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). The opinion faithfully applies existing Colorado law (the relevant law for purposes of this case) and law from other jurisdictions when Colorado law is absent (though I realize that some readers might disagree with that body of law). 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.

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 turn, denying compensation to a party truthfully defamed. It did so on the theory that if the statement is true, the plaintiff hadn’t suffered any injury — or at least not any injury he didn’t well deserve. 3 William Blackstone, Commentaries *124–25. So, in a twist worthy of an award from the Circumlocution Office, the truth could spare a defendant of liability in civil court only to condemn him to prison in a criminal court across the way.

Sensibly, American courts took their cue from the tort side of the English common law.  So a defendant who truthfully calls the plaintiff a member of the Aryan Brotherhood doesn’t suffer any liability, no matter how much the statement may have defamed or hurt the plaintiff’s reputation in the public’s estimation. Neither does it matter if the defendant doesn’t know the truth of the matter when he makes the defamatory statement. So long as what he says turns out to be true, he is free from liability; the truth, whenever discovered, serves as a complete defense.  In American law, defamation is not about compensating for damage done to a false reputation by the publication of hidden facts. It’s about protecting a good reputation honestly earned.

This defense has, in comparatively recent years, taken on a constitutional patina, becoming not just a feature of the common law but a First Amendment imperative.  It has also undergone a partial transmogrification. Where truth was once strictly a defense, now the plaintiff must shoulder the burden in his case-in-chief of proving the falsity of a challenged statement if he is a public figure or the statement involves a matter of public concern.  In its enthusiasm, Colorado has taken all this a step further, apparently requiring the plaintiff in these circumstances to show the falsity of a defamatory statement by “clear and convincing evidence.”

Because no one disputes that our case involves a matter of public concern, it falls to Mr. Bustos to carry this exacting burden. But what exactly does Mr. Bustos have to do to show that the statement he challenges is “false”? Under Colorado law, much as elsewhere, it is not enough for the plaintiff to show that the defendant got some innocuous detail wrong; the plaintiff must show that the challenged defamatory statement is not just false but material. 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.

But to say that the misstatement must be material only raises questions of its own — material to whom? And for what purpose? The answer to these questions takes us back to and can be found in the interest the American defamation tort is intended to protect — the plaintiff’s public reputation. Because this is the particular purpose the defamation tort is aimed at, we assess the materiality of a misstatement by comparing the damage it has done to the plaintiff’s public reputation to the damage the truth would have caused. [Citing Colorado law on this throughout these paragraphs. -EV] To qualify as material the alleged misstatement must be likely to cause reasonable people to think “significantly less favorably” about the plaintiff than they would if they knew the truth; a misstatement is not actionable if the comparative harm to the plaintiff’s reputation is real but only modest.

Neither do we measure this comparative impact from the viewpoint of prison gang members — or for that matter from the viewpoint of any similarly insular group whose reactions may be different than the mainstream of contemporary society. Instead, the relevant inquiry is what a reasonable member of the (law abiding) contemporary community would make of the challenged statement.

By requiring a significant impact on the plaintiff’s public reputation when compared to the truth, the material falsehood requirement works as a screen against trivial claims.  And this requirement is hardly unique to defamation law; the plaintiff or prosecution in many tort and criminal contexts — fraud and perjury are two obvious examples — must also prove not just a falsehood but a material falsehood as part of its case-in-chief.  After all, without such a limitation, every error in detail — no matter how slight or irrelevant in the scheme of things — could lead to not just protracted civil proceedings but also criminal liability. And while the law is often demanding, rarely is it so punctilious….

Unsurprisingly, deciding the materiality of a falsehood often requires a jury. Whether a particular misstatement is likely to injure the plaintiff’s reputation in the mind of a reasonable member of the community is often best decided by reasonable members of the community. But like nearly any other element of a tort this one is amenable to resolution at summary judgment when, viewing the facts in the light most favorable to the non-movant, the answer is beyond cavil.  And our review of the undisputed facts in this case persuades us that it is such a case — that no reasonable juror could find A & E’s defamatory statement was materially false, let alone do so clearly and convincingly as Colorado law requires.

