Murtha's defamation defense

Democratic Congressman and decorated Vietnam vet John Murtha is defending a defamation action brought against him by one Staff Sgt. Frank Wuterich, based on Murtha's assertion that Marines in Iraq engaged in "cold-blooded murder and war crimes" with respect to certain civilian deaths in Haditha.

Specifically, Murtha is resisting an order to give a deposition in the case, against which Murtha is asserting immunity to suit "because he was acting in his official role as a lawmaker when he made the comments to reporters." This is something that is, obviously, rarely going to come up in a defamation action. One precedent is in former Senator William Proxmire's failed defense against a 1979 suit brought by a professor in response to Proxmire "awarding" the professer a "Golden Fleece" award, predicated on the professor's supposedly useless government-funded research. Proxmire tried to shield himself with a provision in the Constitution called the "Speech and Debate clause," which says that members of Congress:

...shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same, and for any Speech or Debate in either House, they shall not be questioned in any other Place.

In other words, no Congressman can be held liable for what they say in Congress. The Supreme Court held in that case, Hutchinson v. Proxmire, 443 U.S. 111 (1979), that the clause does not cover press releases or interviews outside of Congress, so Murtha may be out of luck there.

Still, one thing the Proxmire case doesn't tell us is what happened after the Supreme Court sent it back to the lower courts for adjudication. I suspect Proxmire's Supreme Court win turned out to be the pinnacle of his success in that litigation. In Murtha's case, if the privilege does apply, the plaintiff must still demonstrate that Murtha's comments could be seen as reflecting on him individually - and Murtha will have to decide whether to take the political risk of asserting truth as a defense.

Deception, caught on film... defamation?

In the very recently decided case of Damon v. Moore, 2008 U.S. App. LEXIS 5905 (1st Cir. 2008), the First Circuit upheld the dismissal of a defamation claim by a double amputee from the Iraq War who was quoted in Michael Moore's documentary, Fahrenheit 9/11.

The Court framed the alleged defamation as follows:

• Moore: While Bush was busy taking care of his base and professing his love for our troops, he proposed cutting combat soldiers' pay by 33% and assistance to their families by 60%. He opposed giving veterans a billion dollars more in health care benefits, and he supported closing veterans hospitals. He tried to double the prescription drug costs for veterans and opposed full benefits for part-time reservists. And when Staff Sargent Brett Petriken from Flint was killed in Iraq on May 26th, the Army sent his last paycheck to his family, but they docked him for the last five days of the month that he didn't work because he was dead.
• Rep. McDermott: They say they're not gonna leave any veteran behind, but they're leaving all kinds of veterans behind.
• * * *
• (Video of Walter Reed Hospital)
• Veteran: To say that we're forgotten - I know we're (in wheelchair) not forgotten. But missed? Yes. Yes, you know there's a lot of soldiers that have been missed, you know, they've been skipped over. Um, that didn't get the proper coverage that they deserve.
• Veteran: They have the death toll but they're not showing the amount of people that have been injured and been amputated because of the injuries, you know.
• Subtitle: (Nearly 5,000 soldiers wounded in the first 13 months of the war.)
• Damon: Like I still feel like I have hands.
• Voice: Yeah.
• Damon: And the pain is like my hands are being crushed in a vice. But they do a lot to help it. And they take a lot of the edge off of it. And it makes - makes it a lot more tolerable.

Damon contended that he was not told that the interview in which he made that comment would go into Moore's film, a film which Damon (quite correctly) characterized as:

• 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 . . . ."

Damon alleged that he was defamed by his "unwitting appearance" in Moore's film because it "falsely portrays him - and has been interpreted by members of the military and veteran communities - as sharing, adopting and endorsing Moore's attack on the President and the war effort." The Court undertook two examinations of Damon's appearance, one from the point of view of the "reasonable person," the other from the point of view of the "Reasonable Military Viewer," the subset of the community from which Damon would receive the most harsh attention from a perceived agreement with the film.

With respect to the first analysis, the Court concluded that the movie in which the interview was wrapped "does not propel his otherwise benign interview into one reasonably susceptible of defamatory meaning." With respect to the second analysis, the Court logically notes that it would be unfair to let a defamer off the hook if the defamation would only be understood by a specialized community, quoting a case exhorting courts to take a closer look at members of professions which "have a standard of judgment of their colleagues which is peculiar to their profession which differs sharply from the appraisal of the uninitiated." Nevertheless, the Court concluded that no defamation followed from even that narrow font of examination:

• 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. As explained above, Damon makes no statements in opposition to the war effort, nor was his interview manipulated in such a way to imply that he was "attacking the war aims of the United States." In fact, as pointed out by the district court, the documentary's portrayal of Damon shows an individual who is discussing with great dignity and obvious pain what his participation in the conflict in Iraq has meant and not in any way suggesting that he thinks that his service was demeaned, but rather expressing his opinion that the medical treatment that he received has been something that helps to make his pain more livable and that Damon's appearance "transcends the alternative views that others present there with . . . considerable dignity and no suggestion of disloyalty."

This case is not all that unusual. There has been a trend of late for documentary filmmakers to portray unknowing interviewees in a light starkly different from what the interviewee expected. Other examples occur in Fahrenheit 9/11, for example with Raymond Plouhar, a recruiter who was later killed in Iraq, who was led to believe he was being interviewed for a politically neutral documentary on military recruitment.

Richard Dawkins, a well known proponent of atheism, wrote of his similar experience in being interviewed for a film favoring Intelligent Design. The film was titled Expelled, but Dawkins (and several colleagues) were told that they were being interviewed for a documentary called Crossroads. Asked to give an example of a scientifically plausible version of intelligent design, Dawkins hypothesized about the unlikely possibility of aliens seeding life on Earth. And in the film, this was mischaracterized as Dawkins actual belief - a far more likely candidate for a cause of action, although more clearly a false light claim than outright defamation.

However, so long as these tactics abound, it is only a matter of time before a filmmaker pushes the envelope beyond the legal limit. And then we'll have some really interesting case law to talk about.

Images posted on this blog originate from Wikimedia Commons.