United States Court of Appeals
For the First Circuit
No. 07-1365
PETER J. DAMON; JENNIFER DAMON,
Plaintiffs, Appellants,
v.
MICHAEL MOORE; HARVEY WEINSTEIN; ROBERT WEINSTEIN; MIRAMAX FILM
CORP.; THE FELLOWSHIP ADVENTURE GROUP, LLC.; LIONS GATE FILMS,
INC.; IFC FILMS, LLC; SHOWTIME NETWORKS, INC.; CINEMANOW, INC.;
WESTSIDE PRODUCTIONS LLC (sued as WESTSIDE PRODUCTIONS INC.); and
NBC UNIVERSAL, INC. (sued as NATIONAL BROADCASTING CO., INC.),
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Torruella and Howard, Circuit Judges,
and Delgado-Colón,* District Judge.
Donald J. Feerick, Jr., with whom Philip D. Moran and Feerick
Lynch MacCartney PLLC, was on brief, for appellants.
Jonathan M. Albano, with whom Carol E. Head and Bingham
McCutchen LLP, was on brief, for appellees.
March 21, 2008
*
Of the District of Puerto Rico, sitting by designation.
DELGADO-COLÓN, District Judge. Plaintiff-appellant,
Sergeant Peter J. Damon (“Damon”), a former Sergeant in the Army
Reserves, appeals from the dismissal of his defamation claim
stemming from the non-consensual use of an interview he conducted
for NBC Nightly News (“NBC”) in the documentary “Fahrenheit 9/11”
(“documentary”). According to Damon, defendants-appellees
(“Appellees”), and more specifically, Michael Moore (“Moore”), the
creator, writer, director, producer and narrator of the
documentary, portrayed Damon as supporting the documentary’s anti-
war and anti-Commander-in-Chief message by using and placing in the
documentary, without his consent, a sixteen-second segment of an
interview he previously conducted with NBC. In dismissing the
defamation claim, the district court found that Damon’s appearance
in the documentary was not reasonably susceptible of a defamatory
meaning/interpretation. For the following reasons, we affirm the
dismissal.1
I. Factual Background
A. NBC Nightly News
Damon was an Army Reserve Sergeant who served in the
National Guard’s 126th Aviation Unit based at Camp Edwards on Cape
Cod, Massachusetts. On October 21, 2003, while on active duty at
the National Guard facility in Balad, Iraq, a tire on a Black Hawk
1
While the complaint contained, and the District Court dismissed,
numerous other causes of action, the only issue before us is the
dismissal of Damon’s defamation claim.
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helicopter exploded while he and another reservist were servicing
the aircraft. As a result of the explosion, Damon lost his right
arm near the shoulder and his left arm above the wrist; the Army
reservist who was assisting Damon was killed. Following the
incident, Damon was transported to Walter Reed Army Medical Center
in Washington, D.C. (“Walter Reed”), where he was treated by Army
medical personnel with a new pain blocker.
On October 31, 2003, while Damon was awaiting surgery, an
anesthesiologist asked him to do an interview with Brian Williams
of NBC about the new pain blocker. Although heavily sedated, he
agreed to the interview. In the NBC clip, Damon appears on the
screen for less than thirty seconds, speaking to an interviewer
regarding the new pain blocker with his injured arms in bandages.
The interview consisted of the following colloquy:
Brian Williams: Sergeant, how are you doing?
Damon: Pretty good.
Corp. Nelson: The stories get more wrenching from room to room.
Sergeant Peter Damon from Brockton,
Massachusetts, lost both arms.
Damon: Like I still feel like I have hands.
Corp. Nelson: Yeah.
Damon: And the pain is like my hands are being crushed
in a vice. But they do a lot to help it. And
they take a lot of the edge off of it. And it
makes – makes it a lot more tolerable, you know,
so I can just be a lot more comfortable. I – I
can’t imagine not having them.
* * *
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Brian Williams: And one more thing, if you’re looking for anti-
war sentiment, you won’t find it on Ward 57 of
Walter Reed. These men, with catastrophic wounds
are, to a man, completely behind the war effort.