We don’t doubt that the public thinks worse of Aryan Brotherhood prison gang members than standard-issue prisoners. But that only means A & E’s statement — its indication that Mr. Bustos is a member of the Aryan Brotherhood — is defamatory or hurtful to his public reputation. We must still compare A & E’s statement against the truth of the matter.

And on that score the facts reveal that, while Mr. Bustos isn’t formally a member of the Brotherhood, he surely did affiliate with the organization. In the A & E footage, Mr. Bustos is seen chatting with two Aryan Brotherhood members and a member of yet another gang up until the moment he gets punched. And his relationship with the Brotherhood hasn’t been limited to rec yard chats. In a conspiracy ultimately detected and disrupted by prison officials, Mr. Bustos agreed to receive balloons filled with heroin from a prison visitor; insert them into his body; and then pass them along to three prison gangs, including the Aryan Brotherhood. When things went awry, Mr. Bustos found himself — balloons and all — locked in solitary confinement. After this delay upset certain intended recipients, Mr. Bustos sent a handwritten apology to an Aryan Brotherhood leader. The note — which refers to the leader repeatedly as “bro” — explains the situation and promises the balloons will soon be on their way. It concludes by sending Mr. Bustos’s “respect” and asking the Aryan Brotherhood leader to “give my regards” to still three other Brotherhood members.

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. The difference or delta between the defamatory statement and the truth might cause some modicum of additional injury to his reputation, that we don’t deny, but it is not one a juror could find likely to be significant to a reasonable person. Tellingly, Mr. Bustos points to nothing in the record he has developed through the entire discovery phase of this case suggesting that his standing in the public eye would be improved at all by more careful explication of the true particulars of his involvement with the Brotherhood.

Notably, too, this court and others have found similar and arguably greater factual discrepancies immaterial as a matter of law. [Details omitted. -EV] …

Mr. Bustos protests that calling him a member of the Aryan Brotherhood has a special sting given that he’s Hispanic. He reminds us that the Aryan Brotherhood is a white-supremacist organization, and argues that falsely associating him with the group suggests that he’s someone who has “renounc[ed] his Hispanic heritage.”

But even granting all this to Mr. Bustos for argument’s sake, the truth is that he did intentionally aid and abet the Brotherhood. And having willingly helped the Brothers flout prison security measures as part of a criminal conspiracy, it’s a few years too late to take a principled stand against their agenda. 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.

Of course, this isn’t to say that no one makes a distinction between the Aryan Brotherhood’s criminal accessories and its full-fledged members; it’s almost certain, for example, that the Brotherhood does. But, as we have explained, defamation doesn’t vindicate factual mistakes of consequence only to such insular groups. And the harms Mr. Bustos alleges as a result of these misunderstandings come down to an increased risk of violence and disruption of the existing prison order — allegations unrelated to any damage done to Mr. Bustos’s public reputation. Inciting prisoners to violence might have been cause to indict A & E for defamation at one time under English criminal law, but it’s not actionable under contemporary American law.

Mr. Bustos replies that there is still at least one way in which the difference between being called a member and an accessory matters, one more material distinction we haven’t yet considered. A & E’s program took great pains to inform the viewing public of the Brotherhood’s so-called “blood in, blood out” rule — the principle that one must commit a homicide or an attempted homicide to be inducted as a full-fledged member. This, Mr. Bustos says, makes the difference between being a member and an accessory a material one, because the respectable public would surely think worse of him if he murdered.

But this line of attack, however promising on first glance, runs headlong into the truth. Whether A & E knew it at the time, after discovery we all know now that Mr. Bustos has at least one brutal gang-related attempted homicide in his past. So in this respect the difference between truth and falsity is not just immaterial — it doesn’t exist. There is no falsity, let alone a material one, when it comes to A & E’s challenged implication that Mr. Bustos has at least attempted murder. He has….

Mr. Bustos’s defamation claim is dismissed and the judgment is affirmed….