MISDIRECTING MYTHS victim, while those of the second category cause a third person to injure the victim. In fact, however, cases in which there are direct and indirect links between the publication and the victim can category. Reputational harm occurring from the portrayal of the person in a work of fiction, for example, is by definition the result of a publication causing members of the audienc to think less of the victim and thus constitutes an instance of indirect harm. Furthermore, within the incitement to violence category, the tort claim may be based on the occurrence of self-inflicted harm, in which case the causal connection between the publication and the harm could be said to be direct A more instructive basis for distinguishing fictional portrayal cases from incitement to violence cases looks at a particular aspect of the content of the publication, rather than at the causal sequence that follows publication. From this non-causal perspective, the key to the distinction between these two types of tort scenarios becomes whether the victim can be identified in the fictional character. The critical factor in the fictional portrayal claim is the resemblance between the person claiming to have been harmed and the fictional person. The incitement to violence claim, on the other hand, requires no such identity to be established between the victim and the fictional person While it is true that, in a sense, the perpetrator of the violence makes an identification on some psychological level with the actions and motivations of a character in the fictional work. the incitement claim is indifferent to the actual identity of the person who is being portrayed in the work as a fictional character 16 See, e.g. Pring v Penthouse Int'l, Ltd, 695 F 2d 438(10th Cir. 1982), cert denied, 462 U.s. 1132(1983)(beauty contest participant portrayed in highly offensive manner in short story) See, e.g., Olivia N. v. National Broadcasting Co, 178 Cal. Rptr. 888(Ct. App 1981), cert. denied, 458 U.S. 1108(1982)(sexual assault on child allegedly copied broadcast of similar act on network television program) IS See RESTATEMENT(SECOND )OF TORTS S 558, supra note 9 19 See, e. g, Watters v. TSR, Inc, 904 F2d 378(6th Cir. 1990)(suicide allegedly induced by"Dungeons and Dragons" game) In Pring, supra note 16, for example, the fictional character was participating in the same beauty pageant, represented the same state, and had the same type of act in the segment of the contest as the pla
MISDIRECTING MYTHS 5 victim,16 while those of the second category cause a third person to injure the victim.17 In fact, however, cases in which there are direct and indirect causal links between the publication and the victim can arise within each category. Reputational harm occurring from the portrayal of the person in a work of fiction, for example, is by definition the result of a publication causing members of the audience to think less of the victim,18 and thus constitutes an instance of indirect harm. Furthermore, within the incitement to violence category, the tort claim may be based on the occurrence of self-inflicted harm,19 in which case the causal connection between the publication and the harm could be said to be direct. A more instructive basis for distinguishing fictional portrayal cases from incitement to violence cases looks at a particular aspect of the content of the publication, rather than at the causal sequence that follows publication. From this non-causal perspective, the key to the distinction between these two types of tort scenarios becomes whether the victim can be identified in the fictional character. The critical factor in the fictional portrayal claim is the resemblance between the person claiming to have been harmed and the fictional person.20 The incitement to violence claim, on the other hand, requires no such identity to be established between the victim and the fictional person. While it is true that, in a sense, the perpetrator of the violence makes an identification on some psychological level with the actions and motivations of a character in the fictional work, the incitement claim is indifferent to the actual identity of the person who is being portrayed in the work as a fictional character. 16 See, e.g., Pring v. Penthouse Int’l, Ltd., 695 F.2d 438 (10th Cir. 1982), cert. denied, 462 U.S. 1132 (1983) (beauty contest participant portrayed in highly offensive manner in short story). 17 See, e.g., Olivia N. v. National Broadcasting Co., 178 Cal. Rptr. 888 (Ct. App. 1981), cert. denied, 458 U.S. 1108 (1982) (sexual assault on child allegedly copied broadcast of similar act on network television program). 18 See RESTATEMENT (SECOND) OF TORTS § 558, supra note 9. 19 See, e.g., Watters v. TSR, Inc., 904 F.2d 378 (6th Cir. 1990) (suicide allegedly induced by “Dungeons and Dragons” game). 20 In Pring, supra note 16, for example, the fictional character was participating in the same beauty pageant, represented the same state, and had the same type of act in the talent segment of the contest as the plaintiff