In fact, many want to go back. They miss their
units, and they miss their buddies. It is hard
to look at their wounds sometimes. It is
impossible not to admire their bravery.
NBC aired Damon’s interview as part of its evening news broadcast.
B. The Documentary
While Damon consented to the NBC interview and subsequent
broadcast, he neither consented to the use of the interview in
another broadcast, nor was he ever advised that Appellees were
considering using his interview for anything other than the
original broadcast. Notwithstanding, Moore was allowed to place
Damon in the documentary.
The allegedly defamatory portion of the documentary
contains the following statement:
Moore: While Bush was busy taking care of his base and
professing his love for our troops, he proposed
cutting combat soldiers’ pay by 33% and
assistance to their families by 60%. He opposed
giving veterans a billion dollars more in health
care benefits, and he supported closing veterans
hospitals. He tried to double the prescription
drug costs for veterans and opposed full benefits
for part-time reservists. And when Staff Sargent
Brett Petriken from Flint was killed in Iraq on
May 26th, the Army sent his last paycheck to his
family, but they docked him for the last five
days of the month that he didn’t work because he
was dead.
Rep. McDermott: They say they’re not gonna leave any veteran
behind, but they’re leaving all kinds of veterans
behind.
-4-
* * *
(Video of Walter Reed Hospital)
Veteran To say that we’re forgotten – I know we’re
(in wheelchair) not forgotten. But missed? Yes. Yes, you know
there’s a lot of soldiers that have been missed,
you know, they’ve been skipped over. Um, that
didn’t get the proper coverage that they deserve.
Veteran: They have the death toll but they’re not showing
the amount of people that have been injured and
been amputated because of the injuries, you know.
Subtitle: (Nearly 5,000 soldiers wounded in the first 13
months of the war.)
Damon: Like I still feel like I have hands.
Voice: Yeah.
Damon: And the pain is like my hands are being crushed
in a vice. But they do a lot to help it. And
they take a lot of the edge off of it. And it
makes – makes it a lot more tolerable.
According to Damon, the documentary was an attack upon
the integrity of the Commander-in-Chief and the war effort, and it
denounced the United States’ military action in Iraq by, among
other things, “attacking the credibility of the Commander in Chief
of the United States Armed Forces about the justification for the
war, its cost and consequences . . . .” Accordingly, Damon alleges
that his unwitting appearance in the documentary falsely portrays
him – and has been interpreted by members of the military and
veteran communities – as sharing, adopting and endorsing Moore’s
attack on the President and the war effort.
-5-
II. Procedural Background
Damon brought suit in Superior Court of the Commonwealth
of Massachusetts on May 26, 2006. On August 28, 2006, Appellees
removed the case, on diversity grounds, to the United States
District Court for the District of Massachusetts. Specifically,
Damon sued for common law appropriation of name, portrait and
picture; statutory right to privacy; defamation; intentional
infliction of emotional distress; and loss of consortium. On
October 6, 2006, Appellees filed a motion to dismiss the complaint
for failure to state a claim upon which relief could be granted or,
in the alternative, for summary judgment. On December 20, 2006,
after a hearing, the district court granted Appellees’ motion to
dismiss on all counts. This appeal followed.
III. Analysis
A. Standard of Review
We review the district court’s decision to dismiss de
novo. Stanton v. Metro Corp., 438 F.3d 119, 123-24 (1st Cir. 2006)
(citing SFW Arecibo, Ltd. v. Rodríguez, 415 F.3d 135, 138 (1st Cir.
2005)). In so doing, we accept as true the well-pleaded factual
allegations of the complaint, drawing all reasonable inferences in
favor of the non-moving party. Id. at 124.
The Supreme Court recently clarified the law with respect
to a plaintiff’s pleading requirement in order to survive a Rule
12(b)(6) motion. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955
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(2007). In Twombly, the Court stated that “a plaintiff’s
obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id.
at 1964-65 (internal citation and quotation marks omitted).
