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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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