throbber
United States Court of Appeals
`For the First Circuit
`
`No. 07-1365
`
`PETER J. DAMON; JENNIFER DAMON,
`Plaintiffs, Appellants,
`v.
`MICHAEL MOORE; HARVEY WEINSTEIN; ROBERT WEINSTEIN; MIRAMAX FILM
`CORP.; THE FELLOWSHIP ADVENTURE GROUP, LLC.; LIONS GATE FILMS,
`INC.; IFC FILMS, LLC; SHOWTIME NETWORKS, INC.; CINEMANOW, INC.;
`WESTSIDE PRODUCTIONS LLC (sued as WESTSIDE PRODUCTIONS INC.); and
`NBC UNIVERSAL, INC. (sued as NATIONAL BROADCASTING CO., INC.),
`Defendants, Appellees.
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`[Hon. Douglas P. Woodlock, U.S. District Judge]
`
`Before
`Torruella and Howard, Circuit Judges,
`and Delgado-Colón, District Judge.
`*
`
`Donald J. Feerick, Jr., with whom Philip D. Moran and Feerick
`Lynch MacCartney PLLC, was on brief, for appellants.
`Jonathan M. Albano, with whom Carol E. Head and Bingham
`McCutchen LLP, was on brief, for appellees.
`
`March 21, 2008
`
`*
`
` Of the District of Puerto Rico, sitting by designation.
`
`

`
`DELGADO-COLÓN, District Judge. Plaintiff-appellant,
`Sergeant Peter J. Damon (“Damon”), a former Sergeant in the Army
`Reserves, appeals from the dismissal of his defamation claim
`stemming from the non-consensual use of an interview he conducted
`for NBC Nightly News (“NBC”) in the documentary “Fahrenheit 9/11”
`(“documentary”). According to Damon, defendants-appellees
`(“Appellees”), and more specifically, Michael Moore (“Moore”), the
`creator, writer, director, producer and narrator of the
`documentary, portrayed Damon as supporting the documentary’s anti-
`war and anti-Commander-in-Chief message by using and placing in the
`documentary, without his consent, a sixteen-second segment of an
`interview he previously conducted with NBC. In dismissing the
`defamation claim, the district court found that Damon’s appearance
`in the documentary was not reasonably susceptible of a defamatory
`meaning/interpretation. For the following reasons, we affirm the
`dismissal.1
`I. Factual Background
`A.
`NBC Nightly News
`Damon was an Army Reserve Sergeant who served in the
`National Guard’s 126th Aviation Unit based at Camp Edwards on Cape
`Cod, Massachusetts. On October 21, 2003, while on active duty at
`the National Guard facility in Balad, Iraq, a tire on a Black Hawk
`
` While the complaint contained, and the District Court dismissed,
`umerous other causes of action, the only issue before us is the
`dismissal of Damon’s defamation claim.
`-2-
`
`1n
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`

`
`helicopter exploded while he and another reservist were servicing
`the aircraft. As a result of the explosion, Damon lost his right
`arm near the shoulder and his left arm above the wrist; the Army
`reservist who was assisting Damon was killed. Following the
`incident, Damon was transported to Walter Reed Army Medical Center
`in Washington, D.C. (“Walter Reed”), where he was treated by Army
`medical personnel with a new pain blocker.
`On October 31, 2003, while Damon was awaiting surgery, an
`anesthesiologist asked him to do an interview with Brian Williams
`of NBC about the new pain blocker. Although heavily sedated, he
`agreed to the interview. In the NBC clip, Damon appears on the
`screen for less than thirty seconds, speaking to an interviewer
`regarding the new pain blocker with his injured arms in bandages.
`The interview consisted of the following colloquy:
`Brian Williams:
`Sergeant, how are you doing?
`Damon:
`Pretty good.
`Corp. Nelson:
`The stories get more wrenching from room to room.
`Sergeant Peter Damon from Brockton,
`Massachusetts, lost both arms.
`Like I still feel like I have hands.
`Yeah.
`And the pain is like my hands are being crushed
`in a vice. But they do a lot to help it. And
`they take a lot of the edge off of it. And it
`makes – makes it a lot more tolerable, you know,
`so I can just be a lot more comfortable. I – I
`can’t imagine not having them.
