No Defamation in Film Commissioned by Union

     (CN) – The 10th Circuit refused to revive defamation claims against a documentary filmmaker who implicated a construction contractor in a scandal involving foreign workers.
     Richard Bensinger created “Looking the Other Way: Benefitting from Misery,” after the United Brotherhood of Carpenters asked him to make a documentary about Spacecon Specialty Contractors.
     At that time, the union and Spacecon were knee-deep in a dispute over nonpayment of union standard wages and benefits.
     “Looking the Other Way” shows the plight of 100 Mexican construction workers who were reportedly promised work in Colorado but were then left jobless and stranded in Glenwood Springs. The documentary pins some of the blame for the mistreatment of the foreign construction workers on Spacecon.
     After Bensinger screened the film in Denver, Spacecon filed a 2009 defamation complaint against Bensinger.
     U.S. District Judge Robert Blackburn granted Bensinger summary judgment, and a divided three-judge panel of the 10th Circuit affirmed Monday.
     While there was evidence of bias against Spacecon, there was no showing of “actual malice” under Colorado defamation laws, according to the ruling.
     To meet the actual malice standard, Spacecon would have needed to show that Bensinger made his film “with knowledge of its falsity or in reckless disregard of the truth,” the majority found.
     By his own testimony, Bensinger had encouraged his on-camera subjects to tell the truth, according to the ruling. He also asked Spacecon to respond to the claims, though he had no obligation to do so. Spacecon principals nevertheless refused to appear in the film, according to the ruling.
     To support its claims of actual malice, the company argued that Bensinger included several fabrications, such as the claim that Spacecon was involved in the stranding of the Mexican laborers in Glenwood Springs. It also said that the film accused it of using “unscrupulous” labor brokers to undercut its competitors.
     The appellate panel remained unconvinced.
     Although Spacecon was not the focus of media coverage of the Glenwood Springs incident, the court found that Bensinger interviewed a union representative who claimed that labor broker Leno & Co. had promised the stranded Mexicans work on a Spacecon project in Aspen.
     Bensinger’s evidence also shows that he used multiple sources to verify the union representative’s claims and that he interviewed two of the stranded workers.
     The filmmaker also properly presented it is an allegation when People in the film, including Leno, said that Spacecon used labor brokers to underbid other contractors, according to the ruling.
     “Spacecon has not come forward with clear and convincing evidence Bensinger published the film knowing its messages were false or with reckless disregard as to their truth,” Judge Michael Murphy wrote for the panel, joined by Judge Jerome Holmes.
     In dissent, Judge Harris Hartz wrote that Bensinger acted with actual malice because the film suggested that Spacecon was partly responsible for the Glenwood Springs incident.

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