Saying prisoner was gang member is substantially true

A statement that someone is a member of a certain prison gang, when he merely conspired with its members, is substantially true and therefore protected against a defamation suit, a Colorado federal appellate court ruled this month.

The U.S. Court of Appeals in Denver (10th Cir.) on July 19 upheld a lower court’s decision to dismiss the defamation lawsuit in Bustos v. A&E Television Networks. The case arose after A&E aired a television show featuring footage from a Colorado prison and referred to inmate Jerry Bustos as a member of the Aryan Brotherhood gang when, in fact, he had only aided the organization.

Prison surveillance video from a supermax facility in Florence, Colo., in 1998 showed Bustos talking with other inmates when another punched Bustos in the back of the head, prompting a fight before guards could step in.

A&E received the footage and featured it on a national television show Gangland: Aryan Brotherhood, pairing Bustos’ image with a narrator explaining the gang and its white supremacist, violent history.

The broadcast caused harsh reaction from Bustos' fellow inmates. He said members of the Brotherhood were not pleased he publicly appeared as part of their gang without an invitation. Other gangs also became suspicious of Bustos and his possible affiliation with the group, and he received several death threats.

Bustos filed a state defamation suit against A&E seeking damages from the company. Under Colorado law, a statement is defamatory if “it tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”

A trial court agreed that the A&E show falsely called him a member of the Aryan Brotherhood, which was defamatory. However, it dismissed Bustos' claim because the statement was substantially true, which is a defense to defamation actions.

Bustos appealed to the Tenth Circuit, which affirmed the lower court’s decision.

“To concede that a statement is defamatory is just to say it hurts. It says nothing about the truth of the matter," Judge Neil Gorsuch said.

Truth is a complete defense to defamation. The U.S. Supreme Court's seminal defamation opinion, New York Times Co. v. Sullivan, carried this defense a step further, requiring the plaintiff to prove the alleged defamatory statement is false if he or she is a public figure or the statement involves a matter of public concern.

The Tenth Circuit said the case is a matter of public concern, placing the burden on Bustos to prove the allegedly defamatory statement was materially false.

According to the court, a materially false statement is one that does more than get "some innocuous detail wrong."

"A report that the defendant committed 35 burglaries when he actually committed 34 isn't enough to warrant relief. . . . Neither is a report that mistakenly says that the plaintiff stabbed a man in Cheyenne, Wyoming when he really stabbed a man from Cheyenne, Wyoming. . . . Unless a statement contains a material falsehood it simply is not actionable."

The Court of Appeals found A&E's statement did not meet the material falsehood requirement.

"Comparing the challenged defamatory statement (membership in the Aryan Brotherhood) to the truth (conspiring with and aiding and abetting the Aryan Brotherhood), we cannot see how any juror could find the difference to be a material one — that is, likely to cause a reasonable member of the general public to think significantly less favorably of Mr. Bustos."

Indeed, while Bustos was not formally a member of the Brotherhood, he affiliated with the organization and its members, the court said. In addition to chatting with gang members, prison officials reported they discovered Bustos agreed to receive balloons filled with heroin from a prison visitor to pass on to three prison gangs, including the Brotherhood, the court noted.

“To the extent reasonable persons would find the views and practices of the Brotherhood abhorrent — and surely they would — they would also be appalled that Mr. Bustos has given that group his aid and comfort, risking administrative and criminal sanction to help their cause.”

Steve Zansberg, a Denver media lawyer who represented A&E in the case, said he and his clients are happy with the opinion.

"Obviously, our clients are pleased that the Tenth Circuit has affirmed the dismissal of Mr. Bustos' case," Zansberg said in an email. "In my view, Judge Gorsuch's opinion is clear and well-reasoned, and the Court's conclusion that this documentary is not actionable as defamation is completely correct."