The documentary film, Under the Gun, narrated and executively produced by Katie Couric premiered at Sundance in 2016 and is still being talked about 2 years later. The film tackled the the issue of gun control so naturally, not everyone was happy with the movie. The seemingly most unhappy were The Virginia Citizens Defense League (VCDL), a gun rights group (along with two of its members) who sued the filmmakers for defamation claiming $13 million in damages.
Sit in Silence for Nine Seconds
The lawsuit stems from a twelve second clip out of three minute interview in which Couric asks members of the VCDL the following question: “If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?” Rather than playing the members’ responses to the question, in the final film version nine seconds of silence followed (note to readers: nine seconds may not seem like a long time but may we suggest right now you stop reading and sit in quiet for nine straight seconds? We think you may feel differently.) During those nine seconds of silence, the VCDL members shift uncomfortably in their seats and avert their eyes. VCDL argued that those nine seconds of silence made it seem as they were ignorant about firearm ownership and policies surrounding background checks.
VCDL contended that the film damaged the reputations of the group as well as some of its members. And, the truth is, the interview did not go the way it was portrayed in the film. In the unedited footage VCDL members respond to the question promptly and speak for six minutes. The silence footage was actually b-roll (a film term used to describe supplemental or alternative footage intercut with the main shot) footage which occurred prior to the interview during which Couric asked the members to sit quietly while sound guys worked on the recording equipment. Feels kinda bad, even if you don’t agree with VCDL’s position about gun control, right? Well, it seems as if it felt kinda bad to Couric too who issued a statement admitting that the edited version of the film did not “accurately represent [the VCDL members’] response” and the segment was “misleading”
Still, it’s a no, VCDL
Despite the not-so-kosher editing practices and Couric’s statement, the trial court dismissed the case saying that the film was neither false nor defamatory. Naturally, VCDL appealed.
VCDL did not fare any better on appeal. The appeals court agreed that the filmmakers’ editing choices were questionable but on December 13, 2018 decided that the edited footage did not rise to the level of defamation under applicable state law. Thus, the lower court decision stands.
On Friday, the Fourth Circuit Court of Appeals affirms a decision rejecting the lawsuit.
“To be sure, the film gives the impression that Couric’s final question stumped the panelists,” writes circuit judge Diana Gribbon Motz. “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.’”
The appeals court also dispenses with the claim that the film was defamatory per se to Daniel Hawes, an attorney and member of the VCDL.
He argued that the edited footage was reasonably capable of being understood as suggesting a lack of competency in his profession, including oral advocacy skills.
Motz responds that “the questions posed to Hawes had nothing to do with his legal practice or expertise” and to find otherwise would “extend mere silence into professional ineptitude.”
The appeals court also doesn’t think much of the claim from Patricia Webb that the film suggested she was unfit to own a gun store.
Motz writes that “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.'”
Finally, the Fourth Circuit rejects the contention there is any defamatory implication that VCDL is unfit as a pro-Second Amendment advocacy organization.
The opinion (read here) states, “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.”