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Notes -
"The following story is fictional and does not depict any actual person or event."
Does placing a disclaimer before a show give you unlimited ability to then defame a person? Yes I am talking about Law and Order. And specifically the episode that aired last night “Facade”. Airing March 21, 2024.
The first 45 minutes or so fairly accurately portray the case of Daniel Perry who using a chokehold caused the death of Jordan Neely a homeless man who frightened passengers on a NYC subway.
Spoilers now so watch the episode or just read. The last 15 minutes show that he’s every leftist fantasy of what a white male really is. Turns out while doing the chokehold he said “blood and dirt” an obvious reference to Nazis and “blood and soil”. Furthermore the gym he goes to is ran by an undercover cop investigating white supremacists. He’s actually a full fledged Nazi collecting weapons to plan another very violent January 6. Non of this can be presented at trial because the white supremacists investigation is more important than convicting him at trial of murder.
Where am I going with this? This feels like defamation to me. There is no evidence that the real life Daniel Perry has any ties to actual Nazis.
I completely think art needs to have an ability to show real events. And I liked Law and Order back in the day. But there is a real life Daniel Perry and if I loosely followed the news I would 100% know the episode is referring to him. They followed the facts in the case accurately for 45 min. The last 15 min he is a terrorist Nazi. I would assume the last 15 min are referencing something in his background and he has some ties to real Nazis.
Without ruining the entire genre and making it impossible to do this feels like defamation to me. A midtwit would be under the impression it’s about him and he’s a real Nazi. But the real Daniel Perry is not a Nazi.
This leads to two questions for me. The lawyers can comment on the actual legal line here. The non-lawyers can discuss whether he’s damaged any differentially than if CNN just ran a bunch of made up stuff he was a Nazi. He’s a real private person and I think I can fairly say a lot of people would watch the episode and assume he has real Nazi ties.
There is one more element of art depicting reality. The FBI has instigated and put under covers in against normie Republicans and Pro-Life people on the grounds they are a national security threat but they probably aren’t in those cases full fledged terrorist.
If I were Daniel Perry I would try to sue. I feel like his reputation was damaged and he has real damages but not a lawyer to know the legal lines and I would assume NBC has lawyers but I still feel like he has a real reputational damage. Plus he’s going on trial and a juror who saw the episode would now think he has undisclosed nazi ties.
There is probably some who is the bad person thing here. In their fictional depictions from episodes 20 years ago I probably didn’t care when they added some negative stuff to a black character etc. But now that white people are bad I get upset when they add he was a Nazi about to commit 1/6 or 9/11 to their fictional portrayal of real events.
In summary his obvious fictional portrayal of his actions added a whole he’s a real Nazi plot line but they began the episode with a disclaimer it’s fictional.
Edit: I would be curious if anyone else watched the episode. Or if everyone is assuming I am appropriately representing the episode as they portrayed him as a “full-fledged nazi with a desire to kill black people” as accurate. And that exaggeration is expected now.
This reminds me very heavily of what I wrote last year regarding how I believe that movies like Knives Out are basically trying to implant progressive "brain worms" into people's heads, to kind of overwrite their perception of famous people:
And here
I haven't noticed this blatant trend so much these days, but maybe it's because I simply am checked out of modern media and the culture war.
Yes, imagine something in media doing a 'serial number filed off' story of a very prominent person currently in society, done to affect the public image of that person - god knows that's something new and never done before.
Obviously, I'm not saying Knives Out is equal to Citizen Kane, but this is nothing new, and people who were on the side of those being put in less than a fantastic light in past times didn't react well back then, or think said portrayal was actually good - Hearst famously basically tried to ruin Welle's career.
Again, none of this is new - it's just people you're closer to supporting than prominent media creators are the ones getting their ox gored, and just like all of history, you're claiming it's a terrible, bad portrayal.
Just because it's happened before, does that mean it's good to do? I love Citizen Kane and think it's an amazing movie, but would I feel like it was crossing a line if I were of the time period when William Randolph Hearst were a prominent figure? Maybe.
