Defamation Under the Gun
Katie Couric, Stephanie Soechtig, Atlas Film LLC and Epix have been named defendants in a $12 million defamation lawsuit filed by pro-gun activist group, Virginia Citizens Defense League (VCDL) and two of its members: firearms dealer Patricia Webb and Daniel Hawes, a firearms and personal defense litigator.[1]
Couric is the narrator an executive producer of Under the Gun, a documentary examining the gun violence crisis in the United States; according to the complaint[2] the interviews of VCDL members were manipulated during the edited process so as to portray them falsely.
The contested scene is eight seconds long. Couric poses the question, to the members of the group, “If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?”
The camera cuts to a pair of speechless activists, appearing to be silent and unable to answer the question for the next eight seconds. The complaint alleges that the editing of the scene amounts to defamation because while the film portrays them as speechless, they in fact provided an immediate, substantive six minute response to the question.
The complaint alleges the audio tape proves this. The complaint also alleges that Couric and the cameramen intentionally told the interviewees that they needed to remain silent for ten seconds while the recording equipment was being prepared, but in fact another camera was rolling.[3]
Couric issued a statement in May, apologizing:
“VCDL members have a right for their answers to be shared and so we have posted a transcript of their responses here. I regret that those eight seconds were misleading and that I did not raise my initial concerns more vigorously.”[4]
The plaintiff’s complaint alleges that “by misleading the viewer into believing that the pro Second amendment activists were stumped and lacked the knowledge to support their stance on this key issue of public policy, the defendants are liable for defamation.”[5]
Can the VCDL win a defamation case due to silence?
Larry Iser, a litigator at Kinsella Weitzman Iser Kump & Alisdert, estimates that VCDL and its two co-plaintiffs will have difficulty winning their case. Under the Gun, as a film is protected by the Firs Amendment.[6]
Thus, the director is entitled to her point of view and to tailor a narrative to fit a particular agenda or political bias. However, the First Amendment does not protect fraud. The nature of documentary films is that the story is shaped in the editing process: the director has the power to construct the narrative by re-arranging the order of answers in an interview, and whether to use or not use certain responses. A key factor to this case will be whether the plaintiffs signed releases prior to the filming which acknowledged that Schoetig had the contractual right to portray them as such.
The plaintiffs, as limited purpose public figures discussing a newsworthy topic, means that they must prove that the defendants acted with “actual malice”[7]: knowledge that the material was false or with reckless disregard for the truth. Is this malice, or is artistic expression?”
Footnotes
