Plaintiff-appellant Tannerite Sports, LLC (“Tannerite”) appeals from an order of dismissal and a judgment entered by the United States District Court for the Southern District of New York (Scheind-lin, /.). On appeal, we ask whether federal pleading standards, when applied to New York law, require a plaintiff asserting a defamation claim to allege facts demonstrating that the defendant made a false statement. We then consider whether Tan-nerite’s defamation complaint alleged that defendant NBCUniversal News Group (“NBC”) made false statements regarding Tannerite exploding rifle targets (“Tanner-ite targets” or “targets”).
BACKGROUND
I. The Broadcast
“Right how, I ani basically holding-á bomb in my hand,” proclaimed television reporter Jeff Rossen, speaking against backdrop images of high-powered firearms and flame-engulfed cars. App’x at 89. “And you’ll never believe where I got this,” he continued. Id. “A sporting goods store, no questions asked.” Id. As the television camera zoomed in, he added that “the key ingredient here that causes the explosion has been used by terrorists to kill Americans.” Id. Lifting two white containers for viewers to see, Rossen declared that “[t]his morning, you’re about to see what happens when this gets in the wrong hands.” Id.
So began' a report on NBC’s Today Show considering the dangers of Tannerite exploding rifle targets. Tannerite’s “targets” consist of separately packaged chemicals—-ammonium nitrate and pyrotechnic grade aluminum powder—that detonate when mixed together and then shot with a high-velocity bullet. The targets enhance long-range recreational shooting, as the explosion provides an exciting acknowledgmеnt that the target has been hit. Or, as Tannerite’s 2Ó14 Product Guide states, “[sjtrike your target and the gratification is instant.” App’x at 24.
. Unfortunately, but somewhat obviously* the targets pose dangers if misused. Tan-nerite’s own product guide recommends that the targets be detonated “away from populated areas,” and notes that improper use of the targets “may start fires, may be less safe to handle, and [may cause] erratic performance.” App’x at 25. And, because the targets contain. ingredients that explode, they can be used to-do harm rather than enhance recreation.
The Today Show’s report emphasized these risks, to put things mildly. When Rossen’s introduction concluded,' the scene changed abruptly to a small building in a country setting. Following a moment of serenity, the building exploded in a column of fire. A voice-over noted the presence of “dаngerous and powerful explosives.” App’x'at 89. Viewers saw a montage of structures and cars bursting into flame.
After’ displaying more destruction, Ros-sen turned his focus to “[t]he lead manufacturer” of the targets: Tannerite. Id. He described Tannerite targets’ “key ingredient,” ammonium nitrate, as “a favorite of terrorists^] used in the Oklahoma City bombing, and to kill U.S.’ troops in Afghanistan.” Id. He noted that “[t]he FBI even issu[ed]- [an] intelligence bulletin in 2013,” stating that “it has potential use as [an] explosive[] in IEDs by criminals and'ex:-tremists.”
NBC’s broadcast emphasized the easy accessibility of Tannerite targets. It noted their presence at' “most sporting goods stores”, and online. Id. Rossen stated that he “went shopping and bought it by the cartload,” and his “producer bought forty pounds’ worth online, enough to blow up a house.” Id.
Next came an interview with -Travis Bond, a firearms expert. Bond stated that Tannerite is “extremely dangеrous” and the “equivalent of buying explosives off the shelf.” Id. A voice-over relayed Bond’s view that “Tannerite is getting around the
The report bemoaned the product’s minimal regulatory supervision. Rossen interviewed Senator Richard Blumenthal, who argued that the products should be regulated more rigorously. Rossen then read Tannerite’s response: that the product is safe when used properly and that “[o]nly girly-men want to regulate Tannerite rifle targets.” App’x at 89.
Back in the studio, Rossеn, holding two cartons of Tannerite targets, turned to the Today Show anchors and noted that, “after buying all of these products, we are handing it over to experts,” but assured them that • it is “not dangerous being in the studio right now. Of course, I wouldn’t do that to you.” Id. He added, “[a]nd you need the catalyst. But it is incredibly dangerous when you think about it ,.. and how this is used overseas by terrorists,” Id. An anchor added, “[a]nd in some cases here as well, by the way.” Id.
