PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1783
VIRGINIA CITIZENS DEFENSE LEAGUE; DANIEL L. HAWES, ESQ.;
PATRICIA WEBB,
Plaintiffs – Appellants,
v.
KATIE COURIC; STEPHANIE SOECHTIG; ATLAS FILMS LLC; STUDIO 3
PARTNERS, LLC, d/b/a EPIX, now known as EPIX ENTERTAINMENT LLC,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., District Judge. (3:16-cv-00757-JAG)
Argued: October 30, 2018 Decided: December 13, 2018
Before GREGORY, Chief Judge, and MOTZ and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in which Chief Judge
Gregory and Judge Wynn joined.
ARGUED: Joseph Ronald Oliveri, CLARE LOCKE LLP, Alexandria, Virginia, for
Appellants. Nathan Ellis Siegel, DAVIS WRIGHT TREMAINE LLP, Washington, D.C.,
for Appellees. ON BRIEF: Thomas A. Clare, Elizabeth M. Locke, Megan L. Meier,
CLARE LOCKE LLP, Alexandria, Virginia, for Appellants. Kevin T. Baine, Thomas G.
Hentoff, Nicholas G. Gamse, Emily A. Rose, WILLIAMS & CONNOLLY LLP,
Washington, D.C.; Elizabeth A. McNamara, DAVIS WRIGHT TREMAINE LLP, New
York, New York, for Appellees.
2
DIANA GRIBBON MOTZ, Circuit Judge:
This case arises from the creation and publication of Under the Gun, a documentary
film on gun violence in America. Aggrieved at their portrayal in the film, appellants —
Virginia Citizens Defense League and two of its members, Daniel L. Hawes, and Patricia
Webb — filed this action. They alleged defamation by the film’s creators, appellees Katie
Couric, Stephanie Soechtig, Atlas Films LLC, and Studio 3 Partners, LLC (doing business
as Epix Entertainment LLC). The district court dismissed their complaint, and appellants
appeal. For the reasons that follow, we affirm.
I.
In 2016, journalist Couric and filmmaker Soechtig released a documentary titled
Under the Gun. The documentary concerns gun policy in America, and it takes a
perspective favoring regulation. Couric narrated the film, interviewed participants, and
served as an executive producer. Soechtig directed and edited the film, which Atlas Films
produced and Epix distributed.
Although the film advocates for gun control, its creators assertedly sought to present
viewpoints from organizations that opposed measures like universal background checks.
To that end, a producer employed by Atlas Films contacted the Virginia Citizens Defense
League (“VCDL”), a non-profit gun-rights organization, and set up an interview with
members of the VCDL. Nine members, including Hawes and Webb, agreed to participate.
The final cut of the film includes portions of Couric’s interview with these VCDL
members. The segment lasts just over three minutes. At its outset, Couric thanks the
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VCDL members for participating, noting that they “have a specific point of view on this
issue and some of the issues that we’re tackling.” Couric then poses a series of questions
on gun policy. She asks about the appeal of owning a gun, and whether a person should
have to pass a background check to purchase a gun. She also asks whether anyone in the
group feared that the government would take their guns. These questions prompt detailed
responses from the panel members, which are included in the film. Apart from the film-
makers’ lighting choices, appellants do not object to this portion of the interview.
Instead, this suit centers on a twelve-second clip at the close of the three-minute
VCDL interview. In it, Couric asks the following question: “If there are no background
checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?”
Approximately nine seconds of silence follow, during which the VCDL members,
including Webb, a gun store owner, and Hawes, an attorney, sit in silence and shift
uncomfortably in their seats, averting their eyes. The film cuts to a revolver chamber
closing. Couric then says: “The background check is considered the first line of defense,
and 90% of Americans agree it’s a good thing.” Neither the VCDL nor its members are
mentioned again in the 105-minute film.
Although the film accurately portrays most of the interview with VCDL members,
the twelve-second clip described above did not transpire as depicted. In the unedited
footage, Couric’s background check question prompted approximately six minutes of
responses from the VCDL members. Hawes responded by suggesting that the government
cannot, consistent with the Constitution, prevent crimes through prior restraint. Webb
commented that background checks are unlikely to prevent motivated criminals from
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obtaining guns or committing crimes. These responses were followed by approximately
three minutes of related discussion between Couric and the panel. Rather than use these
responses, the filmmakers spliced in b-roll footage taken prior to the interview in which
Couric asked the VCDL interviewees to sit in silence while technicians calibrated the
recording equipment.
