ABC’s ‘9/11’ Libel By Fiction Exposure

In all the ink, real and virtual, that’s being spilled over ABC’s fictionalization of the run-up to the 9/11 attacks, it seems to me that one aspect of ABC/Disney’s position has been missed: if the public descriptions of the show are accurate, then the people who made it and those who plan to show it have some serious libel exposure.

To recap, just in case you are reading this blog from Pluto, ABC hired a bunch of right-wing hardcases who got the Republican chair of the 9/11 Commission to lend them his good name. Purporting to dramatize the findings of the 9/11 commission they instead produced the sort of mockumentary that Rush Limbaugh would love, and in fact does love.

The show includes scenes that are flat-out inventions designed to show that the Clinton administration refused clear shots at bin Laden (in fact, no such event took place) and was generally to blame for the 9/11 attacks. Missing from the show are key moments such as Bush ignoring written warnings that al Quaeda was planning to attack. Equally absent is the famous ‘My Pet Goat’ moment. And so on.

Publicity for the show has been a bit odd: ABC sent pre-release tapes to Limbaugh and to conservative bloggers, but not liberal ones. It also refused requests by Clinton and others in his administration for an advance look — shocking disrespect for a former President.

The blogs are hard at work on this one. But nowhere have I seen mention of the libel claim that I think is looming.

Generally in the United States you can’t libel a public figure. [*] Plus, libel claims based on fiction are obviously much harder than claims based on assertions in supposed non-fiction. But neither of these bars is insurmountable. And on the facts as reported, they could be surmounted surprisingly easily.

As one New York court put it not so long ago, a claim of “libel by fiction” requires that “the description of the fictional character must be so closely akin to the real person claiming to be defamed that a reader of the book, knowing the real person, would have no difficulty linking the two.” The novel Primary Colors didn’t meet that test as it didn’t use real names, nor were the physical description of any character like the plaintiff in that case. But the 9/11 show differs from Primary Colors in a very basic way: It uses actors portraying real people with their actual names involved in activities that are a blend of real things they did and of the partisan imagination. I suspect it wouldn’t be hard to get a court to see the difference from Primary Colors-like facts. Furthermore, even if ABC were to run a big disclaimer with the episode, that wouldn’t necessarily suffice.

It’s even harder to make out a case of libel when the victim is a public figure. Basically, to win you have to show that the author of the libelous work demonstrated a “reckless disregard for the truth.” Given the public nature of the warnings that various scenes are false, if in fact they are false then I think this part of the case should be pretty easy.

If I were at ABC or Disney I’d be having a serious talk with my lawyers right about now.


* Update: As noted in the comments, a better way to say this would have been, “Generally, in the United States, it is very difficult for a public figure to win a libel case.’

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19 Responses to ABC’s ‘9/11’ Libel By Fiction Exposure

  1. Seth Gordon says:

    But will Clinton (or any of the other Clinton Administration officials involved) actually file such a lawsuit?

    Is ABC calculating that even if the series is libelous, every potential plaintiff would see a libel suit as costing them more (politically and financially) than it would be worth?

  2. Patrick (G) says:

    If I were a Junior Senator from New York, I would have my staff research all that the Mouse has lobbied for and ask my esteemed colleagues to sponsor and co-sponsor bills and amendments that, uhm, quietly but steadily reverse past largesse. I would suddenly find religion about limited-duration copyrights, especially those held by corporations.

    This is such a blatant attempt to fraudulently manipulate the voting public that I think it should be grounds to revoke the Mouse’s license to broadcast. Obviously, the current FCC is not going to agree with me, but Dems currently running for Office or in Office might.

    This is really aimed at them rather than at the former Clinton administration.

  3. elliottg says:

    I don’t think that Albright is using the word “defamatory” as anything other than a threat. Based on the fact that 900 screeners were already sent out, I think she already has a case, but she’s keeping her powder dry seeing what ABC does next.

  4. molly bloom says:

    President Clinton probably wouldn’t file suit for obvious reasons. But Albright and Sandy Berger have less to lose.