II. The Article
An NBC internet article called “Bombs for sale: Targets containing dangerous explosive being sold legally” provided a similar account. App’x at 37. The article discussed injuries caused- by the “exploding targets.” Id. It stated that the “key ingredient” of the targets “is ammonium nitrate, the same substance used in the Oklahoma City bombing ... and in IEDs ... used against U.S. troops in Afghanistan.” App’x at 38. It noted that “[g]un enthusiasts biiy it for target practice because it explodes when you shoot it, letting yоu know you’ve made the shot.” Id.
The article again noted Bond’s view that “Tannerite is getting around the law on a technicality by separating the two ingredients in its explosive—ammonium nitrate and aluminum powder—even though the two are sold together,” and quoted Bond as saying that “once it’s mixed, it’s classified as an explosive.” let. Like the video report, the article discussed Senator Blu-menthal’s views embracing greater regulation, and printed Tannerite’s response that additional regulation would be inappropriate.
III. Proceedings Below
Tannerite sued NBC for defamation.
NBC moved to dismiss, and .the district court granted the motion. Tannerite Sports, LLC v. NBCUniversal Media LLC,
The district court ruled that Tannerite had not alleged that NBC made false statements. The court stated that “[t]here is no question that ‘Tannerite-brand binary exploding rifle targets’ explode. That is their purpose.” Id. at 235 (emphasis in original). Consequently, even if NBC’s “uses of the word ‘bomb’ [did not] me[et] the precise definition of the word.... the gist or substance ... [was] true in light of the many meanings that reasonable audiences associate with the word.” Id. (internal quotation marks and citations omitted). The court also wrote that neither publication “suggested that Tannerite’s exploding rifle targets are dangerous before the component ingredients are mixed, or that proper use of the products causes destruction or injury.” Id. at 236. The court noted that the video demonstrated how the product’s ingredients must be mixed, and both the video and article stated that the product does not become an explosive until its ingredients are mixed together. Id. The court also concluded that NBC’s reports clearly described dangers from misuse, as opposed to proper use, of the products. Id.
In the same order, the court also denied Tannerite’s motion for leave to amend. Id.
Tannerite appealed the district court’s order granting NBC’s motion to dismiss and denying the motion to amend, as wеll as the judgment order that followed soon after.
DISCUSSION
We review de novo a district court’s order granting a motion to dismiss. Williams v. Priatno,
I. Consideration of Substantial Truth at the Motion-to-Dismiss Stage
Tannerite first argues that the “substantial truth” of a defendant’s statement is not a proper basis for dismissal of a defamation complaint, inasmuch as “substantial truth” is an affirmative defense that must await summary judgment. We consider this argument before addressing whether NBC’s statements were, as the district court ruled, substantially true.
A. Substantial Truth
“Substantial truth” is the standard by which New York law, and the law of most other jurisdictions, determines an allegedly defamatory statement to be true or false. See Masson v. New Yorker Magazine, Inc.,
“[A] statement is substantially true if the statement would not have a different effect on the mind of the reader from that which the pleaded truth would have produced.” Id. (internal quotation marks and citations omitted) (quoting
The “substantial truth” standard finds basis in the realities and purposes of defamation law. In Tolbert v. Smith, we explained that “a statement need not be completely true, but can be substantially true” because fact and fiction may not be crisply delineated categories in defamation cases.
B. Falsity Required to Plead Defamation Under Contemporary New York Law
If this case were governed by traditional common-law rules, Tannerite would be correct in describing “substantial truth,” or simply “truth,” as an affirmativе defense. “At common law the majority position [was] that ... the plaintiff must allege falsity in his complaint,” but that, if the plaintiff so alleges, “the falsity of a defamatory communication is presumed” and that “truth is an affirmative defense which must be raised by the defendant and on which he has the burden of proof.”
