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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.
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.
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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