`* * *
`
`Damon:
`Corp. Nelson:
`Damon:
`
`-3-
`
`

`
`Brian Williams:
`
`And one more thing, if you’re looking for anti-
`war sentiment, you won’t find it on Ward 57 of
`Walter Reed. These men, with catastrophic wounds
`are, to a man, completely behind the war effort.
`In fact, many want to go back. They miss their
`units, and they miss their buddies. It is hard
`to look at their wounds sometimes. It is
`impossible not to admire their bravery.
`NBC aired Damon’s interview as part of its evening news broadcast.
`B.
`The Documentary
`While Damon consented to the NBC interview and subsequent
`broadcast, he neither consented to the use of the interview in
`another broadcast, nor was he ever advised that Appellees were
`considering using his interview for anything other than the
`original broadcast. Notwithstanding, Moore was allowed to place
`Damon in the documentary.
`The allegedly defamatory portion of the documentary
`contains the following statement:
`Moore:
`While Bush was busy taking care of his base and
`professing his love for our troops, he proposed
`cutting combat soldiers’ pay by 33% and
`assistance to their families by 60%. He opposed
`giving veterans a billion dollars more in health
`care benefits, and he supported closing veterans
`hospitals. He tried to double the prescription
`drug costs for veterans and opposed full benefits
`for part-time reservists. And when Staff Sargent
`Brett Petriken from Flint was killed in Iraq on
`May 26th, the Army sent his last paycheck to his
`family, but they docked him for the last five
`days of the month that he didn’t work because he
`was dead.
`They say they’re not gonna leave any veteran
`behind, but they’re leaving all kinds of veterans
`behind.
`
`Rep. McDermott:
`
`-4-
`
`

`
`Veteran:
`
`Subtitle:
`
`Damon:
`Voice:
`Damon:
`
`* * *
`(Video of Walter Reed Hospital)
`To say that we’re forgotten – I know we’re
`Veteran
`(in wheelchair) not forgotten. But missed? Yes. Yes, you know
`there’s a lot of soldiers that have been missed,
`you know, they’ve been skipped over. Um, that
`didn’t get the proper coverage that they deserve.
`They have the death toll but they’re not showing
`the amount of people that have been injured and
`been amputated because of the injuries, you know.
`(Nearly 5,000 soldiers wounded in the first 13
`months of the war.)
`Like I still feel like I have hands.
`Yeah.
`And the pain is like my hands are being crushed
`in a vice. But they do a lot to help it. And
`they take a lot of the edge off of it. And it
`makes – makes it a lot more tolerable.
`According to Damon, the documentary was an attack upon
`the integrity of the Commander-in-Chief and the war effort, and it
`denounced the United States’ military action in Iraq by, among
`other things, “attacking the credibility of the Commander in Chief
`of the United States Armed Forces about the justification for the
`war, its cost and consequences . . . .” Accordingly, Damon alleges
`that his unwitting appearance in the documentary falsely portrays
`him – and has been interpreted by members of the military and
`veteran communities – as sharing, adopting and endorsing Moore’s
`attack on the President and the war effort.
`
`-5-
`
`

`
`II. Procedural Background
`Damon brought suit in Superior Court of the Commonwealth
`of Massachusetts on May 26, 2006. On August 28, 2006, Appellees
`removed the case, on diversity grounds, to the United States
`District Court for the District of Massachusetts. Specifically,
`Damon sued for common law appropriation of name, portrait and
`picture; statutory right to privacy; defamation; intentional
`infliction of emotional distress; and loss of consortium. On
`October 6, 2006, Appellees filed a motion to dismiss the complaint
`for failure to state a claim upon which relief could be granted or,
`in the alternative, for summary judgment. On December 20, 2006,
`after a hearing, the district court granted Appellees’ motion to
`dismiss on all counts. This appeal followed.
`III. Analysis
`Standard of Review
`A.
`We review the district court’s decision to dismiss de
`novo. Stanton v. Metro Corp., 438 F.3d 119, 123-24 (1st Cir. 2006)
`(citing SFW Arecibo, Ltd. v. Rodríguez, 415 F.3d 135, 138 (1st Cir.
`2005)). In so doing, we accept as true the well-pleaded factual
`allegations of the complaint, drawing all reasonable inferences in
`favor of the non-moving party. Id. at 124.
`The Supreme Court recently clarified the law with respect
`to a plaintiff’s pleading requirement in order to survive a Rule
`12(b)(6) motion. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955
`
`-6-
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`

`
`(2007). In Twombly, the Court stated that “a plaintiff’s
`obligation to provide the grounds of his entitlement to relief
`requires more than labels and conclusions, and a formulaic
`recitation of the elements of a cause of action will not do.” Id.
