In Bustos v. A&E Television Networks (No. 10-1253) the plaintiff sought damages as a result of being identified as a member of the Aryan Brotherhood on national television. The plaintiff was a Hispanic prisoner and alleged, among other things, that as a result of this identification he received threats from both the Aryan Brotherhood, which “did not appreciate his publicly appearing as a member without their invitation” as well as other gangs worried he actually was a member of the Aryan Brotherhood. To resolve this problem, the plaintiff brought a defamation suit.
The problem for the plaintiff was that the description of him, while technically inaccurate, was not materially false. As the Tenth Circuit put it: “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 not be precisely true, it is substantially true.”
The difficulty with this analysis (at least from the plaintiff’s point of view) is that the court explicitly looks at what “a reasonable member of the (law abiding) contemporary community” would consider material and does not consider “the viewpoint of prison gang members . . . [or ] any similarly insular group” would make of the allegations. As the Tenth Circuit acknowledges “it’s almost certain” that to the Aryan Brotherhood there is a material difference between being a member and co-conspirator.