Inmate’s affiliation with gang sinks his libel claim

Tuesday, July 26, 2011

The substantial-truth doctrine carries great force in defamation law, protecting statements that are mostly factual but also contain false elements. Just ask Colorado inmate Jerry Lee Bustos, who sued after A&E TV’s cable television show, “Gangland: Aryan Brotherhood,” misidentified him as a member of the Aryan Brotherhood.

Bustos, who is Hispanic, took offense at being labeled as a member of the white-supremacist prison gang. The A&E show, which first aired in November 1998, featured footage of Bustos getting into a fight with another inmate. It then showed his picture while the narrator talked about various aspects of the Aryan Brotherhood.  Bustos didn’t learn about the episode until almost nine years later.

Bustos claimed that he suffered damages as a result of the show’s mistake. He said many members of the white-supremacist group did not appreciate that he had been identified as a member and that he had received death threats as a result of the show.

A federal district court rejected his defamation claim in 2010 based on the substantial-truth doctrine, which provides that a statement that includes false elements is still protected unless it contains a material, or key, false statement.

Bustos appealed to the 10th U.S. Circuit Court of Appeals, which sided with A&E in its July 19 decision, Bustos v. A&E Television Networks. The three-judge panel dismissed the lawsuit, finding that there was no actionable defamation because “while Mr. Bustos isn’t formally a member of the Brotherhood, he surely did affiliate with the organization.”

A&E footage showed Bustos speaking with members of the Aryan Brotherhood and engaging in a conspiracy to traffic in drugs for several prison gangs, including the Brotherhood.

The panel explained: “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.”

Bustos argued that the statements were defamatory in part because he is Hispanic and the identification with the Brotherhood falsely implies he has renounced his heritage. The appeals court explained that “even granting all this to Mr. Bustos for argument’s sake, the truth is that he did intentionally aid and abet the Brotherhood.”

The 10th Circuit panel relied in part on the 6th Circuit’s decision in Nichols v. Moore (2007), which used the substantial-truth doctrine to toss out a libel suit by James Nichols against filmmaker Michael Moore.  James Nichols — the brother of convicted Oklahoma City bombing conspirator Terry Nichols — contended that Moore had libeled him in the film Bowling for Columbine when he suggested that he had been charged with an explosives offense related to the 1995 bombing.  Instead, James Nichols was convicted of an unrelated explosives offense and was considered only a material witness in the Oklahoma City bombing.  However, the 6th Circuit still ruled that the statements in the film were protected by the substantial-truth doctrine.

The 10th Circuit reasoned that if the substantial-truth doctrine protected Moore for his comments about James Nichols, it surely protected A&E for its statements about Bustos, who was “even more obviously associated with the reviled group [Aryan Brotherhood] than the plaintiff in Nichols.”

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