If a statement claimed to be defamatory is substantially true (even if partially inaccurate), Virginia courts will generally not allow offended parties to bring defamation actions based on the minor inaccuracies. If the damaging aspect of the statement–the part that tends to affect one’s reputation–is substantially true, small factual errors that may exist in the less-important details are deemed insufficient to support a defamation action under the so-called “substantial truth doctrine.” In the Katie Couric defamation case I wrote about back in September, an interesting question arose: is a non-responsive or evasive answer to a question substantially the same thing as sitting in complete silence in response to that question? Judge Gibney thought so, and recently dismissed the case based in part on that reasoning. I would be surprised if that ruling gets upheld on appeal, though it may not ultimately make a difference to the outcome of the case.
Let’s recap briefly what the case is about. Katie Couric produced a documentary on gun violence called Under the Gun. Under the Gun portrays firearms as a serious social problem and advocates in favor of gun control. Ostensibly in an effort to show both sides of the gun-control debate, she invited members of the Virginia Citizens Defense League, a gun-rights organization, to be interviewed on camera. There is a scene in the film where she asks the VCDL group the following pointed question: “If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?” It’s a question often asked by gun-control advocates, and a question most gun-rights advocates are comfortable answering. But in Couric’s film, the responses shown on camera amount to what appears to be bewildered and uncomfortable silence. When the camera cuts away, viewers are left with the impression that the VCDL members had never considered the question before and were unable to come up with a single answer to it.
Couric has admitted that she deceptively edited the exchange. In reality, the VCDL members responded to Couric’s question right away. The footage of the VCDL members twiddling their thumbs and looking silently around the room was taken at a different time, when Couric allegedly told them they needed to sit silently for ten seconds so that “recording equipment could be calibrated.” You can see the footage and hear the actual unedited audio here. If you listen closely to the actual answers given to Couric in the unedited audio, however, you will note that none of them actually addressed Couric’s concern directly. They said things like, “If you’re not in jail, you should still have your basic rights, and you should go buy a gun,” and “If you’re a felon, and you’ve done your time, you should have your rights.” In other words, none of the VCDL members actually answered the question of how felons could be prevented from buying a gun without a background check; rather, they tended to take issue with the premise of the question, arguing that felons should be permitted to own firearms if they’ve already served their debt to society.
Judge Gibney ruled that these non-responsive answers were essentially the same as having given no answer. In other words, he found that even if Couric mischaracterized the interview to give the false impression that the VCDL members sat in silence in response to a basic question about gun control, VCDL couldn’t sue for defamation because the misrepresentation was substantially true–yes, they spoke in response to the question, but offered nothing but “sophistry” that was really no more of an answer than complete silence. “The film is not false,” he wrote. “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.”
Personally, I think it’s an interesting decision, but ultimately incorrect. I see the logical appeal and how the substantial-truth doctrine could conceivably apply here: the film shows that the gun-rights advocates were unable to answer a question, and the truth of the matter is that those advocates did not directly answer that question, so the representation is arguably substantially true and therefore not actionable as defamation. But I think the point Judge Gibney is missing is that the advocates gave an immediate response to the question–a response that many gun-rights advocates would have found satisfactory in response to Couric’s question–but that the movie shows them appearing to be completely stumped. While the court found the responses to be sophistic (i.e., fallacious or using deceptive reasoning), that shouldn’t be determinative. VCDL’s argument is that the film defamed them in the eyes of their supporters. It seems to me that they have a decent argument here: there is a big difference between sitting in bewildered silence and speaking up right away explaining why even felons should not be deprived of basic rights. Whether or not the responses “answered” the question posed by Couric shouldn’t really factor in to the question of whether the film portrayed the VCDL in a false light. It did.
But will the Fourth Circuit reverse and send the case back to the district court to be tried? That I’m not so sure about, because Judge Gibney is on much stronger footing with a second aspect of his ruling: that of whether the false portrayal (assuming there was one) was sufficiently serious as to carry defamatory meaning under Virginia law. Judge Gibney found it was not, and it’s quite possible the Fourth Circuit will agree with him on this point. If it does, it will affirm the dismissal of the case, even if the film is found to have made a false statement about the VCDL and its members.
Not every untrue statement will support a defamation action. To be actionable in court, the statement must carry a sufficient degree of “sting”. How badly does the statement need to sting? It’s difficult to say with any precision, but the general test states that to be defamatory, the words must “tend 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.” Some older case law holds that the words must tend “to injure one’s reputation in the common estimation of mankind, to throw contumely, shame, or disgrace” upon the plaintiff, or tend “to hold him up to scorn, ridicule, or contempt, or which [are] calculated to render him infamous, odious, or ridiculous.” So to be actionable, VCDL will need to persuade the Fourth Circuit that the manner in which its members were portrayed in Couric’s film was not only false, but that it had a tendency to cause a certain segment of society to view VCDL and its members with scorn or contempt, and to want to disassociate themselves with VCDL.
“Not having an answer to a question on a difficult and complex issue is not defamatory,” the court ruled. “It does not lower these plaintiffs in the estimation of the community to the extent and with the sting required.” It’s very possible that the Fourth Circuit will agree. On the other hand, it might not. The key issue, it seems to me, lies in how we define “community.” In other words, in whose eyes should the law measure the extent to which VCDL’s reputation might have been affected by the false portrayal? In Judge Gibney’s eyes, the answers given to Couric’s question by the VCDL members were so inadequate and evasive as to amount to total silence. Many people are going to watch this film and not think any less of the VCDL because they didn’t think very much of VCDL in the first place. It’s not hard to imagine, though, that in the eyes of a respectable and sizable group of gun-rights supporters, the answers given were perfectly satisfactory. These are the people in whose eyes VCDL’s reputation might have suffered. They are the people who would have expected VCDL members to have an answer–any answer–to Couric’s question. By making it appear as if they had none, the film could very well be deemed defamatory if the Fourth Circuit defines “community” broadly enough to include this particular segment of society.