The documentary film, “Under the Gun,” which is about gun control, resulted in a $12 million defamation suit in federal court. The suit was brought by Virginia Citizens Defense League, a gun rights advocacy organization, and two of its members, one of whom was a licensed firearms dealer and gun store owner and the other an attorney who practices litigation related to firearms and personal defense.  The defendants in the action were the director, producer and distributor of the film as well as Katie Couric, who narrated the film, interviewed the VCDL members, and served as executive producer.

When the film was shot, Couric interviewed nine VCDL members in a group including the gun dealer and the lawyer. Before the interview began, the group was asked to sit in silence for ten seconds while the recording equipment was calibrated.  During the interview, Couric asked the group, “If there are no background checks for gun purchasers, how do you prevent felons or terrorists from walking into say a licensed gun dealer and purchasing a gun?”  VCDL members, including the dealer and the lawyer, responded to the question without answering it; instead, they spoke of their opposition to gun control, with the dealer objecting to background checks and the lawyer discussing existing laws related to firearms.

The film shows Couric asking the group the question but then presents eight seconds of silence instead of unresponsive answers, while some group members are shown with blank looks. This footage apparently was shot when the group was asked to sit in silence.  Next, the film shows the chamber of a revolver closing and goes on to discuss background checks.

The gun dealer and the lawyer asserted that this “manipulated” sequence defamed them four ways:  by implying that they had no basis for their opposition to background checks, they were uninformed notwithstanding their expertise in the areas of gun regulations and rights, they were stumped by Couric’s question; and they were ignorant or unfit “in their trades.”

The court rejected the first two implications and found no ill-reflection on the gun dealer’s fitness to own a gun store and to sell guns or the lawyer’s competence as an attorney.  The court agreed that the film implied that the dealer and the lawyer were stumped by the question, but since they didn’t actually answer the question when given the chance, the film’s artistic license — substituting silence for non-answers — “showed the same thing.”  And in the court’s view, “not having an answer to a question on a difficult and complex issue is not defamatory.”  The case was dismissed this May (here is the opinion) but the plaintiffs are appealing.

When viewers hear a question posed during an interview in a documentary film and — without explanation to the contrary– next see the interviewee staring into space, they may naturally conclude not only that no answer was offered but that the interviewees had an odd way of dealing with difficult questions.  Whether or not this is defamatory, it certainly isn’t complimentary, and in this case, it didn’t leave an accurate impression.

The judge in the case didn’t think that effect amounted to defamation, although reasonable minds might differ.  The court did not consider, however, whether the edit presented the plaintiffs in a false light, which is an alternative basis for a claim in many states.

It’s best to stay clear of this sort of artistic license. Katie Couric wouldn’t disagree, having remarked: “I regret that those eight seconds were misleading and that I did not raise my initial concerns more vigorously.” 

What is defamation?  What is false light?  More to come in upcoming posts.