Bustos v. Networks

• Decision Date: 19 July 2011
• Docket Number: No. 10–1253.,10–1253.
• Parties: Jerry Lee BUSTOS, Plaintiff–Appellant,v.A & E TELEVISION NETWORKS, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

646 F.3d 762

39 Media L. Rep. 2049

Jerry Lee BUSTOS, Plaintiff–Appellant,

v.A & E TELEVISION NETWORKS, Defendant–Appellee.

No. 10–1253.

United States Court of Appeals, Tenth Circuit.

July 19, 2011.

Paul J. Kyed (Buck S. Beltzer, Christopher L. Larson, and J. Kevin Bridston with him on the briefs), Holland & Hart, LLP, Denver, CO, for Plaintiff–Appellant.Steven D. Zansberg (Thomas B. Kelley with him on the briefs), Levine Sullivan Koch & Schulz, L.L.P., Denver, CO, for Defendant–Appellee.Before MURPHY, GORSUCH, and MATHESON, Circuit Judges.GORSUCH, Circuit Judge.

Can you win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise? The answer is no. While the statement may cause you a world of trouble, while it may not be precisely true, it is substantially true. And that is enough to call an end to this litigation as a matter of law.

Jerry Lee Bustos is a longtime inmate at the federal supermax facility at Florence, Colorado. Back in 1998, he was chatting with a few acquaintances on the prison yard when another inmate—who seemed to be walking along minding his own business—punched Mr. Bustos in the back of the head. Mr. Bustos wasn't one to back down from an unprovoked attack and the pair quickly squared off as other residents of Florence looked on. After a few minutes, baton-toting prison guards stepped in, but by then Mr. Bustos had caught a few good punches and was no better for the wear.

Unfortunately for Mr. Bustos, the entire episode was captured by a prison surveillance camera. And worse, A & E Television Networks got a hold of the footage and featured it on its national cable television show, Gangland: Aryan Brotherhood. The program paired images of Mr. Bustos with a stentorian narrator who described the Aryan Brotherhood prison gang, its white-supremacist views, and its violent history.

Mr. Bustos complains that this in-all-ways-unsolicited television appearance has caused him an acre of difficulty. He says the program's suggestion that he is a member of the Aryan Brotherhood has devastated his popularity around the jail. The Brotherhood, it turns out, did not appreciate his publicly appearing as a member without their invitation. And other gangs have also apparently become leery that Mr. Bustos might be a clandestine member of the Brotherhood. So now, Mr. Bustos complains, he has received death threats and for his own safety can't be transferred to a less restrictive form of custody. Despite his best efforts, he just can't convince his fellow prisoners that he's not actually a member of the Aryan Brotherhood.

Frustrated by all this, Mr. Bustos brought a defamation suit against A & E under Colorado law. The district court agreed that the show effectively called him a member of the Aryan Brotherhood, and that the statement was defamatory, but it entered summary judgment against Mr. Bustos all the same. This because, the court found, the statement was substantially true—and a substantially true statement isn't actionable in defamation. It is this result Mr. Bustos now appeals.

A statement is defamatory if it “tends [ ] to harm the reputation of another [so] as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Burns v. McGraw–Hill Broad., Co., 659 P.2d 1351, 1357 (Colo.1983), citing Restatement (Second) of Torts § 559 (1976) (“RST”). Before us, the parties take it for granted that A & E called Mr. Bustos a member of the Aryan Brotherhood and that this statement is defamatory. But to concede that a statement is defamatory is just to say it hurts. It says nothing about the truth of the matter. In fact, long ago English criminal law took the view that the truth was not only not a defense to a defamation charge but an aggravating circumstance—so that it was actually (if remarkably to contemporary ears) said, “the greater the truth the greater the libel.” See Laurence H. Eldredge, The Law of Defamation § 64 (1978). Truth was no defense to a criminal defamation charge because the law cared less about the niceties of personal reputations and free speech than with keeping a lid on public violence and civil unrest. Id. Even truthful defamation demanded punishment because of its tendency, in the Star Chamber's estimation, to “incite[ ] ... quarrels and breach of the peace, and [to] be the cause of shedding of blood, and of great inconvenience.” De Libellis Famosis Case, 77 Eng. Rep. 250, 251 (Star Chamber 1606). Still, this only tells at most half the story. For its part, English tort law took a very different turn, denying compensation to a party truthfully defamed. It did so on the theory that if the statement is true, the plaintiff hadn't suffered any injury—or at least not any injury he didn't well deserve. 3 William Blackstone, Commentaries *124–25. So, in a twist worthy of an award from the Circumlocution Office, the truth could spare a defendant of liability in civil court only to condemn him to prison in a criminal court across the way.

