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Earlier this month, the Virginia Citizens Defense League (VCDL) sued Katie Couric and others involved in the making of a gun control advocacy film, Under the Gun, a film which Couric narrated and produced.

According to the complaint filed in the United States District Court for the Eastern District of Virginia, the film “contains false footage purporting to show members of the [VCDL] sitting silently, stumped and avoiding eye contact for nearly nine seconds after Couric asked ‘if there are no background checks for gun purchasers, how do you prevent felons or terrorists from purchasing a gun?’” The plaintiffs contend that, in actuality, the film was edited to remove the answers provided.

In Virginia, in order to be successful on a claim for defamation, a plaintiff must show (1) publication of (2) an actionable statement with (3) the requisite intent. To be actionable, the statement must be both false and defamatory.

This case is different from typical defamation cases because, here, plaintiffs are complaining about the omission of statements, which they claim provided an intentional false impression to the viewers. Unlike typical defamation cases that deal with proving whether certain statements are false and defamatory – such as gossip magazines claiming a celebrity has a drug addiction – here the plaintiffs must show that the omission of statements, through the splicing, amounted to defamation.

Plaintiffs claim the editing of the video by Couric and others amounted to defamation because the edited video misrepresented the exchange, including splicing in nine seconds of silent footage following the question, and inserting images of a gun cylinder being closed. The claim that the “manipulated footage falsely informed viewers that the [plaintiffs] had been stumped and had no basis for their position on background checks.”

Can the insertion of silence be defamation? On the one hand, there is no statement at all, much less a false and defamatory statement. But at the same time, the insertion of silence and removal of the answer given may have provided a false impression to the viewers, damaging the defendants. Because the plaintiffs are not claiming that Couric or others made false and defamatory statements, but instead omitted statements and inserted silence, it will be interesting to see if the Eastern District of Virginia finds that defamation exists here.