Charge: sequence in film was ‘work of fiction’ that damaged reputation of commentators.
Gun rights advocates don’t enjoy being falsely depicted as dimwits who can’t answer the most basic of questions about their No. 1 public policy issue.
Erik Wemple reports: That’s the takeaway from a defamation lawsuit filed today against Katie Couric and the producers of “Under the Gun,” a documentary about gun violence in the United States. Having debuted at the Sundance Film Festival in January, the documentary itself came under the gun in May, when members of the Virginia Citizens Defense League (VCDL) claimed that it slighted them by mal-editing an interview in which they’d participated. In response to a question from Couric, the film’s narrator, the gun rights advocates were depicted as sitting in baffled silence for nearly 10 seconds.
In fact, they had supplied an extensive response to Couric’s question.
Many onlookers, including the Erik Wemple Blog, blasted the film for this portrayal. Couric, the global anchor of Yahoo News, initially stood by the product but ultimately apologized for the “misleading” edit. The film’s director, Stephanie Soechtig, wasn’t so contrite. “I think it’s sad to say that these eight seconds didn’t give the VCDL a platform to speak. Their views are expressed repeatedly throughout the film; we know how they feel about background checks. They said it earlier in the film,” said Soechtig in an interview after the furor.
Intransigence of that sort may bedevil Soechtig in a legal action filed by the VCDL and two gun rights defenders in the film — Daniel Hawes and Patricia Webb — against Couric, Soechtig, Atlas Films and Epix, the documentary’s distributor. Filed in a Virginia federal court by Elizabeth Locke of Clare Locke LLP, the complaint states, “The Defendants manipulated the footage in service of an agenda: they wanted to establish that there is no basis for opposing background checks, by fooling viewers into believing that even a panel of pro-Second Amendment advocates could not provide one.” It seeks compensatory damages of $12 million, and punitive damages of $350,000 per plaintiff.
The filmmakers gave this particular lawsuit a galloping start, with a dreadful sequence that comes less than a half-hour into the one-hour-and-45-minute documentary. Seated in a circle are members of the VCDL against a dark backdrop. Couric asks this question: “If there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?” In response, the VCDL members say precisely nothing. They stare into space, or at the floor. Brain-freeze appears to have enveloped them.
As the suit notes, this depiction is a “work of fiction.” The VCDL members actually filled Couric’s ear; Hawes, for example, said this:
The fact is we do have statutes, both at the federal and state level that prohibit classes of people from being in possession of firearms. If you’re under 18, in Virginia, you can’t walk around with a gun. If you’re an illegal immigrant, if you’re a convicted felon, if you’ve been adjudicated insane, these things are already illegal. So, what we’re really asking about is a question of prior restraint. How can we prevent future crime by identifying bad guys before they do anything bad? And, the simple answer is you can’t. And, particularly, under the legal system we have in the United States, there are a lot of Supreme Court opinions that say, “No, prior restraint is something that the government does not have the authority to do.” Until there is an overt act that allows us to say, “That’s a bad guy,” then you can’t punish him.
That argument, notes the complaint, is part of the six minutes that the gun rights advocates spent answering Couric’s question. Showing the VCDL as dumbfounded required some work on the part of the filmmakers. In coordinating the interview with the VCDL advocates, Couric and a cameraman from Atlas Films told them that they needed to sit in silence for 10 seconds so that the crew could calibrate the “recording equipment.” It was this passage that “Under the Gun” placed in the film instead of the actual answers supplied to the question about background checks. The suit alleges that this moment carried particular implications for each of the named plaintiffs in the case. Webb is a licensed firearms dealer (Gadsden Guns Inc.), and the edits indicate that “she lacks knowledge regarding background checks — a requirement for every gun sale she does,” argues the complaint. Hawes is an attorney who handles cases involving firearms, and the film suggests that “he lacks the legal expertise and oral advocacy skills required to perform his duties.” Read the rest of this entry »
Symposium: When strict scrutiny ceased to be strict
At SCOTUSblog, Floyd Abrams writes: The result in the Williams-Yulee case was a difficult one to predict except that it was entirely predictable that the result would be by a deeply divided Court. It is no surprise that it was a five-to-four ruling, and no surprise at all that the jurists on both sides appear to have been irritated and frustrated by the views of those on the Court with whom they differed. The same had been true in Republican Party of Minnesota v. White (2002), the Supreme Court’s last trek into the muddy constitutional waters that required an assessment of First Amendment issues in the context of judicial elections. That case was not only decided by a five-to-four vote, but one of the five Justices — Justice Sandra Day O’Connor — repeatedly announced after her retirement that she regretted her vote.
“Critics of Citizens United can take no solace from yesterday’s decision, since it is rooted in all respects in the difference between judicial elections and all others. If anything, the more the Court focuses on the special and distinct role of judges as opposed to other elected officials, the more firmly it reinforces its earlier ruling as to the latter.”
The unavoidable problem in the case stems from the reality that if judges are to be elected, they must be allowed to campaign for election. Yet, what they say in their campaigns about what they will do as judges may lead people to doubt their open-mindedness as judges.
[Also see – Williams-Yulee v. The Florida Bar: A Disappointing End by Jonathan Keim]
And when they personally raise money, at least from lawyers and potential litigants before them, it may well lead to the perception of indebtedness on their part to their contributors.
“One need not adopt wholesale Justice Scalia’s final thrust at the majority in the case to admire its beauty: ‘The First Amendment is not abridged for the benefit of the Brotherhood of the Robe.’”
The Florida Code of Judicial Conduct sought to strike a compromise, barring judicial candidates from personally soliciting campaign funds, while allowing their campaign committees to solicit funds for them and allowing the candidates to write thank-you notes to contributors. On its face, it was a perfectly reasonable, good faith effort to walk a difficult line. The First Amendment, however, is more demanding than that.
The problem with the ruling begins with an ostensible First Amendment victory. Seven of the nine members of the Court (all but Justices Ruth Bader Ginsburg and Stephen Breyer) concluded that strict scrutiny should apply, a usual predicate for striking one sort or another of government limitation on speech. Read the rest of this entry »