  5. neil says:

    Generally in the United States you can’t libel a public figure

    Don’t you mean, a public figure can’t win a libel lawsuit? IOW, you -can- libel a public figure?

  6. Michael says:

    Yes, I agree, that’s a better way of putting it: the public figure can’t win the case even if libeled unless the author showed reckless disregard for the truth — or, and it could be relevant here, who knows? — can be shown to have acted with malice.

  7. Phill says:

    I think that the mouse has an even bigger problem. They are planning to show their fiction in Bermuda where the UK libel laws apply. There is no public figure defense and damages can be very significant indeed.

    The disclaimer surely puts the mouse deeper into the maccaca. They are admitting that they know that the scenes are untrue, indeed they have already admitted that the scenes are a ‘composite’ and that they depict events that did not occur. It sure looks to me as if the claims are made with actual malice and that ABC know that the claims made are untrue.

    I can’t see why the disclaimer should get ABC off the hook. The work is being presented as fact. ABC know that a lot of people who see the invented passages in film will not see the disclaimer.

    The bigger question though is why the mouse wants to go ahead with this when it is not going to bring in a cent in advertising revenue, has been widely criticized as propaganda and is certain to lead to extensive political and legal costs. It can hardly hope to see much of a political return from the Republicans.

    Disney depends heavily on the goodwill of Democratic politicians in California and Florida. The risk of legal action is not just the risk of damages, the political costs could be equally high. It is pretty certain that discovery would lead to some pretty embarassing emails being disclosed. The producer and director have almost certainly exchanged confidences with GOP political operatives.

    Disney doesn’t just need to avoid damages, they have to avoid discovery.

  8. Thomas says:

    Let’s see: a network makes a movie about a disabled and dying former president that’s filled with, shall we say, writerly inventions, and that’s not shocking disrespect, but a network makes a movie about a national event that resulted in part from a former president’s negligence and doesn’t share a preview of the movie–that’s shocking disrespect.

    As it happens, since the movie insists that it’s not making statements of fact, it would be hard for the former officials to show that they are libeled. Further, since the actual facts are every bit as damning as the compressed and fictionalizd accounts, it would be hard for the individuals involved to show damages.

  9. RSA says:

    I can see that Albright would be considered a public figure, but is Berger in the same category? (Berger has gotten a lot of press, but I’d expect that few other than political junkies know who he is.) I wonder if there are obviously identifiable characters in the movie that would have a stronger case for having been libeled, simply because they’re not really famous.

  10. Aaron Adams says:

    Reply to RSA at September 8, 2006 09:40 AM

    The legal standard is who is a “public figure”, not who is famous. It would be difficult to win an argument that anyone who holds or held a high-profile position in the US executive branch is not a public figure whether or not that person is or was famous in the sense of celebrity.

  11. Phill says:

    Thomas, the actual facts are that the Clinton administration spent a great deal of time and effort trying to eliminate Bin Laden, that they succeeded in foiling the millenium plot against LA, that they warned the incomming Bush administration that terrorism would be the major security problem they faced and these warnings were ignored.

    As the 9/11 report accepts, Clinton gave standing orders to eliminate Bin Laden. The film alleges the contrary. The only event that was remotely close to the scene in the film was an occasion where there was unsatisfactory intelligence indicating that Bin Laden might be at a particular location. If an attack had been ordered and had failled it would cause Bin Laden to change his behavior and the next attack would be less likely to succeed.

    Further, when presented with the PDB headlined ‘Bin Laden Determined to Attack US’ the response Bush gave was ‘now you have covered your butts’ and went out to spend the day cutting brush. On 9/11 itself he read My Pet Goat rather than respond. A pathetic, unpresidential and incompetent response.

    ABC’s disclaimer is an admission that their claims are untrue. There are no comparable facts that are true. I don’t see how the disclaimer helps the defense in the slightest. The drama is presented as being an accurate portrayal. The disclaimer hardly ‘insists’, the disclaimer does not say ‘this is a piece of propaganda written by a bunch of Republicans to whitewash Bush’s incompetence and blame Clinton’. The program has been promoted as based on the 9/11 report, but this is not true.