New York is one jurisdiction embracing such a rule. Falsity is an element of defamation under contemporary New York law.
To prove a claim for defamation, a plaintiff must show: (1) a false statement that is (2) published' to a third party (3) without privilege or authorization, and that (4) causes harm, unless the -statement is one of the types of publications actionable regardless of harm. ■
Numerous cases illustrate that falsity is an element of a New York defamation claim, -and that a plaintiff in New York courts generally must identify how the defendant’s statement was false to survive a motion to dismiss. .
In Silsdorf v. Levine, the plaintiff, a former mayor of his town who lost his reelection bid, sued the publishers of a letter that had disparaged Kim during the campaign.
Defendants’ letter characterizes plaintiffs administration -as “one-man rule”, brought about by plaintiffs disregard of the board’s authority and unilateral actions taken in violation'of village ordinance, and board directive. In response to these statements, plaintiff alleges-that he did not, as stated in the letter, relieve board members of their.responsibilities, thus thwarting the democratic process; rather, following a dispute, he merely withdrew authority he had previously delegated to board members and immediately delegated that authority to others .... Further, defendants’ statement that plaintiff permitted a ferry to dock in violatiоn of a board directive is alleged to be entirely untrue, inasmuch as plaintiff never authorized or permitted such landings.
Id. at 14-15,
Similarly, in Fleischer v. NYP Holdings, Inc., the Appellate, Division affirmed the dismissal of a complaint for failure to state a claim because it did not allege falsity.
In Kraus v. Brandstetter, the Appellate Division dismissed a defamation claim as legally insufficient under similar circumstances.
Plaintiff disputes the principles discussed above, arguing instead that “substantial truth” is an affirmative defense that must await summary judgment. The argument relies on Garcia v. Puccio,
The trial court denied the motion to dismiss, and the Appellate Division affirmed. Id. at 383-84. The Appellate Division stated that “defendants’ reliance upon the apparent truth of [the disputed] statement is premature at this point inasmuch as a claim of truth or substantial truth, like a claim of qualified privilege, is an affirmative defense to be raised in defendants’ answer.” Id. The court noted that “[i]t would be error to give conclusive effect to defendants’ position of truthfulness before any affirmative defense to that effect has been raised in their answer.” Id. at 384.
Garcia fails to show, however, that truth may only be raised as an affirmative defense. In Garcia, the defendant’s statement of past accusations, though “technically” true, allegedly omitted necessary context—which was that the accusations were expunged after review. Id. at 383-84. Consequently, the court in Garcia faced a situation like that in Franklin: a statement technically true, but shorn of context, created a false impression of the plaintiff, while a report of the statement with its context perhaps would not have done so. See Franklin,
Although the opinion in Garcia stated that “truth or substantial truth ... is an affirmative' defense to be raised in defendants’ answer,” that language is best understood as referring only to cases where
C, Federal Pleading Standards
Having established that falsity—or lack of substantial truth—is an element of a New York defamation claim, it follows that a plaintiff must plead facts demonstrating falsity to prevail on a motion to dismiss the complaint in federal court.
To survive a motion to dismiss in federal court, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
Consistent with these principles, when falsity is an element of a state defamation claim, federal courts have required plaintiffs to plead facts that, if proven, would allow a reasonable person to consider the statement false. Swindol v. Aurora Flight Scis. Corp.,
Because falsity is an element of New York’s defamation tort, and “falsity” refers to material not substantially true, the complaint in this case must plead facts that, if proven, would establish that the defendant’s statements were not substantially true.
II. Substantial Truth of NBC’s Statements
Tannerite argues that its complaint adequately pled several ways in which NBC’s report was not substantially true. We consider these arguments in turn.
A. Tannerite Targets are not “Bombs”
Plaintiff first notes that NBC’s publications repeatédly compare Tannerite targets to “bombs.” Rossen stated, when first describing Tannerite targets, that he was “basically holding a bomb in [his] hand.” App’x at 91. Travis. Bond, the firearms expert interviewed by NBC, opined that Tannerite is “extremely dangerous, like a bomb for sale on the shelf.” App’x at 38. Other comparisons of the targets to bombs abound within NBC’s two publications.
