Damon v. Moore

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.

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 * * *

(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).

-8-
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).

-9-
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

-11-
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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