I also know that Citizen Kane is clearly driven by an artistic vision, more than just character assassination. I don't know if it's something I can quantify, but I can tell you that Knives Out is no Citizen Kane. If someone is trying to tell a great story and that happens to be inspired by someone real and portrays them in less than perfect light, that's far different than specifically trying to make something just to make them look bad and pander to a political audience.
One way perhaps this can be measured is in how sympathetic the movie is to the character in question. Charles Foster Kane was clearly a sympathetic character. We were taken along for the ride with him his whole life. Even if he is a ultimately a tragic figure, he is still a great figure, and one that we can understand exactly what happened to him and see ourselves in his shoes. When Knives Out portrays Musk and Rogan, there is no sympathy, and they're just portrayed to be incompetent, bratty, lucky, talentless backstabbers, and we are made to feel like only the most wrong hearted and selfish people could ever end up like them.
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Writing this from my law office — No, it's not defamation, and it isn't close. In addition to the disclaimer:
Defamation requires statements of fact, and it's hard to argue that such a blatant fictionalization is making factual statements. I would also add that your proving my point by the fact that you confused Daniel Penny with Daniel Perry, who is currently serving a lengthy prison sentence for actions motivated by white supremacy, and I'm apparently the only one who's noticed this so far. Accordingly, I don't know how much Mr. Penny could argue that the episode was about him if even a viewer as astute as yourself can't accurately identify the supposed victim.
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Every single "Ripped from the Headlines" Law & Order story in many cases is more salacious than the actual case is almost 100% of the time. Because even 'ripped from the headlines' stories are sometimes not tight stories for a 43-minute show on network TV.
The only reason you're seemingly upset about this portrayal, which from your description, is no less over the top than other 'ripped from the headlines' story I remember from when I watched the show, as opposed to the other portrayals of criminals, is you don't think Daniel Perry is a criminal and is instead, a hero. Welcome to being for criminal justice reform then, I guess.
Also, the actual reason Law & Order moved from more realistic crime stories in it's first couple of seasons to basically ripped from the headlines and rich people doing terrible stuff wasn't wokeness - it's that the over the top stuff got more viewers.
I’m upset not because I don’t view him as a criminal. But because I identify with him as literally me. If they made a fictional account of me a bland white male that I too would be depicted as a Nazi. I won’t deny what caught my eye. Atleast for me I actually do believe in HBD and sort of liked 1/6 and my online writings could show that so I guess it would be more exaggeration and a small basis in truth.
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The thing I find most interesting about that is the desire to generate this framing of a villainous white-vengeance seeker on the subways. It seems to me that this is a way of both coping with the observed reality being inconsistent with the underlying beliefs of the vagrant-friendly as well as propagandizing to generate the impression that the only thing dangerous on the subways are white people just shooting innocent black bodies. Taking a look at the Wiki for the episode that @The_Nybbler references, it's just comical:
...
Ah yes, surely we all remember the good ol' days when white women were just shooting up subways, killing innocent black men for no reason at all, then things were being covered up by the police. Well, I guess I don't remember it, but that's probably because the police were covering it up!
In the modern version, just telling the truth about the case might make quite a few people sympathetic to the "murderer". If the full story is basically that some belligerent vagrant was acting like a lunatic, ranting about how he wasn't afraid to die today, and continued escalating to the point where people felt genuinely threatened, there are probably quite a few people that would be glad to have someone step in and choke that guy out, and if it turns out that the belligerent lunatic got hurt in the process, oh well. Others would feel differently and could certainly articulate an opposing case. But no, that wouldn't suffice, it's important to eliminate any ambiguity about who's the bad guy and who's the victim - Penny didn't just overreact according to some standards, he must have been a racist that wanted to hurt a black guy for no real reason. Importantly, this also conveys the message that if you're ever thinking about reacting against the latest screaming hobo on your train, it's probably because you're a Nazi or something.
I find the whole thing all so tiresome.