Shortly after the film’s showing at various film festivals, the VCDL released
unedited audio of the interview. In the public backlash that followed, Couric issued a
statement admitting that the edited version of the film did “not accurately represent [the
VCDL members’] response” and that the segment was “misleading.” Believing the
misleading segment to be defamatory, the VCDL and two of its featured members, Hawes
and Webb, brought this action. The district court dismissed their complaint for failure to
state a claim, reasoning that the film was neither false nor defamatory and that, as to claims
brought by the VCDL, the film was not “of and concerning” the organization. This appeal
followed.
II.
We review de novo a district court’s grant of a motion to dismiss. Reyes v. Waples
Mobile Home Park Ltd. P’ship, 903 F.3d 415, 423 (4th Cir. 2018). To survive a Rule
12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint “has
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facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
To state a claim for defamation under Virginia law, a plaintiff must plead three
elements: “(1) publication of (2) an actionable statement with (3) the requisite intent.”
Schaecher v. Bouffault, 772 S.E.2d 589, 594 (Va. 2015) (quoting Tharpe v. Saunders, 737
S.E.2d 890, 892 (Va. 2013)). The first and third elements are not at issue here. The parties
dispute only whether the statement — in this case, footage edited to convey silence — is
actionable. To be “actionable,” a statement must be “both false and defamatory.” Id.
(quoting Tharpe, 737 S.E.2d at 892). To recover, the VCDL must also establish that the
alleged defamatory statement was “of and concerning” the organization. Id. at 598; Dean
v. Dearing, 561 S.E.2d 686, 688 (Va. 2002).
“Defamatory words are those ‘tend[ing] so to harm the reputation of another as to
lower him in the estimation of the community or to deter third persons from associating or
dealing with him.’” Schaecher, 772 S.E.2d at 594 (quoting Restatement (Second) of Torts
§ 559) (alteration in original). The Supreme Court of Virginia has held that actionable
defamatory language is that which “tends to injure one’s reputation in the common
estimation of mankind, to throw contumely, shame, or disgrace upon him, or which tends
to hold him up to scorn, ridicule, or contempt, or which is calculated to render him
infamous, odious, or ridiculous.” Id. (internal quotation marks omitted). 1 In contrast,
1
Appellants’ attempt to modify this standard by relying on the Restatement’s
suggestion that it suffices for a statement to injure one’s reputation in the mind of “a
substantial and respectable minority” of the community, see Restatement (Second) of Torts
6
“language that is insulting, offensive, or otherwise inappropriate, but constitutes no more
than ‘rhetorical hyperbole,’” is not actionable. Yeagle v. Collegiate Times, 497 S.E.2d 136,
137 (Va. 1998).
Applying Virginia law, a court “must decide as a threshold matter of law whether a
statement is reasonably capable of defamatory meaning before allowing the matter to be
presented to a finder of fact.” Schaecher, 772 S.E.2d at 595; see also Pendleton v.
Newsome, 772 S.E.2d 759, 763 (Va. 2015) (describing the defamation inquiry as “an
essential gatekeeping function of the court” (quoting Webb v. Virginian-Pilot Media Cos.,
752 S.E.2d 808, 811 (Va. 2014))). This “reasonable capability” test recognizes that
defamatory meaning is often implied.
Virginia law requires that when “determining whether the words and statements
complained of . . . are reasonably capable of the meaning ascribed to them by innuendo,
every fair inference that may be drawn from the pleadings must be resolved in the
plaintiff’s favor.” Webb, 752 S.E.2d at 811. “Although a defamatory statement may be
inferred, a court may not ‘extend the meaning of the words used beyond their ordinary and
common acceptance.’” Tronfeld v. Nationwide Mut. Ins. Co., 636 S.E.2d 447, 450 (Va.
2006) (quoting Perk v. Vector Res. Grp., Ltd., 485 S.E.2d 140, 144 (Va. 1997)); see also
§ 559 cmt. e, rather than “in the common estimation of mankind,” see Schaecher, 772
S.E.2d at 594. This argument fails. Virginia courts have never articulated such an
approach or applied this portion of the Restatement. Moreover, the Restatement comment
does not alter the central requirement that a given statement must be capable of defamatory
meaning, a high bar that appellants cannot clear regardless of how we frame the relevant
population.
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Carwile v. Richmond Newspapers, 82 S.E.2d 588, 591–92 (Va. 1954) (“[A]llegedly
defamatory words are to be taken in their plain and natural meaning and to be understood
by courts and juries as other people would understand them, and according to the sense in
which they appear to have been used.”).