Sensibly, American courts took their cue from the tort side of the English common law. See Rodney A. Smolla, Law of Defamation § 5:3 (2d ed. 2010). So a defendant who truthfully calls the plaintiff a member of the Aryan Brotherhood doesn't suffer any liability, no matter how much the statement may have defamed or hurt the plaintiff's reputation in the public's estimation. Neither does it matter if the defendant doesn't know the truth of the matter when he makes the defamatory statement. So long as what he says turns out to be true, he is free from liability; the truth, whenever discovered, serves as a complete defense. See RST § 581A, cmt. h; W. Page Keeton, Prosser and Keeton on Torts § 116, at 840–41 (5th ed. 1984). In American law, defamation is not about compensating for damage done to a false reputation by the publication of hidden facts. It's about protecting a good reputation honestly earned.

This defense has, in comparatively recent years, taken on a constitutional patina, becoming not just a feature of the common law but a First Amendment imperative. See New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). It has also undergone a partial transmogrification. Where truth was once strictly a defense, now the plaintiff must shoulder the burden in his case-in-chief of proving the falsity of a challenged statement if he is a public figure or the statement involves a matter of public concern. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). In its enthusiasm, Colorado has taken all this a step further, apparently requiring the plaintiff in these circumstances to show the falsity of a defamatory statement by “clear and convincing evidence.” See Smiley's Too, Inc. v. Denver Post Corp., 935 P.2d 39, 41 (Colo.App.1996).

Because no one disputes that our case involves a matter of public concern, it falls to Mr. Bustos to carry this exacting burden. But what exactly does Mr. Bustos have to do to show that the statement he challenges is “false”? Under Colorado law, much as elsewhere, it is not enough for the plaintiff to show that the defendant got some innocuous detail wrong; the plaintiff must show that the challenged defamatory statement is not just false but material. See Gomba v. McLaughlin, 180 Colo. 232, 504 P.2d 337, 338–39 (1972). A report that the defendant committed 35 burglaries when he actually committed 34 isn't enough to warrant relief. See Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 1568 n. 6 (D.C.Cir.1984), overruled on other grounds, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Neither is a report that mistakenly says that the plaintiff stabbed a man in Cheyenne, Wyoming when he really stabbed a man from Cheyenne, Wyoming. Gomba, 504 P.2d at 338–39. Unless a statement contains a material falsehood it simply is not actionable. See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (“Minor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge be justified.” (internal quotation omitted)).

But to say that the misstatement must be material only raises questions of its own—material to whom? And for what purpose? The answer to these questions takes us back to and can be found in the interest the American defamation tort is intended to protect—the plaintiff's public reputation. Because this is the particular purpose the defamation tort is aimed at, we assess the materiality of a misstatement by comparing the damage it has done to the plaintiff's public reputation to the damage the truth would have caused. See Gomba, 504 P.2d at 338; Colo. Jury Inst. Civ. 22:13 (defining falsity); Wade v. Olinger Life Ins. Co., 192 Colo. 401, 560 P.2d 446, 452 n. 7 (1977) (explaining persuasive authority of Colorado jury instructions). To qualify as material the alleged misstatement must be likely to cause reasonable people to think “significantly less favorably” about the plaintiff than they would if they knew the truth; a misstatement is not actionable if the comparative harm to the plaintiff's reputation is real but only modest. Colo. Jury Inst. Civ. 22:13; see also Pope v. Chronicle Pub. Co., 95 F.3d 607, 613 (7th Cir.1996) (publication “must make the plaintiff significantly worse off than a completely or literally truthful publication would have”). Neither do we measure this comparative impact from the viewpoint of prison gang members—or for that matter from the viewpoint of any similarly insular group whose reactions may be different than the mainstream of contemporary society. Instead, the relevant inquiry is what a reasonable member of the (law abiding) contemporary community would make of the challenged statement. See Colo. Jury Inst. Civ. 22:13; see also B...