Skip to main content

The first time I made the rec list was with a diary analyzing the NSA scandal two days after it broke. The Constitutional analysis held up well and was proven out over time.

I'm at it again, with this five AM piece. Lawyers will be working all weekend, I assure you, on the ramifications of the ABC muckumentary, "Path to 9/11." This was written in the wee early hours, so keep that in mind if you decide to trash. Still, I think it will hang together.

First, we're talking tort law here, that body of law in which plaintiffs can seek injunctions, apologies, retractions, compensatory damages and punitive damages as a result of intentional or negligent interference with their rights.  This is as opposed to contract law, though at several deeper levels, there might be some contract liability somewhere in this thing.

Specifically, we are addressing the tort of defamation:

Defamation is a public communication that tends to injure the reputation of another. It includes both libel (written defamatory statements) and slander (oral ones). The definition of defamation varies from jurisdiction to jurisdiction, but "there is common agreement that a communication that is merely unflattering, annoying, irksome, or embarrassing, or that hurts only the plaintiff's feelings, is not actionable."

(citation omitted)
 

Major legal disputes of all kinds, even potential ones that have not yet come to court, have a life cycle. They spin out a lot of work in anticipation of different courses of action. Even if nothing is filed in the matter of PT911, the papers are being readied because to start drafting Monday will be too late. I've done it often enough in similar situations not to know it when I see it. Like pornography.

Clinton's lawyers (probably representing Sandy Berger and Madelyn Allbright as well) are going to be drafting a motion for an injunction and pulling all the public figure defamation cases they can find. The big one is NY Times v. Sullivan:

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice" - that is, with knowledge that it was false or with reckless disregard of whether it was false or not.  

(emphasis added)

(Note also that there is a false story floating around that Adolf Hitler won a defamation suit against young interim Senator Alan Cranston--it wasn't defamation, it was a copyright suit based on Cranston having the audacity to publish an unabridged version of Mein Kampf that included the anti-semitism which had been scrubbed for American readers.)

The Clinton legal team lawyers are also pulling together their theories of damages and preparing the suit for defamation. More on that below.

ABC's lawyers are preparing documents (filings, research memos, legal briefs) to defend against a possible request for an injunction. In addition, ABC's, and if they are smart, YWAM's attorneys are doing the counter-research on defamation.

Meanwhile, Disney, which is shielded from direct liability for ABC's actions by virtue of stock ownership rather than direct control, might want to be checking on whether allowing, after ample warning, a Disney subsidiary to expose the corporation that has the most to lose from a tarnished image, i.e., Disney, could be grounds for a shareholder derivative suit against the board for mismanagement and a resulting loss of value to its trademarks and image, resulting in likely diminished stock value. This is why I think Disney is the Achilles heel in all this.

I would also guess that this weekend, flies on multiple walls will see a lot of behind-the-scenes negotiating, or at least attempts to negotiate. Bill Clinton has been or will no doubt be on the phone personally with Disney Chairman, George Mitchell. ABC attorneys are burning up the lines with YWAM's mouthpieces. Independent affiliates are probably on the phone with ABC's attorneys seeking promises of indemnification if they air the show. It's a bloody mess--trust me, I've been in the middle of bloody messes before though no one has seen something this big in tort law outside of Ford, Abbot Labs (i.e., Tylenol) or Erin Brockovich.

Sometimes suits are filed just to make a point, which can come into play when  celebrities are allegedly defamed. It's tough for someone routinely in the public eye to win such a lawsuit, though those cases are increasing in number indicating a greater willingness to challenge alleged defamation over-riding conventional wisdom that a suit just brings more exposure to the negative information.  

But as difficult as it is for celebrities to win in a defamation suit, this one has all the earmarks of a suit that has some legs. Let's talk procedure:

To begin with, at first I thought this would likely to be filed in New York State court since I thought there wa no diversity of citizenship required for federal jurisdiction. Bill Clinton lives in New York and, I thought, ABC was headquartered there. But in my research, I learned that, thanks to Disney's brilliance, Burbank, California is "the official headquarters of the American Broadcasting Company." Okeedokee--we've got a federal case here, and I'd guess Bill Clinton files in New York Federal Court. California has the advantage, however, of a four-hour time zone delay. Either would be a very good choice of venue, and the choice is Bill's

(Caveat: Choice of Law. Since there is no federal defamation law, the court will have to decide this under New York State or California State law. I think there may be California statutory law that might be pertinent, but I haven't researched New York law. Any lawyer who wants to do so, please provide insights on both the statutory and choice of law questions. This analysis is based on general common law principles.)

An injunction is a court order making someone do or not do something. That's the first remedy available; i.e., don't let the program air. The standard for receiving an injunction is that if the court does not grant an injunction changing the status quo, the plaintiff will suffer immediate and irreparable harm for which money damages cannot adequately compensate. That's why the SCOTUS should never have granted the injunction in Bush v Gore--there was simply no immediate harm in allowing a legal state election process to continue to conclusion when the Constitution provided procedures for interim succession. That's when I knew we were flirting with fascism and Scalia was a traitor.

Filing for an injunction against a program that hasn't aired yet to keep it off the airwaves is double tough. That's where some serious First Amendment rights come into play, and the courts are predisposed to letting the public sort it out. But the weakness ABC has is that the program has been shown to about 900 right-wingers (see the many diaries on this), and it will be broadcast (unless ABC delays) in Australia by Monday morning, U.S. Eastern Time. I'd argue that the defamation has already taken place and this injunction is to prevent further defamatory utterances (yeah, that's what they're called). So I wouldn't rule out an injunction being granted but I would not bet the farm on it.

Regardless of injunctive relief, the next step is the suit for damages. There's no reason to suppose it can't be prepared over the weekend. Hell, with Lexis and word processing I could do a half-ass decent job of it alone over two solid days and late nights, but it would be nice to have a couple of associates to help. The key procedural question after the injunctive ruling is, can it survive a motion to dismiss?

The motion to dismiss that will be filed by the defendants--ABC, YWAM, and any number of identifiable individuals (screenwriter, producer, director, etc.) will be based, of course, on First Amendment rights and will be evaluated by the judge as follows: Taking all inferences or disputes of fact in the most positive light possible for the defendant, is there enough left of the case that a jury would potentially still be able to find for the plaintiffs?

Based on what we've read, yes. There's a shitload of folks ready to testify the key defamatory scenes were completely invented--Hunter covered it yesterday but there's about a million links on this by now. The 9/11 report evidently does not contain supporting materials (I haven't read the report, I'm going on what has been said). This case cannot be resolved without testimony. It will go to trial.

At trial, the issue becomes whether the plaintiffs can prove the elements of a case of defamation against a public figure. This means that they must show the elements of the case:

1. The statements are defamatory--well, yes; having someone advertise to the world that you were thinking about your next move to defend the blowjobs you received when you should have been protecting 300 million Americans is certainly defamatory on its face, as are the other scenes we have heard about. The other plaintiffs can similarly show defamation though not, perhaps, as dramatically. One down.

2. The statements are false--this is because truth is an absolute defense. Yes, again, we have very solid testimonial and documentary evidence here from what we've read. Two down.

3. The defendants acted with malice--this is the Sullivan standard for defaming a public figure, who is harder to defame than a slug like you or me because taking oneself willingly into the public eye is an implicit consent to a certain amount of the inevitable slings and arrows. This requires proving to the jury that the defendant acted with malice which is proven by establishing the defendant's knowledge that his or her statements were not true or at least made with reckless disregard for the truth. Again, what we've read seems to show that. Three down, one to go.

4. The last piece of the puzzle is DAMAGES. Damages are usually presumed to flow from a defamatory statement but in a public figure case, this is not so easy. Some proof may be required, i.e., "special damages," but damages are, indeed, both assumable and provable here by the extreme nature of the subject matter itself and the individuals involved who are being defamed, a U.S. president and his staff.

The next question is, how much? Tort damages are by their nature subjective. Why don't you tell me how much you would want me to pay you for putting up a billboard falsely saying you beat your spouse? You have AIDS? You allowed someone to be killed by your negligence? You allowed the most horrible act of terrorism in world history to take place by your inattention to official duties?

Now, it's one thing if you are an ordinary person, but what is the reputation of one of four living ex-Presidents worth? I think $100 million is good for starters. Here's where the defendants have some hypothetical wriggle room--if Clinton's reputation is tarnished, maybe it's not worth so much--except Clinton came in second in a hypothetical election for President of the World after Nelson Mandela. Did I say $100 million? Let's double, nay, TRIPLE that.

Then there's Madelyn Allbright, Sandy Berger, and I'm sure a few more folks can allege plaintiff standing by inference, even if they are ultimately ruled out. So we have several hundred million on the table right here, right now, especially if the program airs over the broadcast network.

Then there are the separate lawsuits that could be brought by survivors of the victims. Note, I say could be brought. I think a class action suit for infliction of emotional distress is very possible. Normally, this is an intentional tort, but some cases for negligent infliction have succeeded if I remember my law school days, and again, given the unique circumstances, I think a court is inclined to give this one a full hearing. Multiply this out over, what, at least 10,000 class members or more and again, we get to a hundred mil or so pretty quickly--and it only takes one to file.

Note that the defendant's motives will also play a part in all of this, and again, we have evidence of motives that are truly despicable. This should open the door to punitive damages--damages imposed to prevent others from engaging in similar conduct:

The purpose of punitive damages is to punish a defendant and to deter a defendant and others from committing similar acts in the future.

Plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. punitive damages may be awarded only if defendant's conduct was malicious, or in reckless disregard of plaintiff's rights.

Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another.

Conduct is in reckless disregard of plaintiff's rights if, under the circumstances, it reflects complete indifference to the safety and rights of others.

That's enough for a claim, based on our fact pattern here.

Of course, independent affiliates, those not owned by ABC, would be subject to lawsuits on their own if they were to broadcast, since every repetition of a defamatory utterance is itself actionable. Same goes for independent tort actions against those stations rather than ABC alone. And completely separate defamation suits are possible in Australia or wherever else the program might air outside the U.S. that is amenable to such suits.

But for it to get this far is symptomatic of some of the worst lawyering I can imagine. ABC should have relegated this to cable, or direct to video, or just walked away. My guess is, they didn't know the full scope of what they were seeing, or that executives were told one thing, shown another, and believed a third. Maybe it never got to the lawyers at all, maybe they were given assurances by the execs, and maybe monkeys will fly out of my anus. Maybe they failed to check the 9/11 report themselves (if an outside firm vetted, that's a malpractice claim there by they way). Maybe ABC has contract breach claims against the producer.

And don't forget possible shareholder claims against Disney if it fails to act. And of course, all the discovery that will go on should reveal some amazing things that can make their way into the public domain if made a part of a lawsuit. Or additional lawsuits.

That's how the cumulative liability here could flirt with The Big B as in "Billion."

None of this might happen. All of this might happen.  The truth is usually somewhere in the middle.

Can't wait for Monday.

Originally posted to The Crusty Bunker on Sat Sep 09, 2006 at 05:39 AM PDT.

Poll

My feelings are best summarized by the following:

1%20 votes
51%663 votes
2%28 votes
44%567 votes

| 1278 votes | Vote | Results

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  Exhorbitant Fees--er, I mean, TIPS (365+ / 0-)
    Recommended by:
    Cogito, Greg Greene, Deep Dark, Kimberley, seamus, Alumbrados, buddhistMonkey, Angie in WA State, cat, JWC, ljb, Alfred E Newman, DeminNewJ, coral, Athena, Kascade Kat, Fast Pete, Upper West, tankej, April Follies, c2shiningc, debcoop, ogre, Fran for Dean, SarahLee, sheba, DawnG, nanorich, Hell Upside Down, GOTV, Tulip, katerina, TaraIst, abarefootboy, asimbagirl, Pandora, gaspare, TrueBlueMajority, PeterHug, RunawayRose, Emerson, RNinNC, tomathawl, Shockwave, joby, cotterperson, meg, shycat, OLinda, lysias, LynnS, Vico, ChurchofBruce, uffdalib, cookiesandmilk, AWhitneyBrown, John Campanelli, xynz, IreneNC, acuppajo, varro, RFK Lives, Matilda, amitxjoshi, Plays in Traffic, musicsleuth, bumblebums, mataliandy, HL Mungo, exNYinTX, expatjourno, LIsoundview, mldostert, Heart of the Rockies, Plan9, sardonyx, geordie, shermanesq, Polarmaker, bara, Gustogirl, Disgusted in St Louis, EvieCZ, Italtransit, joynow, bronte17, litho, mentaldebris, Karen Wehrstein, Wee Mama, daisy democrat, amsterdam, elveta, annrose, pucklady, Ti Jean, DaleA, highacidity, AlyoshaKaramazov, lunacat, sukeyna, vmibran, marchmoon, high5, roses, JuliaAnn, peraspera, retLT, sophiebrown, cbathrob, MJB, equinespecter, Swordsmith, jalbert, jsm6022, Boxers, fumie, semiot, navajo, arkdem, dmsilev, Mauimom, asterlil, worldwideellen, webweaver, stacystace, caseynm, BarbinMD, TeresaInSammamishWA, campskunk, milton333, gmb, commonscribe, TiaRachel, TXsharon, chriscol, grayslady, niteskolar, xanthe, GN1927, 42, attydave, lizah, STOP George, annetteboardman, raster44, papercut, FLDemJax, lcrp, strengthof10kmen, 313to212, Dood Abides, inclusiveheart, walkshills, DelicateMonster, ChiGirl88, FlyingToaster, Bluefish, Elwood Dowd, KayCeSF, jen, Black Max, lurker123, patginsd, mdsiamese, djpat, zannie, The Gryffin, Josiah Bartlett, Marc in KS, macmcd, sawgrass727, weelzup, Julie Gulden, rapala, averageyoungman, gradinski chai, Anglico, ukexpat, Recovering Southern Baptist, chumley, lavaughn, lcs, tovan, maybeeso in michigan, 3goldens, ManOnTheBench, deBOraaah, rstnfld, jrooth, i love san fran, denise b, bellevie, Tami B, liberal atheist, Ckntfld, MHB, Elise, enough, coloradobl, LarisaW, bokchoy, Lying eyes, Halcyon, irate, PBen, ElaineinIN, Militarytracy, oldhousepoor, KnotIookin, ZappoDave, zbctj52, sidonie, juliesie, beezie687, KiaRioGrl79, david78209, Nastja Polisci, dg10348, ocooper, dansk47, Penman, Ex Con, olivia, freemark, truebeliever, snootless, The Grace Kelly, Inland, ladybug53, annefrank, Ice Blue, wgard, bmaples, babatunde, sunbro, martik, twalling, sfflyman, Habanero, SundayHighway, wiscmass, deepsouthdoug, willers, sleep deprived, bartman, doe, psyched, JanF, grapes, kkjohnson, zapmama, Pacific NW Mark, Asinus Asinum Fricat, jiml, Strawberrybitch, surferal, WuChier, Coherent Viewpoint, kovie, Topaz7, keefer55, snazzzybird, dsteele2, Uncle Bug, Do Tell, bee tzu, Keone Michaels, awakenow, edwardssl, njr, BlueInARedState, tobendaro, dharmafarmer, justintime, Big Eddie Calzone, rl en france, cookseytalbott, mooshter, Pope Bandar bin Turtle, Sagittarius, episty, Encriptical Envelopments, deha, Luminous Animal, tbetz, irishamerican, isis2, Gasonfires, sailmaker, kck, goodasgold, EquiStar, jguzman17, StrayCat, philipmerrill, Ashaman, OneCrankyDom, paul2port, condoleaser, tim woods, Everest42, NewAmericanLeft, kay dub, BalkanID, sscott1958, mhw, STEVEinMI, ER Doc, Metalmaven, buckinfuzzard, oakroyd, sharilynn, llbear, Liberal Lurker, ilyana, Daimon N D Ruff, iheartfreedom, MarketTrustee, betterdeadthanred, Lew2006, nyc in exile, Zoskie, FrankieB, Picot verde, sea note, BentLiberal, gtaylor, cherry ghost, jlb1972, old wobbly, beaukitty, carolinacal, grayday101, Balam, dotsright, EclecticFloridian, Cronesense, Faith Chatham, SparkleMotion, JFinNe, isla01, Cat Whisperer, dmh44, Cottagerose, FWIW, whl, Castine, ColoTim, zinfandelfan, gloriana, BruceMcF, lemming22, beth meacham, DrWolfy, DvCM, Muttly, daveygodigaditch, voter for sale, lurks a lot, Calqueda, lizpolaris, ubertar, Heyroot, polyphase avitron

    Support Your Local Lawyer!

    Quis custodiet ipsos custodes? (Who will watch the watchers?)

    by The Crusty Bunker on Sat Sep 09, 2006 at 05:26:12 AM PDT

    •  Excellent summation, counsellor n/t (17+ / 0-)

      The name is not the thing named, the map is not the territory. -- Gregory Bateson

      by semiot on Sat Sep 09, 2006 at 06:10:51 AM PDT

      [ Parent ]

      •  Thank you (15+ / 0-)

        I'm familiar with your moniker and have enjoyed your work as well.

        Quis custodiet ipsos custodes? (Who will watch the watchers?)

        by The Crusty Bunker on Sat Sep 09, 2006 at 06:16:37 AM PDT

        [ Parent ]

        •  Geez, ya noticed? (blush) (5+ / 0-)

          The name is not the thing named, the map is not the territory. -- Gregory Bateson

          by semiot on Sat Sep 09, 2006 at 06:58:34 AM PDT

          [ Parent ]

        •  I just sent an email to my local (25+ / 0-)

          ABC affiliate apprising them of the gist of what you write here. You gave me information to act on, and the courage to act. Thank you.