`at 1964-65 (internal citation and quotation marks omitted).
`Further, the Court explained that the “[f]actual allegations must
`be enough to raise a right to relief above the speculative level on
`the assumption that all the allegations in the complaint are true.”
`Id. at 1965 (internal citations omitted). In so doing, the Court
`retired the oft-cited language of Conley v. Gibson, 355 U.S. 41,
`45-46 (1957), that “a complaint should not be dismissed for failure
`to state a claim unless it appears beyond doubt that the plaintiff
`can prove no set of facts in support of his claim which would
`entitle him to relief”, characterizing it as one “best forgotten as
`an incomplete, negative gloss on an accepted pleading standard.”
`Twombly, 127 S. Ct. at 1969. Nevertheless, as explained below, our
`disposition of Damon’s claim does not depend upon the nuances of
`Twombly’s effect on the dismissal standard.
`B.
`Defamation Claim
`Damon argues that the district court erroneously failed
`to conclude that his non-consensual appearance in the documentary
`was reasonably capable of a defamatory meaning in the military and
`veteran communities to which he belongs. More specifically, Damon
`contends that his appearance in the documentary portrays him as
`
`-7-
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`
`endorsing the political views of Moore; views that are contrary to
`his own and repugnant in the military and veteran community.
`To prevail on a defamation claim “under Massachusetts
`law, a plaintiff must show that the defendant was at fault for the
`publication of a false statement of and concerning the plaintiff
`which was capable of damaging his or her reputation in the
`community, and which either caused economic loss or is actionable
`without proof of economic loss.” Stanton, 438 F.3d at 124; Amrak
`2
`Prods., Inc. v. Morton, 410 F.3d 69, 72 (1st Cir. 2005); White v.
`Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66, 809
`N.E.2d 1034, 1036 (2004); Bogojavlensky, 438 Mass. at 629-30, 782
`N.E.2d at 510; Brauer v. Globe Newspaper Co., 351 Mass. 53, 55, 217
`N.E.2d 736, 738 (1966). The court is not called upon to determine
`the ultimate issue of whether the statement is defamatory, but to
`answer the “threshold question” of “‘whether [the] communication is
`reasonably susceptible of a defamatory meaning.’” Amrak, 410 F.3d
`at 72 (quoting Phelan v. May Dep’t Stores Co., 443 Mass. 52, 56-57,
`819 N.E.2d 550, 554 (2004)). A communication is susceptible to
`defamatory meaning if it would tend to injure the plaintiff’s
`reputation, or “hold the plaintiff up to scorn, hatred, ridicule or
`
` Four types of statements are actionable without proof of
`conomic loss: (1) statements that constitute libel; (2) statements
`that charge the plaintiff with a crime; (3) statements that allege
`that the plaintiff has certain diseases; and (4) statements that
`may prejudice the plaintiff’s profession or business. Ravnikar v.
`Bogojavlensky, 438 Mass. 627, 630, 782 N.E.2d 508, 511 (2003).
`-8-
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`
`contempt, in the minds of any considerable and respectable segment
`in the community.” Id. at 72 (quoting Phelan, 443 Mass. at 56, 819
`N.E.2d at 553) (internal quotation marks omitted); see also
`Milgroom v. News Group Boston, Inc., 412 Mass. 9, 12, 586 N.E.2d
`985, 988 (1992); Smith v. Suburban Rests., Inc., 374 Mass. 528,
`529, 373 N.E.2d 215, 217 (1978); Stone v. Essex County Newspapers,
`367 Mass. 849, 853, 330 N.E.2d 161, 165 (1975). In determining
`3
`whether a statement is susceptible to defamatory meaning, “[t]he
`communication ‘must be interpreted reasonably,’” and can only be
`ruled defamatory if it would lead “a ‘reasonable reader’ to
`conclude that it conveyed a defamatory meaning.” Amrak, 410 F.3d
`at 72 (citing Foley v. Lowell Sun Publ’g Co., 404 Mass. 9, 11, 533
`N.E.2d 196, 197 (1989)); see also Stanton, 438 F.3d at 127;
`Restatement (Second) of Torts § 563 cmt. c (1977). However,
`“[w]here the communication is susceptible of both a defamatory and
`non-defamatory meaning, a question of fact exists for the jury.”