Tannerite’s complaint states. that “[p]laintiff s rifle targets are not bombs.” App’x at 18. In briefing this appeal, Tan-nerite opposes the district court’s view of what constitutes a “bomb,” contending that the court appeared to believe that a “bomb” is' any “object with an explosive nature under certain conditions.” Appellant’s Br. at 24-25. Tаnnerite disputes what it understood to be the court’s capacious view:
The district court does not have to accept Appellant’s definition of “bomb” but should not substitute its own, when its own would encompass anything that could explode, including a firecracker, a champagne bottle, an oxygen tank, a battery, or potato in a microwave.
Appellant’s Br. at 25,
Given its discussion of oxygen tanks, batteries, and potatoes, Tannerite appears not to grasp a distinction the district court clearly recognized and employed: the difference between objects that merely happen to explode, and those designed or intended to explode. Only the latter are designated as “bombs.” Credible definitions of the term “bomb” capture this distinction. See United States v. Graziano,
As the district court recognized, the primary purpose, of a Tannerite exploding rifle target is to explode. See Tannerite Sports,
Tannerite brand binary targets have changed the sport and practice of long-range shooting. Now, even at hundreds of yards, the experience of a hit seems close and personal.. Audibly, a well placed bullet produces a thunderous report that underlines your accuracy. Visually, the plume of a direct strike-circles like a round of high fives among friends. And all this sound, fury, reward—and fun—while improving your game,
App’x at 24. The guide also clarifies that the'targets are “intended for use with high powered center-fire rifles,” and explains how to detonate the targets properly. App’x at 25. Neithér the product guide, nor the remainder of the complaint, explains any other purpose of the targets beyond their use for explosion in target practice. The target’s singularity of explosive purpose—the fact that it is “is designed to be dispersed in a violent or rapid manner upon ... detonation,” Graziano,
Unlike Tannerite targets, most other items listed in plaintiffs’ brief do not explode by design or purpose. Oxygen tanks and batteries primarily serve the non-explosive purposes of providing oxygen and electricity, respectively. It is unlikely that a potato’s-purpose is explosion, given that potatoes usually reside underground and seldom explode absent human prompting. As plaintiffs brief suggests, potatoes typically explode only during microwave cooking—a process intended to allow consumption of the potato rather than creation of explosions in the microwave.
To be sure, the items Tannerite lists could be described as “bombs” if, in a perversion of their ordinary uses, someone intended to use them to cause explosions. But Tannerite-targets- stand out from potatoes, oxygen tanks, and batteries in that the targets’ primary purpose is explosion. For that reason, the district court- correctly ruled that NBC’s description of the product as a “bomb” was, at the least, substantially true.
B, Tannerite Targets are not “Bomb[s] on a Shelf’
Tannerite’s most emphatic argument is that, even if its targets are sometimes “bombs,” they cannot accurately be called “bomb[s] on a shelf,” which is how NBC’s publications described them. Appellant’s Br. at 24-27. Tannerite argues that this characterization ignores the product’s “binary” packaging, which keeps its two ingredients separately wrapped “while they are on the shelf,” thus preventing the targets from reaching their “active state.” Appellant’s Br. at 26. Tannerite explains that “[t]he main reason to create a binary target is ... so it cannot explode on a store shelf.” Appellant’s Br. at 26, Tanner-ite worries that “a reasonable viewer could conclude,” from NBC’s statement that the product is a “bomb on a shelf,” that “it would not be safe to shop at a store that stocked it, for fear of being hurt if it were to explode,” Appellant’s Br. at 26. And, given that no such risk exists, Tannerite argues -that the publications are not substantially true.'
