FLORIDA STATE:UNIVERSITY COLLEGE LAW PUBLIC LAW AND LEGAL THEORY RESEARCH PAPER NO67 SEPTEMBER 2002 MISDIRECTING MYTHS THE LEGAL AND CULTURAL SIGNIFICANCE OF DISTORTED HISTORY IN POPULAR MEDIA Paul a Lebel (Forthcoming, Wake Forest Law Review Vol 37, No 4(December 2002) This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection http://ssrn.com/abstractid=331820 A complete index of fsU College of Law Working Papers is available http://www.law.fsu.edu/faculty/publications/workingpapers.php
PUBLIC LAW AND LEGAL THEORY RESEARCH PAPER NO. 67 SEPTEMBER 2002 MISDIRECTING MYTHS: THE LEGAL AND CULTURAL SIGNIFICANCE OF DISTORTED HISTORY IN POPULAR MEDIA Paul A. LeBel (Forthcoming, Wake Forest Law Review Vol. 37, No. 4 (December 2002)) This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract_id=331820 A complete index of FSU College of Law Working Papers is available at http://www.law.fsu.edu/faculty/publications/working_papers.php
ITo be published in Wake Forest Law Review Vol 37, No 4 (December 2002) Revised September 2002 MISDIRECTING MYTHS: THE LEGAL AND CULTURAL SIGNIFICANCE OF DISTORTED HISTORY IN POPULAR MEDIA Paul a Lebel The central premise of this issue of the WAKE FOREST LAY REVIEW is that popular media can influence behavior in ways that implicate the segments of the legal system that impose liability on those who cause harm to others. This Article considers another type of influence that can be traced to popular media - an"incitement to itizenship, "if you will. More particularly, the focus is on the presentation of distorted versions of historical events in commercial cinema. The article examines the cultural effects that such distortions can have on the formation of a national image and explores the Professor of Law, Florida State University College of La The term"popular media" is used in this Article as an umbrella category that includes film. television and music 2 These potentially include tort law, criminal law, and administrative law. This Article will consider only tort litigation, with its accompanying constitutional dimension of First Amendment constraints on the imposition of tort liability for the In a recent book, journalist Robert Shogan conside relationship between politics and culture. Hogan describes the realm"of as "the social order customs. manners. values and mores: how Americans fee ut themselves and each other and how they behave in their personal lives, " distinguishing it from the political domain, which"is ruled by governance, the making and mending and enforcing of the
[To be published in Wake Forest Law Review Vol. 37, No. 4 (December 2002)] Revised September 2002 MISDIRECTING MYTHS: THE LEGAL AND CULTURAL SIGNIFICANCE OF DISTORTED HISTORY IN POPULAR MEDIA Paul A. LeBel* The central premise of this issue of the WAKE FOREST LAW REVIEW is that popular media1 can influence behavior in ways that implicate the segments of the legal system that impose liability on those who cause harm to others.2 This Article considers another type of influence that can be traced to popular media – an “incitement to citizenship,” if you will. More particularly, the focus is on the presentation of distorted versions of historical events in commercial cinema. The Article examines the cultural effects that such distortions can have on the formation of a national image,3 and explores the * Professor of Law, Florida State University College of Law. 1 The term “popular media” is used in this Article as an umbrella category that includes film, television, and music. 2 These potentially include tort law, criminal law, and administrative law. This Article will consider only tort litigation, with its accompanying constitutional dimension of First Amendment constraints on the imposition of tort liability for the harm caused by speech. 3 In a recent book, journalist Robert Shogan considers the relationship between politics and culture. Shogan describes the “realm” of culture as “the social order, customs, manners, values and mores; how Americans feel about themselves and each other and how they behave in their personal lives,” distinguishing it from the political domain, which “is ruled by governance, the making and mending and enforcing of the