`Jones v. Taibbi, 400 Mass. 786, 792, 512 N.E.2d 260, 264 (1987).
`Notwithstanding the apparent settled nature of the law of
`defamation in Massachusetts, the parties strongly disagree about
`
` Accordingly, words may be actionable even if they do not damage
` plaintiff’s reputation or hold him up to ridicule in the
`community at large or among all reasonable people; it is enough
`that they do so among a considerable and respectable class of
`people. Sharratt v. Housing Innovations, Inc., 365 Mass. 141, 145,
`310 N.E.2d 343, 346 (1974). Likewise, inferences which may be drawn
`by a considerable and respectable segment of the community can make
`a statement or publication actionable. Mabardi v. Boston Herald-
`Traveler Corp., 347 Mass. 411, 414, 198 N.E.2d 304, 306 (1964).
`-9-
`
`3a
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`
`its application. Damon contends that because he was a member of
`the armed forces, and is an active member of the military and
`veteran community, the Court must not apply the “reasonable” person
`standard, but instead must delve into the effect of the documentary
`upon his military brethren, who constitute a “considerable and
`respectable segment” of the community. See, e.g., Kelly v. Loew’s
`Inc., 76 F. Supp. 473, 486 (D. Mass. 1948) (“[I]f the community or
`audience includes a professional group to which the subject of the
`statement belongs, the question is the effect of the statement upon
`that group with its special professional standards.”); Sharratt,
`365 Mass. at 145, 310 N.E.2d at 346 (“It would be anomalous at best
`if words clearly understood in a defamatory sense among that
`community should fail to be actionable merely because they would
`appear innocent to the general public.”). For their part,
`Appellees argue that the Court is faced with two distinct questions
`of law: (1) whether a communication is capable of bearing the
`particular meaning ascribed to it by plaintiff; and (2) whether
`that meaning is defamatory. See Restatement (Second) of Torts §
`614; see also Phelan, 443 Mass. at 56-57, 819 N.E.2d at 554 (citing
`the Restatement). The main thrust behind this argument is that
`while standards applied from the viewpoint of professional groups
`may be relevant to the second inquiry, they have no bearing on the
`Court’s determination of whether a communication is capable of
`bearing the particular meaning ascribed to it by plaintiff.
`
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`
`Restatement (Second) of Torts § 614 cmt. d. While both positions
`are ably argued, pursuant to established precedent, Damon would
`prevail if he could show that his appearance and statement in the
`documentary was reasonably susceptible to a defamatory meaning in
`the eyes of either the community as a whole or that of the military
`or veteran community to which he belongs. See Stanton, 438 F.3d at
`124; Sharratt, 365 Mass. at 145, 310 N.E.2d at 346.
`1.
`Reasonable Viewer Analysis
`We first determine whether Damon’s placement in the
`documentary may reasonably be viewed as discrediting Damon in the
`minds of any considerable and respectable class of the community to
`which the statement was addressed. See Amrak, 410 F.3d at 72. As
`we have repeatedly held, the statement must be viewed “‘in its
`totality in the context in which it was uttered or published’” and
`“‘consider[ing] all the words used, not merely a particular phrase
`or sentence.’” Id. at 73 (quoting Foley, 404 Mass. at 11, 533
`N.E.2d at 197); see also Restatement (Second) of Torts § 614 cmt.
`d (“[T]he context of written or spoken words is an important factor
`in determining the meaning that they reasonably might convey to the
`person who heard or read them.”). In making this determination, we
`must view Damon’s interpretation of the communication reasonably,
`and can only rule that it is defamatory if it could lead “a
`reasonable [viewer] to conclude that it conveyed a defamatory
`meaning.” Amrak, 410 F.3d at 72; see also Stanton, 438 F.3d at
`
`-11-
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`

`
`125; Foley, 404 Mass. at 11, 533 N.E.2d at 197; Restatement
`(Second) of Torts § 563 cmt. c. Forced or strained construction of
`the statement will not suffice to state a claim for defamation.
`King v. Globe Newspaper Co., 400 Mass. 705, 711-12, 512 N.E.2d 241,
`245 (1987). “[T]he words are to be read in their ‘natural sense
`with the meaning which they would convey to mankind in general.’”
`Joyce v. George W. Prescott Publ’g Co., 348 Mass. 790, 790, 205
`N.E.2d 207, 207 (1965) (quoting Lyman v. New England Newspaper
`Publ’g Co., 286 Mass. 258, 260, 190 N.E. 542, 543 (1934)).
