[Eugene Volokh] Judge Neil Gorsuch on libel law, the media and the Aryan Brotherhood

Judge Neil Gorsuch (European Pressphoto Agency/Shawn Thew)

I’ve been excerpting some of Judge Neil Gorsuch’s most interesting opinions so that readers can see for themselves Gorsuch’s writing style — and, perhaps, something of his jurisprudential approach. Here is much of the opinion from an interesting libel case of his, Bustos v. A & E Television Networks (10th Cir. 2011). I’ve excluded most of the citations, but you can see them (together with an interesting discussion of the “libel-proof plaintiff” theory) in the original case — for now, note that the opinion relies heavily on applying existing Colorado law (the relevant law for purposes of this case) and on law from other jurisdictions when Colorado law is absent:

Can you win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise? The answer is no. While the statement may cause you a world of trouble, while it may not be precisely true, it is substantially true. And that is enough to call an end to this litigation as a matter of law.

Jerry Lee Bustos is a longtime inmate at the federal supermax facility at Florence, Colorado. Back in 1998, he was chatting with a few acquaintances on the prison yard when another inmate — who seemed to be walking along minding his own business — punched Mr. Bustos in the back of the head. Mr. Bustos wasn’t one to back down from an unprovoked attack and the pair quickly squared off as other residents of Florence looked on. After a few minutes, baton-toting prison guards stepped in, but by then Mr. Bustos had caught a few good punches and was no better for the wear.

Unfortunately for Mr. Bustos, the entire episode was captured by a prison surveillance camera. And worse, A & E Television Networks got a hold of the footage and featured it on its national cable television show, Gangland: Aryan Brotherhood. The program paired images of Mr. Bustos with a stentorian narrator who described the Aryan Brotherhood prison gang, its white-supremacist views, and its violent history.

Mr. Bustos complains that this in-all-ways-unsolicited television appearance has caused him an acre of difficulty. He says the program’s suggestion that he is a member of the Aryan Brotherhood has devastated his popularity around the jail. The Brotherhood, it turns out, did not appreciate his publicly appearing as a member without their invitation. And other gangs have also apparently become leery that Mr. Bustos might be a clandestine member of the Brotherhood. So now, Mr. Bustos complains, he has received death threats and for his own safety can’t be transferred to a less restrictive form of custody. Despite his best efforts, he just can’t convince his fellow prisoners that he’s not actually a member of the Aryan Brotherhood.

Frustrated by all this, Mr. Bustos brought a defamation suit against A & E under Colorado law. The district court agreed that the show effectively called him a member of the Aryan Brotherhood, and that the statement was defamatory, but it entered summary judgment against Mr. Bustos all the same. This because, the court found, the statement was substantially true — and a substantially true statement isn’t actionable in defamation. It is this result Mr. Bustos now appeals.

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.”  Before us, the parties take it for granted that A & E called Mr. Bustos a member of the Aryan Brotherhood and that this statement is defamatory. But to concede that a statement is defamatory is just to say it hurts. It says nothing about the truth of the matter.

In fact, long ago English criminal law took the view that the truth was not only not a defense to a defamation charge but an aggravating circumstance — so that it was actually (if remarkably to contemporary ears) said, “the greater the truth the greater the libel.”  Truth was no defense to a criminal defamation charge because the law cared less about the niceties of personal reputations and free speech than with keeping a lid on public violence and civil unrest.  Even truthful defamation demanded punishment because of its tendency, in the Star Chamber’s estimation, to “incite[ ] … quarrels and breach of the peace, and [to] be the cause of shedding of blood, and of great inconvenience.” De Libellis Famosis Case, 77 Eng. Rep. 250, 251 (Star Chamber 1606).

Still, this only tells at most half the story. For its part, English tort law took a very different t