Terry Nichols’ brother filed suit against Michael Moore for defaming him in his film, Bowling for Columbine. In that film, Moore reported that
The court dismissed and the Sixth Circuit affirmed the dismissal on the grounds that the statements were substantially true, and that Mr. Nichols was a “public figure” and the plaintiff failed to show actual malice. Nichols v. Moore.
The film reported that inter alia Michael Nichols made practice bombs before his brother and Timothy McVeigh carried out the Oklahoma City bombing, and that he was arrested on an explosives charge related to the bombing.
Nichols asserts that the narration defamed him because it falsely stated that he made practice bombs before Oklahoma City and because the narration falsely implied that he was arrested and charged in connection to the Oklahoma City bombing. In contrast to Moore’s narration, Nichols asserts that he did not make practice bombs and that he was never arrested or charged with a criminal offense in connection to the Oklahoma City bombing. Instead, Nichols asserts that, shortly after the Oklahoma City bombing, he was charged with an explosives offense which was not related to the Oklahoma City bombing and which was ultimately dismissed.
In Michigan, in order to win a libel case, a plaintiff must prove the following elements:
- a false and defamatory statement concerning the plaintiff,
- an unprivileged communication to a third party,
- fault amounting to at least negligence on the part of the publisher, and
- either actionability of the statement irrespective of special harm or the existence of special harm caused by publication.
While each state uses its own terminology, essentially, these are the elements in all jurisdictions (at least all that I have studied with any degree of interest).
Once the plaintiff jumps over these four hurdles, he still has the Constitution to think of.
In addition to satisfying these requirements, a plaintiff must also satisfy the constitutional requirements of the First Amendment. Pursuant to New York Times v. Sullivan, 376 U.S. 254, 280 (1964) and Gertz v. Robert Welch, Inc., 418 U.S. 323, 330-332 (1974), if the plaintiff is a public figure, he must show by clear and convincing evidence that the defamatory statements were made with “actual malice,” that is, that it was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times, 376 U.S. at 280. See Collins v. Detroit Free Press, Inc., 627 N.W.2d 5 (Mich. App. 2001) (requiring clear and convincing evidence); see also M.C.L. § 600.2911.
However, there is another hurdle over which a libel plaintiff must jump, and that is the “substantial truth doctrine.” In most jurisdictions, a court will allow a publisher, filmmaker, or writer to get the story “close enough” without there being liability for defamation. The theory behind this is that if a writer had to get every single exacting detail correct, lest they fall victim to a defamation suit, free speech would be so chilled that the marketplace of ideas would ultimately remain closed for business.
Moore argued that the statements that James Nichols “made practice bombs” and that he was arrested in connection with the Oklahoma City bombing were “substantially true” and that Mr. Nichols is a limited purpose public figure — that is he is a public figure at least when one discusses the Oklahoma City bombing. Ergo, he must overcome the New York Times v. Sullivan actual malice test.
In finding that Moore’s statements were substantially true, the lower court and the Sixth Circuit relied upon an affidavit provided by FBI Agent Patrick W. Wease. Wease stated:
On April 21, 1995, JAMES DOUGLAS NICHOLS was interviewed in Decker, Michigan. During this interview, JAMES NICHOLS stated that he is the brother of TERRY NICHOLS and is a friend of TIMOTHY MCVEIGH, and that both have
visited and/or resided with him at his farm in Decker, Michigan, over the past several years. JAMES NICHOLS further stated that he has observed MCVEIGH and TERRY NICHOLS making and exploding ‘bottle bombs’ at his residence in 1992,
using brake fluid, gasoline, and diesel fuel. JAMES NICHOLS further stated that he participated with MCVEIGH and TERRY NICHOLS in making ‘bottle bombs’ in 1992, and that in 1994, he JAMES NICHOLS, has made small explosive devices using prescription vials, pyrodex, blasting caps, and safety fuse.
This dispensed with Nichols’ argument that he did not make “practice bombs.” While Moore may have missed the factual bullseye, this was enough for the court to hold that Moore got it “mostly right,” and thus this statement was not actionable.
The lower court was more troubled with Moore’s implication that James Nichols was arrested in connection with the Oklahoma City bombing. He was not. However, he was arrested only a few days after the bombing, the arrest came about as a result of the FBI investigation into the bombing, and James Nichols was held as a wintess in connection with the bombing. “Nichols himself admitted that he did not know whether this constituted an arrest in connection to the bombing.” Based on these facts, the Sixth Circuit upheld the District Court’s determination that Moore’s statement that Nichols was “arrested in connection to the bombing” is substantially true.
Finally, the Court dispensed with Mr. Nichols’ “defamation by implication” claim.
Under Michigan law, “claims of defamation by implication, which by nature present ambiguous evidence with respect to falsity, face a severe constitutional hurdle.” Locricchio v. Evening News Ass’n, 438 Mich. 84, 122 (1991).
Obviously, Mr. Nichols could not leap over that severe constitutional hurdle.
[I]t is enough to conclude, as a matter of law, that a defamation defendant cannot be held liable for the reader’s possible inferences, speculations, or conclusions, where the defendant has not made or directly implied any provably false factual assertion, and has not, by selective omission of crucial relevant facts, misleadingly conveyed any false factual implication. (quoting Locricchio, 438 Mich. at 144.)
