Article Reporting on Jan. 6 as “Insurrection” Not Defamatory + Pardon Isn’t “Acquittal”

While WBIR and Tegna’s two defenses, that is, the fair report privilege and the substantial truth defense, have slightly different analyses (e.g., whether the report is “fair and accurate” versus whether the statement is “substantially true”), in this case, those analyses boil down to a single question: are the statements in the news article about the criminal charges against plaintiff an accurate statement of those charges. Before delving into that matter, the Court notes that plaintiff appears, at least in part, to argue about the validity of the criminal charges he faced (referring to “baseless charges” and suggesting that charges alleging “assaults or violence” were “fabricated”). But that is not the question before this Court. The question is whether the article at issue accurately reported what the criminal charges were; whether or not the criminal charges had a sufficient factual basis is irrelevant to the instant inquiry.

Turning to the truth or accuracy of the article, the Court notes that plaintiff appears to essentially raise two challenges to the article: (1) that he was not charged with an “insurrection” charge; and (2) that the events at the United States Capitol on January 6, 2021, were not an “insurrection.”

As to the first of these arguments, there can be no doubt that the article is at least “substantially” true and accurate. The article’s headline reads “Tennessee man to face several charges, including engaging in physical violence, during Jan. 6 Insurrection.” The article further states, in full:

A Tennessee man is facing several charges after authorities said he joined in the Jan. 6 Insurrection in Washington D.C. Documents from the Federal Bureau of Investigation said he illegally entered the U.S. Capitol building and joined in a fight against police officers after being pushed out. The documents also said Shannon Bitzer threw a metal crowd control device at police officers.

Bitzer was charged with using a weapon to forcibly oppose resist, impede, intimidate or interfere with officers. He was also charged with illegally entering a restricted building, yelling threatening language in the Capitol Building, and engaging in an act of physical violence during the Jan. 6 Insurrection.

FBI documents said the bureau received a tip from a person who knew Bitzer, saying that he had participated in the Jan. 6 Insurrection. The FBI also said it received an anonymous letter identifying him. The letter included a picture of him at the Jan. 6 Insurrection. That picture was compared to Bitzer’s photograph for his Tennessee license, the FBI said.

The FBI then found Bitzer’s phone connected to a cell site that provides service to the U.S. Capitol Building on Jan. 6, 2021. The documents also said he was seen multiple times on security footage, open-source video, and police bodycam footage wearing a red “Make America Great Again” hat with a black bandana, a green shirt, blue pants, tan shoes, and a black coat.

The documents also said his bank statements had several charges between Jan. 6, 2021, and Jan. 8, 2021, from the Washington D.C. area.

The FBI said at around 3:10 p.m., Bitzer approached a railing that barricaded the front of the U.S. Capitol building’s north doors while other people discussed entering the building with two police officers. It said the police officers would not let them inside.

“Bitzer then moved the barrier out of the way and approached the USCP officers at the North Door. Bitzer yelled, ‘We want to go in the Capitol! We want to go in!’ As other rioters chanted, ‘Let us in, let us in,’ Bitzer approached the North Door, which another rioter had just opened,” the FBI documents said.

It said he held the north door open, blocking an officer with his arm and waving others inside. It said he yelled, “Get in patriots, get in!” Around a minute later, the documents said he entered the building while holding a cell phone.

The FBI documents said officers also identified Bitzer as having encouraged people to illegally enter the U.S. Capitol building.

After another minute, the documents said he left the building when police officers pushed the crowd out of the Capitol building. After being pushed out, the documents said people in the crowd began fighting police officers.

The FBI said bodycam footage showed a metal stanchion and railing nearby. Other footage showed Bitzer near the railing and stanchion. Bitzer then joined in the fight against police officers, the documents said.

It said Bitzer pushed the railing towards the north door as police officers tried to get inside and close the doors. The FBI said Bitzer also threw the stanchion towards the north doors and the officers in the doorway.

According to court records, he was indicted in July 2024 a [sic] notice of hearing was set for Bitzer’s arrangement [sic] on Aug. 7.

Clearly, the article does not claim that plaintiff faced “insurrection charges,” but rather it reports that plaintiff faced charges due to his participation in the events at the United States Capitol on January 6, which it refers to as the “Jan. 6 Insurrection.” Although not reflected in the attached news article, WBIR and Tegna acknowledge that the article’s original URL contained: “shannon-bitzer-facing-january-6-insurrection-charges.” But even assuming that the URL of the website containing the news article could be deemed part of the article itself, this series of words does not necessarily reflect a statement that plaintiff was facing a criminal charge of insurrection, but rather, is equally plausibly read as stating that plaintiff was facing charges relating to the January 6 insurrection.

And, that the latter was the intended meaning is made clear when the URL is read in the context of the article, which, again, never stated that plaintiff faced a charge of “insurrection.” See Clayton v. Hogan (M.D. Tenn. 2024) (concluding that even if the title of a report was “unfair and/or inaccurate in isolation, it was only one sentence connected to an actual reported news story that provided context and detail[.]”). Accordingly, the Court finds that no portion of the article or the URL contained an inaccurate or untrue statement that plaintiff was charged with a criminal charge of “insurrection.”

The Court turns to plaintiff’s argument that the events at the United States Capitol on January 6, 2021, were not an “insurrection.” Although there is no reference in plaintiff’s criminal case, which was in its infancy when dismissed, to the term “insurrection,” in numerous other cases, the D.C. District Court has routinely described the events at the United States Capitol on January 6 as the “January 6, 2021, insurrection.” [Many citations omitted. -EV] Indeed, in one such case, the defendant sought to prevent the government from using “inflammatory language” including “insurrection” in her criminal trial related to her involvement in the events of January 6, 2021. The D.C. District Court denied that motion, stating that “[w]hat occurred on January 6 was in fact a riot and an insurrection[.]” …

Against this background, the Court finds that the news article’s use of that term was both “fair and accurate” and “substantially true,” in that the article was summarizing the criminal charges plaintiff faced in the D.C. District Court, and the D.C. District Court, and other courts, had repeatedly labeled those events an “insurrection.” In other words, the news article, which reported on the criminal charges from the D.C. District Court, adopted the “insurrection” label that court had repeatedly used for the same course of events as at issue in plaintiff’s criminal case. Accordingly, the Court finds that the article’s labeling of the events is both protected by the fair report privilege and is unactionable because it is substantially true.

The Court concludes with one final note about the truth and accuracy of the news article, and plaintiff’s version of events. Plaintiff repeatedly alleges that he was “acquitted” of charges and that the criminal charges against him were dismissed as “baseless.” The record of plaintiff’s criminal case in the D.C. District Court does not support those allegations.

Plaintiff was indicted in that case on July 3, 2024. Plaintiff was scheduled to proceed to trial on those charges on March 3, 2025. However, on January 20, 2025, upon his inauguration for his second term, President Donald J. Trump issued a proclamation entitled “Granting Pardons and Commutation of Sentences for Certain Offenses Relating to the Events at or Near the United States Capitol on January 6, 2021.” … As a result, on January 21, 2025, the government moved to dismiss the charges against plaintiff in the D.C. District Court, which was granted…

[A] dismissal of charges based on a presidential pardon is not, as plaintiff claims, an “acquittal” and is not a dismissal on the ground that the charges are “baseless.” Accordingly, any allegation that the new [perhaps meant to be “news”? -EV] article’s recitation of the charges in this case is defamatory because plaintiff was “acquitted” or the charges against him “dismissed as baseless” are meritless….