`Here, Damon appears in the documentary during a segment
`that discusses the treatment of wounded veterans by the
`administration of President George W. Bush. During the
`introductory remarks, Moore harshly criticizes President Bush for
`allegedly failing to deliver on his public statements of support
`for the troops, citing, among other things, his Administration’s
`proposals to cut combat pay and veteran benefit programs.
`Immediately following the introduction, Congressman Jim McDermott
`of Washington State appears on screen and states: “They say they’re
`not gonna leave any veteran behind, but they’re leaving all kinds
`of veterans behind.” Following Congressman McDermott, two veterans
`appear on screen, neither of whom makes any remark which could be
`construed as critical of the President or the war aims of the
`United States. Instead, the first veteran is critical of the
`medical coverage or treatment some veterans have received upon
`
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`
`their return home, and the second veteran appears to be commenting
`on either the government’s and/or the media’s failure to disclose
`the number of injured soldiers. A roughly sixteen-second portion
`of Damon’s NBC interview follows in which he talks exclusively
`about the pain he is suffering due to his injuries, and the
`effectiveness of his pain treatment. Looking at the documentary
`from this micro-level, there is no way for a reasonable viewer to
`construe Damon as supporting Moore’s “agenda.” Neither may it be
`reasonably construed as a statement promoting disloyalty or
`denouncing either the Commander-in-Chief or the medical treatment
`received by veterans.
`Stepping back from Damon’s segment and viewing the
`documentary as a whole, we are compelled to conclude, as the
`district court did, that a reasonable viewer could not construe
`Damon’s appearance as supportive of Moore’s message. The overall
`context of the documentary, along with its theme, text, visual
`images, sounds and release date, while understandably upsetting to
`Damon, does not propel his otherwise benign interview into one
`reasonably susceptible of defamatory meaning. See, e.g., Lasky v.
`Am. Broad. Cos., Inc., 631 F. Supp. 962, 970 (S.D.N.Y. 1986) (“In
`studying a television program for . . . defamatory meanings, a
`court must not confine its analysis to the words alone. . . . It is
`the entirety of the program, both audio and video, that must be
`
`-13-
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`
`considered in determining whether . . . [it] is reasonably
`susceptible of a defamatory meaning.”). 4
`Viewing the documentary as a whole, it is clear that
`Damon is one of approximately fifty individuals whose interviews
`were taken out of their original packaging and inserted into the
`documentary in order to further Moore’s message. Damon’s role
`comprises sixteen seconds of a roughly two-and-a-half-hour
`documentary. He appears in a segment with two other veterans, none
`of whom convey any anti-war sentiment. While a reasonable viewer
`could conclude that the documentary itself espouses an anti-war and
`anti-Commander-in-Chief message, no viewer could reasonably
`conclude that Damon shares any political or ideological kinship
`with Moore. The only message such viewer could reasonably take
`away from the documentary regarding Damon is that he was a wounded
`veteran, and that the treatment he was receiving at Walter Reed was
`effective in combating the pain caused by his injuries. We endorse
`the district court’s description of documentaries as “artistic
`undertakings that involve the collection of images brought to
`
` It bears noting that Damon’s appearance in the documentary is
`ssentially the same as his appearance in the NBC broadcast, an
`interview Damon concedes is not defamatory. After reviewing both
`programs, the obvious difference is the deletion of Brian Williams’
`closing remarks wherein he explains that all members of Damon’s
`hospital ward support the war. Notwithstanding this deletion,
`Damon’s actual appearance in the NBC broadcast remains unchanged in
`the documentary. During the same, Moore did not manipulate the
`actual questions asked, or Damon’s responses in such a way to
`convey a different meaning than when originally broadcast by NBC.
`-14-
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`
`gather [sic] in one place for presentation” and its assessment that
`“there is nothing [in the documentary] that suggests that there is
`an endorsement of a willingness on [Damon’s] part. It is simply a
`circumstance in which his image is used.” It would be unreasonable
`to interpret the use of Damon’s image as an affirmative adoption of
`Moore’s view of the military and the President.