MISDIRECTING MYTHS relationship between law and culture that shapes the milieu within which those effects occur. That relationship is symbiotic, in the sense that the legal system provides considerable protection for popular media, while at the same time popular media play an important role in the construction of attitudes toward the legal system in general Particularly striking is the media reinforcement of a perception of the legal system as the forum for resolving fundamental political and cultural conflicts. An understanding of who we think we are as a nation can thus be enriched by an examination of the interplay between these aspects of law and culture I. Introduction: An Intersection of law and Culture a. tort law and fiction Broadcast and published works of fiction can be causally linked to harm in ways that conceivably generate interesting tort litigation along two somewhat related dimensions. One of those types of litigation involves claims based on fictional portrayals of actual events that are alleged to defame or invade the privacy of real persons, while the other, which is the principal theme of many of the laws that order American society. ROBERT SHOGAN, WAR WITHOUT END CULTURAL CONFLICT AND THE STRUGGLE FOR AMERICAS POLITICAL Future 9 (2002). This Article narrows the focus from politics and culture to the legal system and culture 4 Without doubt, the pluralism and diversity of American society preclude any single conception of a national identity. NEIL CAMPBELL ALASDAIR KEAN, AMERICAN CULTURAL STUDIES: AN INTRODUCTION TO AMERICAN STUDIES 2-3(1997). This Article examines influences on the formation of identity, rather than purporting to articulate what that identity actually is S The term"fiction"is being used to exclude news reports and historical work including documentar king, that purports to be straightforward reporting of past events. As such, the defining characteristic is the overtly creative nature of the that is being rel (1985)nerally Symposium, Defamation in Fiction, 51 BROOKLYN L. REV. 223
MISDIRECTING MYTHS 2 relationship between law and culture that shapes the milieu within which those effects occur. That relationship is symbiotic, in the sense that the legal system provides considerable protection for popular media, while at the same time popular media play an important role in the construction of attitudes toward the legal system in general. Particularly striking is the media reinforcement of a perception of the legal system as the forum for resolving fundamental political and cultural conflicts. An understanding of who we think we are as a nation can thus be enriched by an examination of the interplay between these aspects of law and culture.4 I. Introduction: An Intersection of Law and Culture. A. Tort Law and Fiction. Broadcast and published works of fiction5 can be causally linked to harm in ways that conceivably generate interesting tort litigation along two somewhat related dimensions. One of those types of litigation involves claims based on fictional portrayals of actual events that are alleged to defame or invade the privacy of real persons,6 while the other, which is the principal theme of many of the laws that order American society.” ROBERT SHOGAN, WAR WITHOUT END: CULTURAL CONFLICT AND THE STRUGGLE FOR AMERICA’S POLITICAL FUTURE 9 (2002). This Article narrows the focus from politics and culture to the legal system and culture. 4 Without doubt, the pluralism and diversity of American society preclude any single conception of a national identity. NEIL CAMPBELL & ALASDAIR KEAN, AMERICAN CULTURAL STUDIES: AN INTRODUCTION TO AMERICAN STUDIES 2-3 (1997). This Article examines influences on the formation of identity, rather than purporting to articulate what that identity actually is. 5 The term “fiction” is being used to exclude news reports and historical work, including documentary filmmaking, that purports to be straightforward reporting of past events. As such, the defining characteristic is the overtly creative nature of the story that is being related in the work. 6 See generally Symposium, Defamation in Fiction, 51 BROOKLYN L. REV. 223 (1985)
MISDIRECTING MYTHS that the commission of violent acts was incited by the media. asserts contributors to this issue of the WaKe FoRest LAW revIEw Each of those areas of potential tort litigation presents significant and distinct legal and pragmatic considerations. In claims based on the portrayal of the plaintiff in a work of fiction, the central allegation is that harm has been inflicted on the plaintiff by the appearance in the fictional work of a character who is identifiable as the plaintiff. The gravamen of the tort claim based on such a portrayal can be of various types, depending on the circumsta damage to reputation, publicizing of private facts, portrayal to the public in a false light, appropriation of name or likeness. For cases within the E.g., David A. Anderson, Incitement and Tort Law, 37 WAKE FOREST L. REy (2002); Susan M. Gilles, "Poisonous"Publications and other False Speech Physical Harm Cases. 