          The name is not the thing named, the map is not the territory. -- Gregory Bateson

          by semiot on Sat Sep 09, 2006 at 07:00:17 AM PDT

          [ Parent ]

          •  What subset... (9+ / 0-)

            Of this diary would be best to send to an affiliate of ABC? Mine is here in NYC, and the only words which truly reflect my feelings - that did not appear in the poll - are:

            I am seethingly fucking livid that ABC is going to air this trife.

            down with fundaMENTALism

            by averageyoungman on Sat Sep 09, 2006 at 07:48:38 AM PDT

            [ Parent ]

            •  here's what I sent: (31+ / 0-)

              To the attention of Bob Peterson, General Manager, and David Weems, General Sales Manager, WRIC:

              Dear sirs:

              I consider it my duty, as a resident in your broadcasting market, and as a loyal citizen of the United States of America, to inform you about some information I have received regarding the plans of the ABC Television network to broadcast a so-called "docudrama" - "Path to 9/11" - this coming Sunday and Monday, September 10 and 11, 2006.

              There has been quite a bit of information about this program circulated in the broadcast, print, and internet media over the last few days. I think there is no question now but that the early versions of this program, which were circulated to the likes of Rush Limbaugh and his 900 or so closest friends, contain false and defamitory material about certain public figures - and this DVD circulation of the material, alone, is grounds for the filing of lawsuits against a number of people and businesses associated with the production and distribution of
              same.

              You, my friends, are now faced with an important decision - whether to broadcast "Path to 9/11" or not. Let me remind you of your trustee's duty, as a broadcast licensee, to serve the "public interest, convenience and necessity." The spreading of false and malicious propaganda is hardly an exercise of that trust - it is a violation of that trust.

              I promise you that I will enter a document in your public file if you do choose to go forward with the broadcast in question. I also promise you that I will
              contact local businesses that advertise on your station and let them know what I think about the irresponsibility of such a broadcast.

              Beyond that, I write here to apprise you of some information that has come my way that you might profit from paying attention to:

              At trial, the issue becomes whether the plaintiffs can prove the elements of a case of defamation against a public figure. This means that they must show the elements of the case:

              1. The statements are defamatory--well, yes; having someone advertise to the world that you were thinking about your next move to defend the blowjobs you received when you should have been protecting 300 million Americans is certainly defamatory on its face, as are the other scenes we have heard about. The other plaintiffs can similarly show defamation though not, perhaps, as dramatically. One down.
              1. The statements are false--this is because truth is an absolute defense. Yes, again, we have very solid testimonial and documentary evidence here from what we've read. Two down.
              1. The defendants acted with malice--this is the Sullivan standard for defaming a public figure, who is harder to defame than a slug like you or me because taking oneself willingly into the public eye is an implicit consent to a certain amount of the inevitable slings and arrows. This requires proving to the jury that the defendant acted with malice which is proven by establishing the defendant's knowledge that his or her statements were not true or at least made with reckless disregard for the truth. Again, what we've read seems to show that. Three down, one to go.
              1. The last piece of the puzzle is DAMAGES. Damages are usually presumed to flow from a defamatory statement but in a public figure case, this is not so easy. Some proof may be required, i.e., "special damages," but damages are, indeed, both assumable and provable here by the extreme nature of the subject matter itself and the individuals involved who are being defamed, a U.S. president and his staff.

              The next question is, how much? Tort damages are by their nature subjective. Why don't you tell me how much you would want me to pay you for putting up a
              billboard falsely saying you beat your spouse? You have AIDS? You allowed someone to be killed by your negligence? You allowed the most horrible act of
              terrorism in world history to take place by your inattention to official duties?

              Now, it's one thing if you are an ordinary person, but what is the reputation of one of four living ex-Presidents worth? I think $100 million is good for
              starters. Here's where the defendants have some hypothetical wriggle room--if Clinton's reputation is tarnished, maybe it's not worth so much--except Clinton came in second in a hypothetical election for President of the World after Nelson Mandela. Did I say $100 million? Let's double, nay, TRIPLE that.

              Then there's Madelyn Allbright, Sandy Berger, and I'm sure a few more folks can allege plaintiff standing by inference, even if they are ultimately ruled out.
              So we have several hundred million on the table right here, right now, especially if the program airs over the broadcast network.

              Then there are the separate lawsuits that could be brought by survivors of the victims. Note, I say could be brought. I think a class action suit for
              infliction of emotional distress is very possible. Normally, this is an intentional tort, but some cases for negligent infliction have succeeded if I
              remember my law school days, and again, given the unique circumstances, I think a court is inclined to give this one a full hearing. Multiply this out over,
              what, at least 10,000 class members or more and again, we get to a hundred mil or so pretty quickly--and it only takes one to file.

              Note that the defendant's motives will also play a part in all of this, and again, we have evidence of motives that are truly despicable. This should open
              the door to punitive damages--damages imposed to prevent others from engaging in similar conduct:

              The purpose of punitive damages is to punish a defendant and to deter a defendant and others from committing similar acts in the future.

              Plaintiff has the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. punitive damages may be awarded only if defendant's conduct was malicious, or in reckless disregard of plaintiff's rights.

              Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another.

              Conduct is in reckless disregard of plaintiff's rights if, under the circumstances, it reflects complete indifference to the safety and rights of
              others.

              That's enough for a claim, based on our fact pattern here.

              Of course, independent affiliates, those not owned by ABC, would be subject to lawsuits on their own if they were to broadcast, since every repetition of a
              defamatory utterance is itself actionable. Same goes for independent tort actions against those stations rather than ABC alone.

              Gentlemen, consider yourselves notified of your exposure here. I believe in the right of free speech, as constituted in the First Amendment. Defamitory,
              malicious propaganda is not a protected exercise of free speech - especially coming from a licensed trustee of the public airways.

              Hope I'm not too presumptious in assuming away your IP rights on this, Crusty. You made my job here at lot easier. Thanks again.

              The name is not the thing named, the map is not the territory. -- Gregory Bateson

              by semiot on Sat Sep 09, 2006 at 08:04:26 AM PDT

              [ Parent ]

          •  ABCs VP of National Television Sales (0+ / 0-)

            You may want to write to:

            Rich Vedder
            VP ABC National Television Sales
            NTVSAdvertise@abc.com

      •  Suing Nowrasteh (10+ / 0-)

        I may be wrong on this, as I don't know torts law very well, but while ABC/Disney arguably could avoid most liability by simply not televising the miniseries (other than the claimed defamation from the advance screenings, etc.), it would seem to me that Nowrasteh, the producers, et al. would already be exposed to liability.

        Regardless of what happens, I think Clinton, Berger et al. should sue Nowrasteh and his posse, and teach them a little civics lesson about the rule of law in this country.

        I'd like to see a multimillion dollar judgment on Mr. Nowrasteh's head, would be quite nice, I think.  Maybe his friend Rush can help him out with that.

        •  I am totally for suing Nowrasteh & (6+ / 0-)

          everybody else involved.  To have these people, their tactics, objects, network and funding exposed in court, to give a wider public access to the kind of information that has been gathered and discussed here would be the best of all possible outcomes.

          The McCarthy/Army hearings, the Watergate hearings-- traditionally, this is how America has best exposed its infections and healed its wounds.  It's about time Karl Rove's RW got their day in court. They've earned it.

    •  Can't wait until Monday - it airs Sunday! (6+ / 0-)

      I don't understand your time line - the material most clearly fictional and defamatory of Clinton, Albright and Berger is apparently in the Sunday night installment of this trash. So Monday will be way too late to get an injunction, won't it?  

      •  Courts open on Monday (11+ / 0-)

        Quis custodiet ipsos custodes? (Who will watch the watchers?)

        by The Crusty Bunker on Sat Sep 09, 2006 at 06:39:14 AM PDT

        [ Parent ]

        •  Emergency ruling? (7+ / 0-)

          I thought you could get a judge to issue a restraining order even outside of regular court hours?  But are you saying this situation wouldn't warrant that kind of thing?

          •  Great question--out of my scope tho (3+ / 0-)
            Recommended by:
            roses, xanthe, llbear

            I'm not that up on federal civil procedure at this point. Maybe Bill & friends prefer to litigate at this point.

            Quis custodiet ipsos custodes? (Who will watch the watchers?)

            by The Crusty Bunker on Sat Sep 09, 2006 at 06:56:06 AM PDT

            [ Parent ]

            •  You cannot... (17+ / 0-)

              get an injunction against someone's planned defamatory statement.  It's not defamation until and unless someone says it, and a court intervening to "stop defamation" poses SERIOUS prior restraint/First Amendment problems.  A defamation action here would be knocked out of court on its ass under Sullivan.  Period.

              It's highly disturbing to me how many folks around here in the past few days seem to want to add "that I agree with" to the free speech clause of the First Amendment, and get courts and the government involved in saying what you can and can't say on television.

              •  I basically agree that prior restraint (4+ / 0-)

                is a bad idea - particularly in the case of defamation, where life and limb are literally not at stake.

                The name is not the thing named, the map is not the territory. -- Gregory Bateson

                by semiot on Sat Sep 09, 2006 at 07:09:52 AM PDT

                [ Parent ]

                •  Having said that (13+ / 0-)

                  I do think that those defamed by false, malicious propaganda have a right to seek redress in the courts - particularly in this case, where the motives look to be intentional subversion of the right of the citizenry to factual information on an issue of enormous public importance in the run-up up a national election day.

                  The name is not the thing named, the map is not the territory. -- Gregory Bateson

                  by semiot on Sat Sep 09, 2006 at 07:13:04 AM PDT

                  [ Parent ]

                •  Semiot, actually I agree with that principle (30+ / 0-)

                  I was well scorched on a comment days ago, before we knew about the falsity, for saying the very same thing.

                  But in this case, defamation has occurred--the material has been published, even if not to a broadcast audience, but just the previewers and reviewers. An injunction would be a reasonalble remedy to request in order to halt additional incidents.

                  You can bet that there will be a request for injunction after-the-fact for correction or to halt all redistribution or rebroadcast.

                  Quis custodiet ipsos custodes? (Who will watch the watchers?)

                  by The Crusty Bunker on Sat Sep 09, 2006 at 07:13:14 AM PDT

                  [ Parent ]

                  •  isnt prior restraint in regards (7+ / 0-)

                    to the governments actions and not from public citizens?

                    saw this over at democrats.org, it came from wikipedia

                    Prior restraint is a legal term referring to a government's actions that prevent materials from being published. Censorship that requires a person to seek governmental permission in the form of a license or imprimatur before publishing anything constitutes prior restraint every time permission is denied. More recently, prior restraint has often taken the form of an injunction or other governmental order prohibiting the publication of a specific document or subject. Sometimes, the government becomes aware of a forthcoming publication on a particular subject and seeks to prevent it. In other cases, the government attempts to halt ongoing publication and prevent its resumption. These injunctions are also usually considered to be cases of prior restraint, because future publications are stopped before they start.

                    Poverty and the homeless Out of sight and out of mind

                    by betterdeadthanred on Sat Sep 09, 2006 at 07:17:24 AM PDT

                    [ Parent ]

                    •  Thanks for the insight (6+ / 0-)

                      I think we can use "prior restraint" generically here, since a court is part of the government and issuing an injunction would indeed be a government action.

                      I should have said what I said in my comment a while back, that courts favor public debate. The problem I saw for ABC is that this has already been published, so that dilutes the argument.

                      Quis custodiet ipsos custodes? (Who will watch the watchers?)

                      by The Crusty Bunker on Sat Sep 09, 2006 at 07:22:27 AM PDT

                      [ Parent ]

                      •  the government is (0+ / 0-)

                        not issuing an injunction on its own behalf
                        it would be issued on behalf of citizens

                        it is a remedy for unfettered corporate speech.

                        Poverty and the homeless Out of sight and out of mind

                        by betterdeadthanred on Sat Sep 09, 2006 at 07:25:13 AM PDT

                        [ Parent ]

                        •  ANOTHER interesting point (5+ / 0-)

                          This is CORPORATE speech and while corporations have "personhood" corporate speech has always been subject to greater restraint than individual speech.

                          I'm not going to hypothesize every avenue--this was just to get the discussion started. I'd love to see it play out, though.

                          Quis custodiet ipsos custodes? (Who will watch the watchers?)

                          by The Crusty Bunker on Sat Sep 09, 2006 at 07:41:55 AM PDT

                          [ Parent ]

                        •  That's nonsense (1+ / 0-)
                          Recommended by:
                          SarahLee

                          Under your definition essentially every speech is commercial/corporate speech.  

                          Newspapers are corporartions, as are TV studios, radio studios, etc.  Under your theory the only speech not subject to limitation is printing flyers in your own basement.

                          And it does not matter on whose "behalf" the government is issuing an injunction.  The injunction itself is state action.  A private citizen has no more right to shut someone up through the use of govt machinery than does the government itself.

                    •  very interesting (3+ / 0-)

                      differentiation of licensed and unlicensed activity, speech inclusive.

                      whereas the state, by virtue of its exclusive  privileges to grant authority (and nominally to regulate same) to individuals, say, attorneys and MDs, a license indicates prior restraint of specific commercial activities, ostensibly, to forestall or constrain future damages.

                      yet a broadcaster's license or conformity with the law begs the question, what obligation(s) aside from operational design and fees attend the privilege (or right) to select it's own broadcast content freely -- in an unlicensed manner?

                      once again, i'm deeply troubled by the ease at which corporate entities assume the constitutional protections and standing of human persons. and the prospect of society's dependence on the merits of a defamation suit appear to me at once an insufficient and absurdly unbalanced indictment of a fairness doctrine governing the public's welfare.

                      Diversity is the key to economic and political evolution.

                      by MarketTrustee on Sat Sep 09, 2006 at 09:42:17 AM PDT

                      [ Parent ]

                      •  Out of curiosity: (0+ / 0-)

                        What would it take to reverse/take away the "personhood" of corporations?  (Not a lawyer, here.)

                        Whom the Gods would destroy they first make Republican.

                        by tovan on Sat Sep 09, 2006 at 10:43:11 AM PDT

                        [ Parent ]

                        •  Corporate personhood... (0+ / 0-)

                          Thom Hartmann wrote a book on this.

                        •  Nothing short of the destruction (2+ / 0-)
                          Recommended by:
                          SarahLee, RatIV

                          of world economy.

                          Corporate personhood provides the government with the ability to tax corporations apart from and in addition to corporate shareholders.  It also provides for limited liability.  In other words, simply because your 401(k) may have held the stock of Enron, it does not give the aggrieved party a right to come after you and your posessions personally.  That is because the corporation is responsible for its own actions with its own finances.  Destroying all of this would result in a complete destruction of economy as we know it.  Corporate personhood is recognized world-over in every country and has been for over 200 years.

                          •  Couldn't you do a partial reversal (0+ / 0-)

                            of personhood?  Personally, I wouldn't be too upset to see a change in limited liability laws -- I believe that CEOs and top executives should be held accountable if their corperation goes bankrupt.  (A friend of mine once held that if corperations were people, there should be such a thing as the corperate death penalty, but I digress.)

                            But I don't see what saying you can tax a corperation has to do with saying they have the right to free speech.  One shouldn't have to imply the other.  It seems like a convenient legal shorthand, not something inherit to the nature of corperations.

                          •  Incidentally, (1+ / 0-)
                            Recommended by:
                            lemming22

                            There is such a thing as corporate death penalty.  It is called involuntary bankruptcy and/or receivership.

                            Changing limited liability laws destroys the entirity of the economy.  Because it is not just the CEOs who would be held accountable but ordinary stockholders as well..

                            As for taxes and free speech, it goes kind of hand in hand.  If you are treating a corp as a separate legal entity, that entity has certain rights to defend itself.  In other words, a government cannot just show up and take corporation's computers just because they like them.  As does an individual, corporation has a right to compensation for its property.  If the government or anyone else tries to sue a corporation, it has a right to defend itself.  If someone badmouthes a corporation, it has a right to respond.  It also has a right to promote itself so that the people know of the corporation's existance, mission, and products.  To be sure such commercial speech is subject to restrictions, e.g., it cannot be misleading or false, etc.  But a corporation should be able to inform the public that for example certain proposed legislation would negatively impact the corporation and have the public decide whether it's worth it.

                          •  Why is limited liability all or nothing? (1+ / 0-)
                            Recommended by:
                            lemming22

                            Surely that is a matter that admits of shades of gray.  

                            You could say, for example, that the owners of a corporation are jointly and severally liable for a certain percentage of any liability in excess of some deductible.

                            Katrina was America's Chernobyl.

                            by lysias on Sat Sep 09, 2006 at 01:01:18 PM PDT

                            [ Parent ]

                          •  Any stockholder is an owner (0+ / 0-)

                            of the corporation.

                            And stockholders who invest in stocks for their retirement through their 401k should not fear that someone will come and take away their house if there is an oil spill traceable to the company that they own stocks in.

                          •  Why do people invest in partnerships? nt (0+ / 0-)

                            Katrina was America's Chernobyl.

                            by lysias on Sat Sep 09, 2006 at 01:14:40 PM PDT

                            [ Parent ]

                          •  In a partnership you generally (0+ / 0-)

                            not just put up the money but are actually part of the business.  No one really invests in partnership in the same way people invest in corporations.

                            Plus, partnerships more and more are becoming limited liability too.  No one wants to put their perosnal assets at risk if something goes wrong with the business.

                          •  ha ha. (0+ / 0-)

                            LLP (LIMITED LIABILITY PARTNERSHIP) or LLC (LIMITED LIABILITY CORPORATION) are a calculated option of of tax status, pseudo-incorporations: benefits ($$ revenue and $$ tax and $$ legal in terms of RISK) and fewer corporate rights reserved at end of fiscal year filing. incorporation distributes all risk; LLP/LLC and incidentally SCopr (SOLE-PROPRIETOR CORPORATION). the latter, generally, is a good hedge against AMT if your small biz is doing >$150K per annum.