III.
A.
Appellants first contend that the film is defamatory per se. 2 As relevant here, a
statement — in this case, a film — is defamatory per se when it can reasonably be
understood to suggest that a person is unfit in his or her trade. Tronfeld, 636 S.E.2d at 450
(identifying statements “which prejudice [a] person in his or her profession or trade” as
“actionable per se”). There must be a “nexus between the content of the defamatory
statement and the skills or character required to carry out the particular occupation of the
plaintiff.” Fleming, 275 S.E.2d at 636.
2
“Unlike most states, Virginia makes no distinction between actions for libel and
those for slander.” Fleming v. Moore, 275 S.E.2d 632, 635 (Va. 1981). Accordingly, its
courts have construed common law slander as defamation per se, which is actionable
without proof of damages, and treated all other defamation claims as actionable subject to
proof of damages. Id.; see also Stamathis v. Flying J, Inc., 389 F.3d 429, 440 (4th Cir.
2004) (“The critical distinction between defamation per se and other actions for defamation
is that a person so defamed is presumed to have suffered general damages, and any absence
of actual injury is considered only in diminution of damages.”). Notwithstanding this
distinction, both defamation per se and general defamation claims may “be made by
inference, implication or insinuation,” as appellants allege here. Fuste v. Riverside
Healthcare Ass’n, Inc., 575 S.E.2d 858, 861 (Va. 2003) (internal quotation marks omitted).
8
Turning first to Hawes, appellants argue that because Hawes “is an attorney whose
practice focuses on firearms and self-defense,” the edited footage “is reasonably capable
of being understood” as suggesting “that Hawes lacks the required competencies and
abilities for his profession, including oral advocacy skills.” But unlike the cases on which
appellants rely, 3 the questions posed to Hawes had nothing to do with his legal practice or
expertise. Reading appellants’ suggested meaning into the film would stretch the footage
well “beyond its ordinary and common” meaning. Schaecher, 772 S.E.2d at 595 (quoting
Webb, 752 S.E.2d at 811). Although we must construe inferences and innuendo in
appellants’ favor, we may not “introduce new matter, nor extend the meaning of the words
used, or make that certain which is in fact uncertain.” Id. (quoting Webb, 752 S.E.2d at
811). Accepting Hawes’ defamation per se claim would require us to extend mere silence
into professional ineptitude. Thus, his claim fails.
Similarly, the film is not reasonably capable of suggesting that Webb is unfit to own
a gun store. Arguing otherwise, Webb contends that her “business requires her to be
knowledgeable . . . about the right of individuals to purchase firearms,” and that the edited
footage suggests that “she lacks knowledge regarding integral aspects of her business.”
3
See Tronfeld, 636 S.E.2d at 450 (statement that an attorney “just takes people’s
money”); Carwile, 82 S.E.2d at 592 (statements charging “an attorney at law with unethical
or unprofessional conduct and which tend to injure or disgrace him in his profession”);
Cretella v. Kuzminski, 640 F. Supp. 2d 741, 747 (E.D. Va. 2009) (statement “questioning
Plaintiff’s ethical conduct as a practicing attorney, accusing him of the criminal act of
extortion, and stating that Plaintiff had been discharged from his employment with a law
firm as a result of such conduct”); cf. Perk, 485 S.E.2d at 143–44 (statement involving an
attorney’s work as a debt collector).
9
But of course, no part of Webb’s job as a gun store owner requires her to have nuanced
views on gun policy. Had the film suggested that Webb did not know, for instance, whether
a gun store owner must perform a background check, this might be a different case. But
as the district court explained, “[n]ot having an answer to a specific question about effective
alternatives to background checks does not imply anything about fitness to own a gun store
and to sell guns.”
We also agree with the district court that the edited footage cannot reasonably be
construed as implying, as appellants argue, that the VCDL is unfit as a “pro-Second
Amendment advocacy organization.” At most, the film suggests that a handful of VCDL
members, none of whom are identified as leaders within the organization, could not
immediately answer a difficult gun policy question.
Resisting this conclusion, the VCDL argues that the footage implies that it “failed
to deliver on its mission, thereby casting aspersion on the VCDL’s prestige and standing
in the field of Second Amendment advocacy.” Once again, this argument requires a court
to extend the film’s meaning well beyond what the clip shows. Schaecher, 772 S.E.2d at
595. Even for an organization steeped in gun policy, the essential message that VCDL
members failed to respond instantly to a complex question is simply not defamatory. For
the same reasons, the film cannot reasonably be understood as defaming Webb and Hawes
in their respective capacities as executive members of the VCDL.
