Author Archives: Michael Froomkin

I suggested the other day that ABC/Disney better be pretty careful or they would have some serious libel exposure for their ‘Path to 9/11.’ News reports since then suggest that the cutting room floor is getting crowded, so perhaps the most potentially libelous sections are being removed. What’s left behind may be one-sided, may leave out critical moments and information, but it’s an awful lot harder to make out a libel case based on implication by omission than it is to point to the smoking gun of commission.

Meanwhile, however, comes the news that ABC has sold rights to the BBC, which will be showing the film on Sunday. I’d love to know whether ABC has indemnified the BBC for any libel claims because it is waaaaaay easier to make a libel claim stick in the UK — even if one is a non-resident — than it would be in the US. And a British jury (libel being about the only time civil cases are tried to a jury in England any more) is likely to be infinitely more sympathetic to the Clintons, and hostile to the current administration, than any US jury.

I can see why ex-President Clinton might not want to file suit in the US, but discovery is much less invasive in the UK. As for the other persons in the Clinton administration who may feel that their reputations have been tarnished by whatever emerges from the dungeons of ABC/Disney, I’d advise them to consult counsel in England (names available on request). Easier to make the case, and the damages (plus costs!) could be quite substantial if the facts are still there to support a claim.

If I have any readers in the UK, they might wish to contact the BBC to warn them about their programming choices. It would be good to put them on notice of the risks. The BBC will understand what its potential exposure is.

I called WPLG this morning to try to persuade them not to run the ‘Path to 9/11’ movie. (I emailed a couple of days ago but didn’t get an answer.) The Miami number (305) 576-1010 just takes you to an unhelpful automated telephone menu with no options that seemed appropriate for complaints about programming. I finally picked the news desk and asked for the general manger; they sent me back to the automated menu.

Fortunately, Google allowed me to find the name of the general manager, so on my next call I was able to pick his name out of the automated directory. I’m not going to print it here in the hopes that he won’t get too inundated with telephone calls, just those from the well-informed and highly motivated. I don’t think harassment is likely to be effective here. If you do call, please be polite. I also suggest writing out the main points you want to make before you place the call. (Good sources of inspiration include ThinkProgress and Open Letter to ABC and this post at The Carpetbagger Report.)

It was a frustrating conversation, which got off the wrong foot when the GM tried to suggest his hands were tied without actually saying so in so many words and I forcefully said that since WPLG isn’t ABC-owned it has a choice to make. (In fact, Wikipedia says that WPLG is owned by a subsidiary of the Washington Post.)

Main point: WPLG plans to air ‘The Path to 9/11’. During a 20 minute or so call with a generally polite but sometimes exasperated and occasionally almost bullying GM (in all fairness, I gave as good as I got), I was offered the following justifications which I’ve summarized and paraphrased below (my responses in parenthesis):

• It’s just a movie. (But that’s not how it was promoted, including a big glossy ad that came with this morning’s Miami Herald saying “based on the 9/11 commission report” right across the top. Anyway, running a one-sided drama on a critical national issue shortly before a key election can be harmful in itself).
• We’ll be running a disclaimer several times during the show, the full text of which is quoted below. (But these are not as effective as images; they will fail to undo the harm done by the film; and of course they can’t substitute for what’s missing.)
• They are proud of the news division and hold it to the highest standards of accuracy. (I said, does that mean those standards don’t apply to movies, and was accused of putting words in his mouth).
• Wasn’t their coverage of 9/11 tremendous? (I said I didn’t have a photographic memory for what they did five years ago, and even if it was great that didn’t alter the choice facing them now).
• People like me want to censor everything they disagree with on TV and in Blockbuster (I said I didn’t want the government to prevent him from showing it, I wanted him to make an independent moral choice. And there’s lots of stuff on TV I disagree with, but this was the first time I’d ever called him.)
• I can’t (or shouldn’t) criticize the movie until I’ve seen it (I suggested that [1] ABC had controlled who could see it in advance and [2] there were many actions in life where it was appropriate to try to prevent something rather than wait until after the damage was done — and this was one of them).
• The effects of this movie will be positive as it is creating a useful debate that we wouldn’t otherwise have had. (Couldn’t you justify airing any false thing with that argument?) [Incidentally, this counter-argument, and the hypos I offered to support it produced the most anger: how could I make such generalizations!?! I’m afraid I didn’t say what I do for a living.]
• I’ve made up my mind on the issue. (Yes, I said, and now I want to change yours.)

The only thing I said that seemed to even give him pause was when I said I’d be contacting local advertisers. To the response that there will be no ads during the program I said that money was fungible, that advertisers in other parts of the country were pulling ads for a week around the show to make a point. He didn’t like that. To the claim that I was trying to interfere with his freedom of speech, I said, no, I supported his freedom and wanted him to use it in a responsible way; if he didn’t I had the freedom to criticize him and to urge others not to support him financially.

At one point towards the end of our conversation I asked what it would take to convince him that the film shouldn’t run, if there was any amount of error or misleading that would suffice, but never got a straight answer. When I suggested that meant there was no amount of error that could block a ‘docudrama’ I was again told not to put words in his mouth. But if there is a local standard here, I was unable to get an articulation of it.

So, left with no alternative, I’ve started by contacting ABC’s national advertisers whose products I currently use. But doing it on a local level would be much, much more effective. Anyone have a list of local WPLG advertisers?

Meanwhile, here’s the full text of the disclaimer that WPLG’s General Manger kindly faxed me; he told me they will be running this “throughout” the ‘Path to 9/11’:

The following movie is a dramatization that is drawn from a variety of sources including the 9/11 Commission Report and other published materials, and from personal interviews. The movie is not a documentary. For dramatic and narrative purposes, the movie contains fictionalized scenes, composite and representative characters and dialogue, as well as time compression.

My impression is that disclaimers do almost nothing compared to the impact of a dramatic scene and that they fail utterly at making up for what’s left out if a story is told in a one-sided way; WPLG’s manager emphatically disagreed.

I was invited to call back after I saw the show, but frankly I don’t think I would want to spend several hours of my life being propagandized and then have to make an effort to sort truth from fiction. As someone who reads history books and newspapers, I’ve always avoided watching docudramas in the past to avoid the mental confusions they threaten to create and I don’t think I want to start with this one. But if there are any local experts around who want the job, I have someone you might like to talk to afterwards. Not that I expect it could possibly achieve anything meaningful after the damage is done…

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.

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* 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.’