MISDIRECTING MYTHS Each of these types of tort claim arising out of the publication or broadcast of a work of fiction serves as an important part of the legal background against which to examine another effect that media works of fiction might produce, the shaping of a sense of citizenship, which is the focus of this Article. More specifically, the article examines the intersection of three strands of thought- portrayal of a real person in fiction, incitement to violence, and popular cultural influences on a sense of citizenship to reveal the interplay of legal ideas in the construction and maintenance of a cultural phenomenon To keep the enterprise within manageable bounds, the focus of the article will be limited to one medium -commercial cinema -and one genre- historical recreation. Within that body of work, two quit different films - Oliver Stone's JFK and Steven Spielbergs AMISTAD22- will serve as illustrative and instructive works B. Stone and Spielberg: A Study in Contrast The directorial oeuvres of Oliver Stone and Steven Spielberg include a number of the most significant contemporary films, but it would be difficult to imagine any viewer attributing the work of these two extremely talented individuals to the other. Spielberg has directed such classics of entertainment as the indiana jones adventure series CLOSE ENCOUNTERS OF THE THIRD KIND- ET THE EXTRA 2 Warner Bros ( 1991) 22 Dreamworks SKG(1997) 23 Between the two of them, Spielberg and Stone directed six of the American Film Institutes list of 100 Best Films. They accounted for one-quarter of the twenty-four films on the list that were released since 1975. For the contents and a critical review of the list, see Kenneth Turan, AFIs Top 100 List: The Ultimate Pitch, L.A. TIMES Jun. 17.1998 at Fl. available at 1998 WL 2437728 24 RAIDERS OF THE LOST ARK(Paramount Pictures 1981): INDIANA JONES AND THE TEMPLE OF DOOM(Paramount Pictures 1984): INDIANA JONES AND THE LAST CRUSADE (Paramount Pictures 1989) 25 Columbia Pictures(1977) 6
MISDIRECTING MYTHS 6 Each of these types of tort claim arising out of the publication or broadcast of a work of fiction serves as an important part of the legal background against which to examine another effect that media works of fiction might produce, the shaping of a sense of citizenship, which is the focus of this Article. More specifically, the article examines the intersection of three strands of thought – portrayal of a real person in fiction, incitement to violence, and popular cultural influences on a sense of citizenship – to reveal the interplay of legal ideas in the construction and maintenance of a cultural phenomenon. To keep the enterprise within manageable bounds, the focus of the Article will be limited to one medium – commercial cinema – and one genre – historical recreation. Within that body of work, two quite different films – Oliver Stone’s JFK21 and Steven Spielberg’s AMISTAD22 – will serve as illustrative and instructive works. B. Stone and Spielberg: A Study in Contrast. The directorial oeuvres of Oliver Stone and Steven Spielberg include a number of the most significant contemporary films,23 but it would be difficult to imagine any viewer attributing the work of these two extremely talented individuals to the other. Spielberg has directed such classics of entertainment as the Indiana Jones adventure series,24 CLOSE ENCOUNTERS OF THE THIRD KIND, 25 E.T. THE EXTRA- 21 Warner Bros. (1991). 22 Dreamworks SKG (1997). 23 Between the two of them, Spielberg and Stone directed six of the American Film Institute’s list of 100 Best Films. They accounted for one-quarter of the twenty-four films on the list that were released since 1975. For the contents and a critical review of the list, see Kenneth Turan, AFI’s Top 100 List: The Ultimate Pitch, L.A. TIMES, Jun. 17, 1998, at F1, available at 1998 WL 2437728. 24 RAIDERS OF THE LOST ARK (Paramount Pictures 1981); INDIANA JONES AND THE TEMPLE OF DOOM (Paramount Pictures 1984); INDIANA JONES AND THE LAST CRUSADE (Paramount Pictures 1989). 25 Columbia Pictures (1977)