37 WAKE FOREST L. REY (2002) e generally richard C. Ausness, The Application of Product Liability Principle to Publishers of violent or Sexually Explicit Material, 52 FLA. L. REV. 603(2000) Professor ausness distinguishes between claims based on the information content and those based on the point of view or idea content. This Article employs a somewhat different taxonomy. The"incitement to violence tort claims under consideration here rest on the proposition that the provocation to act arose out of exposure to the media. It is the act itself, therefore, and not the manner in which the act was performed, that is being causally linked to the media. This conception of the category thus excludes from consideration some of the situations that Professor Ausness includes under the "point of view or idea"label. An advertisement of the services of a"hit man"or an instruction manual for carrying out contract killing, which Professor Ausness classifies as types of"point of view claims, id. at 613-615, would lie outside the scope of this Article. The reader of those publications, I would assert, has already formed the intent to act. The incitement to violence claims with which this article is concerned are those that professor ausness labels"imitation cases"and"inspiration cases. ld at 615-618 R Reputational harm is the defining characteristic of the tort of defamation tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him) 10 See RESTATEMENT(SECOND) OF TORTS S 652D(1977)(liability for invasion of privacy by giving"publicity to a matter concerning the private life of another. if the matter publicized is of a kind that(a)would be highly offensive to a reasonable person, and(b) is not of legitimate concern to the public") See RESTATEMENT(SECOND)OF TORTS 652E (1977)(invasion of privacy by giving "publicity to a matter concerning another that places the other before the
MISDIRECTING MYTHS 3 contributors to this issue of the WAKE FOREST LAW REVIEW, 7 asserts that the commission of violent acts was incited by the media.8 Each of those areas of potential tort litigation presents significant and distinct legal and pragmatic considerations. In claims based on the portrayal of the plaintiff in a work of fiction, the central allegation is that harm has been inflicted on the plaintiff by the appearance in the fictional work of a character who is identifiable as the plaintiff. The gravamen of the tort claim based on such a portrayal can be of various types, depending on the circumstances: damage to reputation,9 publicizing of private facts,10 portrayal to the public in a false light,11 appropriation of name or likeness.12 For cases within the 7 E.g., David A. Anderson, Incitement and Tort Law, 37 WAKE FOREST L. REV. ___ (2002); Susan M. Gilles, “Poisonous” Publications and other False Speech Physical Harm Cases, 37 WAKE FOREST L. REV. ___ (2002). 8 See generally Richard C. Ausness, The Application of Product Liability Principles to Publishers of Violent or Sexually Explicit Material, 52 FLA. L. REV. 603 (2000). Professor Ausness distinguishes between claims based on the information content and those based on the point of view or idea content. This Article employs a somewhat different taxonomy. The “incitement to violence” tort claims under consideration here rest on the proposition that the provocation to act arose out of exposure to the media. It is the act itself, therefore, and not the manner in which the act was performed, that is being causally linked to the media. This conception of the category thus excludes from consideration some of the situations that Professor Ausness includes under the “point of view or idea” label. An advertisement of the services of a “hit man” or an instruction manual for carrying out contract killing, which Professor Ausness classifies as types of “point of view” claims, id. at 613-615, would lie outside the scope of this Article. The reader of those publications, I would assert, has already formed the intent to act. The incitement to violence claims with which this Article is concerned are those that Professor Ausness labels “imitation cases” and “inspiration cases.” Id. at 615-618. 9 Reputational harm is the defining characteristic of the tort of defamation. RESTATEMENT (SECOND) OF TORTS § 558 (1977) (“communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him”). 10 See RESTATEMENT (SECOND) OF TORTS § 652D (1977) (liability for invasion of privacy by giving “publicity to a matter concerning the private life of another .. if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public”). 11 See RESTATEMENT (SECOND) OF TORTS § 652E (1977) (invasion of privacy by giving “publicity to a matter concerning another that places the other before the