                            "entrepreneurs" and "professionals", like law firm or financial advisors, choose LLC or LLP in order to retain more revenue per officer against tax liabilities attributable to (non-public) corporate operations.

                            these research leads to qualify and inform your understanding of "liability". pls consult a CPA. potential litigation and legal polemics actually, practically, are insignificant until your organization and operations start branching nationally or globally ... then you're in the law firm tax sample, at least.

                            the dr is so disingenuous.

                            Diversity is the key to economic and political evolution.

                            by MarketTrustee on Tue Sep 12, 2006 at 12:50:59 PM PDT

                            [ Parent ]

                  •  SCOTUS (2+ / 0-)
                    Recommended by:
                    SarahLee, Adam B

                    recently reaffirmed (though somewhat dodging the issue) that injunctive relief in a defamation case is VERY rarely going to be a remedy, and then only when narrowly tailored.

                    •  OK, thanks, we GET It (2+ / 0-)
                      Recommended by:
                      Upper West, Balam

                      I wouldn't rule out an injunction being granted but I would not bet the farm on it.

                      I'm far more interested in the damages suit anyway, especially internationally. I think it will tell us a lot about how tough and/or vengeful (depends on your POV) Clinton actually is.

                      Quis custodiet ipsos custodes? (Who will watch the watchers?)

                      by The Crusty Bunker on Sat Sep 09, 2006 at 07:24:57 AM PDT

                      [ Parent ]

                •  Prior restraint=censorship (1+ / 0-)
                  Recommended by:
                  Caoimhin Laochdha

                  That’s the last thing we want, it would slap us back 10 fold.

                  Naw, if ABC does this most of us who are horribly offended by this travesty will treat the network as if it if Fox, which means as if it didn’t exist.

                  Fox is doing well lately with faith based news, aren’t they? </shark>

                •  Wouldn't AN IGNORED motion for injunction, (1+ / 0-)
                  Recommended by:
                  semiot

                  even if the judge does not allow it, actually BE a form of supporting evidence that the party who is doing the defaming knows what it is doing and acting with malicious intent?

                  I'm not a lawyer... just wondering...

                  "Let us not be conservative with compassion. Be generous with compassion."

                  by ilyana on Sat Sep 09, 2006 at 08:15:20 AM PDT

                  [ Parent ]

              •  Check your facts (21+ / 0-)

                It's already been published. Defamation occurs with publication to as few as ONE individual. Reviewers have seen it, right-wing and general media.

                Thank you for letting me inform you of this.

                Quis custodiet ipsos custodes? (Who will watch the watchers?)

                by The Crusty Bunker on Sat Sep 09, 2006 at 07:09:59 AM PDT

                [ Parent ]

              •  Well, I disagree with most of this (10+ / 0-)
                1. The defamatory statements have already been made in the 900 copies distributed to right-wing commentators and media critics. The statements have been repeated in the media. So this is not "planned," it is "continuing."
                1. Sullivan sets the bar pretty high for public figures to win slander suits. But in my opinion, Berger and Albright have cases that clear that bar. The producers have acknowledged that the scenes involving them are not true.
                1. But I generally agree with you on not using the government (the courts, here) to block the broadcast.
                •  The voice of sweet reason! (7+ / 0-)

                  I've enjoyed debating with profmatt to a point but I'm wondering if it's really Joe Lieberman lurking behind the moniker.

                  If there was ever a case to bring, this is it.

                  Otherwise, there is no America and I'm only here for the money.

                  Quis custodiet ipsos custodes? (Who will watch the watchers?)

                  by The Crusty Bunker on Sat Sep 09, 2006 at 07:31:27 AM PDT

                  [ Parent ]

                  •  I usually find profmatt very reasonable (4+ / 0-)

                    and thoughtful.

                    Perhaps the prior restraint issue -- which I agree is problematic legally, constitutionally, and politically -- has his dander up.

                    •  Drew his focus, no doubt (2+ / 0-)
                      Recommended by:
                      RF, Balam

                      Funny how I was making that argument before we knew there was falsity and I was the one getting torched on it. I also don't get how he refuses to factor in the idea that publication has occurred, the only issue now is how broad will it be?

                      Quis custodiet ipsos custodes? (Who will watch the watchers?)

                      by The Crusty Bunker on Sat Sep 09, 2006 at 07:38:32 AM PDT

                      [ Parent ]

                      •  I am... (6+ / 0-)

                        as a blanket rule generally opposed to any court action or statute limiting what can be said.  (Time, place, and manner restrictions are a different story.)

                        You have an absolute right to say "Bill Clinton is Satan" or "George Bush is a Pigfucker!"  Someone else has the right to shout (equally loudly) that you're wrong.  What worries me the most here is that I feel like we're applying a double standard here.  We should be allowed to say whatever we want, but "the other people" shouldn't.  I don't like that from a philosphical standard, and I REALLY don't like that when you start getting courts involved in determining who can say what.  My concern is that we're losing sight of principle in rage.

                        •  Well (3+ / 0-)
                          Recommended by:
                          SarahLee, 3goldens, Cottagerose

                          normally I'd be with you completely.  But I think with television we are in a difficult area with respect to absolute rights - because something broadcast on TV, with a major network solemnly pronouncing it 'history', has a much greater propaganda effect than someone shouting on a streetcorner.  I'm not saying prior restraint is the answer - but images beamed into one's home have a powerful subconscious as well as conscious impact on the mind, and I don't think we've yet fully taken account of that in terms of the First Amendment.

                          I don't have any answers - but after this thing has aired, the incredible damage to Clinton, Berger, Albright and others will be indelible.  Of course, the political effect, if the thing is actually watched by a sizeable audience, could be irredeemable, but that's not a legal issue, that's a strategic issue that I hope to hell the Dems are working on an answer for.

                          •  Here's the thing... (2+ / 0-)
                            Recommended by:
                            catullus, Sharon Jumper

                            I might be with you if this thing was airing on every channel or being beamed into everyone's brain.  But it's not.  You have the right not to watch.  Vote with your remote.  Keith Olbermann is free to shout from the rooftops "Bush Is a Liar" on MSNBC, and Rush Limbaugh is free to shout from the rooftops "Bush Is A Hero!" on radio.  You get to choose what you listen to.  Speech you don't like or agree with is part of the price we pay for free speech.

                            It is a bit more complicated because it's a broadcast network, but governmental regulation has typically been limited to "how you say it" rather than what you can say.  (You can criticize any public figure all you want, you just can't call them a motherfucker.)

                          •  It's a bit more complicated (5+ / 0-)
                            Recommended by:
                            Tulip, macmcd, 3goldens, enough, snootless

                            The partnership with Scholastic attempted to make this a homework assignment, where kids would NOT have a choice of watching.

                            But I come down agreeing with you on prior restraint.

                          •  Separate Actions Against Scholastic Because (1+ / 0-)
                            Recommended by:
                            enough

                            they're causing government to propagandize underage kids?

                            We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

                            by Gooserock on Sat Sep 09, 2006 at 08:43:56 AM PDT

                            [ Parent ]

                          •  So far I see Scholastic (1+ / 0-)
                            Recommended by:
                            macmcd

                            more as a clumsy co-victim in this.

                          •  I agree Scholastic appears to be a clumsy (3+ / 0-)

                            co-victim; however, Scholastic should still have the responsibility of cleaning up the damage they have "generated" by allowing themselves to become involved in this debacle.  It seems to me that they should have been more prudent and are responsible for their carelessness.

                          •  the whole mission of the sponsoring group (4+ / 0-)

                            is to change minds and to convert people/kids to conservative minions.

                            that's the difference here - not winning an argument on rational grounds but inserting little "chips" in subconscious to change their perception of reality.

                            Could the founders have imagined this? how would they have addressed it, if they could have?

                            they knew the importance of thought and debate - hence, the need for religious freedom. this whole project, funded by a deranged man in PA, is about removing and debasing thought and debate.

                          •  Of course the Founders imagined this (3+ / 0-)
                            Recommended by:
                            ppluto, snootless, Coherent Viewpoint

                            They were more aware of the dangers of centralized control of speech and press than people are today.

                          •  Not exactly (3+ / 0-)
                            Recommended by:
                            SarahLee, 313to212, cfk

                            You can call George Bush a "motherfucker", but you cannot directly say that you have proof that he has had sex with his mother.

                            My wife's new novel -- THE GUY NOT TAKEN -- in stores now!

                            by Adam B on Sat Sep 09, 2006 at 10:52:07 AM PDT

                            [ Parent ]

                          •  Well... (0+ / 0-)

                            you can't do the former on broadcast television (FCC and all).

                          •  "can't do the former on broadcast television" (4+ / 0-)

                            Which is a form of prior restraint.  It is a corrupt political reality that occurs because it is easier for the networks to allow the FCC to do to them; still it is completely unconstitutional.

                            Congress, which "shall make NO law . . . " has essentially delegated a "power" to censor, that it does not itself have, to the FCC.

                            Prior restraint is already too big a problem with broadcast media.  We need to open media up to more voices.  If we did not have such a narrow grouping of corporate interests kowtowing to FCC regulations and congressional overreaching, we'd probably have a healthier media and more informed public (not to mention better programming).

                            I'd rather hear/see the type of commentary we are privileged to receive her on KOS on the networks/radio etc.  However, the specter of GOP and Congressional wielded FCC threats is one of many things that has destroyed the objectivity, credibility and validity of the MSM.  It serves its masters in D.C. rather than its customers.

                            ABC/Disney needs to be held accountable for its libel.  I hope they suffer irreperable financial wounds for this vicious act of historical treason. Prior restraint, however, is the worst way to achieve that end.

                            sláinte,
                            cl

                            Religion is like Sodomy: Both may be harmless when practiced between consenting adults but neither should be imposed upon children.

                            by Caoimhin Laochdha on Sat Sep 09, 2006 at 01:16:52 PM PDT

                            [ Parent ]

                          •  There is also the issue of the medium. (14+ / 0-)

                            The airwaves are owned by the public, so it is not unreasonable for access to those airwaves to be conditional to certain standards of truth and accuracy.  Restrictions against the deliberate use of the public airwaves for the sake of defaming a person or persons can easily be considered a time/place/manner restriction, as a matter of policy.  

                            If ABC had released this in the theaters, I would not support the idea of having it pulled, but because they are attempting use the public airwaves as a conduit for defamation (and potentially illegal campaign activity) it is an entirely different matter.

                            "Leave the gun ... take the cannoli." -8.38, -7.69

                            by Balam on Sat Sep 09, 2006 at 08:19:23 AM PDT

                            [ Parent ]

                          •  Not to derail the diary topic... (2+ / 0-)
                            Recommended by:
                            zapmama, Caoimhin Laochdha

                            ...but the 'public airwaves' excuse for government content regulation is both troubling and ineffective. Troubling when it leads to stuff like not showing Saving Private Ryan, and ineffective because it simply results in content moving to cable and satellite media.

                          •  Except, I'm not talking about regulation really. (3+ / 0-)
                            Recommended by:
                            Gooserock, fumie, 3goldens

                            I'm just suggesting that an injunction wouldn't constitute prior restraint because it could be considered a time/place/manner restriction, i.e. you can't use public airwaves as a conduit for defamation, so a court can order you not to do it.  I'm not at all suggesting that the FCC somehow codify such a policy.  That would pose problems.

                            Regardless, as The Crusty Bunker pointed out, the question of prior restraint is likely not problematic since ABC has already "published" this piece by showing it to select audiences.  

                            "Leave the gun ... take the cannoli." -8.38, -7.69

                            by Balam on Sat Sep 09, 2006 at 08:38:34 AM PDT

                            [ Parent ]

                          •  Certainly not as problematic (0+ / 0-)

                            as the Pentagon Papers case. You're right, it would not be an instance of prior restraint keeping facts secret.

                          •  Of course (4+ / 0-)
                            Recommended by:
                            kdub, enough, cfk, Demena

                            this isn't a case about keeping "facts" secret.  It is about holding someone liable for defamation and ordering them to stop distributing distributing the defamatory material.

                            "Leave the gun ... take the cannoli." -8.38, -7.69

                            by Balam on Sat Sep 09, 2006 at 08:52:26 AM PDT

                            [ Parent ]

                          •  Maybe the existence of television (1+ / 0-)
                            Recommended by:
                            DvCM

                            is incompatible with the First Amendment.

                            Katrina was America's Chernobyl.

                            by lysias on Sat Sep 09, 2006 at 08:23:02 AM PDT

                            [ Parent ]

                          •  Constitution Is 100 Years Outdated re Mass Media (2+ / 0-)
                            Recommended by:
                            snootless, SparkleMotion

                            In the information age, there is no 'public' square--the people assemble exclusively in private property virtual spaces, so the Bill of Rights effectively creates a feudal system.

                            We haven't begun to recognize that our system could in a fundamental way be a problem. Till we can imagine that, we can't even begin discussing how to adapt its core ideals and principles to these systems.

                            We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

                            by Gooserock on Sat Sep 09, 2006 at 08:49:25 AM PDT

                            [ Parent ]

                          •  Newspapers were read privately in the 1700s n/t (0+ / 0-)
                        •  Profmatt (0+ / 0-)

                          I sense that Crusty is a 1L, hence the passion but lack of full knowledge about the legal principles here.  

                        •  You are leaving out something very big (5+ / 0-)
                          Recommended by:
                          SarahLee, TaraIst, lysias, cfk, DvCM

                          I've done battle with big bad guys before. The more they get, the more they want, the more they take.

                          Failure to act only emboldens the terrorists right-wing fascists. Next time, it will be rewritten history books.

                          Quis custodiet ipsos custodes? (Who will watch the watchers?)

                          by The Crusty Bunker on Sat Sep 09, 2006 at 10:43:17 AM PDT

                          [ Parent ]

                        •  You're missing the point here... (10+ / 0-)

                          This show lies about specific events--its producers have already acknowledged that fact.  Of course you have a right to yell obscenities against public figures.  You don't, however, have the right to knowingly tell lies about them on network TV.

                          Imagine a network running a P9/11 movie that showed W being told on 9/10 that planes would be hijacked the next a.m. and crashed into buildings, and him responding by shrugging his shoulders and saying that he wanted to watch SportsCenter and practice reading My Pet Goat. Imagine the movie showing Cheney getting the same info and responding by having all NORAD fighters on the east coast grounded until further notice.  They wouldn't have a defamation suit under those circumstances?

                          Under your absolutist view, libel law should not exist.  You apparently think I should be able to buy billboards along every interstate in FL stating that Charlie Crist molests little boys even if I know for a fact that the charge is a lie.  While I don't see grounds for injunctive relief against this movie, I sure as hell see grounds for a subsequent suit.

                          Some men see things as they are and ask why. I see things that never were and ask why not?

                          by RFK Lives on Sat Sep 09, 2006 at 11:41:05 AM PDT

                          [ Parent ]

                        •  Opinions vs. alleged statements of fact (2+ / 0-)
                          Recommended by:
                          RFK Lives, The Crusty Bunker

                          Of course we have an absolute right to call people names, to shout our opinions about other people from rooftops (unless of course, that violates a time, place or manner restriction; couldn't do that in my neighborhood after 10 p.m., anyhow).  What we DON'T have a right to do is knowingly to tell lies - create misstatements of FACT - about people in ways that destroy their reputations.  

                          Opinions, allegations of facts.  They're treated differently by the law.

                          Apparently this docu-fiction-drama-propaganda piece alleges FACTS.  Alleges facts that are lies.  Alleged facts that are provable lies.  Alleged facts that will seriously damage people's reputations.

                        •  As far as I can see (0+ / 0-)

                          Nobody is complaining that the thing was shown to 900 conservatives. It was that ONLY conservatives got to see it, while others who requested it were denied access.  (Free speech?)

                          And if they want to distribute it in movie theaters, that's fine too.

                          And there are certainly a lot of "Bill Clinton is a murderer" videos out there already.

                          But the airwaves are publicly owned and broadcasters have a responsibility to make sure that they do not use the megaphone provided by all of the people to promote only one point of view at the expense of all others.

                          Have you seen Fahrenheit 911 on television yet?

                      •  Your point on the Australia showing (4+ / 0-)
                        Recommended by:
                        Ray Radlein, SarahLee, enough, Heyroot

                        Was brilliant.

                        The problem with the selected viewings for 900 people is that ABC will claim that they edited that version and therefore the version their showing to the public is a new product.  But the Australian version, however, will be identical, and can serve as a basis for the injunction.

                        Rep. Peter King (NY-03) is an ASSHOLE!

                        by pontificator on Sat Sep 09, 2006 at 09:57:04 AM PDT

                        [ Parent ]

              •  Except that (2+ / 0-)
                Recommended by:
                3goldens, enough

                it isn't a "planned defamatory statement"; it's a statement already prepared and seen by select audiences.

              •  It is not prior restraint (2+ / 0-)
                Recommended by:
                Kentucky DeanDemocrat, 3goldens

                You forget that the defamation has aleady been made.  There has been circulation to Limbaugh et al.  That is the defamation, the injunction would be to prevent its repettion, ie. the broadcast.

                Best Wishes, Demena

                by Demena on Sat Sep 09, 2006 at 09:02:18 AM PDT

                [ Parent ]

            •  Ah, Crusty (0+ / 0-)

              Are you a 1L?

              Just remember, a little knowledge of the law can be a very dangerous thing.  