B.
Having resolved appellants’ per se claim, we consider their contention that the film
implied other actionable defamatory meanings.
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Appellants maintain that the edited footage suggests that the VCDL and its members
have no basis for opposing background checks or are otherwise uninformed in their areas
of expertise. This claim fails because it divorces the twelve-second clip from the film as a
whole. Schaecher, 772 S.E.2d at 595 (instructing that statements must be viewed “in
context”). The disputed segment comes on the heels of several other questions concerning
background checks, and the panelists’ answers to all of those questions are included in the
film.
To be sure, the film gives the impression that Couric’s final question stumped the
panelists. But at worst, the plain, ordinary meaning of this edit conveys that these particular
members of the VCDL, after answering a series of related questions, did not have a ready-
made answer to a nuanced policy question. Even with the benefit of every inference, the
edited footage is not reasonably capable of suggesting that the VCDL and its members are,
as they contend on appeal, “ignorant and incompetent on the subject to which they have
dedicated their organizational mission.”
In arguing to the contrary, appellants heavily rely on the Schaecher court’s
description of defamatory language as including that which is calculated to render a person
“ridiculous.” Schaecher, 772 S.E.2d at 594. In doing so, appellants ask us to focus on this
single word, at the expense of those surrounding it, eschewing ordinary interpretive
principles. Cf. Yates v. United States, 135 S. Ct. 1074, 1085 (2015) (relying “on the
principle of noscitur a sociis” to “cabin the contextual meaning of” a single term in a
statutory list). Reading the term “ridiculous” in context with the descriptive words
preceding it — i.e., language that “tends to hold [one] up to scorn, ridicule, or contempt,
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or which is calculated to render [one] infamous, odious, or ridiculous,” Schaecher, 772
S.E.2d at 594 — clarifies what Virginia law makes abundantly clear elsewhere: simple
insults are not “actionable” in Virginia. Yeagle, 497 S.E.2d at 137–38.
C.
In a last-ditch effort to rescue the complaint, appellants cite news reports covering
the controversy to suggest that “viewers of Under the Gun actually understood the
exchange” as negatively portraying the VCDL and its members. Assuming this is true, it
does not answer the question before us. Regardless of how certain media outlets covered
the short-lived frenzy surrounding this incident, the Supreme Court of Virginia has
consistently stressed that it is the province of courts to perform the “gatekeeping” role of
distinguishing defamatory speech from mere insults. Schaecher, 772 S.E.2d at 595; Webb,
752 S.E.2d at 811.
Courts should not — indeed, cannot — abdicate this role in hopes that a member of
the press or public will answer the question for them. Instead, Virginia law requires courts
to exercise independent legal judgment as to whether challenged statements are susceptible
to the defamatory meaning alleged. See, e.g., Perk, 485 S.E.2d at 144 (concluding that
challenged statements were not “sufficiently defamatory on their face to permit a fact finder
to decide whether in fact the statements were actually defamatory”).
If any doubt remained on this point, the Supreme Court of Virginia’s recent decision
in Webb v. Virginian-Pilot closes the door. There, the court considered an appeal from a
jury verdict that rested on testimony from several witnesses suggesting that they inferred
defamatory meaning from the challenged news article. Webb, 752 S.E.2d at 812.
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Notwithstanding this evidence, the court reversed, holding as a matter of law that the article
was not reasonably capable of the defamatory meaning ascribed. Id. Applying these
principles, we conclude that the district court properly performed its independent
gatekeeping role in this case. And on the merits of that question, the district court reached
the correct result. 4
IV.
The crux of appellants’ defamation claims is that the edited interview
“manufacture[d] a false exchange . . . that made [appellants] look ridiculous, incompetent,
and ignorant about firearm ownership and sales, including the policies surrounding
background checks.” Although we agree that the filmmakers’ editing choices were
questionable, the edited footage simply does not rise to the level of defamation under
Virginia law. Accordingly, the judgment of the district court is
AFFIRMED.
4
Because we conclude that the edited footage is not reasonably capable of
defamatory meaning, we need not reach the district court’s holdings on the falsity and of-
and-concerning elements of Virginia’s defamation test. Similarly, because the edited video
footage does not convey a defamatory meaning, we need not decide whether silence under
Virginia law can satisfy the statement requirement of a defamation cause of action.
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