Tannerite’s argument fails because each of NBC’s publications made clear that the target’s ingredients must be removed from the packaging, mixed, and shot before they explode. As noted, the court considers “[t]he entire publication, as well as the circumstances of its issuance,” to interpret
NBC’s written article states that Tan-nerite is an “exploding target[ ],” App’x at 38 (emphasis added), and that it “explodes when you shoot it,” id. It explains that Tannerite “separat[es] the two ingredients in its explosive,” and quotes Bond, the firearms expert, as saying that “once it’s mixed, it’s classified as an explosive.” Id. The article never mentions any detonation of the product in a store.
Similarly, the video states that consumers “use it for target practice,” and “when you shoot it, it explodes.” App’x at 89. It shows Bond mixing the ingredients of the target, after which he states, “[t]his is now classified ... as an explosive.” Id. The video shows the. product exploding repeatedly in outdoor settings, either stating or implying that it has been shot, and never shows any explosion in a store. Finally, at the end of the video segment, Rossen holds the product and states that it is “not dangerous being in the studio right now,” and that “you need the catalyst” before the targets become explosive. Id. Given these statements, no reasonable viewer could have understood either publication, taken as a whole, to mean that Tannerite targets could explode within a retail outlet.
C. Gun-Rights Enthusiasts Oppose Sale of Tannerite Targets
Tannerite also argues that NBC’s report was not substantially true to the extent it stated that “gun-rights enthusiasts oppose” the targets. Appellant’s Br. at 33. This argument appears to refer to the interview of Bond, who stated that, although he is “a huge supporter of the Second Amendment,” he believes the targets are “extremely dangerous,” and the “equivalent of buying explosives off the shelf.” App’x at 89. Tannerite may also have in mind NBC’s publication of Bond’s view that “Tannerite is getting around the law on a technicality.” Id. The complaint states that NBC’s assertion that “Bond[] opposes the sale of Tannerite-brand targets ... is false” because “Bond himself owns a gun store that sells Tannerite-brand targets.” App’x at 17.
Tannerite does not explain why someone’s willingness to sell a product means that he must believe the product to be safe or otherwise commendable. Even if it were true (although it has certainly not been established at this stage) that Bond actually sells the product, and that he takes no precautions to protect the public from it, that does not mean he lied about holding a negative view of the product’s safety. Among other possibilities, the need to make a living, or the possession of inconsistent beliefs, could account for any apparent conflict between Bond’s views and his actions.
Nor does the balance of either of NBC’s publications suggest that “gun-rights enthusiasts oppose” Tannerite targets. The beginning of the video report, for example, states that “[g]un enthusiasts say they use [Tannerite] for target practice.” App’x at 89. In short, the facts alleged in the complaint would not, even if proven, establish that NBC published a false statement.
D. Tannerite is Not Associated with Terrorists
Tannerite contends that the district court failed to address an additional basis of its defamation claim: NBC’s suggestion that terrorists were associated with the company or had used the targets.
Tannerite contends that it properly pled this basis of its defamation claim in the proceedings below. Tannerite first highlights the following paragraph in the complaint:
[NBC’s] report and video ... contained one or more written false statements that were intended to impugn Plaintiffs rifle targets and Plaintiffs reputation in the sporting industry. A true and exact copy of screenshots of an Internet article describing falsities in the [NBC] report is attached as Exhibit E.
App’x at 18. In Tannerite’s view, the complaint alleged that any association of the targets with terrorists was false because Exhibit E, the cited article, suggested as much. Tannerite also points to a passage in the district court’s opinion noting a sentence in Tannerite’s memorandum opposing the motion to dismiss, which stated that NBC “falsely implied] that TAN-NERITE SPORTS is in cahoots with overseas terrorists.” App’x at 176.
These scattered, cryptic references do not amount to proper pleading. First, attaching the internet article to the complaint does not substitute for making a specific allegation that NBC falsely associated Tannerite with terrorists. It is true that parties may sometimes incorporate facts from outside documents into pleadings. See Chambers,
Tannerite’s comрlaint failed to identify NBC’s statements regarding terrorism or explain why those statements were false. Instead, the complaint referred generally to an article that presented a scattershot collection of nearly a dozen objections to NBC’s publications. From that reference, a defendant and the court could not reasonably have understood that Tannerite wished to allege, in particular, that NBC’s discussion of the product’s links to terrorism were defamatory. The theory was thus not pled properly.
