By Nick Ellis
Under the Gun, a gun violence documentary created by Katie Couric and others d/b/a Epix Entertainment, LLC, not only gave viewers a look at gun violence in America, it also spawned a lawsuit providing both the media and interview subjects nuts and bolts information on defamation in the legal system. The United States 4th Circuit Court of Appeals on December 13, 2018 affirmed the dismissal of a defamation claim against Couric and her colleagues at Epix after analyzing interview and film editing tactics to determine whether the subjects of the interview had been defamed.
In 2016, Couric and filmmaker Stephanie Soechtig released a documentary titled Under the Gun. The film addressed gun violence in America and more particularly, issues relating to regulatory steps that could be taken to effect gun control. The film’s perspective favored regulation of gun ownership.
One of the issues the film addressed was the application of universal background checks to gun ownership. In efforts to present both sides of this issue, the filmmakers contacted the Virginia Citizens Defense League (“VCDL”), a non-profit gun-rights organization, and interviewed several of its members. VCDL was founded in 1994 and according to its website, is a “grass roots organization dedicated to advancing the fundamental human right of all Virginians to keep and bear arms as guaranteed by the Second Amendment to the United States Constitution…” VCDL often tracks similar political position as the NRA. Couric interviewed nine members of VCDL including Daniel Hawes, an attorney and Patricia Webb a gun-store owner.
The film includes a portion of Couric’s interview with the VCDL members and the segment lasts approximately three minutes. Couric asks the members several questions regarding gun policies and there are no legally problematic issues created by the main portion of the interview. However, Couric and her team included a 12-second clip at the close of the 3-minute VCDL interview that was edited in such a way as to inaccurately project the members’ responses.
The final question Couric posed was “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 follows the question, which show the VCDL members sitting in silence and shifting uncomfortably in their seats, while averting their eyes from the camera. Couric is then heard stating “The background check is considered the first line of defense, and 90% of Americans agree it’s a good thing.” There is no other reference to the VCDL or its members in the 105-minute film.
The problem with this 12-second clip is that it did not transpire as depicted. In actuality, when Couric asked the question about background checks for gun ownership, the VCDL members responded for approximately six minutes. Hawes, the attorney, suggested the government cannot, through a prior restraint that violates the United States Constitution, try to prevent crime. Webb, the gun-store owner, responded that background checks were unlikely to prevent motivated criminals from obtaining guns or committing crimes. These two responses took up approximately three minutes and then there was an additional three minutes of related discussion between Couric and the panel. But, Couric’s team did not show any of these responses. Instead, they spliced in footage taken prior to the interview in which she asked the interviewees to sit silently while technicians calibrated the recording equipment.
After the film was released, the VCDL released an unedited audio of the interview, which caused public backlash. Couric then issued a statement taking responsibility for the misrepresented exchange. She acknowledged the insertion of the extended pause made the participants appear to be speechless. Her statement further acknowledged the VCDL members had a right to have their answers be shared, so she posted their responses in full on the film’s website. Couric acknowledged the eight seconds did not accurately represent the members’ response and that this was misleading. To a lay person, this may appear to be exactly what defamation looks like. Legally, it has turned out to be another story.
The 4th Circuit Court of Appeals stated a defamation claim under Virginia law (the site of the interview) required a plaintiff to prove the defendant (1) published, (2) an actionable statement, (3) with a requisite intent. The court found Couric and Epix had published the film with the requisite intent, but that it had to grapple with whether this was an “actionable” statement. Under Virginia law, to be actionable, the statement must be “both false and defamatory.” There does not appear to be any question that the “clip of silence” was false, but was it “defamatory”. This turned out to be the court’s focus.
The court stated that defamatory words are those, which tend to harm the reputation of another such that the estimation of him by the community or others is lowered and that they are deterred “from associating or dealing with him.”  Virginia law requires a court to initially decide whether a statement is reasonably capable of defamatory meaning before allowing the case to be presented to a jury. Further, Virginia law requires that inferences from the pleadings must be resolved in the plaintiff’s favor when deciding if the communication is reasonably capable defaming the plaintiffs by innuendo. 