              Look back on this diary in abother year or so and smile.  :)

        •  I'm thinking through the potential repercussion (1+ / 0-)
          Recommended by:
          catullus

          of an injunction and it's as sticky as cotton candy.    Before we even breathed our collective sigh of relief, the accusations of a Clinton coverup would blanket the media and blogs.        

      •  Could still enjoin part II (1+ / 0-)
        Recommended by:
        llbear

        But it shows how low regard I hold for this tripe. I thought it was a Monday Tuesday event, but I'm more interested to see what happents in NY Federal District Court that day.

        Quis custodiet ipsos custodes? (Who will watch the watchers?)

        by The Crusty Bunker on Sat Sep 09, 2006 at 06:54:16 AM PDT

        [ Parent ]

    •  Note: The Path to Propaganda will air in (40+ / 0-)

      Australia early Sunday morning our time - by this time tomorrow the first installment will be over.  It will also air on BBC in the UK - likely starting sometime mid day east cost US time.  Britain has favorable laws for plaintiffs in these cases - that is why so many American celebrities sue the media in the UK.

      I was thinking yesterday that the prudent thing for ABC's lawyers to have done would have been to allow Clinton and other living persons portrayed to review this movie for accuracy.  That is one reason why their actions seem malicious given the fact that they have had every opportunity now to resolve the conflicts.  Interestingly, the producers and ABC keep claiming that they have other sources for their stories, but have yet to provide the sources or people to back up any of their lies.

      Berger did not rule out a lawsuit yesterday when he appeared on CNN with Wolf Bltzer.

      A reporter asked in all seriousness this morning in an interview why Democrats couldn't just remain silent about this movie.  That really made me laugh.  

      •  I'm sure republicans would (10+ / 0-)

        stay silent to a docu-drama based on the 9/11 report and others noted that shows cheney and rummie plotting 9/11 and bush going along with it, convinced that the powers they'd gain from it would be good for America.

        Since it is a docu-drama I'm sure it would be OK that when bush is initially reluctant cheney sends in Monica to use her persuasion in the oval office on bush. The scene won't be graphic since they are showing it in the schools but Monica will play herself...

        They wouldn't mind. It's just a TV show.

        •  It really made me laugh because the (10+ / 0-)

          subtext of the question was "Why aren't you guys just taking it like you always do?"

          My response to the question was "It's not 2002 anymore and things have changed.  Get used to it."

          It made me laugh.  It made me happy to debunk the myth that Democrats will just roll over when under attack.  Americans won't bestow the Democrats with the responsibility of protecting them if Dems don't show that they can first protect themselves.  This response is a good thing.  Don't let anyone convince you otherwise - they are already starting to try - but don't fall for it.

          Fighting for truth is a good thing.  Americans will understand and embrace that.

      •  yes you would surely think so (4+ / 0-)
        Recommended by:
        papercut, inclusiveheart, cfk, fhcec

        I would think that publishing only to right wing outfits showed a clear consciousness of guilt and an intent to harm.

        Resisting the Conservation of Joementum

        by LIsoundview on Sat Sep 09, 2006 at 07:44:15 AM PDT

        [ Parent ]

        •  Not just to right, but refused to give to Clinton (0+ / 0-)

          If the persons involved are refused the chance to view the material, it sounds malicious to me...not a lawyer, but...sheesh.

          "The America I love still exists at the front desks of our public libraries." Kurt Vonnegut

          by cfk on Sat Sep 09, 2006 at 08:12:45 PM PDT

          [ Parent ]

    •  Very Good (16+ / 0-)

      This is a very good legal analysis.

      My additional thoughts are that the injunction is the ballgame.  There's nothing stopping a later suit for damages, but if they don't get the injunction, then all the fun is gone, so to speak.

      Legally, I think there's possibly evidence of actual malice, but I think you need more time in order to convince someone who isn't well versed in the Vast Right Wing Conspiracy of that.  I don't think an injunction issues here.  Politically, I think winning the injunction is a disaster. Getting ABC to pull it isn't.

      If it's Clinton's people, they're going to be thinking about that, too.  In fact, I might intentionally plead weak malice in order to be able to say later that the judge is protecting the right wing, instead of the other way around.

      P.S. California law includes a procedure (which arguably wouldn't apply in a NY forum, but could be argued to be part of the substantive law of defamation in California) called "anti-SLAPP," which stands for Strategic Lawsuit Against Public Participation that provides for an early stage dismissal of cases involving First Amendment issues.

      •  Thanks--I was hoping for this kind of comment (9+ / 0-)

        Lots of levels here. As you know, mine is high level recon.

        Given the CA statute, I'd bring the suit in NY Federal Court--Second Circuit is a good place for this.

        As for an injunction, kind of a long shot anyway--always was. I'd rather see a huge suit for damages, spawning even more suits.

        As you know, defending is harder than suing most of the time.

        Quis custodiet ipsos custodes? (Who will watch the watchers?)

        by The Crusty Bunker on Sat Sep 09, 2006 at 06:45:21 AM PDT

        [ Parent ]

        •  Discovery for malice? (2+ / 0-)
          Recommended by:
          The Crusty Bunker, DvCM

          I was excited when provable defamation first was discussed. Now I am obsessed with the question of how to prove malice. Are the plaintiffs' atorneys allowed to interview a person's associates in discovery for this?

          We know the right-wing conspiracy has had personal ill-will towards Clinton - his reputation in particular - and has falsified facts and public perceptions to go after him. We know there is a hate aspect behind this whole thing and a "burn in Hell" creed that is socially reinforced in many right-wing Christian circles.

          How can we make the "malice" proof easier?

          Should we start using the M-word to define the vast right-wing conspiracy as a movement in our casual blogging?

          joke?: Is there a way to drag Coulter into this as circumstantial evidence of state of mind?

          •  You've got something: MALICE is a great word (1+ / 0-)
            Recommended by:
            philipmerrill

            And yes, discovery is the way to establish because the state of mind has to be proven. That means in addition to documents and iterrogatories, depositions. Lots of depositions. Lots and lots. Under oath. And if you lie, you usually get caught up because it's hard to stay consistent and also explain away other things like writings, comments, speeches, etc.

            MALICE. I like it.

            Quis custodiet ipsos custodes? (Who will watch the watchers?)

            by The Crusty Bunker on Sat Sep 09, 2006 at 05:11:15 PM PDT

            [ Parent ]

    •  From a non-lawyer: (9+ / 0-)

      WOW!  Thank you for the interesting--and understandable--analysis.

      Whom the Gods would destroy they first make Republican.

      by tovan on Sat Sep 09, 2006 at 07:23:41 AM PDT

      [ Parent ]

    •  Question: (5+ / 0-)

      Is there also possibility of filing a claim of "False Advertising" since ABC claims the film is based on the 9/11 Commission Report, when in truth the movie actually contradicts that report?

      And who would have standing to make such a claim? Richard Ben-Veniste, maybe, since he was a commission member??  Obviously, I am not a lawyer, so would love to hear some lawyerly input on that particular point.

      I'd like to see any legal action taken on all fronts possible. If there is a way to also charge ABC/Disney with false advertising for this, I'd certainly like to see someone follow up on the legals there. Press reports of such a suit would help impress on the public's mind that not everything in the movie is true, which would be a good thing, even if the suit ultimately doesn't succeed.

      •  I think the remedy is defamation (0+ / 0-)

        No one is selling anything through this. I'm not sure the Commission members have a remedy any more than the historians do.

        Quis custodiet ipsos custodes? (Who will watch the watchers?)

        by The Crusty Bunker on Sat Sep 09, 2006 at 07:43:26 AM PDT

        [ Parent ]

        •  Not selling? (1+ / 0-)
          Recommended by:
          SparkleMotion

          First, I'd have to say that at least the minute there are DVD sales (which there most certainly will be if they are sending copies of it to school teachers), then they will be selling something. Maybe that means you have to wait until they start selling the DVD for the false advertising claim. I wasn't aware you actually had to sell something, though, for it to be false advertising.

          Anyway, I didn't mean to imply that the defamation suits should not go forward. They most certainly should. My query was more in concern with whether this other claim could be brought by some other party. And, who would have standing to do that, if so?  To follow the above analogy, if I went out and bought the DVD version, would I (or any other purchaser) then have standing to sue for false advertising?  I suppose I could call Richard Ben-Veniste as a witness in my case?

        •  I do advertising law... (2+ / 0-)
          Recommended by:
          wenchacha, goodasgold

          And there are a couple of obstacles.

          1.  The party bringing suit would have to be a competitor, such as NBC/CBS.  Consumer standing to bring suit for false advertising is a non-starter.  (There could be an FTC action, but that's highly unlikely.)
          1.  You would have to show damages.  I.E., I lost revenue because of your false statement.
          1.  Materiality.  You have to show that people watched/purchased as a result of the false statements.  Demonstrating that is going to be a doozy of a problem.

          My general inclination here remains that we absolutely should shout from the rooftops where we believe there are errors, pressure ABC to drop it, and not watch it.  I just have serious principle problems with getting courts involved with saying "here's what you can and can't say," especially in a political context, even where I disagree with the speech.  That slope is just way too slippery.

          •  We're already out on the slope, Matt (7+ / 0-)

            Thanks for the advert info--out of my league on that--but we've got to pick and fight some legal battles here because we are losing our Democracy.

            Social change doesn't come naturally, it takes agitation, whether it's worker safety, civil rights, or transparent government. It means taking positions that might be uncomfortable.

            Big tobacco had never lost. Now it has. The industry has paid massive damages and is, by law, "racketeering" which makes it tantamount to organized crime. Yet hundreds of thousands owe their livelihoods to tobacco--how could we ever take that on? What kind of people would we be?

            What kind of people would we have been to let it go on?

            This, however, is a personal choice for Mr. Clinton and his former colleagues. Me, I'd go for it.

            Quis custodiet ipsos custodes? (Who will watch the watchers?)

            by The Crusty Bunker on Sat Sep 09, 2006 at 08:04:25 AM PDT

            [ Parent ]

          •  a question (7+ / 0-)

            This is all mostly beyond my ken, IANAL, but what if, weeks before an important election, a network aired a "docutainment" show in which members of Congress are depicted as having voted/supported for/against some contentious issue when the facts are just the opposite?

            In that case, information is hitting the public airways  that clearly misrepresents the actual recorded accounts of what the members of Congress did. Like, voting For slavery, or Forced Abortion, or Pro-Child Porn, or something. The false information could very well sink an election if enough people responded just to the falsehoods in the program. If pundits and news people jump into it with, "on the one hand..." sort of reporting, then there's not a chance in hell that a voter could divine the facts before the critical election.

            I'm totally with you on th e1st Amendment; I think it is really important. I think any number of filmmakers ought to be able to make any kind of statement they want. They can skewer Bill and Hill about any number of things.

            I just think there is some sort of line here that is  perilously close to Orwell propaganda, and I wonder what kind of laws exist to address that, aside from lawsuits after the horse has alrady left the barn.

            •  The barn was taken over by the zealots (2+ / 0-)
              Recommended by:
              wenchacha, snootless

              on the next farm. After-the-fact is all we have until the political process catches up. That may or may not happen in the U.S. House in November, may or may not in the White House in 2008, but it is happening at the state level and I'm pretty excited about prospects at the local level.

              These nutjobs started out by coopting school boards.

              Quis custodiet ipsos custodes? (Who will watch the watchers?)

              by The Crusty Bunker on Sat Sep 09, 2006 at 10:46:03 AM PDT

              [ Parent ]

          •  I think you make a mistake (1+ / 0-)
            Recommended by:
            justintime
            1. The ABC has forgone all advertising income for this.  Watching it may improve their ratings for that show alone but it wil not earn them a thin dime.

            [Which gives the shareholders some questions to ask]

            1.  If you haven't seen it (as published) then you do not have grounds for complaints to the FCC, suits of distributors etc.  This one case represents enough moolah and mojo to radically change the face of American politics or at least media control.

            [If you didn't hear the man say "fuck" then how could you be offended by it?]

            1. Until you have seen what they actually broadcast, remembering that most who watch will only the first part and Bushwah wants to speeechify...  If it doesn't happen then you can't crucify him.  This justs becomes a distraction, all withdrawn, settle down, move along...

            [I mean which way do you want it to go? For or against the Dems?]

            You can't claim massive injury unless the injury occurs.  Nr can you claim it if you did not witness it.

            Best Wishes, Demena

            by Demena on Sat Sep 09, 2006 at 09:28:18 AM PDT

            [ Parent ]

            •  Advertising revenue (4+ / 0-)
              Recommended by:
              EricS, cfk, snootless, justintime

              Demena,
              I think ABC's decision to forgoe ad revenue is further evidence of their malicious intent.  Is shows a willingness to inflict damages on those it is libeling "at any cost."
              sláinte,
              cl

              Religion is like Sodomy: Both may be harmless when practiced between consenting adults but neither should be imposed upon children.

              by Caoimhin Laochdha on Sat Sep 09, 2006 at 01:38:21 PM PDT

              [ Parent ]

    •  Nice ivory tower argument, but (3+ / 0-)
      Recommended by:
      AWhitneyBrown, catullus, justintime

      There won't be any lawsuits over this.  Here's why:

      • The people who are to be defamed are political figures, public figures, or both.  They have the lowest level of protection under defamation laws.
      • Truth is an absolute defense.  The producers and ABC will raise "impeachment due to blow job as a distration" as a truth defense.  Do you really think that either of the Clintons want to rehash a "blow by blow" (couldn't resist the pun!) of the Monica Lewinsky scandal as Bill tries to prove that he was able to think with both of his brains during that timeframe?
      • What are the economic damages suffered by the Plaintiffs?  They'll still be able to sell books and make speeches for exhorbitant amounts of money - their audiences will think no less of them because of this movie.  Damage done to "the country" or "the party" are not things that these individuals can sue for.

      So Crusty Bunker, let's agree that I'll buy you a drink at Yearly Kos in 2007 if there's a lawsuit...and you'll buy me a drink at Yearly Kos if there isn't one.  Bottoms up!

    •  Suggested addition to poll: (4+ / 0-)

      "Sue the motherfucking shoes off everyone involved with this slanderous piece of shit."

      Ever notice how conservatives don't conserve anything?

      by MHB on Sat Sep 09, 2006 at 08:43:20 AM PDT

      [ Parent ]

    •  Malice (2+ / 0-)
      Recommended by:
      SarahLee, snootless

      You dismiss number 3 on your list all too easily. Malice is always the sticking point in these cases, almost impossible to prove.
      It will not be resolved as easily as '3 down, 1 to go'. It almost never succeeds. I wouldn't have high hopes for this suit in the US.
      A foreign court victory, where malice is not required, like in G. Britain, would be a major moral victory, however, and far more likely to succeed. They should proceed on all fronts.

      We hang the petty thieves and appoint the great ones to public office. Aesop (620 - 560 BC) -8.13, -7.74

      by AWhitneyBrown on Sat Sep 09, 2006 at 09:27:12 AM PDT

      [ Parent ]

      •  Not malice, "actual malice," which SCOTUS (3+ / 0-)
        Recommended by:
        April Follies, SarahLee, snootless

        defined as a legal term of art in NY Times v. Sullivan.  And ABC's admissions already establish they knew they were making false claims, which is enough to make it "actual malice."

        Katrina was America's Chernobyl.

        by lysias on Sat Sep 09, 2006 at 09:44:38 AM PDT

        [ Parent ]

      •  ABC behavoir makes malice easier to prove (8+ / 0-)

        ABC's continued acknowledgement of both the falsity of the claims against Clinton and its intention to air the libel, knowing that this only adds to the damages its previously published libel has so far caused to him and others, is mounting proof of malice since:

        (1) ABC continues to promote and therefore intentionally cause the compounding of damage against the named individuals it has already libeled despite admissions that it knows the claims are false and;

        (2) More importantly, even while recognizing the rapidly compounding damages to these people's reputations, it is doing nothing to mitigate the harm to them thus demonstrating a heightened level of maliciousness on the part of ABC/DISNEY toward these specific members of the Clinton administration.  The libel and damage has already occured (or at least the first round of damage), ABC knows it and the ABC/Disney response to this is "we're going in for more."  That's malice.

        slainte,
        cl

        Religion is like Sodomy: Both may be harmless when practiced between consenting adults but neither should be imposed upon children.

        by Caoimhin Laochdha on Sat Sep 09, 2006 at 01:49:00 PM PDT

        [ Parent ]

    •  I like an attorney (2+ / 0-)

      who uses legal language such as "shitloads of folks" and "monkeys will fly out of my anus." Good work!

    •  HOT. DAMN. (0+ / 0-)

      I'm doing the happy dance! OMG I hope this actually comes to fruition!

      This IS the harvest season, after all!!!

      Bizarro World sucks... I want to go home to America.

      Dial Acorn Heads for all your website needs!

      by willers on Sat Sep 09, 2006 at 04:34:50 PM PDT

      [ Parent ]

    •  I have a question... (1+ / 0-)
      Recommended by:
      cfk

      ...you go over defamation for various individuals as a result of this film, however if what they are saying about the depictions of American Airlines is concerned, do they also have a course of defamation?

      Implying they were the last point of negligence when that was not the case could have real and serious impact on their reputation and as a result their revenue.

      Do they have a case for defamation if P9/11 airs with the identified inacuracies intact?

      Just curious.

      •  Good question--have to refresh myself on elements (0+ / 0-)

        There are business tort and defamation claims. I need a refresher on those. First I heard about AA was today.

        I also wondered: What about the individual actors? Probably actionable but unlikely to take the action. THAT would look vengeful.