Further, the Court explained that the “[f]actual allegations must
be enough to raise a right to relief above the speculative level on
the assumption that all the allegations in the complaint are true.”
Id. at 1965 (internal citations omitted). In so doing, the Court
retired the oft-cited language of Conley v. Gibson, 355 U.S. 41,
45-46 (1957), that “a complaint should not be dismissed for failure
to state a claim unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief”, characterizing it as one “best forgotten as
an incomplete, negative gloss on an accepted pleading standard.”
Twombly, 127 S. Ct. at 1969. Nevertheless, as explained below, our
disposition of Damon’s claim does not depend upon the nuances of
Twombly’s effect on the dismissal standard.
B. Defamation Claim
Damon argues that the district court erroneously failed
to conclude that his non-consensual appearance in the documentary
was reasonably capable of a defamatory meaning in the military and
veteran communities to which he belongs. More specifically, Damon
contends that his appearance in the documentary portrays him as
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endorsing the political views of Moore; views that are contrary to
his own and repugnant in the military and veteran community.
To prevail on a defamation claim “under Massachusetts
law, a plaintiff must show that the defendant was at fault for the
publication of a false statement of and concerning the plaintiff
which was capable of damaging his or her reputation in the
community, and which either caused economic loss or is actionable
without proof of economic loss.”2 Stanton, 438 F.3d at 124; Amrak
Prods., Inc. v. Morton, 410 F.3d 69, 72 (1st Cir. 2005); White v.
Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66, 809
N.E.2d 1034, 1036 (2004); Bogojavlensky, 438 Mass. at 629-30, 782
N.E.2d at 510; Brauer v. Globe Newspaper Co., 351 Mass. 53, 55, 217
N.E.2d 736, 738 (1966). The court is not called upon to determine
the ultimate issue of whether the statement is defamatory, but to
answer the “threshold question” of “‘whether [the] communication is
reasonably susceptible of a defamatory meaning.’” Amrak, 410 F.3d
at 72 (quoting Phelan v. May Dep’t Stores Co., 443 Mass. 52, 56-57,
819 N.E.2d 550, 554 (2004)). A communication is susceptible to
defamatory meaning if it would tend to injure the plaintiff’s
reputation, or “hold the plaintiff up to scorn, hatred, ridicule or
2
Four types of statements are actionable without proof of
economic loss: (1) statements that constitute libel; (2) statements
that charge the plaintiff with a crime; (3) statements that allege
that the plaintiff has certain diseases; and (4) statements that
may prejudice the plaintiff’s profession or business. Ravnikar v.
Bogojavlensky, 438 Mass. 627, 630, 782 N.E.2d 508, 511 (2003).
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contempt, in the minds of any considerable and respectable segment
in the community.” Id. at 72 (quoting Phelan, 443 Mass. at 56, 819
N.E.2d at 553) (internal quotation marks omitted); see also
Milgroom v. News Group Boston, Inc., 412 Mass. 9, 12, 586 N.E.2d
985, 988 (1992); Smith v. Suburban Rests., Inc., 374 Mass. 528,
529, 373 N.E.2d 215, 217 (1978); Stone v. Essex County Newspapers,
367 Mass. 849, 853, 330 N.E.2d 161, 165 (1975).3 In determining
whether a statement is susceptible to defamatory meaning, “[t]he
communication ‘must be interpreted reasonably,’” and can only be
ruled defamatory if it would lead “a ‘reasonable reader’ to
conclude that it conveyed a defamatory meaning.” Amrak, 410 F.3d
at 72 (citing Foley v. Lowell Sun Publ’g Co., 404 Mass. 9, 11, 533
N.E.2d 196, 197 (1989)); see also Stanton, 438 F.3d at 127;
Restatement (Second) of Torts § 563 cmt. c (1977). However,
“[w]here the communication is susceptible of both a defamatory and
non-defamatory meaning, a question of fact exists for the jury.”
Jones v. Taibbi, 400 Mass. 786, 792, 512 N.E.2d 260, 264 (1987).
