MANHATTAN (CN) – A “Today Show” broadcast that called an Oregon company’s gun targets bombs and said they might be used by terrorists was not defamatory because it was mostly true, the Second Circuit ruled Tuesday.
The targets, which are packaged separately as ammonium nitrate and pyrotechnic-grade aluminum powder, detonate when mixed together and shot with a high-velocity bullet.
Tannerite Sports sued NBCUniversal over a 2015 broadcast in which the targets were repeatedly referred to as being similar to bombs.
During a March 2015 broadcast on the “Today Show,” reporter Jeff Rossen said that Tannerite Sports’ exploding rifle targets were essentially bombs and that “the key ingredient here that causes the explosion has been used by terrorists to kill Americans,” according to court records.
While discussing the targets and Tannerite, Rossen mentioned that ammonium nitrate had been used by terrorists in Afghanistan and in the Oklahoma City bombing.
The broadcast, which included provocative images of exploding building and cars bursting into flames, repeatedly mentioned the accessibility of Tannerite targets at most sporting-goods stores.
Rossen said he was able to buy a “cartload” of targets with “no questions asked,” and noted that the FBI had warned of misuse of ammonium nitrate in explosive devices.
Tannerite, Rossen said in the broadcast, was able to get around the law “on a technicality” by separating the ammonium nitrate and aluminum powder and having customers mix the chemicals themselves.
An accompanying article on NBC.com spoke of injuries caused by the product and mentioned Tannerite’s response: that only “girly men” want to regulate the product.
The company’s product guide suggests using the targets “away from populated areas” and that improper use could lead to “erratic performance.”
Tannerite sued NBC and one of its affiliates, alleging the broadcast and article defamed the company because the targets “are not bombs” and are safe while in their separate packaging.
The Oregon-based company has also released videos claiming that its targets do not start fires and has repeatedly defended its products as safe.
In 2015, a federal judge in Manhattan dismissed the lawsuit against NBC, finding that the statements in its reports were correct because Rossen cited a danger only after the mixture of the two chemicals.
The district court rightfully dismissed the complaint because the NBC story was “substantially true,” U.S. Circuit Judge Rosemary Pooler wrote in the Second Circuit’s 39-page opinion released Tuesday.
Pooler noted that the NBC broadcast quoted experts talking about how the targets were “like a bomb for sale” and the reporter saying he was “basically holding a bomb.”
Pooler found that Tannerite’s argument that potatoes in a microwave or champagne bottle could also be construed as bombs failed to grasp the distinction between an object that happens to explode and one designed to explode.
“As the district court recognized, the primary purpose of a Tannerite exploding rifle target is to explode,” Pooler wrote for a three-judge panel. “The target’s singularity of explosive purpose … marks it as a kind of bomb.”
Further, the Second Circuit panel ruled that the “Today Show” report did not suggest that the targets were dangerous until consumers opened the packaging, mixed the chemical ingredients together, and then shot it with a firearm.
Tannerite also made “scattered, cryptic references” when claiming the NBC report linked it to overseas terrorists who favored the explosive chemicals, Pooler wrote.
“Tannerite’s complaint failed to identify NBC’s statements regarding terrorism or explain why those statements were false,” the judge said.
Tannerite products, which were designed as a way for gun owners to easily determine if they hit their target, have been involved in a number of accidents over the years, mostly due to misuse of the product.
Attorney Robert Jackel in Philadelphia, who represents Tannerite, did not immediately respond Tuesday to an email request for comment.