PT911: Libel law, Sandy Berger, and 'Carol Burnette v Natl Enquirer' (1983)

[ProgressiveEconomist]

It's difficult, but not impossible, for a public figure to get into court with a defamation suit. If successful, such legal action by Sandy Berger could get the same kind of discovery against ABC Paula Jones got against Bill Clinton in her sexual harassment action.

Carol Burnett won a $50,000 damage judgment (reduced from a $1.6 million jury award) from the National Enquirer because she proved they knowingly published an article falsely alleging she was drunk, argued loudly with Henry Kissinger at his table, and spilled a glass of wine on another patron. The 1983 Appeals Court decision in her favor (at http://www.law.umkc.edu/faculty/projects/ftrials/communications/burnett.html ) spells out what Berger's lawyers would have to do, quickly, to get the ball rolling and preserve options for future legal action:

"CAROL BURNETT v. NATIONAL ENQUIRER, INC. Court of Appeals of California, Second Appellate District, July 18, 1983

Maintaining the item was entirely false and libelous, an attorney for Ms. Burnett, by telegram the same day and by letter one week later, demanded its correction or retraction "within the time and in the manner provided for in Section 48(a) of the Civil Code of the State of California," failing which suit would be brought by his client ..."

Despite repeated warnings from other media, from politicians, and from activists that a scene involving an actor portraying Sandy Berger never happened, ABC/Disney showed it anyway Sunday evening. Berger is portrayed as having refused to authorize the taking of bin-Laden by the CIA, who literally had him in their sights. Apparently, neither "event" ever happened, and ABC/Disney cannot argue they did not know the material was false and defamatory.

I'm not a lawyer, but these facts would seem to have the same legal elements as Burnett v National Enquirer.

Since 1967, apparently it has been even more difficult for public figures than for private figures to succeed in defamation lawsuits. The standard seems to be whether the defendant "knew or acted in reckless disregard of whether (its) words would be interpreted by the average reader as (false) statements of fact."

A crucial USSC decision seems to be Harte-Hanks (491 US 666):

"(T)he actual malice standard is not satisfied merely through a showing of ill will or 'malice' in the ordinary sense of the term. . . . Nor can the fact that the defendant published the defamatory material in order to increase its profits suffice to prove actual malice. . . . Actual malice, instead, requires at a minimum that the statements were made with a reckless disregard for the truth. And although the concept of 'reckless disregard' 'cannot be fully encompassed in one infallible definition,' we have made clear that the defendant must have made the false publication with a 'high degree of awareness of . . . probable falsity,' or must have 'entertained serious doubts as to the truth of his publication.'"

This snippet comes from a recent (1999) restatement of the principles of libel law and its controlling cases (megabyte PDF at http://www.ca9.uscourts.gov/coa/newopinions.nsf/72BFB353104C6BE288256BD60075C6AA/$file/0155443.pdf?openelement#search=%22libel%20%22reckless%20disregard%20for%20truth%22%20%22carol%20burnett%22%22 ).

[ProgressiveEconomist]

1. Try this LINK instead of the one at the end of the Original Post

It's about 1,600kb in length.

http://www.ca9.uscourts.gov/coa/newopinions.nsf/72BFB353104C6BE288256BD60075C6AA/$file/0155443.pdf?openelement#search=%22libel%20%22reckless%20disregard%20for%20truth%22%20%22carol%20burnett%22%22

[napi21]

2. Well, anyperson who watched or listened to almost any media

outleton 9/9 or 9/10 could prove that ABC was made WELL AWARE that many people publickly stated that portrayel of Burger was false. I suspect all of the TV is on tape somewhere!

[ProgressiveEconomist]

3. Cross-posting this at dailykos has drawn some EXCELLENT, well-informed

comments. See http://www.dailykos.com/story/2006/9/11/113522/984 .

[ProgressiveEconomist]

7. kick

[ProgressiveEconomist]

8. .

[Bandit]

4. Didn't ABC put out notice that the movie was fiction?

I think that will clear them of Libel or Slander. :shrug:

[ProgressiveEconomist]

5. They also advertised PT911 widely as "The Official 9/11 Story"

What appears to be relevant for getting Berger into court is how the average viewer would interpret the truth or falsity of PT911, whether it was in fact false, and whether ABC/Disney showed reckless disregard for the truth. Some EXCELLENT comments on these points is at the dailykos link provided in post #3.

[Justice Is Comin]

6. No.

I've been saying this for days.

Courts and judges hate clever legal maneuvers designed to obfuscate anybodys real intentions.

If I told you I'm not going to hit you with this bat, and then I hauled off and hit you with it...and you took me to court and I said, "but your honor I told him I wasn't going to hit him first"--what do you think that judge would say? Let alone a jury.

ABC is using real names, of real people, referencing a real event, and using the one thing that people have had to accept as credible on what happened--the 9-11 commission report-- as part of the basis for the content of the movie. They knew that would be the one thing that would get people to think the storyline would have credibility. And they used it, despite countless warnings from countless people that the report showed just the opposite.

This doesn't even begin to get into the partisan intent shown prior to airing it. That's just frosting on the cake.

[JDPriestly]

9. The depiction is intended to cause people to believe it is the truth.

They use real names and mix truth and untruth in a defamatory way. You can't change the defamatory nature of something you say by adding a little -- ok, so I made it up if the subtext is, but essentially it's the truth. Here, ABC has not admitted that the depiction is false, they have just stated that the film is this story "condenses" events that happened. The truth is that Clinton did not just not act as the film depicts him; he acted practically the opposite from the way the film depicts him. He did not just not do what the film depicts him as doing. He did the opposite of what the film depicts him as doing. It's hard to claim that the film is "just fiction." There is a difference between fiction and lies.

[susanna]

10. NO.

They said it included some "fictionalized" segments; not that it was ALL fiction, leaving everyone to wonder what WAS/WAS NOT fiction. Think it through...

Just my two cents. Carry on. :-)

[pbartch]

11. THEY SHOULD SUE!!!!!!!!!!!!!!!!!!

We should all sue!!!

I had nightmares all night long and it's because of ABC/DISNEY's lies.

[pitohui]

12. i think sandy berger actually has more rights than carol burnett

i don't want to be shitty but real world "public figure" who was more famous in their day -- carol burnett or sandy berger?

i doubt that most americans have a clue that there is any such person as sandy berger, whereas carol burnett was one of the most famous women of her time -- hence, because of the protections affording commentary about "public figures," it was thought she could be pretty freely smeared in the press

i do think berger has a case and actually a better one, it is not clear to me that he is a public figure in the same sense as carol burnett or today i guess maybe oprah winfrey would be an equivalent

he cannot be as freely libeled and if he wants to litigate, i think he has a decent shot

hell, to this day, i'm amazed burnett won altho i'm glad she did, considering how much it meant to her that this particular lie not be told

so not a lawyer either -- but i don't see why berger shouldn't have his day in court if he wants it

bill clinton would be facing a battle on the level of a carol burnett -- at his level of celebrity he is unfortunately pretty much "fair game"

i would be surprised if he litigates except perhaps to support the others smeared -- he would not be expecting to win $$$ out of this (nor probably would he care about trying to win $$$ out of this)