        Quis custodiet ipsos custodes? (Who will watch the watchers?)

        by The Crusty Bunker on Sat Sep 09, 2006 at 07:55:49 PM PDT

        [ Parent ]

        •  just checking... (0+ / 0-)

          this is a bit off-topic, and a bit nitpicky, and perhaps a bit wrong, but is your statement -- concerning the standard to survive a defendant's motion to dismiss -- correct?  Don't you construe all facts for the benefit of the Plaintiff, and determine if there is still no possible legal means of recovery available?  That, even if all allegations in the complaint are proven, that the Plaintiff may not win?  

          Defendant here would argue that the evidence wouldn't be enough to show actual malice, even if true.

          Or do I have it backwards?

    •  Are affiliates liable? (0+ / 0-)

      Sorry if this is addressed elsewhere. Just trying to scan quickly. Excellent discussions.

      •  Nope--not unless you "pierce the corporate veil" (0+ / 0-)

        And find out an affiliate or parent (i.e., Disney) was more directly involved (not likely) or the corp was undercapitalized (not possible).

        Quis custodiet ipsos custodes? (Who will watch the watchers?)

        by The Crusty Bunker on Sat Sep 09, 2006 at 07:56:52 PM PDT

        [ Parent ]

  •  umm Cranston was NOT a US senator at the time (10+ / 0-)

    the suit was filed in 1939 in CTR, at which time Cranston's role was as a correspondent for the International News Service.  

    As far as I know his first public office was as Controller in California, a position to which he was elected in 1958.  He was elected to the US Senate in 1968.

    Those who can, do. Those who can do more, TEACH!

    by teacherken on Sat Sep 09, 2006 at 05:32:52 AM PDT

    •  Right--I'll edit that out (3+ / 0-)
      Recommended by:
      OLinda, elveta, coloradobl

      Thanks, teach!

      Quis custodiet ipsos custodes? (Who will watch the watchers?)

      by The Crusty Bunker on Sat Sep 09, 2006 at 05:37:46 AM PDT

      [ Parent ]

    •  Ken -- Scholastic? (5+ / 0-)

      Have you commented on this as a school assignment: the role of Scholastic in schools, the likelihood of many teachers using these materials, the utility of this as a critical thinking exercise?

      Many of us who are not directly connected to high school education have weighed in -- your thoughts would be more valuable.

      •  I have not addressed it for several reasons (24+ / 0-)
        1. I never use materials fromm Scholastic.  In general I have found them simplistic and not all that useful
        1. in our district use of such materials requires approval at a systemwide level, an approval process that I find highly politicized and which I have tended to avoid
        1. for my classes, I have no trouble presenting real balance.  It is not difficult to find in general publications of different persuasion opposing points of view, and I am thus able to allow students to explore.
        1. the teachers in our department are a mix politically - one of my closest friends in the dept. is quite conservative.  And yet I know of no one who thinks the tv show was accurate as it was intended.
        1. we have not discussed as a department how we would react to the series if it were televised.  I suspect thatn those of us who teach government will have to address it in some format.  The release of the report from SSCI yesterday, including the participation of both Hagel and Snowe, gives me all the material I need to counter the slant of the tv show, which I will not watch.

        That's about all I can offer.

        Those who can, do. Those who can do more, TEACH!

        by teacherken on Sat Sep 09, 2006 at 05:44:43 AM PDT

        [ Parent ]

        •  Well-said, teacherken, put Mickey on the shelf (2+ / 0-)
          Recommended by:
          abarefootboy, elveta
          for a while.
          •  Teachers in general are avoiding Disney nowadays (9+ / 0-)

            because the word has gone out that to use Disney films for any reason not specifically sanctioned by the Mouse can result in a lawsuit against the school system in question.  From what I have been told, the Mouse didn't like finding out that elementary school teachers were showing their kids "The Lion King" and so forth as classroom rewards, fillers for down time during the last days of schools, etc, but I imagine I don't have the complete lowdown on the topic.

            This Far and No Further -- documenting 109 years of conservative thuggery

            by Black Max on Sat Sep 09, 2006 at 07:06:19 AM PDT

            [ Parent ]

        •  "which I will not watch." (0+ / 0-)

          Then will that not diminish your ability to rebut it with your students and aquaintances who have?

          "Know your enemy", "learn the ground", "intercept, intercept, intercept:.  The Repubs have learnt  these basic maxims, why can't the Dems.

          Sometimes it seems that the Repubs us debateing tactics while the Dems stick to argument.  This makes it damn near impossible to win.

          Best Wishes, Demena

          by Demena on Sat Sep 09, 2006 at 09:37:01 AM PDT

          [ Parent ]

          •  I have no need to watch to know the contents (5+ / 0-)
            Recommended by:
            fumie, grayslady, annetteboardman, cfk, PinHole

            this is but one of several sites to which I can go to obtain accurate summaries of what does finally appear, if the program is not pulled.

            I watch little television to begin with, and I refuse to be manipulated with the idea of "must-see tv" merely because of the bandwagon claim that everyone will be watching it.

            I suspect that relatively few of my students will watch it.   My AP students have far too much work, my regular students are far more likely to watch football.  

            I will know enough about it to comment cogently without having to waste the 6 hours.

            Those who can, do. Those who can do more, TEACH!

            by teacherken on Sat Sep 09, 2006 at 09:45:28 AM PDT

            [ Parent ]

            •  Thing is (0+ / 0-)

              If someone asks if you watched it, you have to say "no".  You lose authority in any argument.

              If on the other hand you change you mind and see it (not because it is "must watch" tv but because it is important) then you are in position to be pre prepared to point out all the bullshit when anyone raises any scenes.

              I'm saying watch it to equip yourself better.

              They debate. You reason. You lose.  You're right but you still lose.

              Best Wishes, Demena

              by Demena on Sat Sep 09, 2006 at 10:02:35 AM PDT

              [ Parent ]

    •  Edit didn't take and questions are coming in (3+ / 0-)
      Recommended by:
      OLinda, bronte17, elveta

      Please accept my apologies for the error.

      Quis custodiet ipsos custodes? (Who will watch the watchers?)

      by The Crusty Bunker on Sat Sep 09, 2006 at 05:46:54 AM PDT

      [ Parent ]

  •  Question (15+ / 0-)

    Assume ABC pulls the Berger and Albright scenes before broadcast.

    The two were still damaged:

    1. The 900 review copies contained the smears
    1. Reviews in major publications distributed the smears

    How would that affect ABC's liability?

    Also: you speak of affiliates asking ABC to indemify them. But, the affiliates have a legal responsibility to serve the public good -- their licenses are at risk, and the network cannot indeminift them for that.

  •  A question for Crusty… (2+ / 0-)
    Recommended by:
    elveta, bmaples
    How does the situation change when the issues involve law enforcement making false statements about a United States Person in order to obtain Affidavits for search warrants or Title III orders for surveillance?  Are rogue cops given immunity?  How high is the burden of proof especially when one must litigate to get access to the documents?

    BushCo Policy... If you aren't outraged, you haven't been paying attention. -3.25 -2.26

    by Habanero on Sat Sep 09, 2006 at 05:37:38 AM PDT

    •  Wow--tough quesions (1+ / 0-)
      Recommended by:
      elveta

      I can only approach by inference. First, obtaining any warrant by false pretenses taints every piece of evidence thereby obtained--"fruits of the poisonous tree"--so any prosecution is at risk and any conviction is very fragile on appeal.

      Law enforcement officers can be prosecuted, though I'm willing to bet they get wide deference, and that probably shows up in the court cases. Another phrase that comes to mind is "shocks the conscience." There were some Illinois country prosecutors who went to jail for massive fraud in a capital conviction, so it's prosecution is not out of the question.

      I presume you are talking about federal officials--there are probably cases, and possibly statutes.

      That's all I can offer this morning.

      Quis custodiet ipsos custodes? (Who will watch the watchers?)

      by The Crusty Bunker on Sat Sep 09, 2006 at 05:44:43 AM PDT

      [ Parent ]

      •  Hmmm...wide deference... (0+ / 0-)
        Would it be a stretch to presume that video, audio, and pictures to a judge or jury would be like seeing things up close and personal on the evening news?

        BushCo Policy... If you aren't outraged, you haven't been paying attention. -3.25 -2.26

        by Habanero on Sat Sep 09, 2006 at 08:10:37 AM PDT

        [ Parent ]

      •  yep, but perjury might be more straightforward (0+ / 0-)

        I'm a tad confused about how this sub-thread relates to the topic as a whole, so maybe I shouldn't throw in my two cents, but...

        I agree with Crusty, but would add a couple of additional tacks, in case anyone's interested in more juristrivia.

        Warrants and/or surveillance orders are predicated on sworn affidavits or oral testimony under oath. If a law enforcement officer lies under oath, s/he is definitely subject to prosecution for perjury. The jurat (the fine print at the bottom of a competently drafted affidavit) usually contains a phrase "sworn...under the penalties of perjury" or similar language.

        Naturally (and I'm assuming a federal matter here), the Justice Department (an organ of the Bush Administration) would have to decide to prosecute, but there's no immunity against perjury.

        Another tack is a so-called "Bivens Action", which is a common-law rather than a statutory creation. It's a very specialized cause of action that can be brought against federal officials personally for intentionally violating someone's civil rights. It's the theory behind Joe Wilson's and Valerie Plame's lawsuit against various Bushistas in their personal capacities.

        I think it'd be a stretch to find a Bivens Action in this Disney/ABC matter though.

  •  Question (14+ / 0-)

    Richard Mellon Scaife has been mentioned as having some connection with a David Horowitz think tank that apparently was collaborating with YWAM in this project.

    Is there any possibility at all that legal action could take down Richard Mellon Scaife, who after all has a long history of defaming Bill Clinton.

  •  Maybe I can help by providing evidence... (19+ / 0-)

    ....needed for an injunction.

    I'm not sure how this all works, but if the Clinton legal team cannot file until they have proof that there are actionable scenes in the movie, the NZ broadcast of P911 will take place 16 hours before the US one; I can record and send those scenes to you (or them).

    Tell me which scenes you (they) need and I'll be sure to record them, rip them and send them via email or upload them to a server of your (their) choosing.

    Email might be tricky because I'm not sure if my email server will be able to handle large files.

    -5.75 -4.72 3.14159 2.71828

    by xynz on Sat Sep 09, 2006 at 05:59:22 AM PDT

  •  Great diary (2+ / 0-)
    Recommended by:
    elveta, The Crusty Bunker

    But the discovery costs alone on this suit would be huge. Clinton had to hold fundraisers just to pay off the legal fees from the lawsuits that were filed when he was President. It would take a very special law firm, willing to work on contingency, IMO, to be prepared to proceed with this case. This isn't a case like the Wilsons, where a lot of the documentation needed to make a claim is already in the public record. Speculation is intriguing, but I don't see this happening.

    •  The real burden of discovery is on the defense (17+ / 0-)

      Trust me, I know. I've overseen the production of thousands of pages. Files have to be reviewed, potential witnesses and involved individuals have to be identified, the process has to be managed, documents have to be assembled and reviewed and redacted of trade secrets, and much, much more.

      Besides, the first step in discovery is "interrogatories" in which the plaintiffs simply provide a long list of questions for the defendants to answer under oath.

      And don't worry--attorneys will be lining up for this one. In baseball parlance when a pitcher is struggling, "There will be a fight to get to the batrack."

      Quis custodiet ipsos custodes? (Who will watch the watchers?)

      by The Crusty Bunker on Sat Sep 09, 2006 at 06:12:24 AM PDT

      [ Parent ]

      •  Can ABC/Disney just lose the case by default (0+ / 0-)

        by refusing to mount a defense?  (Maybe that would be less risky than facing the risks of discovery.)

        Katrina was America's Chernobyl.

        by lysias on Sat Sep 09, 2006 at 08:38:27 AM PDT

        [ Parent ]

        •  Again, time will tell, but (0+ / 0-)

          I doubt they'd let it go by. They do have points in defense to raise and I'm sure they'd shred anything important.

          I think we keep forgetting the producers, director, YWAM, etc. I really, really think they are vulnerable.

          Quis custodiet ipsos custodes? (Who will watch the watchers?)

          by The Crusty Bunker on Sat Sep 09, 2006 at 08:40:33 AM PDT

          [ Parent ]

    •  A hypothetical action... (1+ / 0-)
      Recommended by:
      grayslady

      would 95-99% certain be kicked on a motion to dismiss under NY Times v. Sullivan.  ("Actual Malice" is fundamentally impossible to prove--I can only think of one well-known case (Minelli v. Nat'l Enquirer) that's been won by a public figure in the post-Sullivan era.)  No discovery is likely to happen, nor is any lawsuit likely to be filed (at least not in the hope of obtaining any discovery--it may be used as a publicity tool).

      •  I think it gets to a jury (2+ / 0-)
        Recommended by:
        annetteboardman, goodasgold

        and survives the motion. We are breaking new ground as we did with Bush v Gore; this is "X-TREME LEGAL".

        I'll admit freely that I am not a defamation, First Amendment or tort lawyer, just a pretty well-rounded corporate guy who kept his clients out of trouble.

        I would not have allowed this to go forward--at least that's what I would have advised.

        Let's wait and see.  Like I said in the diary, it's possible nothing would happen. That's why I wrote it--so everyone could form their own informed opinion.

        You have done so; mine differs.

        Quis custodiet ipsos custodes? (Who will watch the watchers?)

        by The Crusty Bunker on Sat Sep 09, 2006 at 07:16:49 AM PDT

        [ Parent ]

        •  New ground? (1+ / 0-)
          Recommended by:
          catullus

          Not at all.  The best examples are where folks have failed to sue, knowing, full well, that they'd be kicked out of court on Sullivan grounds.  Richard Nixon didn't sue Oliver Stone and the film studios when they released "Nixon."  Clinton didn't sue the various distributors of tapes like "The Clinton Chronicles."  Ronald Reagan didn't sue Showtime when "The Reagans" aired.  Sullivan basically, and rightly, says that it's nigh unto impossible to defame a public figure.  Otherwise, you run the very serious risk of having courts decide who's "truthful" in political speech, which poses serious issues.

  •  I Love This Place (13+ / 0-)

    Thanks Crusty, that is both elegant and beautiful.

    The Number of the Beast 72-25

    by Deep Dark on Sat Sep 09, 2006 at 06:11:12 AM PDT

  •  I love this place, too. (8+ / 0-)

    What a great way to learn neat stuff: like how to slap racist, war-mongering liars with multi-million dollar lawsuits.

    Great diary!

    And the billable hours? Yipee!

    God bless capitalism.

    Hit the Mouse with everything you've got!

  •  Could Disney/ABC do a CYA (1+ / 0-)
    Recommended by:
    elveta

    by simply calling this fictionalized? Would that end any potential legal clamor?

  •  Thank you friends and Kolleagues (13+ / 0-)

    For placing me on the rec list.

    Quis custodiet ipsos custodes? (Who will watch the watchers?)

    by The Crusty Bunker on Sat Sep 09, 2006 at 06:40:10 AM PDT

  •  Trial? (11+ / 0-)

    What about discovery and summary judgment?  There's probably a genuine issue of material fact here, but you jump straight from Rule 12(b)(6) to trial without going through the juiciest parts of all of this.  There may be more in the files than we already know.

    By the way, if you're looking for a couple of associates to work on this, I'm looking for a summer next year and am near the top of my class at a T14 law school!

    (How's that for some creative marketing?)

    Four hundred years ago, we were all illegal aliens according to the Comanche.

    by DC Pol Sci on Sat Sep 09, 2006 at 06:42:33 AM PDT

  •  Thanks for this diary, Crusty. (4+ / 0-)

    Succinct enough for even simpletons like me to follow!  One thing is for sure, the Disney/ABC decisions thus far assure that the whole matter will play out in some (yet) unforseen ways; legal proceedings may only be one of them.

    P.S. An aside to xynz, if you read this.  You are a real Kiwi?  GO ALL BLACKS!  Bledisloe, Tri-Nations, tommorrow THE WORLD!!!  Hurrah!  

    Life is not a 'dress rehearsal'!

    by wgard on Sat Sep 09, 2006 at 06:50:15 AM PDT

  •  Thanks for this (3+ / 0-)
    Recommended by:
    xanthe, The Crusty Bunker, ERyd

    I woke up this morning thinking about defamation, and you have detailed it very well.  I'm rooting for an injuction.  

    I do not know what weapons World War III will be fought with. World War IV will be fought with sticks and stones. -- Albert Einstein

    by elveta on Sat Sep 09, 2006 at 06:51:06 AM PDT

  •  Good job (5+ / 0-)

    Even without this ABC business, it's good to explain these media law issues once in awhile, because bloggers can get sued for libel too.

    And really, I think Clinton, et al should sue. I think they can easily prove actual malice.

    "We choose a foreigner to hate / The new Iraq gets more irate / We really know nothing about them, and no one cares." - Barenaked Ladies

    by PhantomFly on Sat Sep 09, 2006 at 06:53:41 AM PDT

  •  Trial would start in...2008 or 2009 (8+ / 0-)

    I work the govt side of environmental enforcement and see first-hand how long it takes to negotiate an order, let alone to go to battle in an environmental or bankruptcy court case.  I am not an attorney, my bachelors and masters degrees are science and policy-based.  

    Going to court takes forever (years) and this case would be no different.  The trial would have to hash through a decade or more of history, and even with a win, the public will grow tired waiting (motions, affidavits, depositions, interrogatories, oh my) for the delayed start, and once it begins, may soon tire of the weekly "they said-they said" crudola.  

    One of the litigation risks is the possibility of losing in one or more conservative courts ruled by a W-friendly judge, so venue would be a key.  The simple threat of a credible lawsuit usually works well enough.  

    However, if it's so potentially damaging, why don't I see anyone filing yet...for some preliminary injunctive relief?  Many hard copy and e-letters have gone back and forth, but so far, no filings.    