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They didn't use Penny's name, right? I think they're in the clear. One funny thing -- someone on Reddit complains it's a remake of S1E2, "Subterranean Homeboy Blues". Obviously it can't be (since the Penny incident hadn't happened) -- that one was a very, very fictionalized version of the Bernhard Goetz case.
Yup, I was going to point this out. This is what Law & Order does. It has from the start. If Daniel Perry has a case, literally dozens of 'normal' people whose story got big from the media have cases as well.
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Morally speaking, yes it is defamatory. It’s obvious to anyone familiar with the subway incident that the story is in fact a direct reference to that event and that the audience is meant to assume that the background is at least somewhat accurate as well. And as to other stories, I think the same holds true. If I’m very obviously writing a story about George Floyd and then veer off into making my fictional Floyd into a drug dealing, gang-banging pimp, it’s very clear that I intended those accusations to filter down into the real person that my fictional character is a representation of.
And again just from a moral perspective, I think if you’re going to use a “ripped from the headlines” story, you need to change the story and the character enough that it’s not intuitively obvious that I’m talking about this specific person who did this specific thing. A fictional version of the story where the event happened somewhere other than a subway, and perhaps the guy getting choked had a weapon or whatever is probably a big enough change that the average viewer isn’t pointing to the screen with Daniel Perrry’s name on their lips. Then you have a fictional character that you can do whatever you want to do especially in making them hated in some way.
Or son Scott Card had advice about world building that amounted to “don’t use warp drive, everybody knows it’s Star Trek.” And I think in any fictional story, the general advice is good. If I’m creating my own fictional story, it’s bad practice to make it obvious where I’m getting my world building, characters, and events from simply because it tends to pull people out of the experience and in the case of using real events, transfer the fiction onto the real world.
Well worded. I feel like real Daniel Perry suffered reputational harm. And he has real damages. Someone who watched the episode would assume real Daniel Perry has some Nazi ties. But he doesn’t. And he’s a private person and not a public person like a celebrity.
I don’t want to kill the entire genre as I feel it serves a public purpose. Ripped from the headlines gives people something to talk about and discuss current events. But the real Daniel Perry I think has real damages. I guess I feel like if you are doing ripped from the headlines but fictionalized it needs to be close to the real events or far from the real events.
Law and Order has made a ton of money. If we did fictional damages like Donald Trump gets and Perry got 300 million I would be against it. But if they paid out 500k with a press release he’s not a Nazi I feel like he would be whole.
I of course also don’t like as a white male my media portrayal is I am literally a Nazi but that’s a different story.
I think if I were making the law, I’d have it written such that if the average viewer could tell what the “ripped from the headlines” event was and it were substantially the same story, that they shouldn’t just be able to slap a “this is a fictional story” disclaimer in the beginning of the show and then be able to take these obviously real events and use them to drag the original person through the mud. It’s kind of the same as accusations of plagiarism— if I can show that your story is beat for beat similar to mine, then you might well be found guilty of plagiarism and thus you’d have to make restitution.
Especially in the current age where false accusations of certain beliefs or actions can make you unemployed very quickly (if his boss sees the episode and thinks the guy is a Nazi, he will likely fire the employee and others will be reluctant to hire him) which is a pretty serious harm to that person. At some point, you should be forced to correct the record and pay the loses because defamation isn’t a victimless crime anymore (if it ever was).
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Does everybody involved in 'ripped from the headlines' that Law & Order made more salacious deserve 500k then? Because there are plenty of otherwise unknown people that L&O, and L&O:SVU adjusted stories about. Hell, SVU was even crazier at times, due to it being about sexual violence cases.
Also, as a white male, I don't feel portrayed as a Nazi, because other than my skin, there's nothing connecting me with Daniel Perry, and unless I missed something, there was no implication white men are like this, generally. On the other hand, OK, if you're a reactionary who thinks urban streets need to be cleaned up like an 80's Death Wish sequel, then you might feel aggrieved.