The VCDL, Hawes and Webb contended the film was defamatory per se (meaning they did not have to show other evidence that the silent clip damaged their reputation). The precise argument Plaintiffs made was the film was defamatory per se because it was reasonably understood to suggest they were unfit as a gun-rights group, an attorney and as a gun-shop owner. To establish defamation per se legally, there must be some connection between the content of the statement and the skills or character required by the plaintiff to carry out his or her particular occupation.
The court first applied this legal principle to Hawes, the attorney. His practice focused on firearms and self-defense and he argued the film suggested he lacked the required competency and ability to represent clients in such cases. However, the court concluded the background check question had nothing to do with Hawes’ legal practice or expertise. The three-judge panel concluded accepting eight-seconds of silence constituted defamation per se would require it to hold that such silence unequivocally suggested “professional ineptitude.” The court was not willing to go that far.
Likewise, the court denied gun-shop owner Webb’s claim because it did not find that the inserted clip suggested she lacked sufficient knowledge regarding integral aspects of purchasing firearms or operating such a business. The judges concluded Webb’s ownership of a gun store did not require her to have “nuanced views on gun policy.”  The VCDL was also found not to be defamed because, while the interview was of its members, they were not identified as leaders of the VCDL and therefore, inserting the silent clip could not be construed to question the overall ability of the VCDL to serve its stated purpose. The court does make a contradictory statement by claiming that the silence in response to Couric’s question did not suggest the VCDL or its members did not have responses to the question because the film did show other questions concerning background checks. Then, the court goes on to say that “To be sure, the film gives the impression that Couric’s final question stumped the panelists.” So, its seems that on one hand, the court acknowledges the editing suggested the plaintiffs had no answer to Couric’s question but also tries to say that this was “no harm, no foul” because other responses to similar questions had been presented.
Procedurally, the courts may not have seen the last of this case as it is almost certain the plaintiffs will seek to have the Supreme Court of the United States review this decision.
So, what are the takeaways for the media? What are the takeaways for persons being interviewed by the media? It seems to me, that one of the distinguishing features of this case is that one of the VCDL members interviewed was an attorney and the other a gun-store owner. The attorney represented individuals involved in gun-rights cases and also defendants facing criminal charges who were asserting self-defense to those charges. Webb owned a business that sold firearms and surely has some duty to lawfully sell those firearms. While the court ultimately concluded the edit did not challenge their competency to serve as an attorney or own a gun shop, one would have to admit it is a close call and Couric and her team could have faced a jury who would have decided if inserting the clip in lieu of their actual answers was defamatory. In my opinion, the questionable manner in which the clip was inserted would have likely been a factor a jury would consider in determining if the plaintiffs were defamed. Members of the media, therefore, should know the occupation of their subjects and other relevant information pertaining to how members of the community may identify them. The closer the interview topic is to the person’s profession, the less latitude you likely have in editing the answer to a question.
If you are the subject of an interview, I think it would be wise to insist that any response you give to a question be shown without any editing and, if possible, in its entirety. This means that interview subjects should try to speak in sound bites rather than give protracted responses which the local news or a filmmaker may simply not have ample time to fully present. If you think you are potentially being “set up” by the interviewer, it may even be a good idea to inject in your response to a question about what your occupation is or what specific knowledge you may have about the subject. Leave no doubt that you are qualified to talk about the subject. This would possibly allow you to clearly create a nexus between your profession/occupation and the Q : A in case there are edits made that alter the accuracy of the response.
While fictional filmmakers certainly have artistic license, it may not be too much expect documentary filmmakers or the news media to waive that license and accurately, without intentional alterations being made, present responses from an interview subject. It may be naïve to suggest this, but the public wants information presented in a fair and accurate manner where it can draw its own conclusions about that information.