    Why?  It's a monumental decision! As Dems have historically been labeled by Repugs as weak on this and that and in general, it is paramount that the Dems look strong. Filing a suit and later dropping it, or filing and losing in court, would be tough on the Party.  It also potentially ties up many Dem Party stalwarts in trial for lengthy periods.  And lastly, who would shell out for the millions needed for the prep and litigation and PR, whether we'd win, lose or draw?  All questions that must be answered before taking the leap.        

    The November Tsudemi Approacheth

    by Public Servant on Sat Sep 09, 2006 at 07:08:12 AM PDT

    •  Democrats are "soft" on Republicans! (6+ / 0-)
      Recommended by:
      coral, varro, papercut, Public Servant, Balam, ERyd

      You are right, of course, but one couldn't have a better venue, in my opinion, than New York federal court and the Second Circuit.

      I'd do it.

      Quis custodiet ipsos custodes? (Who will watch the watchers?)

      by The Crusty Bunker on Sat Sep 09, 2006 at 07:18:15 AM PDT

      [ Parent ]

    •  To all potential attorneys.... (0+ / 0-)

      ...if you win the case or crush them enough to settle, you have a fasttrack to a position as a U.S. Attorney in the district you work in come 2009.

      I'm sure there are well-connected attorneys in New York who would take this on contingency, with the hope of a settlement and a boost from the new Dem administration come 2009...

      I don't think the people who got the preview copies are the kinds of people who'd want to give them up....but there may be grounds for an emergency TRO after we know what gets broadcast in Australia and New Zealand.

      9-11 changed everything? Well, Katrina changed it back.

      by varro on Sat Sep 09, 2006 at 05:03:14 PM PDT

      [ Parent ]

  •  The real damage, should this plot be permitted (18+ / 0-)

    to be carried out, will be to the United States of America. This movie is a part of the treasonous plot by the right wing authoritarians agains the Constitution. They should be required to pay down the national debt in full as a penalty for what they've been up to since Watergate. Hrmmph!

    •  Just thinking it through (6+ / 0-)

      Maybe I'm a little warped on doing battle as a state environmental regulator v. large corporations with a seemingly endless supply of cash, attorneys and time, all emboldened by the current Fed and Ohio (my state) administration policies. But, my first reaction as an enforcement coordinator is to think a case through carefully from beginning to end, for all possible pathways and outcomes, before moving forward.  Maybe my perspective is a little skewed, we'll see.  

      In regard to PT911, I've done my share of letter-writing, calling and getting the word out, and am angry at what the Repugs are trying to do here.  Pushing this movie, even after all of the negative hoopla, clearly shows that the Repugs truly feel that most of America is just plain stupid and naive, and that if they can just get this movie on TV, it'll make the difference.

      Me, I'd just keep up the letters and pushing the bad press.  That'll be enough to make this turn out bad for the Repugs.  Leave the interrogatories, depositions and trials for after the Dems take over the House and Senate and put the screws to the shenanigans employed by the Repugs during George II's reign.          

      The November Tsudemi Approacheth

      by Public Servant on Sat Sep 09, 2006 at 07:30:58 AM PDT

      [ Parent ]

      •  The legal choice is not ours (7+ / 0-)

        It belongs to Bill Clinton, Madeline Allbright, and Sandy Berger, not to mention the survivors of the victims and the shareholders of Disney.

        Their rights are not ours to enforce or ignore.

        It is inconceiveable to me, however, that there will be no litigation from this mess.

        Quis custodiet ipsos custodes? (Who will watch the watchers?)

        by The Crusty Bunker on Sat Sep 09, 2006 at 07:34:07 AM PDT

        [ Parent ]

        •  It is everyone's battle (3+ / 0-)
          Recommended by:
          42, papercut, Topaz7

          One or more of those harmed will have to decide, but their battle is our battle.  They have to pick their battles carefully.  What do they want to be focused on for the next few years?

          Nobody is "sicker" of the current administration than I am.  I sit in rooms negotiating multi-million dollar cleanup orders and bankruptcies for months and years on end, watching big corps hide in LLCs and in bankruptcy and stall things out for years.  If the Preznit had his way, I'd not even have a damn job.  To know that my Prez is against everything I believe in really sucks.  My pay is fairly stagnate, our healthcare needs are up but help is way down and cost more, saving for family tuition is way up, etc....to the point where my family was better off 10 years ago.  I want the SOB out on his ear and to feel the pain he's caused many Americans.  

          But again, I'm just not sure this is a battle I'd pick, especially heading into election season.

          OK, I'm off to mow the yard, vacuum the cat, get ready to watch Ohio State beat Texas tonight!!  OH...IO!!  

          The November Tsudemi Approacheth

          by Public Servant on Sat Sep 09, 2006 at 08:02:33 AM PDT

          [ Parent ]

          •  OK, Buckeye, go get 'em (2+ / 0-)
            Recommended by:
            cfk, Public Servant

            We're already fighting our battle. I've axed All Things Disney or ABC from my future.

            Quis custodiet ipsos custodes? (Who will watch the watchers?)

            by The Crusty Bunker on Sat Sep 09, 2006 at 08:05:33 AM PDT

            [ Parent ]

          •  As another Kossack... (5+ / 0-)

            pointed out earlier this week--and I paraphrase:

            Do we want this election to be about whether Bill Clinton failed prior to 9/11, or whether and how George Bush and the Republican party have massively failed since?

            Personally, I'd rather argue on the second grounds.

            •  Are you suggesting that it's unnecessary to (1+ / 0-)
              Recommended by:
              papercut

              combat the lies about Clinton et al in the muckarama?

              Well, Mark, the President has worked to elevate the discourse in this town.
              -- Scott McClellan 5/17/2005

              by coloradobl on Sat Sep 09, 2006 at 08:25:42 AM PDT

              [ Parent ]

              •  I think he's suggesting (3+ / 0-)
                Recommended by:
                lurker123, Halcyon, The Crusty Bunker

                that we keep it out of court (because it's problematic) and deal with this as a political problem instead.

                My concern is that we're losing our bearing as a nation - resorting, as we're being repeatedly instructed to do, to treating all issues as merely political.

                We're losing our ability to define things as fundamental to our collective well-being as fact and truth. Those aren't political matters. Facts are demonstrable. Truths are generally agreed upon by reasonable people using a preponderance of evidence. And we need those things to keep our foothold as a people that move (hell, live and die) as a majority. Leaving those matters to be resolved in the political sphere is monumentally unwise and grossly negligent.

                The soul that is within me no man can degrade. - Frederick Douglass

                by Kimberley on Sat Sep 09, 2006 at 08:38:55 AM PDT

                [ Parent ]

          •  This is the thing that frustrates me (6+ / 0-)

            This defamation hurts me and our country every bit as much as it hurts the principal victims - yet neither I nor this country has standing to file for an injunction or seek punitive damages.

            So it goes with so many instances of contempt for the law lately, particularly in the case of NSA wiretapping. They're making an ass of law and no political figure calculates that it's in their interest to fight because they look defensive - so we all take it on the chin with them.

            If everything we stand for as a country can be razed by those that have contempt for the law and those that refuse to defend themselves in a court of law... If my liberties can be purchased by the indifference of those that either refuse to identify themselves as being directly damaged by the loss or can't prove they're being damaged... This can't be in alignment with the spirit of law, it just can't be.

            The soul that is within me no man can degrade. - Frederick Douglass

            by Kimberley on Sat Sep 09, 2006 at 08:17:36 AM PDT

            [ Parent ]

            •  Awesome! (2+ / 0-)
              Recommended by:
              Kimberley, The Crusty Bunker

              I would give you a hundred recommends, if I could.

              If those who are supposed to be on our side do not behave as if they are on our side, we have nobody to fight the fight except ourselves.

              So we cannot wait for them to take action, or even for their permission. We fight. They have a choice: lead, follow or get out of the way. Or get run over.

              •  I know that so many of us here (0+ / 0-)

                are doing what little we can to register our protestations (writing letters, boycotting, etc.) and that's all good stuff. But this is really turning into a paralyzing dilemma for us, isn't it?

                If we have no standing but we also suffer then we must, at least, have the power to compel those with standing to move (without breaking the law) - if the the spirit of law means anything at all. I just don't understand how it is that the vast majority of us can be so powerless to protect our collective interests anymore.

                I really want them to take their case to court too. But if they don't, then we're boxed in. It's really getting me down.

                The soul that is within me no man can degrade. - Frederick Douglass

                by Kimberley on Sat Sep 09, 2006 at 08:56:06 AM PDT

                [ Parent ]

            •  What are you afraid of? (3+ / 0-)
              Recommended by:
              TracieLynn, macmcd, cfk

              If I, a small woman, can go after a giant media conglomerate, surely the ex President of the United States and his former cabinet members can take it!  They folded after six days of trial in my case.  It took well less than a year.  The discovery in this case will be a gift to all America.  Fascism in the age of television empires is a whole new beast, and this case will open people's eyes to the gutting of our Constitution.  Give Clinton and his friends a microphone, a stage, a spotlight, they'll know what to do with it!

              my aim is true

      •  Hitler's big lie theory (9+ / 0-)
        Yes, I'm concerned about that too - that ABC will go ahead and air the program with minimal tweaks, claiming that a disclaimer (I'm sure they're busy polishing one) will cover them.

        The words will flash briefly on the screen:  some scenes in this film have been created purely for dramatic purposes.

        And most people will see this on primetime TV at an emotionally heightened time, surrounded by news reports on 9/11 and 9/11 anniversary events, and they'll absorb it as essentially true, emotionally true.

        They won't be reading blogs and news articles about it and won't know which bits are true and which bits are not, won't have the time to sort through all of that.

        And the damage will be done.

        •  Absolutely right. (3+ / 0-)
          Recommended by:
          Kimberley, TracieLynn, lurker123

          This is now only a question of damage control: huge damage and little control.

          The series will be accepted as fact by virtually everyone watching it, and it will change a lot of minds (for the worse).

          Lawsuits against ABC and related entities will be unimaginably costly, will drag out forever, will be seen by everyone who isn't a leftist Democrat as sour-grapes whining on the part of the plaintiffs (and thus their grievances will be summarily dismissed by the great majority of Americans), and it will lose in the courts--if not in a lower court where we still have a chance (if we cherry-pick for a court that will actually hear the case), then in this SCOTUS.

          If there was a time to contest this program, it was long ago.  Perhaps it was actually contested behind the scenes, but with obvious lack of success.  There's too much riding on this for ABC to back down, and they wouldn't even if they wanted to.

          My only question is how this whole thing remained such a well-kept secret until last week.  

          •  Some people knew about the plans (0+ / 0-)

            at least a year ago.  Like the FBI people who quit because of the inaccuracies.

            I wonder if pay to them was contingent on their keeping their mouths shut.

            Katrina was America's Chernobyl.

            by lysias on Sat Sep 09, 2006 at 09:04:19 AM PDT

            [ Parent ]

        •  After 1945, the big lie backfired. (0+ / 0-)

          I think a lot of the reason Germans eventually came to reject Nazism so emphatically was that they realized how monstrously they had been lied to.

          Katrina was America's Chernobyl.

          by lysias on Sat Sep 09, 2006 at 09:03:02 AM PDT

          [ Parent ]

    •  Penalty: pay down the national debt (4+ / 0-)

      I like that. After all, aren't they ones who caused it in the first place by looting the treasury, the future income of several generations, and, in general, everything that wasn't nailed down? And a lot of stuff that was nailed down?

  •  Very well-written summary! (2+ / 0-)
    Recommended by:
    The Crusty Bunker, ERyd

    I've been waiting with bated breath for a more in-depth explanation like this, since there've been hints the last few days of possible actions of this nature.

    ABC is so fucked!

    "When a true genius appears in this world, you may know him by this sign, that the dunces are all in confederacy against him." -- Jonathan Swift

    by Pope Bandar bin Turtle on Sat Sep 09, 2006 at 07:18:25 AM PDT

  •  Monica again (2+ / 0-)
    Recommended by:
    The Crusty Bunker, ERyd

    I don't think the Clintons find this a really great time to trot out a discussion in the courts as to whether Bill was distracted from the pursuit of Osama by fellacious activity in the White House.  Especially since the litigation would drag on close  to the 2008 election cycle.  IF there is a suit filed it will be Madeline Albright or others who were defamed by false dialogue.

    The devil can cite Scripture for his [own] purpose.

    by mojavefog on Sat Sep 09, 2006 at 07:22:42 AM PDT

    •  Sandy and Madeline's (2+ / 0-)
      Recommended by:
      Balam, ERyd

      Suit could include Clinton.

      Quis custodiet ipsos custodes? (Who will watch the watchers?)

      by The Crusty Bunker on Sat Sep 09, 2006 at 07:28:24 AM PDT

      [ Parent ]

    •  I'm guessing that the Clintons have (0+ / 0-)

      hashed the Monica mess to the point that it no longer feels like it has anything whatsoever to do with them.  There are, no doubt, painful scars; however, they probably feel that all of that happened to somebody else in the distant past.  It is the undisclosed sins that cause fear and dread.  The worst that could happen from the Monica mess has already happened and I wouldn't be surprised if even right-wingnuts who were so insulted at the time no longer care about it.

    •  Do they have to prove that? (0+ / 0-)

      The series says it's Official True Story and based on the 9-11 Commission Report.  That report has already concluded that Clinton wasn't distracted.

      Furthermore, if Clinton wasn't already preparing for possible litigation why the series of letters to Iger?

      Don't forget that at the height of the Republican attack on Clinton in '98, demcorats did very well.

      I think anything that seems to pit Clinton against the current leadership works against Bush and the GOP, not for them...

  •  I Have to Think Their Side is Massively Prepared (5+ / 0-)

    already.

    Given that they're playing for the biggest pot of gold in human history.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

    by Gooserock on Sat Sep 09, 2006 at 07:23:04 AM PDT

  •  Crusty, it seems the lies and (1+ / 0-)
    Recommended by:
    The Crusty Bunker

    misrepresentations of Democrats in this film are damaging to the Democratic Party and Democratic officials and candidates in general. I don't suppose there's anything that can be done about that legally, is there?

    •  is there (1+ / 0-)
      Recommended by:
      roses

      a federal electioneering law?

      Poverty and the homeless Out of sight and out of mind

      by betterdeadthanred on Sat Sep 09, 2006 at 07:35:06 AM PDT

      [ Parent ]

    •  There, I would refer you to profmatt (1+ / 0-)
      Recommended by:
      roses

      He's actually right about the difficulties, but for those who are not directly involved, I think they are impossibilities.

      It's just too attenuated, and I think the larger party has to spend its money and energy on elections and voter education.

      Quis custodiet ipsos custodes? (Who will watch the watchers?)

      by The Crusty Bunker on Sat Sep 09, 2006 at 07:35:33 AM PDT

      [ Parent ]

      •  Correct... (3+ / 0-)
        Recommended by:
        Ray Radlein, mftalbot, roses

        standing to "Democrats" is not a winner here.  The only two theories that pass the standing test (that I can think of) would be:

        1.  A suit by a person portrayed in the film for defamation or a related tort.  Given that these individuals are public figures, NY Times v. Sullivan applies, and at minimum, would give a good argument for immediate dismissal.  
        1.  A suit by a competitor (NBC, CBS, FOX) for false advertising or false designation of origin, based on the "Based on the 9/11 Comission Report" tagline used in some advertising.  I explained above where I think this fails.
  •  Wow, there's still hope (2+ / 0-)
    Recommended by:
    The Crusty Bunker, ERyd

    I feel better that there is a chance these hate mongogers may finally be on the receiving end of justice.

    Do the right thing 'casue it feels better.

    by John Boy on Sat Sep 09, 2006 at 07:33:27 AM PDT

  •  ABC knows the chance (1+ / 0-)
    Recommended by:
    corvo

    that any of them will sue is less than zero. So they went ahead with the lie.

    I wish they would take action like this, but money wouldn’t motivate them, and clearing their names just isn’t worth the fight.

    •  hmmm... (0+ / 0-)

      money wouldn’t motivate them, and clearing their names just isn’t worth the fight.

      Never underestimate the power of ego.  They'll sue because they're concerned first and foremost about how they'll be remembered by history.  

      "Leave the gun ... take the cannoli." -8.38, -7.69

      by Balam on Sat Sep 09, 2006 at 09:59:51 AM PDT

      [ Parent ]

    •  ABC may believe that their chance of (7+ / 0-)

      being sued is less than zero; however, it still surprises me that their legal department didn't tell them that calling a piece of fiction that defames several public people a docu-whatever is illegal and unethical.  The corp I used to work for had a legal department that opined on the legalities AND the ethics of practically every move we made.  That was thirty years ago but we would never have gotten on ice this thin without thoroughly understanding the risks we were taking.  Do these Repubithugs just believe they are above the law and that nothing can stop them from anything they want to do?

    •  I don't think that's it (4+ / 0-)
      Recommended by:
      Bob Love, Thistime, lurker123, cfk

      I think this is just an example of the WH pushing things to the 'next level'. I think for them to feel as if they are being courageous (being that most of them are draft-dodgers who avoided putting themselves bodily in harm's way), they must take political 'risks' of which this is one.

      As I have said in other diaries, I think the WH is using the potential privitization of the internet as a carrot to get various media corporations to do their bidding. In this scenario, ABC would be proving their loyalty to the WH by putting this show on the air.

      Being that any corporation who would NOT get a piece of a privitized interenet would most likely be ruined, I think these media outlets see pleasing Bush as being crucial for their survival.

  •  If we don't get injunctive relief, hack them (4+ / 0-)

    I'm sure the swell controversy of it all makes for some wily lawyering, but I'm ready for a "V for Vendetta" solution.
    These pricks who think they own the airwaves need to be slapped.

