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Old January 17, 2013, 02:17 PM   #1
johnwilliamson062
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Libel and Firearm Miscategorization

Would it be possible for a manufacturer or even a citizen in a news story to sue a news outlet for libel following their claim that a firearm was an "assault rifle" "AK-47," etc., when the firearm was not?

Even if you accept the 1994 AWB definition of an AWB and forget the military definition, there are still many firearms, such as SAIGA and SKS that are regularly referred to as AWs or AK-47s. I think there could easily be damages to both a manufacturer or individuals reputation following such claims.

A few suits and reporters who don't know what they are talking about might shut up. I know there was a law office bringing suits against forums for publishing copyrighted information a few years back even though they were a third party, would the stake holders even need to be involved?
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Old January 17, 2013, 03:17 PM   #2
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IANAL, but I think such a suit would be very difficult to win. It's not enough to prove that a statement or article was wrong, you must also prove that the writer knew it was wrong and published it anyway "with malice." Given that you refer to reporters who "don't know what they're talking about" (a characterization I would agree with), they almost by definition can't know that what they're saying is wrong, and even if they did know they were wrong it's almost impossible to get inside their head and show that they acted with malice.
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Old January 17, 2013, 04:06 PM   #3
johnwilliamson062
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The standards you describe are usually applied to speech concerning a "public figure." Negligence is enough in most states when the subject is a private person.

An article on the matter

From the manufacturers perspective that might be a problem. If a certified document outlining the legal characteristics of an AW in the media outlets location, or informing that a SAIGA is not an AWB, etc. was sent, then any further publishing to that effect might more easily qualify. Sending the info to AP/reuters and then suing them for any article they distribute would likely be effective.
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Old January 17, 2013, 04:15 PM   #4
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in addition, you have to show damages... which might be difficult.
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Old January 17, 2013, 04:38 PM   #5
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Also, what happens if the court decrees that the firearm in question actually IS IN FACT an assault weapon or AK-47? What makes you sure that a court would agree with the usual firearm enthusiasts' definition?
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Old January 17, 2013, 04:52 PM   #6
johnwilliamson062
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Assault weapon is legally defined. The "usual enthusiast's" definition is irrelevant. Factory SKS, Saiga, and many other semi-autos do not fit.

Damages are always tricky in this sort of case, but given the use of google in employment screening and negative connotation of "Assault Weapon" I think some reasonable claims could be made. Effect on corresponding criminal case could also be argued. Have you seen the damages for those incorrectly incarcerated?
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Old January 17, 2013, 04:57 PM   #7
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Damages could be lost wages for a private citizen, or lost sales for the manufacturer
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Old January 17, 2013, 05:01 PM   #8
Vanya
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There's no way libel laws could conceivably apply here: libel (and slander, which is basically the spoken version of libel) is a tort committed against a person (or corporate entity, but don't get me started on the whole "corporate personhood" thing).

Don't see how you're gonna argue that a gun is a person.

And anyway, it's the wronged individual (technically known as the "plaintiff") who has to bring suit against the party alleged to have libeled him/her, so unless you think you're an SKS or whatever, you have no standing. (And if you do think that, your problems may go deeper than this issue... )

Edited to add:
As to firearms companies bringing such suits, they'd have a hard time arguing that a term they invented themselves is libelous. From a rather good, balanced article in today's NYT:
"...[T]he term “assault rifle” was expanded and broadened when gun manufacturers began to sell firearms modeled after the new military rifles to civilians. In 1984, Guns & Ammo advertised a book called “Assault Firearms,” which it said was “full of the hottest hardware available today.”


“The popularly held idea that the term ‘assault weapon’ originated with antigun activists, media or politicians is wrong,” Mr. Peterson wrote. “The term was first adopted by the manufacturers, wholesalers, importers and dealers in the American firearms industry to stimulate sales of certain firearms that did not have an appearance that was familiar to many firearm owners. The manufacturers and gun writers of the day needed a catchy name to identify this new type of gun.”