Tannerite is not saved by the brief remark in its memorandum opposing dis
Neither the complaint nor the memorandum suffices to show that Tannerite pled this theory of liability below. The district court’s decision not to address it was thus appropriate.
III. Tannerite’s Motion to Amend
Tannerite also complains that the district court improperly denied its motion to amend, and that granting the motion would have allowed Tannerite to plead additional theories of defamation;
A. Tannerite’s Motion Below
Tannerite’s motion appeared in the last sentence of its brief in opposition to defendant’s motion to dismiss. It reads, in its entirety, as follows:
If the Court is inclined to grant NBC’s motion, then Tannerite Sports respectfully seeks leave to file an amended complaint to correct any defects identified by the Court[.]
App’x at 193. The motion thus identified no particular facts that would be introduced into an amended complaint. The district court denied this request, ruling that, “[b]ased on Tannerite’s failure to ... present-proof of falsity with respect to [NBC’s] statements ..., it would be futile to permit Tannerite to further amend its Complaint.” Tannerite Sports,
“Proposed amendments are futile,” and thus must be denied, “if they would fail to cure рrior deficiencies or to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Thea v. Kleinhandler,
B. Tannerite’s Proposals for Amendment
Tannerite argues that it could have amended its complaint to allege that NBC made false claims regarding its connections to terrorists, to allege that NBC falsely claimed that its targets were “flammable,” to add a product disparagement claim, and to include “further emphasis on certain aspects of the video to create a more rigorous showing of defamation by implication,” Appellant’s Br. at 41; Apрellant’s Reply Br. at 29-31. In Tannerite’s view, these amendments would have cured the legal deficiencies identified by the district court.
We reject Tannerite’s proposed amendments, all of which are newly raised on appeal. “It is a, well-established general rule that an appellate court will
CONCLUSION
We have reviewed Tannerite’s other arguments and have determined that they are meritless. Accordingly, the district court’s judgment is AFFIRMED.
Notes
. "IED” stands for "improvised explosive device." IED, Webster’s Third New International Dictionary, Unabridged (2017).
. Tannerite also sued one of NBC’s affiliates, but that party’s dismissal from the suit is not appealed, and the allegations against the affiliate are not relevant to the case against NBC,
. Traditional New York law apрears to have applied a similar, but not identical, rule. There was no requirement that falsity be alleged in the complaint. See Ernest P. Seelman, The Law of Libel and Slander in the State of New York § 392 (1964 ed.); see also Gutkes v. N.Y. Produce Exch.,
. Even if falsity were not an element of a New York defamation claim, Tannerite would likely be required to plead it in this case. In Philadelphia Newspapers, Inc. v. Hepps, the United States Supreme Court held, based on First Amendment principles, that “where a newspaper publishes speech of public concern, a private-figure plaintiff cannot recover damages without also showing that the statements at issue are false."
Although the Supreme Court has not explicitly ruled that falsity must be alleged in a defamation complaint to comport with Hepps, it is difficult to see how the rule could be otherwise. A complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,” Ashcroft v. Iqbal,
Indeed, it appears that New York courts have recognized falsity as a necessary element in all defamation actions at least partly in response to First Amendment cases such as Hepps and New York Times Co. v. Sullivan,
. It is also noteworthy that the court in Garcia cited no authority suggesting that truth or substantial truth must always be presented as an affirmative defense. The court did, however, cite significant аuthority demonstrating that privilege, another argument raised by the defendants in that case, must be a defense. See Garcia,
. The test is one of legal sufficiency, not journalistic competence.
. Certain items on Tannerite’s list, including firecrackers,’ could perhaps qualify as "bombs,” given that they are created with explosion (or at least ignition) in mind. As for Champagne, the pop is incidental rather than intentional, .
. New York state law requires that, “[i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint,” Nowak v. EGW Home Care, Inc.,