MISDIRECTING MYTHS TERRESTRIAL, JAWS, and the original and the second sequel of JURASSIC PARK. Stones work includes the direction of a trilogy of films about the vietnam War- PLatooN, BORN ON THE FOURTH OF JULy,30and HEAVEN AND EARTH'I-as well as the powerful cinematic critiques of domestic and foreign policy presented in SALVADOR, WALL STREET and NIXON. 4 Even when Spielberg's films deal with historical themes. as in SCHINDLER's LisT and SAVING PRIVATE RYAN and when Stone turns to less overtly political themes, as in THE DoORS and NATURAL BORN KILLERS, the general tone of the directors' work is dramatically different, uplifting in the case of Spielberg, pessimist 26 Universal Pictures(1982) Universal Pictures(1975) JURASSIC PARK (Universal Pictures 1993): LOST WORLD: THE JURASSIC PARK (Universal Pictures 1997) 29Hemdale Film Corp (1986 0 Universal Pictures(1989) Warner Bros (1993) 32 Hemdale Film Corp ( 1986) 33 Twentieth Century Fox(1987 Hollywood Pictures(1995) 35 Universal Pictures(1993) 36 Dream Works SKG(1998) magine Entertainment(1991) arner Bros ( 1994). Stone's film was the basis for a tort claim by the survivors of a shooting victim whose assailants viewed the film prior to a crime spree resembling hat depicted in the film. The claim was found to be legally sufficient, in Byers v Edmondson, 712 So. 2d 681(La. Ct. App. 1998), but constitutionally barred, No 2001 CA 1184, 2002 WL 1200768(La. Ct. App. Jun. 5, 2002). The case is onsidered in Part Ill
MISDIRECTING MYTHS 7 TERRESTRIAL, 26 JAWS, 27 and the original and the second sequel of JURASSIC PARK. 28 Stone’s work includes the direction of a trilogy of films about the Vietnam War – PLATOON, 29 BORN ON THE FOURTH OF JULY, 30 and HEAVEN AND EARTH31– as well as the powerful cinematic critiques of domestic and foreign policy presented in SALVADOR, 32 WALL STREET33 and NIXON. 34 Even when Spielberg’s films deal with historical themes, as in SCHINDLER’S LIST35 and SAVING PRIVATE RYAN, 36 and when Stone turns to less overtly political themes, as in THE DOORS37 and NATURAL BORN KILLERS, 38 the general tone of the directors’ work is dramatically different, uplifting in the case of Spielberg, pessimistic for Stone. 26 Universal Pictures (1982). 27 Universal Pictures (1975). 28 JURASSIC PARK (Universal Pictures 1993); LOST WORLD: THE JURASSIC PARK (Universal Pictures 1997). 29 Hemdale Film Corp. (1986). 30 Universal Pictures (1989). 31 Warner Bros. (1993). 32 Hemdale Film Corp. (1986). 33 Twentieth Century Fox (1987). 34 Hollywood Pictures (1995). 35 Universal Pictures (1993). 36 Dream Works SKG (1998). 37 Imagine Entertainment (1991). 38 Warner Bros. (1994). Stone’s film was the basis for a tort claim by the survivors of a shooting victim whose assailants viewed the film prior to a crime spree resembling that depicted in the film. The claim was found to be legally sufficient, in Byers v. Edmondson, 712 So. 2d 681 (La. Ct. App. 1998), but constitutionally barred, No. 2001 CA 1184, 2002 WL 1200768 (La. Ct. App. Jun. 5, 2002). The case is considered in Part III infra
MISDIRECTING MYTHS That difference in the tenor of these directors work is reflected in a comparison between JFK and AMISTAD. Stones film is an account of the assassination of president John Kennedy told from the perspective of New Orleans District Attorney Jim Garrison, who prosecuted- or perhaps more accurately, as some would assert, persecuted'-local businessman Clay Shaw for what Garrison alleged was Shaw's role as a conspirator in the assassination. t Stone presents Kennedy as the victim of the powerful resistance by high-placed figures in government and in industry to an anticipated presidential initiative of a withdrawal of the American military from Vietnam With the President dead, according to the explanation provided in the film by a military special operations source played by Donald Sutherland, the plans for the expansion of the war were able to proceed without White House opposition, to the benefit of both segments of what President Kennedys predecessor Dwight Eisenhower had warned about as the military-industrial complex The broad geopolitical motive for the Kennedy assassination hypothesized by Stone, interesting though it may be, offers little in the way of cinematic appeal. The undeniable captivation of the audience by Stone's film lies in its