Notwithstanding the apparent settled nature of the law of
defamation in Massachusetts, the parties strongly disagree about
3
Accordingly, words may be actionable even if they do not damage
a plaintiff’s reputation or hold him up to ridicule in the
community at large or among all reasonable people; it is enough
that they do so among a considerable and respectable class of
people. Sharratt v. Housing Innovations, Inc., 365 Mass. 141, 145,
310 N.E.2d 343, 346 (1974). Likewise, inferences which may be drawn
by a considerable and respectable segment of the community can make
a statement or publication actionable. Mabardi v. Boston Herald-
Traveler Corp., 347 Mass. 411, 414, 198 N.E.2d 304, 306 (1964).
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its application. Damon contends that because he was a member of
the armed forces, and is an active member of the military and
veteran community, the Court must not apply the “reasonable” person
standard, but instead must delve into the effect of the documentary
upon his military brethren, who constitute a “considerable and
respectable segment” of the community. See, e.g., Kelly v. Loew’s
Inc., 76 F. Supp. 473, 486 (D. Mass. 1948) (“[I]f the community or
audience includes a professional group to which the subject of the
statement belongs, the question is the effect of the statement upon
that group with its special professional standards.”); Sharratt,
365 Mass. at 145, 310 N.E.2d at 346 (“It would be anomalous at best
if words clearly understood in a defamatory sense among that
community should fail to be actionable merely because they would
appear innocent to the general public.”). For their part,
Appellees argue that the Court is faced with two distinct questions
of law: (1) whether a communication is capable of bearing the
particular meaning ascribed to it by plaintiff; and (2) whether
that meaning is defamatory. See Restatement (Second) of Torts §
614; see also Phelan, 443 Mass. at 56-57, 819 N.E.2d at 554 (citing
the Restatement). The main thrust behind this argument is that
while standards applied from the viewpoint of professional groups
may be relevant to the second inquiry, they have no bearing on the
Court’s determination of whether a communication is capable of
bearing the particular meaning ascribed to it by plaintiff.
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Restatement (Second) of Torts § 614 cmt. d. While both positions
are ably argued, pursuant to established precedent, Damon would
prevail if he could show that his appearance and statement in the
documentary was reasonably susceptible to a defamatory meaning in
the eyes of either the community as a whole or that of the military
or veteran community to which he belongs. See Stanton, 438 F.3d at
124; Sharratt, 365 Mass. at 145, 310 N.E.2d at 346.
1. Reasonable Viewer Analysis
We first determine whether Damon’s placement in the
documentary may reasonably be viewed as discrediting Damon in the
minds of any considerable and respectable class of the community to
which the statement was addressed. See Amrak, 410 F.3d at 72. As
we have repeatedly held, the statement must be viewed “‘in its
totality in the context in which it was uttered or published’” and
“‘consider[ing] all the words used, not merely a particular phrase
or sentence.’” Id. at 73 (quoting Foley, 404 Mass. at 11, 533
N.E.2d at 197); see also Restatement (Second) of Torts § 614 cmt.
d (“[T]he context of written or spoken words is an important factor
in determining the meaning that they reasonably might convey to the
person who heard or read them.”). In making this determination, we
must view Damon’s interpretation of the communication reasonably,
and can only rule that it is defamatory if it could lead “a
reasonable [viewer] to conclude that it conveyed a defamatory
meaning.” Amrak, 410 F.3d at 72; see also Stanton, 438 F.3d at
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125; Foley, 404 Mass. at 11, 533 N.E.2d at 197; Restatement
(Second) of Torts § 563 cmt. c. Forced or strained construction of
the statement will not suffice to state a claim for defamation.
King v. Globe Newspaper Co., 400 Mass. 705, 711-12, 512 N.E.2d 241,
245 (1987). “[T]he words are to be read in their ‘natural sense
with the meaning which they would convey to mankind in general.’”
Joyce v. George W. Prescott Publ’g Co., 348 Mass. 790, 790, 205
N.E.2d 207, 207 (1965) (quoting Lyman v. New England Newspaper
Publ’g Co., 286 Mass. 258, 260, 190 N.E. 542, 543 (1934)).
