Amendment advocacy organization because the film could “reasonably be understood to suggest that [Plaintiffs were] unfit in [their] trade.”
The district court held (and the Appellate Court affirmed) that Plaintiffs’ arguments failed on both accounts.
First, although the Court acknowledged that statements can often be found to have a defamatory meaning even through implication alone, it found that, in context, the edited footage was “not reasonably capable of defamatory meaning.” The Court pointed out that the disputed segment comes on the heels of several other questions concerning background checks, and the panelists’ answers to all of those questions are included in the film. Thus, although the Court allowed that the film gives the impression that Couric’s final question stumped the panelists, the “plain, ordinary meaning” of the edited segment conveys only “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.”
The Court made clear that it did not decide whether silence under Virginia law can ever satisfy the statement requirement of a defamation cause of action – merely that it failed to do so here.
Second, the Court rejected the VCDL’s argument that the misleading film clip constituted defamation per se. As to Hawes, the Court concluded that the questions posed to him about background checks had nothing to do with his legal practice or expertise. Similarly, the Court found that the film is “not reasonably capable of suggesting that Webb is unfit to own a gun store” because the job does not require a nuanced view 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,” the Court observed, 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.”
Finally, as to the VCDL itself, its argument that the footage implies that it is unfit as a pro-Second Amendment advocacy organization would “require the Court to extend the film’s meaning well beyond what the clip shows.”
Though the Court agreed that the filmmakers’ editing choices were “questionable,” it found that the edited footage itself “simply does not rise to the level of defamation under Virginia law.”
The case may be good news for producers of narrative media, but worrisome in an era where truthful reporting – including the honest characterization of one’s subject – is more important than ever. The case is also a good starting point for any journalism professor tasked with teaching the law and ethics of journalism: the court certainly supplied the “could you legally do it?” answer, but the “should you do it?” discussion is a worthy one indeed for all future journalists.
The case is Va. Citizens Def. League v. Couric, 4th Cir., No. 17-1783, 12/13/18.