`Moreover, Damon is not the only individual to appear in
`the documentary who does not support Moore’s message. For example,
`President George W. Bush, Vice-President Richard B. Cheney and then
`Secretary of Defense Donald H. Rumsfeld appear in the documentary,
`and all, presumably, disagree with Moore’s message. Numerous other
`individuals, including members of the military, who make no
`statement either way regarding their ideological beliefs concerning
`the President or the war aims of the United States, appear in the
`documentary. Because of this, no reasonable viewer could make the
`blanket assessment that an individual’s appearance in the
`documentary is equivalent to being supportive of Moore’s message.
`This is not a situation where the entire documentary consisted of
`like-minded individuals asserting a common position.
`
`Based on the foregoing, we once again concur with the
`trial judge’s finding that:
`
`[t]here is nothing that expressly or implicitly suggests
`that Mr. Damon knowingly associated with Mr. Moore’s
`venture here. The reasons that people consent to
`interviews do not suggest endorsement of the views of the
`
`-15-
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`
`interviewer . . . . Circumstances in which people are
`interviewed on contentious matters suggest that people
`with strong views, or people with views that they would
`like to have communicated, frequently submit to
`interviews by people they wouldn’t like very much or
`whose larger views they do not like very much. And one
`cannot
`say
`that that’s
`defamation under the
`circumstances.
`
`Accordingly, we are of the opinion that a reasonable viewer could
`not conclude that Damon’s appearance in the documentary conveyed a
`defamatory meaning. Stanton, 438 F.3d at 127; Amrak, 410 F.3d at
`72; Foley, 404 Mass. at 11, 533 N.E.2d at 197 (1989); Restatement
`(Second) of Torts § 563 cmt. c.5
`2.
`Reasonable Military Viewer Analysis
`Damon disagrees with the above analytical framework, and
`argues that the Court must determine what effect his appearance in
`the documentary has upon any respectable and substantial part of
`the community; and if the community or audience includes a
`professional group to which the subject of the statement belongs
`the question becomes what is the effect of the statement upon that
`group with its special standards. Kelly, 76 F. Supp. at 486; see
`also Sharratt, 365 Mass. at 145, 310 N.E.2d at 345 (“It would be
`
` While not clearly articulated, Damon appears to argue that Moore
`eeded to place a disclaimer informing viewers that Damon, and
`others, did not agree to appear in the documentary, and therefore,
`may or may not support its overall message. While disclaimers are
`not a bad practice, the non-defamatory character of a statement
`will rarely depend solely on the presence or absence of one.
`Stanton, 438 F.3d at 126.
`
`5n
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`
`anomalous at best if words clearly understood in a defamatory sense
`among the community should fail to be actionable merely because
`they would appear innocent to the general public.”). Military
`6
`personnel, “like other professional groups, such as doctors,
`lawyers or judges have a standard of judgment of their colleagues
`which is peculiar to their profession which differs sharply from
`the appraisal of the uninitiated.” Kelly, 76 F. Supp. at 486.
`Thus, the question is whether Damon’s appearance in the documentary
`would tend to injure Damon’s reputation, or hold him up to scorn,
`hatred, ridicule or contempt, in the minds of the military or
`veteran community. Id. (“[T]he issue narrowly stated is whether to
`permanent officers of the United States Navy the portrayal of
`plaintiff as resembling [a movie character representing him] would
`tend to lower his reputation.”).
`It has long been recognized that the military is a
`specialized society separate and apart from civilian society.
`
` The Massachusetts Supreme Judicial Court in Ingalls v. Hastings
` Sons Publ’g Co., explained the standard as follows:
`[A statement is defamatory] if, in view of all relevant
`circumstances, it discredits the plaintiff in the minds,
`not of the court, nor of wise, thoughtful and tolerant
`men, nor of ordinary reasonable men, but of any
`“considerable and respectable class in the community.”
`The emotions, prejudices and intolerance of mankind must
`be considered in determining the effect of a publication
`upon the standing of the plaintiff in the community.
`304 Mass. 31, 33, 22 N.E.2d 657, 658-59 (1939) (internal
`citations omitted).
`
`6&
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`
`Parker v. Levy, 417 U.S. 733, 743 (1974); United States v. Mariea,
`795 F.2d 1094, 1100 (1st Cir. 1986); Serrano Medina v. United
`States, 709 F.2d 104, 107 (1st Cir. 1983). This Court also
`recognizes that during its long history the military has, by
`necessity, developed laws and traditions of its own. Parker, 417
`U.S. at 743. The differences between the military community and
`the civilian community, and between military law and civilian law,
`are exemplified by the Uniform Code of Military Justice (“Military
`Code”). The Military Code regulates aspects of the lives of
`military men and women which are left unregulated in the civilian
`sphere. The making of a disloyal statement, which includes
`7
`“attacking the war aims of the United States,” is violative of the
`Military Code. Manual for Courts-Martial, United States, § 72,
`Art. 134.