Here, Damon appears in the documentary during a segment
that discusses the treatment of wounded veterans by the
administration of President George W. Bush. During the
introductory remarks, Moore harshly criticizes President Bush for
allegedly failing to deliver on his public statements of support
for the troops, citing, among other things, his Administration’s
proposals to cut combat pay and veteran benefit programs.
Immediately following the introduction, Congressman Jim McDermott
of Washington State appears on screen and states: “They say they’re
not gonna leave any veteran behind, but they’re leaving all kinds
of veterans behind.” Following Congressman McDermott, two veterans
appear on screen, neither of whom makes any remark which could be
construed as critical of the President or the war aims of the
United States. Instead, the first veteran is critical of the
medical coverage or treatment some veterans have received upon
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their return home, and the second veteran appears to be commenting
on either the government’s and/or the media’s failure to disclose
the number of injured soldiers. A roughly sixteen-second portion
of Damon’s NBC interview follows in which he talks exclusively
about the pain he is suffering due to his injuries, and the
effectiveness of his pain treatment. Looking at the documentary
from this micro-level, there is no way for a reasonable viewer to
construe Damon as supporting Moore’s “agenda.” Neither may it be
reasonably construed as a statement promoting disloyalty or
denouncing either the Commander-in-Chief or the medical treatment
received by veterans.
Stepping back from Damon’s segment and viewing the
documentary as a whole, we are compelled to conclude, as the
district court did, that a reasonable viewer could not construe
Damon’s appearance as supportive of Moore’s message. The overall
context of the documentary, along with its theme, text, visual
images, sounds and release date, while understandably upsetting to
Damon, does not propel his otherwise benign interview into one
reasonably susceptible of defamatory meaning. See, e.g., Lasky v.
Am. Broad. Cos., Inc., 631 F. Supp. 962, 970 (S.D.N.Y. 1986) (“In
studying a television program for . . . defamatory meanings, a
court must not confine its analysis to the words alone. . . . It is
the entirety of the program, both audio and video, that must be
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considered in determining whether . . . [it] is reasonably
susceptible of a defamatory meaning.”).4
Viewing the documentary as a whole, it is clear that
Damon is one of approximately fifty individuals whose interviews
were taken out of their original packaging and inserted into the
documentary in order to further Moore’s message. Damon’s role
comprises sixteen seconds of a roughly two-and-a-half-hour
documentary. He appears in a segment with two other veterans, none
of whom convey any anti-war sentiment. While a reasonable viewer
could conclude that the documentary itself espouses an anti-war and
anti-Commander-in-Chief message, no viewer could reasonably
conclude that Damon shares any political or ideological kinship
with Moore. The only message such viewer could reasonably take
away from the documentary regarding Damon is that he was a wounded
veteran, and that the treatment he was receiving at Walter Reed was
effective in combating the pain caused by his injuries. We endorse
the district court’s description of documentaries as “artistic
undertakings that involve the collection of images brought to
4
It bears noting that Damon’s appearance in the documentary is
essentially the same as his appearance in the NBC broadcast, an
interview Damon concedes is not defamatory. After reviewing both
programs, the obvious difference is the deletion of Brian Williams’
closing remarks wherein he explains that all members of Damon’s
hospital ward support the war. Notwithstanding this deletion,
Damon’s actual appearance in the NBC broadcast remains unchanged in
the documentary. During the same, Moore did not manipulate the
actual questions asked, or Damon’s responses in such a way to
convey a different meaning than when originally broadcast by NBC.
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gather [sic] in one place for presentation” and its assessment that
“there is nothing [in the documentary] that suggests that there is
an endorsement of a willingness on [Damon’s] part. It is simply a
circumstance in which his image is used.” It would be unreasonable
to interpret the use of Damon’s image as an affirmative adoption of
Moore’s view of the military and the President.