If it’s substantially the same, yes. I think if the person can show by the similarity to the crime they committed that the story is clearly about them specifically, and that defaming details were added to the story, yes. If you combine six stories to create an original story that doesn’t match a real person’s crime specifically, no. The point here is that they specifically told the story of one guy, and it was obviously meant to be seen as his story, everyone who saw the show knew that it was about Daniel Perry. The only place the story deviated from the facts is that they made Daniel Perry basically a Nazi.
Thing is I wasn’t that surprised they went down the Nazi path. Slightly surprised they ended up doing “he’s doing another 1/6 but this time we won’t know when in scare quotes”. In some ways he hasn’t been defamed and it says more about the writers because I already sort of assume they thing their is no difference between a masculine white male former marine and literally Hitler foot soldier planing 1/6 (which is more like 9/11 in their view). 1/6 is a bit of a larp from everybody both those who did it and those talking about it after.
I wander if after 9/11 in 2002 if every brown person literally had OBL on speed dial. Or if the other back then was represented less cartoonishly.
The hard thing which you are describing for a defamation case is how do you draw a legal definition for “substantially the same”. This episode fulfills that for me but I have no idea how you define. It’s a bit like the old definition of porn “I know it when I see it”.
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They may have done crazier.
I did pick $500k because that is about the amount I would be fine with if I let CNN agree to call me a Nazi for a day. Not a runaway jury verdict and keeps the genre viable.
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IANAL but I think you'd have a very hard time winning a lawsuit over an unflattering fictionalized representation of you in a TV show. Think of all the celebrities and politicians who have been roasted in SNL, South Park, Family Guy, and on and on. Arguably they also can and do color the public's perception of the real person. L&O has been doing "ripped from the headlines" plots forever and this isn't the first time they've taken the real case and exaggerated it to make a stronger political point. Was this a mean-spirited and disingenuous portrayal? Yeah. I'm surprised they haven't done Kyle Rittenhouse gunning down black people and throwing White Power salutes yet. (Or maybe they have - I haven't watched L&O in years.) But I would hate to see us move towards the laws against "defamation of reputation" that exist in other countries.
I think there is a difference between parodying celebrities and random people. By definition celebrities are in the media, which means that they have a much better opportunity to show that they are not actually slurping embryos or being controlled by satan or whatever else South Park claims. This does not mean that any parody of them is morally acceptable. Being a cop accused of murder (or whatever the current state of affairs is) is very different from being Jeff Bezos. Parodying the former is kicking down, not up.
I don't watch L&O, but from the description it seems like there they are painting a boring, very black-and-white (is that phrasing still PC?) picture. Rapist cannibal zombie Nazis vs the heroes. I generally prefer my TV shows to have shades of grey in them (BSG, GoT, The Expanse come to mind).
Most people, especially the older people still watching network TV, don't. That's why shows like Bluebloods, FBI, 9 different CSI and NCIS's are all on the air and more popular than 99% of shows that get Emmy's.
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Obvious counter he’s not a politician or celebrity.
I would assume they have lawyers and wouldn’t cross a line making them liable. But I think most people here would agree with my assumption the real Daniel Perry suffered reputational damage.
A NY jury this probably goes no where but a Texas jury a novel legal theory might work.
New York Times v. Sullivan only requires that the evidence of actual malice (a legal term that's not satisfied by hating someone) or reckless disregard for the truth be present for public figures or public officials (and later cases require this for any damages other than 'actual damages'). ((The courts have also recognized a limited public figure and involuntary limited public figure doctrine, though it's far from clear the former applies and the latter condition may well be extinct.))
Private citizens still have a really high bar to reach on a wide variety of other prongs. If you were bringing a left-aligned lawsuit in the northeast against a particularly hated enemy, maybe, but as bad as the Fifth Circuit has gotten, it's not gotten that bad.
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He is a public figure, due to the coverage of what happened. Like, I'm sure there were parodies, TV films, and episodes of TV based off Scott & Laci Peterson. Those were not public figures initially either, and I'm sure not all of the above took great care, but they were OK. Ironically, if the right-wing press hadn't made such a martyr out of him, there'd be a slightly better case. Not enough to do anything about it, as 1st Amendment laws are fairly clear about this.
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