RICHMOND, Va. (CN) – In a Fourth Circuit hearing that evoked multiple eye-rolls from one of the judges, a gun group appeared unlikely Tuesday to breathe life back into a defamation suit against journalist Katie Couric.
The Virginia Citizens Defense League filed the suit here in 2016, a few months after “Under the Gun,” a Couric-produced documentary, premiered at the Sundance Film Festival.
In the film, roughly nine seconds of silence elapse after Couric asks members of the Richmond, Virginia-based group what the elimination of background checks for gun purchasers would mean for felons or terrorists who want to buy guns.
When pressed about conflicting footage that shows some members of the group did offer answers, Couric later issued a public apology for editing that she described as misleading.
A federal judge dismissed the gun group’s case last year, ruling that no defamation occurred, but Clare Locke attorney Joseph Oliveri said this morning at the Fourth Circuit that the scene was crafted deliberately to make his clients in the gun group look “ridiculous” and “ignorant.”
The three-judge appellate panel seemed skeptical today, however, that dramatic editing can rise to the threshold of a civil defamation claim.
“It was wrong for the purpose of right and wrong, and apologies have followed,” said U.S. Circuit Judge James Wynn, an Obama appointee. “But is that going to make someone look ignorant? It has to do more than that.”
Chief U.S. Circuit Judge Roger Gregory, a Clinton appointee, noted meanwhile that a claim for defamation requires some kind of altered text or statement to carry weight.
“What’s left on the cutting-room floor is not public,” he said. “What was the statement or altered words?”
“We have a material alteration,” Oliveri responded. “The statement was ‘I don’t know’ and they dramatized it and showed it as a lack of a statement.”
With U.S. Circuit Judge Diana Motz, another Clinton appointee, Oliveri made little headway in arguing that a documentary crafted to make his clients look ignorant is harmful since they hold themselves out as experts on the Second Amendment.
“I hear what you’re saying,” said Motz. “But Virginia courts [say] … rhetorical hyperbole doesn’t count. You may not like it, but you really need something.”
Nathan Siegel, an attorney for Couric with the firm David Wright Tremaine, meanwhile urged the circuit to affirm.
Pointing to the film’s incorporation of answers that the gun group offered to seven other questions, Siegel said they had clear opportunity to express their viewpoints without editorial bias.
Siegel also pushed back against the allegations of reputational harm, noting that the members in question are advocates with real jobs; their expertise is in their jobs and not gun or terrorism law.
“An advocacy organization cannot be defamed simply because they get stumped in an interview,” he said.
Judge Gregory also made the point during Siegel’s argument that the unaired answers to Couric’s question were so flawed and terrible, that airing them could hardly have helped the gun group’s reputation.
As shown in a transcript of the interview included in court documents, several member of the Virginia gun group responded to Couric’s background-check question with questions of their own.
“How can we prevent future crime by identifying bad guys before they do anything bad,” asked Daniel L. Hawes.
Patricia Webb asked: “What crime or what law has ever stopped a crime? Tell me one law that has ever stopped a crime from happening.”
Siegel, the attorney for Couric, noted that while not “literally inaccurate,” the answers that were offered are “factually false.”
“The response was so terrible silence was better?” Motz asked, leading the courtroom to erupt in laughter.
“That’s our stance, yes,” Siegel replied.
Motz rolled her eyes during Oliveri’s rebuttal when the lawyer expressed concern about what would happened if the courts did not crack down on edits like the one Couric authorized.
“They’re asking for a licenses to cut people’s answers,” he said.
Pressing the lawyer on this point, Motz asked how Oliveri’s clients would feel if Couric had said at the end of the program, “We got an answer to one of our questions that was so bad we decided not to air it,” or “We got an answer to one of our questions, but we decided not to air it.”
Oliveri said it would not be an issue.
The judges did not indicate when they will rule on the appeal.