Moreover, Damon is not the only individual to appear in
the documentary who does not support Moore’s message. For example,
President George W. Bush, Vice-President Richard B. Cheney and then
Secretary of Defense Donald H. Rumsfeld appear in the documentary,
and all, presumably, disagree with Moore’s message. Numerous other
individuals, including members of the military, who make no
statement either way regarding their ideological beliefs concerning
the President or the war aims of the United States, appear in the
documentary. Because of this, no reasonable viewer could make the
blanket assessment that an individual’s appearance in the
documentary is equivalent to being supportive of Moore’s message.
This is not a situation where the entire documentary consisted of
like-minded individuals asserting a common position.
Based on the foregoing, we once again concur with the
trial judge’s finding that:
[t]here is nothing that expressly or implicitly suggests
that Mr. Damon knowingly associated with Mr. Moore’s
venture here. The reasons that people consent to
interviews do not suggest endorsement of the views of the
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interviewer . . . . Circumstances in which people are
interviewed on contentious matters suggest that people
with strong views, or people with views that they would
like to have communicated, frequently submit to
interviews by people they wouldn’t like very much or
whose larger views they do not like very much. And one
cannot say that that’s defamation under the
circumstances.
Accordingly, we are of the opinion that a reasonable viewer could
not conclude that Damon’s appearance in the documentary conveyed a
defamatory meaning. Stanton, 438 F.3d at 127; Amrak, 410 F.3d at
72; Foley, 404 Mass. at 11, 533 N.E.2d at 197 (1989); Restatement
(Second) of Torts § 563 cmt. c.5
2. Reasonable Military Viewer Analysis
Damon disagrees with the above analytical framework, and
argues that the Court must determine what effect his appearance in
the documentary has upon any respectable and substantial part of
the community; and if the community or audience includes a
professional group to which the subject of the statement belongs
the question becomes what is the effect of the statement upon that
group with its special standards. Kelly, 76 F. Supp. at 486; see
also Sharratt, 365 Mass. at 145, 310 N.E.2d at 345 (“It would be
5
While not clearly articulated, Damon appears to argue that Moore
needed to place a disclaimer informing viewers that Damon, and
others, did not agree to appear in the documentary, and therefore,
may or may not support its overall message. While disclaimers are
not a bad practice, the non-defamatory character of a statement
will rarely depend solely on the presence or absence of one.
Stanton, 438 F.3d at 126.
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anomalous at best if words clearly understood in a defamatory sense
among the community should fail to be actionable merely because
they would appear innocent to the general public.”).6 Military
personnel, “like other professional groups, such as doctors,
lawyers or judges have a standard of judgment of their colleagues
which is peculiar to their profession which differs sharply from
the appraisal of the uninitiated.” Kelly, 76 F. Supp. at 486.
Thus, the question is whether Damon’s appearance in the documentary
would tend to injure Damon’s reputation, or hold him up to scorn,
hatred, ridicule or contempt, in the minds of the military or
veteran community. Id. (“[T]he issue narrowly stated is whether to
permanent officers of the United States Navy the portrayal of
plaintiff as resembling [a movie character representing him] would
tend to lower his reputation.”).
It has long been recognized that the military is a
specialized society separate and apart from civilian society.
6
The Massachusetts Supreme Judicial Court in Ingalls v. Hastings
& Sons Publ’g Co., explained the standard as follows:
[A statement is defamatory] if, in view of all relevant
circumstances, it discredits the plaintiff in the minds,
not of the court, nor of wise, thoughtful and tolerant
men, nor of ordinary reasonable men, but of any
“considerable and respectable class in the community.”
The emotions, prejudices and intolerance of mankind must
be considered in determining the effect of a publication
upon the standing of the plaintiff in the community.
304 Mass. 31, 33, 22 N.E.2d 657, 658-59 (1939) (internal
citations omitted).