Last edited by Vanya; January 17, 2013 at 05:15 PM. Reason: addition.
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Old January 17, 2013, 05:09 PM   #9
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He's talking about a photo on the front page kind of thing... say showed up in the paper with a caption something along the lines of Senator worships at the same assault rifle altar as most recent spree killers...

That may be too specific of a hypothetical for what he's asking of course, I just mean that he's not asking his picture in a paper with an SKS shows up and the paper calls him and SKS...

Another example might be he's shown in the paper buying a Mini-14 without all the aftermarket stuff that made it an Assault weapon in 94, and it's called an Assault rifle in the paper....
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Old January 17, 2013, 05:11 PM   #10
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Vanya, if your weapon is identified as an assault weapon, you have implicitly been called the owner, manufacturer, or retailer of an assault weapon. The theoretical suit would be on behalf of the rifle owners, manufacturers, or retailers.
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Old January 17, 2013, 05:20 PM   #11
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MLeake, see my edit to the above post. But I think my basic point still stands, in any case: the "owners, manufacturers, or retailers" would have to bring suit themselves; I don't think it's something a third party can do on someone else's behalf.

I've never heard of a case in which a libel suit was brought as a class action, although I suppose it's possible... I'm not, thank goodness, a lawyer.
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Old January 17, 2013, 05:24 PM   #12
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No, but I own an AR, and could conceivably suffer some financial issue based on being demonized as an assault rifle owner.

It could be hard to prove, but a lot of things are.
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Old January 17, 2013, 05:35 PM   #13
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If your AR fits the legal definition of an assault rifle (or of an assault weapon, as in the infamous AWB), you'd be pretty much hosed, I think. As far as I know, showing that a "defamatory" statement is true is an iron-clad defense against an accusation of libel. The burden would be on you to prove that your AR wasn't an assault rifle/weapon -- which would be difficult, given all the quibbling over exactly what they are. (and I suspect that the distinction between an "assault rifle" and an "assault weapon" isn't one that's going to cut much ice with the average judge or jury... )

(That truth-of-the-accusation thing was what did in Oscar Wilde's lawsuit against Lord Whatsit, for example -- it didn't matter that being called a practitioner of the "infamous crime against nature" was, at the time, highly derogatory. If true, then not libelous.)
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Old January 17, 2013, 07:44 PM   #14
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The laws of defamation are complex, and it is extremely difficult to win a defamation suit against news media. A lawsuit like this isn't going to go anywhere.

Fully addressing the issue would require something like a law review article, and I have no intention of doing that much work. So I'll leave it at this --
  1. Anyone who wants to pursue this sort of litigation, and who can get standing of course, is welcome to try.

  2. I seriously doubt that any lawyer would be interested in taking the case on a contingency fee basis, so you'll need to break open your piggy bank. You'll be on the hook for the legal fees, and a civil case of this nature is likely to cost $150,000 to $250,000 in legal fees (including a bunch of money for expert witnesses) just through a jury trial. You will not recover your legal expenses.

  3. The courts are open for business. So go to it. Good luck. Have fun. Let us know how it turns out.
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Old January 18, 2013, 12:24 AM   #15
Tom Servo
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Quote:
in addition, you have to show damages... which might be difficult.
Has anyone noticed the slight uptick in AR-15 sales? I doubt a company could prove lost sales due to negative media exposure. Quite the opposite, actually.
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Old January 18, 2013, 01:07 AM   #16
johnwilliamson062
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Quote:
it is extremely difficult to win a defamation suit against news media
As a public figure you are absolutely correct. The standard for Libel against a public figure is pretty stringent. Winning as a "private person" is an entirely different standard that is not nearly so stringent.

Assault Weapon is legally defined by the AWB or local statutes.

I think the difficult part is finding a good case. You more or less have to defend a criminal and most of the 2A rights groups try to avoid that.

I thought there were some civil copyright cases being filed without owner permission a while back. I didn't look into it in too much depth, so I may be remembering incorrectly.
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