    •  NO! (1+ / 0-)
      Recommended by:
      The Crusty Bunker

      You're dealing with a legal question...actively promoting an illegal act will do NOTHING to help.

      You forget...if a "V for Vendetta" solution goes wrong, anyone tied up in it will suffer big time...the dark hero doesn't necessarily win, in real life.

      It is amazing how much can be accomplished when you don't care who gets the credit - Harry Truman
      PoliticalCompass Scale: -2.13, -2.97

      by floundericiousMI on Sat Sep 09, 2006 at 08:24:24 AM PDT

      [ Parent ]

      •  An illegal act? (2+ / 0-)
        Recommended by:
        Topaz7, old wobbly

        I've have illegal acts forced down my throat by these clowns for years.
        Restore my faith. Get this thing yanked with injunctive relief.

        •  It doesn't matter (0+ / 0-)

          The challenges to their actions are wandering through courts...

          If you engage in that kind of vigilate-ism, you'll land in jail and it'll come to naught. That's the price of believing in a system under the rule of law...the LAW is the final word.

          I pray we never truly LOSE the rule of law (no, astonishingly, we've not LOST it...but it's been whacked hard)

          It is amazing how much can be accomplished when you don't care who gets the credit - Harry Truman
          PoliticalCompass Scale: -2.13, -2.97

          by floundericiousMI on Mon Sep 11, 2006 at 10:09:03 AM PDT

          [ Parent ]

  •  Have you read (3+ / 0-)
    Recommended by:
    April Follies, macmcd, llbear

    Max Blumenthal's article claiming the film was produced by a network of rightwingers within ABC?  If this can be proved, how would that affect legal action?
    Fascinating analysis and very clearly written.  Thanks.

    Here's a link to Blumenthal's story.

    Max Blumenthal

  •  Bush's *power* derives from ignorance of facts (0+ / 0-)

    It seems clear that few of the Disney/ABC production team understood the facts behind 9/11.  Part 1 of the scramble is clearly their learning curve, as they themselves learn the truth.  Gosh, maybe they're even reading The [9/11 Commission] Report.

    Meaning, Disney/ABC executive never bothered to educate themselves in the first place, so they didn't know they were being duped.

    Part 2 of the scramble is clearly that many in America are well-informed.  Meaning, us.

    IMHO this situation represents the turning point against Bush's war on factual knowledge.  Bush's power derives from his ability to manipulate perception and information through broadcast media.  Our firestorm this week - not to mention the outstanding legal advisory on this post (I'm a non-lawyer, but I completely got this - have broken the chokehold on America's ability to know the truth.

    We are set free.  Now for the struggle back across enemy lines.

    •  you may be set free (1+ / 0-)
      Recommended by:
      corvo

      but the majority of Americans who still hold to the lies are not.

      Ties to 911
      Ties to Al Qaeda
      WMD

      Even promos of this mini series mentioned ties between Iraq and 911

      They keep trying to tie the 2 together even after Bush came out in public.

      Poverty and the homeless Out of sight and out of mind

      by betterdeadthanred on Sat Sep 09, 2006 at 08:05:30 AM PDT

      [ Parent ]

      •  That's the Beauty of the Corporate Information (1+ / 0-)
        Recommended by:
        mldostert

        age.

        You may not be able to fool all of the people any of the time, but you can fool enough of the people every time that democracy simply doesn't matter.

        We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

        by Gooserock on Sat Sep 09, 2006 at 08:52:42 AM PDT

        [ Parent ]

  •  GREAT ANALYSIS! (3+ / 0-)

    Thanks for this clearly written educational material..

    Bill Clinton should you on his legal team :-)

    "Let us not be conservative with compassion. Be generous with compassion."

    by ilyana on Sat Sep 09, 2006 at 07:59:06 AM PDT

  •  I voted for Thank God: (2+ / 0-)
    Recommended by:
    floundericiousMI, llbear

    but George Bush also sucks out loud.
    Thanks, mrtriallawyer.

  •  Awesome, awesome diary. (2+ / 0-)
    Recommended by:
    Militarytracy, The Crusty Bunker

    Thank you Crusty Bunker!

    I just love this place.

  •  Speaking of copyright liability, do you know why (2+ / 0-)
    Recommended by:
    corvo, The Crusty Bunker

    the song sung by the Germans in Casablanca is Die Wacht am Rhein?  I've read that it's because the moviemakers were afraid of liability if they had them sing the Horst Wessel Lied.

    Katrina was America's Chernobyl.

    by lysias on Sat Sep 09, 2006 at 08:05:01 AM PDT

  •  Wouldn't this be excellent Karma (3+ / 0-)
    Recommended by:
    TracieLynn, macmcd, Chaoticfluffy

    against the right wing propaganda machine that wasted our tax dollars by impeaching Bill Clinton if Bill took them for
    (imagine Katherine Harris' husky whisper, trembling):

    "900 million dollars"

    (Then she sputters, coughes and develop a permanent case of laryngitis)

    "Let us not be conservative with compassion. Be generous with compassion."

    by ilyana on Sat Sep 09, 2006 at 08:06:42 AM PDT

  •  Disney and ABC were told about errors a year ago. (7+ / 0-)

    Two retired F.B.I. agents said today that they had rejected advisory roles on the disputed ABC mini-series, “The Path to 9/11,” because of concerns about the program’s accuracy.

    One of the agents, Thomas E. Nicoletti, was hired by the producers of the mini-series in July 2005 to oversee its technical accuracy, but left after less than a month because of scenes he believed were misleading or just false....

    Chief among Mr. Nicoletti’s concerns were scenes that placed people at places they had not been present at and scenes that depicted events that were out of chronological order.

    “There were so many inaccuracies,” he said.

    Mr. Nicoletti said he asked the producers to make changes, but was rebuffed. “I’m well aware of what’s dramatic license and what’s historical inaccuracy,” Mr. Nicoletti said. “And this had a lot of historical inaccuracy.”

  •  ABC Website promoting PT911 (4+ / 0-)

    I just checked out the ABC website, and they are now actively promoting "Path to 9-11" again!!!  Evidently, the decision has been made in Burbank to screw the truth and put their heads up their asses no matter what the consequences to their reputation or the long-term health of their product line.

    People, we must never, ever, forget this!! Never!!

    http://abc.go.com/

    "The only thing we have to fear, is fear itself."-FDR

    by Michigan Paul on Sat Sep 09, 2006 at 08:08:59 AM PDT

  •  Bless you Crusty (4+ / 0-)

    ...and all other Kosolicitors on the case.

    You're giving us all a great education in the legal issues and possibilities.

    What a travesty that the main victims here -- future generations of Americans who will be less able to understand how to combat terrorism due to a purposely-confused understanding of the causes of 9/11 -- have no standing as plaintiffs.

    Something is very, very, VERY wrong.

  •  I never knew I would grow to love lawyers (5+ / 0-)

    as much I have these past five years.  Thank you for sharing your expertise.  I find myself extremely distressed and depressed today and my two children will have several points removed from their I.Q. on Sunday and Monday through the negligence of others.  Do I have a case?

    In the Pajamahadeen I'm Scooby-Doo!

    by Militarytracy on Sat Sep 09, 2006 at 08:15:58 AM PDT

  •  Derviative Suit would likely fail (0+ / 0-)

    I'm confident that the Delaware Chancellors would not make this decision -- and I think rightly so....

  •  Cases that "Make a Point" (9+ / 0-)

    I think a lawsuit should be filed.  Defamation.

    The Screachers of Hate Radio will do their (yawn) expected "Clintonistas are whining" shtick, but the 25-35% of the Kool Aid Drinkers who buy into that imbecility would just be the choir to whom these snakeurine salescretins would be singing to.

    No, the Complaint (official name for the lawsuit's initial filing; it is the "lawsuit") should lay out, in the starkest terms, all indisputable facts re:  

     >  Clinton's efforts to go after terrorists which the GOP House and Senate beat-back at every opportunity;

     >  Bush's utterly ignoring all efforts by the Clinton transition team to put terrorism and OBL at the top of the nat'l security priority list (rather than "missle defense"); and,

     >  For good measure, remind all that it was Bush, not Clinton, who ignored the August 6, 2001, PDB and kept his lazy ass in Crawford, Texas when he, or anyone with a molecule of competency in their body, should've been pulling out every stop to at least try and thwart the plot to unleash the horrors that would become known as "9.11"

    The Complaint should NOT be verbose and, were I in charge of the legal team drafting it, I'd tell 'em to limit the damn thing to a dozen pages, tops!  Why?  It would force the drafter(s) to get to the point and distill all allegations into their plainest, starkest, most hard-hitting form.

    Bam.

     BenGoshi
    _________________________________________________

    We're working on many levels here. Ken Kesey

    by BenGoshi on Sat Sep 09, 2006 at 08:22:10 AM PDT

    •  Thank you BEN! (5+ / 0-)

      Couldn't agree more. I hate it when some would do the other side's lawyering for them, and let misconceived notions about PR and strategy deter us from taking action when it is reasonable and justified.

      Too much overthinking is what got the D's in the straits they're in.

      Quis custodiet ipsos custodes? (Who will watch the watchers?)

      by The Crusty Bunker on Sat Sep 09, 2006 at 08:37:18 AM PDT

      [ Parent ]

      •  What you just said. (4+ / 0-)

        And, to add to that, the Republicannibals who took over this once-conservative party (they ate all their moderates) and radicalized it have always gone "balls to the walls".  Occassionally, that's backfired on 'em, tremendously (Monica, Schiavo, etc.), but, at the end of the day, who owns the House, Senate, White House and Supreme Court?

        We all talk about Democrats getting "spine".  With regrettable few exceptions, I see very little beyond the talk.  

        Americans, all in all, appreciate a gutsy fighter (or image thereof) who's wrong, over a timid milquetoast who's right.  Here, on the Democratic side, we've got the potential for gutsy fighters who are right.  So, why won't the Leadership take it to 'em?  I mean really take it to 'em?  Let's see what the next few days, weeks, bring.

        BenGoshi
        ________________________________________________

        We're working on many levels here. Ken Kesey

        by BenGoshi on Sat Sep 09, 2006 at 08:49:24 AM PDT

        [ Parent ]

  •  Hey Crusty! (4+ / 0-)

    What about a stockholder suit against ABC/Disney's abrogation of fiduciary responsibility, as well as negligence in following standard practices with regard to fact checking the script through their legal department, which, when I was at CBS (many years ago) was sop with fact based tv movies?

    •  I wish I had Disney stock--too late now (1+ / 0-)
      Recommended by:
      nanorich

      I would look seriously into a derivative suit. Remember, Disney is ABC's sole stockholder so that's where it has to go.

      Quis custodiet ipsos custodes? (Who will watch the watchers?)

      by The Crusty Bunker on Sat Sep 09, 2006 at 08:35:23 AM PDT

      [ Parent ]

      •  Disney is a still public company (0+ / 0-)

        and there is a facto blurring of the lines between Disney and ABC...at least under Eisner.

        He would make programming decisions for ABC.

        As Iger is the former president of ABC, it seems unlikely there is a firewall between Disney and ABC..

        and that Disney, by the airing of this program, because Iger is the one who makes the ultimate decision here is putting at risk Disney reputation, as well as not following corporate guidelines.  

        I can't believe their lawyers are allowing this thing to proceed..

        none of this makes any sense.  

        Unless this was a plot by Eisner to retake power.  I believe he still owns a considerable number of Disney shares.

  •  War On America Continues ... (1+ / 0-)
    Recommended by:
    The Crusty Bunker

    Disney will do as they see fit, and there is nothing that will stop them. If none of us have noticed a constant trend in the last six years, there is an overwhelming tendency to exploit 9-11 for whatever purposes the Bush Administration and their warmongering string-pullers wish. In the name of God Almighty and the U.S. Justice System, I pour out a little of my 40 ounce for the death of wishful thinking because time and time again the "War on Terror" continues to trump life, liberty and the pursuit of truth. No one has stopped the revision of Bush's grand ole Iraq misadventure or the true cause of our need to exploit the Middle East, so how on earth could Pres. Clinton and his lawyers stop that train of dishonor now? Too bad the 9-11 victims died in vain, and in the honor of their families and all Americans nothing but continued tragedy after tragedy follows in the wake. I say show the "docudrama" to adults, but the real shame is that "teaching" kits will make their way into schools to subvert the minds of American youth. The blame is on all our heads for not stopping the current course of this administration, and we continue to fail in our obligation as "democratic" citizens to do so.

  •  Crusty - have a cup of coffee on me (4+ / 0-)

    This was written in the wee early hours, so keep that in mind if you decide to trash. Still, I think it will hang together.

    Crusty Bunker and trash

    no more belong in the the same sentence than do

    George Bush and integrity

    As always, sir - thank you for writing.

    Denny Hastert is getting a pass from too many people who should know better

    by llbear on Sat Sep 09, 2006 at 08:47:55 AM PDT

  •  You're all deluding yourselves. At the risk (0+ / 0-)

    of being attacked by a conglomerate of rabid attorneys, I would just like to point out that, after 24 years of Reagan/Bush judicial appointments  to the federal bench and Orrin Hatch blocking liberal judges, the chances of finding a federal judge who ISN'T an incompetent political hack is very, very slim. Even in CA or NY. How long do you think one of these Scalia or Alito wannabes would last as a Rethug if they ruled against the Bush administration on a politically charged issue like this? Call me cynical, but I've seen waaay too many politically based decisions come out of federal courts in the last 16 years to have any faith that an impartial federal judge would hear this case.

    -6.38/-3.79::'A man is incapable of comprehending any argument that interferes with his revenues.' Descartes

    by skrymir on Sat Sep 09, 2006 at 08:51:07 AM PDT

    •  Diversity may mean that some suits have to be (0+ / 0-)

      brought in federal court.  But are there no suits that can be brought in state court and that cannot be removed to federal court?  Like suits against Disney/ABC brought by California plaintiffs?

      Katrina was America's Chernobyl.

      by lysias on Sat Sep 09, 2006 at 09:12:51 AM PDT

      [ Parent ]

      •  Diversity jurisdiction (1+ / 0-)
        Recommended by:
        Ray Radlein
        Start with this principle: State courts are courts of general jurisdiction whereas Federal courts are courts of limited jurisdiction.

        I know that seems ass-backwards, but that's the first principle. Thus, a state tort action (e.g., defamation) belongs in state court. Federal courts only come into play if there is a specific reason for doing so.

        The good ol' founding fathers realized that suing out-of-state people in your own home-state court might result in inequities, not to mention undue burdens, to the person being sued. (The same is true in reverse. If you had to sue someone in another state on their own turf, that might be unfair.)

        Ergo, the Constitution (and enabling statutes) grants "diversity jurisdiction" to Federal courts. Basic requirements are:

        1.) Complete diversity. Let's say you're suing three entities under state law and only one of them is out of state. That defeats Federal diversity.

        2.) Jurisdictional amount. The $$ in controversy must (currently) be at least $75,000. Thus, you can't remove a small claims case to federal court. Under $75K? Too trivial. :-)

        Federal courts also have jurisdiction over "federal questions". Patent law and bankruptcy law, for example, are federal in nature. Now, suppose you're suing someone for one count based on a federal question and another count on a state law question. Here, a federal court can excersize "supplemental jurisdiction" over the state law claim for judicial economy. (That is, one suit instead of two.)

        A suit can end up in federal court a couple of ways: (1) it is filed there in the first place, asserting diversity jurisdiction, or (2) after the suit has been filed in a state court, a party exercises the right to have it removed to federal court on the basis of diversity or, possibly, by countersuing and thereby adding a federal question.

        When a federal court sits under diversity jurisdiction, it applies the "substantive law" of the forum state. (That's a complicated subject, BTW) but the "procedural law" (i.e., rules of procedure) is federal.

        Hope this didn't muddy the waters but, yes, there are instances where a lawsuit in state court can be removed to a federal court.

        •  oops... (0+ / 0-)
          i should have said, "Yes, there are cases that cannot be removed to federal court." In fact, most suits between parties in the same state cannot be removed.

          Heh, that was the point of the Terry Shiavo Relief Bill. Groan.

      •  Have to wait and see what gets filed (0+ / 0-)

        Sounded like CA law was more favorable to defendants than NY law. Some cases might get consolidated. And even if the case is heard in federal court, that federal judge will have to apply state law.

        Lots of procedural things down the road here. It could take years. Isn't that defamation suit against Hilary still technically pending?

        Quis custodiet ipsos custodes? (Who will watch the watchers?)

        by The Crusty Bunker on Sat Sep 09, 2006 at 05:15:31 PM PDT

        [ Parent ]

    •  but remember (2+ / 0-)
      Recommended by:
      skrymir, macmcd

      that's a conglomerate of rabid attorneys against squadrons, squadrons mind you, of venemous, rabid lambs.  We seem to have the poison-gland-sac edge here, as well as the military style organization advantage.

      Not bigger government, better government. Government that serves the people, not just the powerful.

      by thalio on Sat Sep 09, 2006 at 09:14:25 AM PDT

      [ Parent ]

  •  Donation in Kind (2+ / 0-)
    Recommended by:
    April Follies, ScienceMom

    I know that this is not the topic of this post, but has any one looked at this from a campaign reporting requirement.

    See Washington State Decision

    Article here

  •  I'm planning to tape it and send tapes to ... (1+ / 0-)
    Recommended by:
    ScienceMom

    Clinton, Berger, and Albright, if I can get all three of my VCR's working.  Not that they won't have copies, but this way they'd have documentation of just what was broadcast on my local ABC affiliate, KSAT-TV.  

    Crusty, a few questions:

    Do Kossacks across the country need to do this?  I would guess it'll cost $6 to buy and mail each tape.

    Will tapes be of use to Clinton, Berger, and Albright?  Would they want to sue a local station?