  12. Terry Karney says:

    Thomas: Care to share, with some supporting evidence, the facts which are, “every bit as damning,” as the fictionalised account?

    Don’t worry, I’m not holding my breath.

    On a more relevant note, if the actual facts are just as damning as the fake ones, why risk the various fallouts from making shit up? Truth is an absolute defense, and libel suits, even when the defendant wins are less than stellar PR. In a case like this, where the win (if they win, because making things up, with the intent of making someone look bad is still actionable, even if the plaintiff did other things which were foul) will be on points, won’t be a help.

    Not that I expect it to get a whole lot of traction, but rather to be a flash in the pan if a suit gets filed, and then a squib on the verdict, if Disney/ABC should lose (though the “vindication” of the storytellers’ fibs if they win, which much ballyhoo by the O’Reilly set). This ain’t no OJ, no Jon Benet Ramsay issue of national importance, it’s only about the content of national discourse on the seminal event (because of how we reacted) in our lifetimes.

  13. JMG says:

    Dear Mr. Froomkin: You’re probably right, hey, you’re the law professor, not me, but I can think of no human being on the planet less likely to launch himself into civil litigation than William Jefferson Clinton.

  14. Jeff says:

    Since copies have been distributed, why not file the suit today?

  15. Michael says:

    Since copies have been distributed, why not file the suit today?

    Right now the threat is better than the act. Plus there’s no prior restraint in the US so you couldn’t stop it being shown. And believe it or not, it takes a little time to write a really great complaint. (And the damages are bigger later; right now they’re not big enough to make it worth filing the suit. Were ABC to pull the film there would be no litigation.)

  16. jim says:

    A late addition (since it just struck me):

    Since copies have been distributed, why not file the suit today?

    There’s a venue choice issue. Albright’s lawyers want to pick the venue. They don’t want a venue where there’s a real risk of a Clinton-hater making it onto the jury and hanging it. Filing in Manhattan might make a useful political point. There’s other considerations. Once the movie has been broadcast, all venues are available. Until it has, only venues where one can prove copies have in fact been distributed would be available.

  17. Steven says:

    Can someone explain to me why a $40 million presentation, aired without revenue from commercials, and clearly critical of one political party, is not a contribution to the other?

  18. PanamaAU says:

    Ahh, logic knows not thy name.

    “If an attack had been ordered and had failled it would cause Bin Laden to change his behavior and the next attack would be less likely to succeed.”

    So, you are saying that IF an attack failed, a subsequent attack would be less likely to succeed. That makes a whole lotta sense there, buckaroo! No, the attack was not authorized b/c of political games, period.

    Sorry Charlie, but the movie was not one based on slamming one party or the other. It also depicted quite a few embarrassing moments under the Bush aministration, as well. I guess because the current administration is honest enough to admit mistakes, it is not as prone to threaten ridiculous and legally unfounded lawsuits.

    You question the motive of the movie. For those not paranoid, the purpose of the movie was obvious – to document the events leading up to one of the most horrendous events in the history of our country. Did you not notice the closing of the movie that indicated the overall failings of our government in achieving the recommendations put forth by the 9/11 commission? Maybe, just perhaps, it is a wakeup call to both the American citizens as well as our government officials that more needs to be done.

    BTW, does Sandy Berger still have the classified documents that he stole from the National Library and will they be used in his defense? Those were what those documents were, right? Of course, Sandy didn’t steal any documents indicating any shortcomings of his personal actions or those of the administration.

  19. wes says:

    This is a blatant attempt by the ABC News to influence the coming elections. Are we powerless? I think not. Hit them where it hurts, below the Moneybelt. My TV remote has a capability to blank any station that I do not want in my home.

    ZAP –> ABC, ZAP –> Disney

    Now that’s done. Can anyone tell me where I can get two bumperstickers:
    “Boycott ABC” and “Boycott Disney”
    Thanks for your help.

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