Appellate Law

CA1: Fahrenheit 9/11 didn?t defame injured vet

By S. COTUS

Damon v. Moore, No. 07-1365.  I thought this case would be interesting because the Weinsteins and Michael Moore were being sued.  (Of course Michale Moore is represented by a big firm.)  The plaintiff claims that Fahrenheit 9/11 ?portrayed Damon as supporting the documentary?s anti-war and anti-Commander-in-Chief message by using and placing in the documentary, without his consent, a sixteen-second segment of an interview he previously conducted with NBC.?  The plaintiff consented to be interviewed by NBC, but not, it seems by Michael Moore.  The plaintiff claims that ?the documentary was an attack upon the integrity of the Commander-in-Chief and the war effort, and it denounced the United States? military action in Iraq by, among other things, ?attacking the credibility of the Commander in Chief of the United States Armed Forces about the justification for the war, its cost and consequences . . . .?? He does not way to be a part of that.

Keep reading.

Applying Massachusetts law on defamation, the court rejects the plaintiff?s contention that as a member of the military, assessment of whether the Moore?s message was defamatory should not be assessed from the ?reasonable person? perspective, but from the ??considerable and respectable segment? of the community.?  There is some logic to this: if the message was communicated to a small group of people (i.e. members of the military) that would perceive defamation, but the general public would not, it would be defamatory.

In looking at how all of society as a whole would view it, the First takes a look at Fahrenheit 9/11, and starts notes that a lot of the criticism are not actually of the president?s conduct in the war (you know, directing troops), but rather of medical care of veterans.  In fact, in the plaintiff?s segment he does little more than talk about his injuries (he lost both arms).  Moreover, the plaintiff is but one of many people interviewed or portrayed (including the Secretary of Defense, Daddy Bush, and other members of the military that don?t even complain about the war).  So, the First says, that there is no indication that he was endorsing Mr. Moore?s message.  And, in an apparent endorsement of Mr. Moore?s objectivity, the First says ?This is not a situation where the entire documentary consisted of like-minded individuals asserting a common position.?

The First puts some stuff in there about how the military is ?separate? from civilian society, it also concludes that ?Taking the documentary as a whole, no reasonable member of the military or veteran community could possibly view Damon?s appearance in the documentary as being disloyal to the United States.?

This case is really painful, and I really don?t want to sound snarky.  But, maybe some day we will be able to discuss the painful issues involved on all sides without the emotional baggage associated with it.

Full post as published by Appellate Law and Practice on March 21, 2008 (boomark / email).