A Curtain Call for Docudrama-Defamation Actions: a Clear Standard Takes a Bow
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Loyola of Los Angeles Entertainment Law Review Volume 8 Number 1 Article 6 1-1-1988 A Curtain Call for Docudrama-Defamation Actions: A Clear Standard Takes a Bow Amy J. Field Follow this and additional works at: https://digitalcommons.lmu.edu/elr Part of the Law Commons Recommended Citation Amy J. Field, A Curtain Call for Docudrama-Defamation Actions: A Clear Standard Takes a Bow, 8 Loy. L.A. Ent. L. Rev. 113 (1988). Available at: https://digitalcommons.lmu.edu/elr/vol8/iss1/6 This Notes and Comments is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Entertainment Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. A CURTAIN CALL FOR DOCUDRAMA-DEFAMATION ACTIONS: A CLEAR STANDARD TAKES A BOW In September 1973, a violent military coup took place which de- posed the Chilean government of Salvador Allende Gossens.' The coup resulted in the death or disappearance of many people,2 including a young American citizen, Charles Horman.3 Horman disappeared from his home in Santiago a few days after the military takeover and a body with fingerprints matching his was subsequently found elsewhere in Chile.4 The extent of the United States' involvement in the coup was the topic of considerable speculation. Thomas Hauser researched and wrote a nonfictional account of the circumstances surrounding the disappearance and death of Charles Horman in his book entitled The Execution of Charles Horman: An American Sacrifice.5 The book became the basis for the motion picture Missing directed by Constantin Costa-Gavras.6 The book as well as the film became the subject of a libel action brought by State Department officials and a naval officer. The case eventually came before the United States District Court for the Southern District of New York in Davis v. Costa-Gavras ("Davis").7 The Davis court illustrated the standard for applying First Amendment protections to dramatized accounts of true events. The court held that minor fictionalizations in docudramas which do not distort the essence of the facts believed to be true do not support a finding of actual malice in a public figure defamation action. 1. Davis v. Costa-Gavras, 619 F. Supp. 1372, 1373 (S.D.N.Y. 1985). 2. Id. 3. Id. 4. Id. 5. Id. The book was published in hardcover in 1978 by Harcourt Brace Jovanoich, Inc. It was republished in paperback by The Hearst Corp. Id. 6. Id. The film was released by Universal City Studios, Inc., a wholly owned subsidiary of MCA, Inc. Id. 7. 654 F. Supp. 653 (S.D.N.Y. 1987). Originally this action named as defendants: Hauser, the author of Execution; Harcourt, Brace, Jovanovich, Inc., publishers of the hardback version of Hauser's book; Hearst, publisher of the paperback; and Costa-Gavras the director. Davis v. Costa-Gavras, 580 F. Supp. 1082 (S.D.N.Y. 1984). Hauser's and Harcourt, Brace, Jovanovich, Inc.'s motion for summary judgment was granted. Davis v. Costa-Gavras, 595 F. Supp. 982 (S.D.N.Y. 1984). Hearst's motion for summary judgment was granted. The case subsequently came before the court for a judgment on the pleadings. The motion was granted with respect to two State Department Officials who were originally plaintiffs in the suit. Davis v. Costa-Gavras, 619 F. Supp. 1372 (S.D.N.Y. 1985). LOYOLA ENTERTAINMENT LAW JOURNAL [Vol. 8 This casenote briefly reviews the development of the law of defama- tion concerning public figures and discusses the applicability of this law to dramatizations of true events. The note concludes by stating why the court sets forth the proper rule applicable to this genre of speech. Davis' involved a libel action brought by Ray Davis9 against the makers of the film Missing for their alleged portrayal of him in the movie. The case was before the court on a motion by the defendants for sum- mary judgment. Missing was a docudrama,1 ° portraying the American military presence in Chile at the time of the uprising and the Allende coup. The theme of the film is the search for a missing man, Charles Horman, by his wife and his father. Charles Horman is finally found to have been executed by the Chilean military. While the film does not purport to depict a chronology of the events precisely as they occurred,"' Missing is based on a true story. The film reflects the composite conduct of the American governmental representa- tives in Chile at that time and the degree of their assistance in the search for Charles Horman. It is in this setting that the film came under scru- tiny and criticism. While no character in the film is named "Ray Davis", the character with whom Davis associates himself is Ray Tower, 2 a sym- bolic fictional composite of the American political and military en- tourage in Chile at that time.13 Tower is depicted as someone with the power or authority to order the Chilean military to execute Horman; he is shown as having close connections to the recently installed junta.14 The movie is a dramatic portrayal of events and interpretations de- tailed in Thomas Hauser's book, The Execution of Charles Horman: An American Sacrifice ("Execution"). The filmmakers met with Hauser i" inquiring about his investigation and his sources. They supplied him 8. 