visual depiction of the shadowy details of an imagined widespread conspiracy culminating in the events of November 1963 in Dallas. The film both displays to the viewer and provides an explanation of the reasons for the shooting in Dealey Plaza and the subsequent killing of accused assassin Lee Harvey Oswald by night club owner Jack Ruby two days after the assassination, while Oswald was in police custody in the dallas jail. By the films end, the viewer has been transported to the darker regions of a political After Shaws acquittal on the conspiracy charge, he successfully sued to enjoin Garrisons subsequent prosecution of him for perjury. The opinion of the District Court sets out extensive support for the proposition that Garrison's prosecution of Shaw was in bad faith and constituted harassment. Shaw v. Garrison, 328 F Supp 390(ED. La. 1971), aff'd, 467 F2d 113(5Cir ) cert. denied, 409 U.S. 1024 1972). The mistreatment of Shaw is the subject of PATRICIA LAMBERT, FALSE WITNESS: THE REAL STORY OF JIM GARRISONS INVESTIGATION AND OLIVER STONES FILMJFK(1998) Garrison told his story in two books: JIM GARRISON, A HERITAGE OF STONE (1970); JIM GARRISON, ON THE TRAIL OF THE ASSASSINS: MY INVESTIGATION AND PROSECUTION OF THE MURDER OF PRESIDENT KENNEDY (1988). Credits for the film JFK state that it is based on the latter Garrison book. as well as on JIM MARRS CROSSFIRE: THE PLOT THAT KILLED KENNEDY(1989)
MISDIRECTING MYTHS 8 That difference in the tenor of these directors’ work is reflected in a comparison between JFK and AMISTAD. Stone’s film is an account of the assassination of President John Kennedy told from the perspective of New Orleans District Attorney Jim Garrison, who prosecuted – or perhaps more accurately, as some would assert, persecuted39 – local businessman Clay Shaw for what Garrison alleged was Shaw’s role as a conspirator in the assassination.40 Stone presents Kennedy as the victim of the powerful resistance by high-placed figures in government and in industry to an anticipated presidential initiative of a withdrawal of the American military from Vietnam. With the President dead, according to the explanation provided in the film by a military special operations source played by Donald Sutherland, the plans for the expansion of the war were able to proceed without White House opposition, to the benefit of both segments of what President Kennedy’s predecessor Dwight Eisenhower had warned about as “the military-industrial complex.” The broad geopolitical motive for the Kennedy assassination hypothesized by Stone, interesting though it may be, offers little in the way of cinematic appeal. The undeniable captivation of the audience by Stone’s film lies in its visual depiction of the shadowy details of an imagined widespread conspiracy culminating in the events of November 1963 in Dallas. The film both displays to the viewer and provides an explanation of the reasons for the shooting in Dealey Plaza and the subsequent killing of accused assassin Lee Harvey Oswald by night club owner Jack Ruby two days after the assassination, while Oswald was in police custody in the Dallas jail. By the film’s end, the viewer has been transported to the darker regions of a political 39 After Shaw’s acquittal on the conspiracy charge, he successfully sued to enjoin Garrison’s subsequent prosecution of him for perjury. The opinion of the District Court sets out extensive support for the proposition that Garrison’s prosecution of Shaw was in bad faith and constituted harassment. Shaw v. Garrison, 328 F. Supp. 390 (E.D. La. 1971), aff’d, 467 F.2d 113 (5th Cir.), cert. denied, 409 U.S. 1024 (1972). The mistreatment of Shaw is the subject of PATRICIA LAMBERT, FALSE WITNESS: THE REAL STORY OF JIM GARRISON’S INVESTIGATION AND OLIVER STONE’S FILM JFK (1998). 40 Garrison told his story in two books: JIM GARRISON, A HERITAGE OF STONE (1970); JIM GARRISON, ON THE TRAIL OF THE ASSASSINS: MY INVESTIGATION AND PROSECUTION OF THE MURDER OF PRESIDENT KENNEDY (1988). Credits for the film JFK state that it is based on the latter Garrison book, as well as on JIM MARRS, CROSSFIRE: THE PLOT THAT KILLED KENNEDY (1989)
