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"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.
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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