654 F. Supp. 653 (S.D.N.Y. 1987). 9. Ray Davis was the Commander of the United States Military Group, and Chief of the United States Mission to Chile at the time of the 1973 coup in Chile. Id. at 654. 10. Docudramas differ from documentaries. Docudramas utilize simulated dialogue, com- posite characters, and telescoping of events occurring over a period into a composite scene or scenes. A documentary is a non-fictional story or series of historical events portrayed in their actual location: a film of real people and real events as they occur. A documentary maintains strict fidelity to fact. Id. at 658. 11. The film opens with the prologue: "This film is based on a true story. The incidents and facts are documented. Some of the names have been changed to protect the innocent and also to protect the film." Id. at 657. 12. In the film, Ed Horman, the father of the missing man, asserts the theory that Ray Tower ordered or approved a Chilean order to kill Charles Horman because he "knew too much" about the alleged American involvement in the Chilean coup. Id. at 659. 13. Id. at 655. 14. Davis v. Costa-Gavras, 619 F. Supp. 1372, 1377 (S.D.N.Y. 1985). 15. Thomas Hauser was a lawyer who had served as a judicial clerk in the chambers of a 1988] DEFAMATION with drafts of the script and were satisfied that there was no reason to doubt his work. They knew that Hauser had interviewed Davis, as well as other United States officials in Chile while writing Execution. The filmmakers also knew that no legal action was taken against the book during the approximately four years since its publication. 6 While the filmmakers never attempted to verify the facts with Davis, they did consult with other parties involved prior to making the film. They met with Charles Horman's parents, his wife, and Terry Simon, a close friend who was with him at the time of his disappearance. Each of these individuals made clear that Hauser's book accurately and relia- bly depicted events as they knew and believed them.' 7 Davis' complaint alleged four general catagories of evidence in his opposition to defendant's motion for summary judgment from which the court could find "actual malice" on behalf of the defendant.' 8 The dis- trict court, however, concluded that plaintiff had not presented any prov- able, clear and convincing, affirmative evidence nor specific facts showing actual malice on the part of the defendants in publishing the alleged defa- mation. Thus, the complaint by Davis, a public figure, was not sustaina- ble under the law.19 The district court first set forth the standard which the plaintiff must prove in order to sustain a cause of action for defamation. The plaintiff, a public official, must show "actual malice" to sustain a cause of action for defamation. "Absent such evidence, the action cannot be maintained as a matter of law."2 To show actual malice, the public fig- ure claiming to have been defamed must show that the defendant pub- lished a statement "with knowledge that it was false or with reckless disregard of whether it was false or not."'" After a careful analysis of the record, the court concluded "that to accept the plaintiff's opposition to summary judgment would require a distortion of the proofs, deviation '22 from applicable law and wrenching the film out of its plain context." federal judge and then worked for a prestigious Wall Street law firm. Davis, 654 F. Supp. 653, 656 (S.D.N.Y.). 16. Id. 17. Id. 18. (1) Defendants' "entire purpose in making Missing was to show plaintiff as responsible for Charles Horman's death;" (2) Defendants' reliance on Thomas Hauser's book Execution was unreasonable; (3) Defendants never consulted with plaintiff on the facts presented in the film; and (4) Missing contains scenes portraying certain episodes which the defendants knew were embroidered. Id. at 655. 19. Id. at 659. 20. Id. at 654 (citing New York Times v. Sullivan, 376 U.S.