MISDIRECTING MYTHS landscape: evil has triumphed over good, the prospect of a policy direction change for the better has been thwarted by a murder planned t the highest level and executed by an interwoven network of government and underworld operatives, and institutions of government at all levels have been complicitous in the creation of a false and sanitized version of the assassination in an effort to dupe the public inte believing that it was the work of the now-iconic figure of the"lone gunman Spielbergs film further back into history to tell the story of the 19 Centu for freedom of a group of Africans who had been illegally sold into slaver captured in west Africa, transported across the Atlantic Ocean under the horrific conditions of the "Middle Passage, and sold in Cuba, a member of the mende tribe known in the film as Cinque led an uprising that took control of the Amistad. a schooner in which another part of Cuba. Deceived by the course plotted by the slavers who were kept alive to sail the ship back to Africa, Cinque and the others who took control of the ship found themselves off the shore of Long Island, where they were arrested by United States authorities and imprisoned in New Haven, Connecticut, while their future was litigated through the federal courts all the way to the Supreme Court of the United States. That litigation resulted in a judicial declaration acknowledging that they were free, followed by the ultimate return of the surviving captives to Africa. In marked contrast to the gloomy tenor of Stones JFK, Spielbergs AMISTAD presents the viewer with a resounding triumph of the human will for freedom, brought about by a perseverance in the use of the legal process to accomplish a positive end that evoked and affirmed the ideals on which the nation was founded The difference in the fundamental attitudes of the filmmakers toward the legal process can be encapsulated in casting decisions that each of them made. Oliver Stone put prosecutor and critic of the report This is only one of the terms that have entered American popular culture since the Kennedy assassination. The long-running television series The X Files used the term as the name of the group of conspiracy theorists who covertly assisted the shows lead character."Grassy knoll is another term that can be attributed to the continuing popular fascination with the assassinat
MISDIRECTING MYTHS 9 landscape: evil has triumphed over good, the prospect of a policy direction change for the better has been thwarted by a murder planned at the highest level and executed by an interwoven network of government and underworld operatives, and institutions of government at all levels have been complicitous in the creation of a false and sanitized version of the assassination in an effort to dupe the public into believing that it was the work of the now-iconic figure of the “lone gunman.”41 Spielberg’s film reaches further back into history to tell the story of the 19th Century fight for freedom of a group of Africans who had been illegally sold into slavery. Captured in west Africa, transported across the Atlantic Ocean under the horrific conditions of the “Middle Passage,” and sold in Cuba, a member of the Mende tribe known in the film as Cinque led an uprising that took control of the Amistad, a schooner in which he and others were being moved to another part of Cuba. Deceived by the course plotted by the slavers who were kept alive to sail the ship back to Africa, Cinque and the others who took control of the ship found themselves off the shore of Long Island, where they were arrested by United States authorities and imprisoned in New Haven, Connecticut, while their future was litigated through the federal courts all the way to the Supreme Court of the United States. That litigation resulted in a judicial declaration acknowledging that they were free, followed by the ultimate return of the surviving captives to Africa. In marked contrast to the gloomy tenor of Stone’s JFK, Spielberg’s AMISTAD presents the viewer with a resounding triumph of the human will for freedom, brought about by a perseverance in the use of the legal process to accomplish a positive end that evoked and affirmed the ideals on which the nation was founded. The difference in the fundamental attitudes of the filmmakers toward the legal process can be encapsulated in casting decisions that each of them made. Oliver Stone put prosecutor and critic of the report 41 This is only one of the terms that have entered American popular culture since the Kennedy assassination. The long-running television series The X Files used the term as the name of the group of conspiracy theorists who covertly assisted the show’s lead character. “Grassy knoll” is another term that can be attributed to the continuing popular fascination with the assassination