The Tenth Circuit Court of Appeals issued its opinion in Bustos v. A&E Television Networks on Tuesday, July 19, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioner is a longtime inmate at the federal supermax facility in Florence, Colorado. In 1998, Petitioner was involved in a violent conflict with another inmate in the prison yard. The entire episode was captured by a prison surveillance camera; A&E Television Networks got a hold of the footage and featured it on its national cable television show, Gangland: Aryan Brotherhood. The program paired images of Petitioner with a “narrator who described the Aryan Brotherhood prison gang, its white-supremacist views, and its violent history.” Petitioner complains that this unsolicited television appearance, which suggested that he is a member of the Aryan Brotherhood, has devastated his popularity around the jail; Petitioner also claims he has received death threats. As a result, Petitioner brought a defamation suit against A&E. While the district court agreed that the show effectively called him a member of the Aryan Brotherhood, and that the statement was defamatory, it entered summary judgment against Petitioner because the statement was substantially true — and a substantially true statement isn’t actionable in defamation.

The Court agreed with the district court. In the A&E footage, Petitioner is seen conversing with two Aryan Brotherhood members and a member of yet another gang up until the moment of the prison yard fight. “And his relationship with the Brotherhood hasn’t been limited to rec yard chats. In a conspiracy ultimately detected and disrupted by prison officials, [Petitioner] agreed to receive balloons filled with heroin from a prison visitor . . . and then pass them along to three prison gangs, including the Aryan Brotherhood. When things went awry, [Petitioner] . . .  sent a handwritten apology to an Aryan Brotherhood leader. The note — which refers to the leader repeatedly as ‘bro’ — explains the situation and promises the balloons will soon be on their way. It concludes by sending Mr. Bustos’s ‘respect’ and asking the Aryan Brotherhood leader to ‘give my regards’ to still three other Brotherhood members.”

Comparing the challenged defamatory statement (membership in the Aryan Brotherhood) to the truth (conspiring with and aiding and abetting the Aryan Brotherhood), the Court could not conclude that any juror could find the difference to be a material one; the difference is unlikely to cause a reasonable member of the general public to think significantly less favorably of Petitioner. The difference between the defamatory statement and the truth “might cause some modicum of additional injury to his reputation . . . but it is not one a juror could find likely to be significant to a reasonable person.” Ultimately, Petitioner cannot win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when he has previously conspired with the Brotherhood in a criminal enterprise; the statement by A&E was substantially true.