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Parker v. Levy, 417 U.S. 733, 743 (1974); United States v. Mariea,
795 F.2d 1094, 1100 (1st Cir. 1986); Serrano Medina v. United
States, 709 F.2d 104, 107 (1st Cir. 1983). This Court also
recognizes that during its long history the military has, by
necessity, developed laws and traditions of its own. Parker, 417
U.S. at 743. The differences between the military community and
the civilian community, and between military law and civilian law,
are exemplified by the Uniform Code of Military Justice (“Military
Code”). The Military Code regulates aspects of the lives of
military men and women which are left unregulated in the civilian
sphere.7 The making of a disloyal statement, which includes
“attacking the war aims of the United States,” is violative of the
Military Code. Manual for Courts-Martial, United States, § 72,
Art. 134.8
At the time the documentary was released, Damon was an
active member of the military, and he continues to associate with
military personnel and veterans to this day. It is within these
7
The Military Code regulates a far broader range of the conduct
of military personnel than a typical state criminal code regulates
of the conduct of civilians. Id. at 750.
8
“Some statements may be so explicit in meaning as to support a
conclusion from their language that they are disloyal to the United
States. Other statements require interpretation; and their real
nature may be discernible only in the context of the circumstances
of their utterance. Words by themselves may not always reveal their
character” United States v. Harvey, 19 C.M.A. 539, 542-44, 42
C.M.R. 141, 145-46 (1970) (citing Watts v. United States, 394 U.S.
705 (1969)).
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communities that Damon claims he has been defamed. He alleges that
his appearance, coupled with the documentary’s overall theme,
narrative and his placement in the documentary – shortly after
another soldier explained that he would not return to Iraq if
ordered – brands Damon as being a supporter of the documentary’s
agenda, denouncing the military operation that he and fellow
military personnel served, denouncing the treatment of veterans and
promoting disloyalty and disaffection to the United States. From
this, Damon concludes that his appearance could lead the military
community to reasonably conclude that he is making disloyal
statements intended to promote disloyalty and disaffection toward
the United States, the President and or the war effort. We
disagree.
While it is clear that military and civilian communities
may very well view certain situations, e.g. a soldier’s refusal to
return to battle, differently, this is not one of those situations.
Taking the documentary as a whole, no reasonable member of the
military or veteran community could possibly view Damon’s
appearance in the documentary as being disloyal to the United
States. As explained above, Damon makes no statements in
opposition to the war effort, nor was his interview manipulated in
such a way to imply that he was “attacking the war aims of the
United States.” Id. In fact, as pointed out by the district
court, the documentary’s portrayal of Damon
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shows an individual who is discussing with great dignity
and obvious pain what his participation in the conflict
in Iraq has meant and not in any way suggesting that he
thinks that his service was demeaned, but rather
expressing his opinion that the medical treatment that he
received has been something that helps to make his pain
more livable
and that Damon’s appearance “transcends the alternative views that
others present there with . . . considerable dignity and no
suggestion of disloyalty.”
Moreover, unlike the cases cited by Damon,9 he was not
portrayed as denouncing the military, any of its war aims or the
President. Instead, Damon spoke solely about his medical treatment
after valiantly serving his country. Accordingly, there is no
reason to believe that a reasonable member of the military or
veteran community would conclude that Damon’s appearance in the
documentary conveyed a defamatory meaning, and therefore lowered
his reputation or subjected him to scorn, hatred, ridicule or
contempt in that community.
IV. Conclusion
While we appreciate Damon’s anger and frustration over
appearing without his consent in a documentary that stands in
direct contrast to his own personal and political beliefs, we
9
See, e.g., Parker, 417 U.S. at 733 (defendant publicly urged
enlisted personnel to refuse to obey orders which might send them
into combat); Harvey, 19 C.M.A. at 539, 42 C.M.R. at 141
(defendant’s statements urged various Marines to refuse to fight in
Vietnam).
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conclude that his appearance in the documentary is not reasonably
susceptible of a defamatory meaning. We therefore affirm the
district court’s dismissal of Damon’s defamation claim. Since
Damon’s appearance was not reasonably susceptible to a defamatory
meaning under Massachusetts state law, we need not reach the
question of whether being falsely labeled either pro- or anti-war,
as a matter of law, holds a member of the military up to the type
of scorn and ridicule required for a defamation claim.
Furthermore, while we recognize the potential First Amendment
implications of this case, since the claim fails as a matter of
state law, we need not reach them.
Affirmed.
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