What happens when a journalist reports on the “somewhat obvious” fact (in the words of the Court of Appeals) that a product marketed and sold as an “exploding target” for recreational shooters is, in fact, explosive -- that it is “the equivalent of buying explosives off the shelf” once the packaged ingredients are mixed (and that the company’s response to questions about the safety of its products was “only girly-men want to regulate [our] rifle targets”)?
In Tannerite Sports LLC v. NBC Universal News Group, 15-cv-3485 (2d Cir., July 25, 2017), the journalist and his employer get sued for defamation, under the theory that the news report defamed the manufacturer by falsely suggesting that the “targets are dangerous bombs as sold on store shelves.” The Court of Appeals for the Second Circuit, however, affirmed the dismissal of the manufacturer’s claim, restating and clarifying several pertinent principles of defamation law:
“Substantial truth” is the standard, under New York law, by which allegedly defamatory statements are measured. The law “overlooks minor inaccuracies,” and deems a statement to be “substantially true if the statement would not have a different effect on the mind of the reader from that which the pleaded truth would have produced.” Quoting New York’s highest court, the Second Circuit affirmed that “the libel law is not a system of technicalities, but reasonable regulations whereby the public may be furnished news and information, but not false stories about any one.”
Under New York law, the onus is on the plaintiff, at the pleading stage, to “identify how the defendant’s statement was false,” or else the complaint should be dismissed. The Court of Appeals rejected Tannerite’s position that “substantial truth” is an affirmative defense that must await summary judgment to be determined. While there are cases that suggest substantial truth is an affirmative defense, “that language is best understood as referring only to cases where the truth or falsity of the defendant’s statement depends on material outside the complaint." When the substantial truth of a statement can be determined from the allegations -- or documents incorporated by reference (including a transcript of the report, in this case) -- the Court may reliably determine substantial truth on a dismissal motion.
Defamation claims are susceptible to the same hurdles imposed by Twombly and Iqbal on other federal plaintiffs, insofar as the claim that a statement is not “substantially true” must be “plausible,” and must be based upon “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Against these principles, the Court of Appeals rejected Tannerite’s position that it was defamatory for the reporter to state that by holding one of the exploding targets he was “basically holding a bomb in [his] hand.” Insofar as “the primary purpose of a Tannerite exploding rifle target is to explode,” a credible definition of “bomb” could be applied to the targets as a matter of law. (In a particularly biting rejection of Tannerite’s argument that its targets were no different than a potato, the Court of Appeals noted that “[i]t is unlikely that a potato’s purpose is explosion, given that potatoes usually reside underground and seldom explode absent human prompting" -- except when overcooked in a microwave.)
Similarly, the Court rejected Tannerite's argument that “even if its targets are sometimes ‘bombs,’ they cannot accurately be called ‘bomb[s] on a shelf,’” because in the packaging, the constituent explosive materials are kept separate (only to be combined prior to use). Tannerite had argued that “a reasonable viewer could conclude from NBC’s statement that the product is a ‘bomb on a shelf,’ and that it would not be safe to shop at a store that stocked it, for fear of being hurt if it were to explode.” The Court rejected this argument, given the overall context of the news report, which clearly described how the product was packaged, and that it only “explodes when you shoot it” once the ingredients are mixed.
The Court also rejected Tannerite’s theory of defamation based on alleged implications of the report, i.e., that “gun-rights enthusiasts oppose the targets” and that Tannerite is associated with terrorists. NBC did report the views of a gun-shop owner who believed the products are “extremely dangerous,” and did report that the ingredients in the exploding targets had been used by terrorists. But the Court noted that nowhere in the alleged report did NBC actually make the allegedly false statements that Tannerite was opposed by gun-rights enthusiasts or associated with terrorists, and thus the allegations could not be sustained.
The significance of the opinion is to clarify a point of defamation law in New York, as interpreted by the federal courts, that substantial truth is not merely an affirmative defense, but may be determined as a matter of law by the Court from the allegations in the complaint. Though there are assuredly cases where there will be disputed facts as to whether an alleged defamatory statement is substantially true, when the Court can determine substantial truth from the context of the statements, it may make that determination at the earliest stage of the dispute.