`8
`At the time the documentary was released, Damon was an
`active member of the military, and he continues to associate with
`military personnel and veterans to this day. It is within these
`
` The Military Code regulates a far broader range of the conduct
`f military personnel than a typical state criminal code regulates
`of the conduct of civilians. Id. at 750.
` “Some statements may be so explicit in meaning as to support a
`onclusion from their language that they are disloyal to the United
`States. Other statements require interpretation; and their real
`nature may be discernible only in the context of the circumstances
`of their utterance. Words by themselves may not always reveal their
`character” United States v. Harvey, 19 C.M.A. 539, 542-44, 42
`C.M.R. 141, 145-46 (1970) (citing Watts v. United States, 394 U.S.
`705 (1969)).
`
`7o
`
`8c
`
`-18-
`
`

`
`communities that Damon claims he has been defamed. He alleges that
`his appearance, coupled with the documentary’s overall theme,
`narrative and his placement in the documentary – shortly after
`another soldier explained that he would not return to Iraq if
`ordered – brands Damon as being a supporter of the documentary’s
`agenda, denouncing the military operation that he and fellow
`military personnel served, denouncing the treatment of veterans and
`promoting disloyalty and disaffection to the United States. From
`this, Damon concludes that his appearance could lead the military
`community to reasonably conclude that he is making disloyal
`statements intended to promote disloyalty and disaffection toward
`the United States, the President and or the war effort. We
`disagree.
`
`While it is clear that military and civilian communities
`may very well view certain situations, e.g. a soldier’s refusal to
`return to battle, differently, this is not one of those situations.
`Taking the documentary as a whole, no reasonable member of the
`military or veteran community could possibly view Damon’s
`appearance in the documentary as being disloyal to the United
`States. As explained above, Damon makes no statements in
`opposition to the war effort, nor was his interview manipulated in
`such a way to imply that he was “attacking the war aims of the
`United States.” Id. In fact, as pointed out by the district
`court, the documentary’s portrayal of Damon
`
`-19-
`
`

`
`shows an individual who is discussing with great dignity
`and obvious pain what his participation in the conflict
`in Iraq has meant and not in any way suggesting that he
`thinks that his service was demeaned, but rather
`expressing his opinion that the medical treatment that he
`received has been something that helps to make his pain
`more livable
`
`and that Damon’s appearance “transcends the alternative views that
`others present there with . . . considerable dignity and no
`suggestion of disloyalty.”
`Moreover, unlike the cases cited by Damon, he was not
`9
`portrayed as denouncing the military, any of its war aims or the
`President. Instead, Damon spoke solely about his medical treatment
`after valiantly serving his country. Accordingly, there is no
`reason to believe that a reasonable member of the military or
`veteran community would conclude that Damon’s appearance in the
`documentary conveyed a defamatory meaning, and therefore lowered
`his reputation or subjected him to scorn, hatred, ridicule or
`contempt in that community.
`IV. Conclusion
`While we appreciate Damon’s anger and frustration over
`appearing without his consent in a documentary that stands in
`direct contrast to his own personal and political beliefs, we
`
` See, e.g., Parker, 417 U.S. at 733 (defendant publicly urged
`nlisted personnel to refuse to obey orders which might send them
`into combat); Harvey, 19 C.M.A. at 539, 42 C.M.R. at 141
`(defendant’s statements urged various Marines to refuse to fight in
`Vietnam).
`
`9e
`
`-20-
`
`

`
`conclude that his appearance in the documentary is not reasonably
`susceptible of a defamatory meaning. We therefore affirm the
`district court’s dismissal of Damon’s defamation claim. Since
`Damon’s appearance was not reasonably susceptible to a defamatory
`meaning under Massachusetts state law, we need not reach the
`question of whether being falsely labeled either pro- or anti-war,
`as a matter of law, holds a member of the military up to the type
`of scorn and ridicule required for a defamation claim.
`Furthermore, while we recognize the potential First Amendment
`implications of this case, since the claim fails as a matter of
`state law, we need not reach them.
`Affirmed.
`
`
`
`-21-
`
`

`
`
`
`-22-
`
`-22-

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