MISDIRECTING MYTHS citement to violence category, on the other hand, the harm is inflicted he victim not so much by the publicationitself as by the effect that the publication has on a person who views or listens to the work Claims of this sort are not necessarily conceptually difficult. They could plausibly fall within the conceptual core of traditional negligence doctrine: the publisher or broadcaster fails to exercise reasonable care The distinction between those two general types of tort claim may seem at first to correspond to a causal difference between direct and indirect infliction of harm on the victims of the publication. Media works of the first sort would be thought to inflict harm directly on the public in a false light.. if.. the false light. would be highly offensive to a reasonable person”) 12 See RESTATEMENT (SECOND )OF TORTS$ 652C(1977)(invasion of privacy if one appropriates to his own use or benefit the name or likeness of another") The term"publication"will be used in this Article as it is in the law of defamation and privacy, that is, for communication to someone other than the subject of the piece. See RESTATEMENT(SECOND) OF TORTS $ 577(1977)(Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed). In a general sense, the term will designate work that has been presented to the public, thus including print and broadcast media within its scope This is not to suggest that courts have found the claims viable. See Part Ill infra for a discussion of judicial reluctance to find that the elements of traditional negligence claims have been satisfied in incitement to violence cases. The point being made in the text is that the analysis fits comfortably within the traditional negligence framework of duty and causation issues Characterization of the incitement to violence claims avoids the significant doctrinal and conceptual difficulties encountered in the attempt to locate the theory of liability within the general products liability category of strict liability in tort based on the sale of a defective product. See Ausness, supra note 2, for a comprehensive review of those difficulties. The categorization of media products as"products'"for products liability claims was explicitly rejected in the most recent decision on the subject of incitement to violence. James v Meow Media, Inc, 300 F 3d 683, at No.005922,2002WL1836520,at*141l5(6Cir.Aug.13,2002)
MISDIRECTING MYTHS 4 incitement to violence category, on the other hand, the harm is inflicted on the victim not so much by the publication13 itself as by the effect that the publication has on a person who views or listens to the work. Claims of this sort are not necessarily conceptually difficult. They could plausibly fall within the conceptual core of traditional negligence doctrine:14 the publisher or broadcaster fails to exercise reasonable care for the protection of others from harm when exposure to the publication induces behavior that causes foreseeable harm to the victim.15 The distinction between those two general types of tort claim may seem at first to correspond to a causal difference between direct and indirect infliction of harm on the victims of the publication. Media works of the first sort would be thought to inflict harm directly on the public in a false light … if … the false light … would be highly offensive to a reasonable person”). 12 See RESTATEMENT (SECOND) OF TORTS § 652C (1977) (invasion of privacy if one “appropriates to his own use or benefit the name or likeness of another”). 13 The term “publication” will be used in this Article as it is in the law of defamation and privacy, that is, for communication to someone other than the subject of the piece. See RESTATEMENT (SECOND) OF TORTS § 577 (1977) (“Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed”). In a general sense, the term will designate work that has been presented to the public, thus including print and broadcast media within its scope. 14 This is not to suggest that courts have found the claims viable. See Part III infra for a discussion of judicial reluctance to find that the elements of traditional negligence claims have been satisfied in incitement to violence cases. The point being made in the text is that the analysis fits comfortably within the traditional negligence framework of duty and causation issues. 15 Characterization of the incitement to violence claims avoids the significant doctrinal and conceptual difficulties encountered in the attempt to locate the theory of liability within the general products liability category of strict liability in tort based on the sale of a defective product. See Ausness, supra note 2, for a comprehensive review of those difficulties. The categorization of media products as “products” for products liability claims was explicitly rejected in the most recent decision on the subject of incitement to violence. James v. Meow Media, Inc., 300 F.3d 683, at ___, No. 00-5922, 2002 WL 1836520, at *14-15 (6th Cir. Aug. 13, 2002)