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BUSTOS v. A & E TELEVISION NETWORKS
646 F.3d 762 (2011)
Jerry Lee BUSTOS, Plaintiff-Appellant,
v.
A & E TELEVISION NETWORKS, Defendant-Appellee.
No. 10-1253.
United States Court of Appeals, Tenth Circuit.
July 19, 2011.
Before MURPHY, GORSUCH, and MATHESON, Circuit Judges.
GORSUCH, Circuit Judge. 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." Burns v. McGraw-Hill Broad., Co., 659 P.2d 1351, 1357 (Colo.1983), citing Restatement (Second) of Torts § 559 (1976) ("RST"). 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." See Laurence H. Eldredge, The Law of Defamation § 64 (1978). 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. Id. 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.
* The only case we have found in Colorado discussing the incremental harm doctrine, by an intermediate court, seems to require nothing more than this. See Tonnessen, 5 P.3d at 965-66. That case involved a newspaper reporting statements on the courthouse steps that were essentially identical to testimony that had just been given inside. Under the doctrine of fair report, the newspaper was immune for publication of the statements made inside the courtroom. Id. at 964-65. But theoretically it could have been liable for reporting the exact same statements made on the steps outside. Tonnessen avoided this absurdity by recognizing a "limited application of the incremental harm doctrine," holding that the newspaper could not be liable for the "two separate repetitions of an identical accusation." Id. at 966. Given the facts of that case, we can't say whether this was actually an application of the incremental harm doctrine or just a logical extension of the doctrine of fair report. But, notably, Tonnessen stops well short of incremental harm's suggestion that judges and juries should compare the defamatory harm of disjoint and unrelated statements. See id. at 965 ("[T]he fact that an individual has done one bad thing does not necessarily mean the individual has done another entirely separate bad act.").
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