Back in May 2016 we began following the saga of the Katie Couric anti-gun documentary “Under the Gun,” and the hot water it landed the TV personality and journalist in due to some…creative editing.
Now, a judge has handed down a decision in a lawsuit over the matter, and his somewhat odd decision is in favor of Couric.
Here’s the gist of the conflict: while filming for the the documentary, Couric interviewed members of the Virginia Citizens Defense League (VCDL) for several hours. The content was cut down to about four minutes that were included in the final film. VCDL members contend that, in those four minutes, an important question and response from the group was altered through editing.
Couric asks the question: “If there are no background checks, how do you prevent — I know how you all are going to answer this, but I’m going to ask it anyway. If there are no background checks for gun purchasers, how do you prevent felons or terrorists from walking into, say, a licensed gun dealer and purchasing a gun?”
In the film, the camera then shows the group members sitting totally silent for eight seconds. The camera then zooms in on one members, who looks down. The film then cuts to a new segment.
The VCDL later released an audio recording of the same interview, and it shows that its members weren’t silent at all.
On the audio, an answer comes immediately from a VCDL member: “Well, one—if you’re not in jail, you should still have your basic rights.”
According to this story from the Washington Post, another member then gives a lengthy response:
“The fact is we do have statutes, both at the federal and state level that prohibit classes of people from being in possession of firearms. If you’re under 18, in Virginia, you can’t walk around with a gun. If you’re an illegal immigrant, if you’re a convicted felon, if you’ve been adjudicated insane, these things are already illegal. So, what we’re really asking about is a question of prior restraint. How can we prevent future crime by identifying bad guys before they do anything bad? And, the simple answer is you can’t. And, particularly, under the legal system we have in the United States, there are a lot of Supreme Court opinions that say, “No, prior restraint is something that the government does not have the authority to do.’ Until there is an overt act that allows us to say, ‘That’s a bad guy,’ then you can’t punish him.”
Another member says, “I would take another outlook on this. First, I’ll ask you what crime or what law has ever stopped a crime? Tell me one law that has ever stopped a crime from happening.”
This is all important, because of what Judge John A Gibney Jr. of the Easter District of Virginia said in his decision.
Following the release of the film, the folks from the VCDL sued Couric and the film’s director Stephanie Soechtig and the production company for libel, claiming the deceptive editing was a knowing falsehood that damaged their reputation, the story says.
In the Post op-ed piece, Eugene Volokh writes https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/01/judge-in-katie-couric-under-the-gun-libel-case-calls-argument-against-background-checks-sophistry/?utm_term=.db249d837858 that this argument isn’t legally sufficient because libel requires a false statement that throws “contumely, shame, or disgrace upon (its target), or…tend to hold him up to scorn, ridicule, or contempt, or (be) calculated to render him infamous, odious, or ridiculous.”
However, Volokh mantains the editing was dishonest, whereas it might not meet the strictest legal definition of libelous. However, Judge Gibney dismissed the claim, partly on the grounds stated by Volokh, but also because he says the editing was NOT dishonest.
“The VCDL members…did not answer Couric’s question. Instead they articulated their opposition to any gun control, but never said how to keep guns out of the hands of felons and terrorists. One VCDL member said that felons should have the right to own a gun after serving their time. Hawes responded by discussing existing laws related to firearms,” said Gibney in his decision, which you can read in full here. “Webb responded by saying why she opposed background checks. While they offered views on gun control, they did not answer Couric’s query about how to stop the wrong people from getting guns without background checks.”
Later he writes, “The plaintiffs’ defamation claims fail because the interview scene is not false. In reality, members of the VCDL did not answer the question posted by Couric. They talked about background checks and gun laws generally, but did not answer the question of how to prevent felons or terrorist from purchasing guns without background checks.”
First, by Gibney’s logic, an answer to a question that may not fully, subjectively, answer the question in full, is completely interchangeable with utter silence and has the exact same implications—which is, many would agree, absurd.
Second, from what the VCDL members said in their answers, they believe felons are only felons while they are in prison, and that when they have served their time, they should have their Second Amendment rights restored. Therefore, background checks to suss out ex-cons would be unnecessary, which takes care of the first part of Couric’s question.
And the other comment has to do with current laws and prior restraint, which means that a criminal of any kind isn’t a criminal until he or she commits a crime. Until someone does something wrong in the first place, a background check can’t find what isn’t there, and you can’t punish people for something they haven’t done yet, only threaten them with punishment for a violation.
While the responses don’t directly answer Couric’s fairly vague question, they challenge the very premise of the question, and they are most certainly an answer—but viewers can’t decide that for themselves, since all they got was silence.
The judge goes on to say the footage does not defame the subjects, meaning it doesn’t damage the plaintiff’s reputation in the community or deter others from dealing with them. If Gibney doesn’t believe the footage shows the VCDL members in a false light, then he would have to also conclude it’s not defamatory.
“…There is no ‘sophistry’ in either Hawes’s response or the response about felons having the right to own a gun after serving their time,” Volokh writes. “Hawes’s response is simply that we should prevent misconduct by the threat of punishment, not by prescreening — of course, a controversial position, but hardly a sophistic one. The other response is a legitimate, and not at all sophistic, challenge to the premise of the question.”