    Do I need to send an affadavit with each tape?  What should it say?

    I have these addresses for Clinton and Berger:

    Correspondence Director
    Office of William Jefferson Clinton
    55 West 125th Street
    New York, NY, 10027

    Mr. Samuel R. Berger
    Stonebridge International LLC
    555 13th Street, NW,  Suite 300 West
    Washington, DC 20004

    Does anyone have better mailing addresses to suggest?

    I don't have an address yet for Madeline Albright.  Does anyone have one handy?

    We're all pretty crazy some way or other; some of us just hide it better. "Normal" is just a setting on the dryer.

    by david78209 on Sat Sep 09, 2006 at 09:06:07 AM PDT

  •  Actual Malice (3+ / 0-)

    is always hard to prove.  I think the law might not be on Clinton's side b/c as a public figure he is subject to public commentary, even if commentary is not true.  

    To impose liability for critical, albeit erroneous or even malicious, comments on official conduct would effectively resurrect "the obsolete doctrine that the governed must not criticize their governors."
    NY Times v. Sullivan

    In the long run, I think that is the correct view.  Otherwise we would hesitate to criticize our leaders, for fear it would lead to litigation.

    HOWEVER, the fact that, in this case, FBI experts were expressly telling the writers and directors that the information contained in their script was not true, and because those invovled went ahead with the project "with knowledge that it was false or with reckless disregard of whether it was false or not," Clinton's lawyers would probably be able to prove "actual malice."

    It's not easy being a Floridian.

    by lawstudent922 on Sat Sep 09, 2006 at 09:14:38 AM PDT

    •  They've also gone ahead despite all the evidence (2+ / 0-)
      Recommended by:
      April Follies, lawstudent922

      that their work is substantially false that has appeared over the past week.

      Katrina was America's Chernobyl.

      by lysias on Sat Sep 09, 2006 at 09:18:06 AM PDT

      [ Parent ]

      •  And that's the thing (3+ / 0-)
        Recommended by:
        April Follies, lawstudent922, cfk

        There is no defense that they didn't know.  It's been brought to their attention by more than 100,000 letters, public commentary and experts up one side and down the other (both now and as the project went forward), not to mention the plain language of the 9/11 Commission Report.  They've even admitted that they know it's fictional, and denied the defamed any chance to correct the record beforehand.

        I'm not a lawyer, but I can't see how a reasonable person can say they aren't proceeding with full knowledge that they're airing falsehoods.

  •  I dunno (0+ / 0-)

    how the fact that they were going to use Scholastic to spoonfeed this movie to school children might affect the issue. Is Scholastic affected at all by this lawyer stuff?

    Ya know, that's the part that gets my goat. I mean on tv you see everything from aliens to a half dozen murders a night (all solved brilliantly, of course). So anyone reasonable takes what they see with a grain of salt. But they were going to present it as fact to school kids, with teaching guides and crap.

    No.... I don't think that's acceptable.
    utahgirl

  •  Did you miss something? (1+ / 0-)
    Recommended by:
    DemJack

    ABC will move to dismiss based on a claim of having re-edited the show..?

  •  See, first I was worried about it being aired. (0+ / 0-)

    After reading your diary, now I'm kinda excited. Excellent diary, and recommended!

    "Hannity Sucks Ass" --Fox News, Tuesday Aug 08, 2006 at 06:59 PM

    by The Gryffin on Sat Sep 09, 2006 at 09:43:38 AM PDT

  •  An injuction? Not a chance... (2+ / 0-)
    Recommended by:
    Ray Radlein, docciavelli

    or at least a such a miniscule chance that it's barely worth hoping for.

    Oh, how I wish the law were as simple as Crusty's quick (and useful!) synopsis suggests, namely:

    "The standard for receiving an injunction is that if the court does not grant an injunction changing the status quo, the plaintiff will suffer immediate and irreparable harm for which money damages cannot adequately compensate."

    Uh, yes, but that's but a small slice of a complicated standard. Injunctive relief (in this case a temporary restraining order-"TRO"-and/or a preliminary injunction) must be based on a four-prong test in which the court makes findings and then applies a balancing act to its findings.

    Based on memory (I don't have time now to search the case law for exact quotes right now), I believe the four factors are: (1) likelihood of success on the merits, (2) the relative equities of irreparable harm, (3) the lack of an adequate remedy at law and (4) the public interest. To get a realistic assessment (not merely what we hope for), let's walk through them.

    [Before you jump down my throat, please realize that I'm playing the role of devil's advocate here, in the interests of arriving at a reasoned assessment. If if were up to me, I'd shove a kumquat down ABC's corporate throat.]

    I. If, as suggested, the underlying action were based on a state tort law claim for defamation, the plaintiff(s) with standing (e.g., Clinton, Albright, et al.) would have to convince a judge before tomorrow night that they would ultimately be very likely to win their tort action.

    In light of the Sullivan standard for defamation as applied to public figures, this means that they would have to allege, with at least some degree of specificity, accompanied by a clear proffer of evidence, either (1) that someone in particular (not just some undefined cabal) is exercising actual malice or (2) that the publication (i.e., airing) constitutes reckless disregard for the facts.

    Yeah, I know. Those of here at Kos are convinced that portions of the movie recklessly disregard the facts. But enter Disney/ABC's lawyers. Hey, they'll say, a lot of these alleged untruths are disputed and open to interpretation. What's more, this is a docu-drama. Since when do courts engage in correcting each and every detail of artistic works of fiction?

    The point isn't whether a defamation suit might ultimately be won; it is that courts are loathe to issue preliminary equitable relief on the basis of hotly disputed material facts. If the issues are sufficiently "in play" this early in a lawsuit, judges usually refrain from leaping to the conclusion that one side is likely to win (i.e., "prevail on the merits").

    As for the issue of irreparable harm, it's a two-sided coin. It isn't just a matter of irreparable harm to Clinton, Albright, or another plaintiff with standing, it must be balanced by the court against prospective irreparable harm to Disney/ABC as well.

    Here, the "other side" has a quiver full of strong arguments. Shooting from the hip, I'd expect their lawyers to score points by emphasizing that the timing of the broadcast--on the fifth anniversary of 9/11--is critical to the value of their film. In fact, they'd say, the entire project was geared to product a blockbuster on this anniversary. To delay airing would be irreparably harm the network and it's unique asset and nothing the court could do down the road could repair that damage.

    Then there's the matter of ABC's reputation. If the court were to find, on a preliminary basis, that it appeared ABC was about to act on the basis of malice or reckless disregard for facts, only to be vindicated in a subsequent trial by jury, ABC's reputation would nevertheless suffer irreparable harm.

    III. Adequacy of an alternative remedy at law.

    [Some help with terminology here: Injunctive relief lies on the "equitable side of the court"--historically a different branch of the law. "At law" refers to the other side of the court, dealing with common law torts. Federal courts rule on both actions at law and in equity, but many of the principles evolved independently and it's mix the two for reasons too complicated to fully explain here.]

    The traditional legal remedy for defamation is money damages. Somebody libels or slanders you? Hey, you can sue for money damages. Injunctive relief is, by definition, extraordinary.

    In this hypothetical case, you have plaintiffs who are arguably retired from public office and you have defendants (Disney, ABC) who have deep pockets. There's a very strong legal presumption that, if successful on the merits, the plaintiffs can be adequately compensated by money damages.

    The case might be different if, say, you could show that the defendants were in the midst of moving all their money "offshore" so that recovery of damages would not be possible at a later date. There are other extraordinary circumstances as well that might justify injunctive relief. Still, such factors appear to me to be absent or weak.

    So do money damages really fix a sullied reputation? Of course not. But, based on well settled precedent, that's nevertheless the legal presumption and it's an uphill battle to convice a court otherwise.

    IV. The public interest. This one's really, really fuzzy in the best of cases. One the one hand, the plaintiffs might argue something along the lines that truth is always in the public interest. Then there's the upcoming election, etc. On the other hand, ABC would surely argue that prior restraint on the media's free speech is a very slippery slope.

    And, honestly, I'm at least partially inclined to agree. Do we really want courts running around banning controversial broadcasts ahead of time as a general practice? I mean, think about it. Really. With Scalia, Thomas, Roberts and Alito on the bench and Stevens approaching his 86th birthday?

    Now the balancing act. A judge would have to make findings on each of the four tests above and THEN find that, on balance, the need for an injunction is compelling. Furthermore, this has to occur in roughly the next 26 or 27 hours. Which of the prongs of this test weigh so heavily on plaitiffs' side to justify an extraordinary remedy?  

    No way. Not a chance.

    FWIW, that's one person's assessment of the reality.

    •  Agreed, for the most part. (0+ / 0-)

      First, thanks to both Crusty and Tom for their analysis.

      I agree with Tom here--I'd bet a court sides with ABC on the "Balance of Convenience" test (which party will suffer the greater harm pursuant to the issuance, or not, of the injunction), as well as on the question as to the likely merits of the case.

      First, Tom's point as to ABC's irreparable harm in not being able to show a film they've invested quite a sum of money in on the one weekend that people will want to watch it is significant.

      Second, as to the likelihood of success on the merits in a defamation claim, due to NYTimes v. Sullivan there seems to be a presumption against the likelihood of a public figure recovering damages for defamation of this sort.  Also, remember that ABC is calling this a "docudrama," and NOT claiming that PT911 is hard and fast fact.  Though there may be some case law out there that equates fiction which is portrayed as being factually-based with non-fiction, the "docudrama" label gives them some wiggle room.

      Finally, as to the "choice of law" issue that Crusty astutely raised, I think Clinton would want to bring the suit in California since it's my understanding is that California Fed. Cts. have a history of upholding higher judgments.  I don't know the record of Calif. Fed. Cts. in granting injunctive relief against defamatory publishing.  However, that should be well known by those practicing in the field as it's not like there's never an injunction sought in L.A. against the publishing of something in a tabloid.

      Thanks again for the analysis everyone!

      The doctrine of non-resistance against arbitrary power and oppression is absurd, slavish and destructive of the good and happiness of mankind. - MD Constitution

      by docciavelli on Sat Sep 09, 2006 at 10:43:49 AM PDT

      [ Parent ]

  •  Outstanding diary Crusty! (0+ / 0-)

    The legal eagles for Disney and ABC must be shaking in their boots now.  And these are cowardly legal eagles I bet.

    Thanks for the info on Sen. Cranston and Mein Kampf, now I wonder which version I read.

    FYI it is a 3 time zones difference between NY and CA.

    Dailykos.com; an oasis of truth. -1.75 -7.23

    by Shockwave on Sat Sep 09, 2006 at 09:50:30 AM PDT

  •  Thanks for your hard work! (0+ / 0-)

    Is there any way to bring the power of the law to the issue of administrative policy as related to the public health and security?  

    Clearly, in many ways the "policies" of the Bush Administration have put the country and it's citizen's in danger and continue to put us at risk.

    The planned deceptions etc. give intent to the acts.  An arcticulate lawsuit in this vein would have to clearly and empircally state cause and effect vis a vis policy implementation and public events. Truth to power.

    It might at the very least be a way to bring policies and administration deceits out of the closet and into the public.

  •  political cartoon play (0+ / 0-)

    needs a little work but here's a preview:
    Image Hosted by ImageShack.us

    "Let us not be conservative with compassion. Be generous with compassion."

    by ilyana on Sat Sep 09, 2006 at 09:57:14 AM PDT

  •  Albright and Berger should definitely file suit (3+ / 0-)

    The more I think about this, a defamation lawsuit is brilliant.  I don;t think it can be won, because it is too hard to prove damages, but it would give the Blue Team a chance to get a bunch of people under oath and on the record.  Think of the witness list:  Rush Limbaugh could be subpoenaed about whether he had any conversations with Cyrus Nowrasteh about deliberately portraying the Clinton Administration in a bad light.  ABC execs could be asked if they knew about the historical distortions in advance, and forced to admit they were either out of touch or deliberately greenlighting an attempt to deceive the public.  Someone will be held accountable for the decision to send advance copies to rightwing sources only, and will have to explain why.

    Albright;s people keep using the word defamatory, so if she files a lawsuit I won;t be surprised.

    Politics is like driving. To go backward, put it in R. To go forward, put it in D: TELL THE TRUTH. HOLD THEM ACCOUNTABLE. REPAIR THE DAMAGE. VOTE DEMOCRATIC!

    by TrueBlueMajority on Sat Sep 09, 2006 at 10:23:58 AM PDT

  •  Buy a share (2+ / 0-)
    Recommended by:
    Sandy on Signal, bee tzu

    If I purchase a few shares of Disney on Monday morning before the show airs- could I then participate in a shareholder suit?  My guess would be that if the shares were bought before the injury then it would be possible.  

  •  Stop Blaming (just) Bush! (1+ / 0-)
    Recommended by:
    The Crusty Bunker

    He's just the designated front man.

    http://www.huffingtonpost.com/... Blumenthal

    09.08.2006
    Discover the Secret Right-Wing Network Behind ABC's 9/11

    And that's just the think-tank/media effort.

    Blame the war profiteers, too.

  •  The version I am longing for will be fact-based (1+ / 0-)
    Recommended by:
    macmcd

    TOTALLY. From Reagan welcoming the mujaheddin to The White House, to The Pet Goat, to Giuliani's command center never being functional on 9-11, to the nearly ten thousand people sickened, dying, and/or dead from Ground Zero toxics.

    The Pet Goat, too.

  •  Injunction?! (0+ / 0-)

    There is nothing more abhorrent to the First Amendment than a prior restraint.  No court in the land will sanction it.  To quote the "Big Liebowski" "The Supreme Court has squarely rejected prior restraint."

    As for federal question, that too may be problematic.  Although Disney may be headquatered in CA, it does not necessarily mean that it is also not a "citizen" of New York.  ""A corporation shall be deemed to be a citizen of any state by which it has been incorporated and of the state where it has its principal place of business."  28 USC 1332©.  Thus, if ABC is incorporated in NY, there is no diversity jurisdiction irresepctive of where its principal place of business is.

    Third, a dramatization does not necessarily translate into defamation if it is clear that the events are dramatization.  It does not look as if ABC is attempting to say that these events actually happened.  

    Fourth, in order to bring a defamation suit you generally need to establish that the reputation was actually harmed.  Given the fact that Clinton is quite a polarizing figure, the opinion of him will remain largely the same (good or bad depending on who you ask) irrespective of what ABC airs.

    Fifth, as a political matter, Clinton will never bring a suit.  No self-respecting politician in this country brings suits because it makes them look like cry-babies.  Hell, he did not even bring suit when he was accused point blank of running a drug ring in Arkansas.  It is just not done in this country.

    •  If Clinton has any self respect at all... (2+ / 0-)
      Recommended by:
      Sandy on Signal, bee tzu

      He'll sue these bastards.

    •  Sorry, DrG, but.... (0+ / 0-)
      I gotta take issue with this analysis:

      "As for federal question, that too may be problematic.  Although Disney may be headquatered in CA, it does not necessarily mean that it is also not a "citizen" of New York.  ""A corporation shall be deemed to be a citizen of any state by which it has been incorporated and of the state where it has its principal place of business."  28 USC 1332©.  Thus, if ABC is incorporated in NY, there is no diversity jurisdiction irresepctive of where its principal place of business is."

      This is such a mishmash of confused principles that I don't even know where to begin. The term "Federal Question" has nothing to do with the citizenship of the parties; it has to do with whether the court is interpreting federal law.

      And your snippet quoting a single inapposite line in the U.S. Code is far from dispositive as to the issue of corporate residence. Determining residence (which is the issue here, not "citizenship") for the purposes of establishing diversity in a claim brought under state law is much more complicated than you assert. Much depends upon such factors as where the allegedly tortious acts occured, whether the corporation has had substantial business contacts within a state, whether some other provisions of a "long-arm statute" apply, whether the mix of parties defeats "complete diversity" requirements, and a few others.

      Trust, me. You ain't even close.

      •  Sorry my mistake (0+ / 0-)

        I meant to say "federal jurisdiction" not "federal question."  That's what happens when you type faster than you think.

        I know the diversity citizenship law somewhat.  I am aware of the multifactorial analysis.  However, if ABC is incorporated in NY, everything else does not matter.  It is a citizen of NY as are the Clintons.  

        (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—
        (1) citizens of different States;

        ***

        © For the purposes of this section and section 1441 of this title—
        (1) a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business

        As you can see, for diversity jurisdiction, it is the citizenship not residence that is important.  As for "contacts," "long arm statutes," etc., those come into play in the personal jurisdiction analysis, not diversity of citizenship (which goes to subject matter jurisidiction) analysis.

        •  and my mistake as well... (0+ / 0-)

          I really should have been more careful about the citizenship v. residence comment because the minute I hit enter it flashed into mind that "citizenship" is the Article III term. You are correct that citizenship governs diversity and that a corporation is a citizen in the state of incorporation as well as the state in which it has its main office.

          And, FWIW, I happen to agree with you about prior restraint too. Not only does it fly in the face of established law, it's a terrible idea.

  •  Just for shits & giggles . . . (1+ / 0-)
    Recommended by:
    EricS

    . . . I would very much recommend, from an advertising & public relations & political & marketing point of view, for all of the real-life exemplars of the Clinton admin. characters to request injunctive relief (writs of mandamus) in various courts.  So Big Dog Clinton asks for an injunction in a federal court to stop ABC.  At the same time, Albright initiates a request in New York City against the ABC-owned local affiliate.  Then Berger files against the ABC affiliate in New Haven, CT.  Just as with Ben Goshi's sig line, the Democrats should work on many levels here.

    Hell, have Clinton file suits in New York, Chicago, Denver & Los Angeles to have a schmuckfest cooking in every time zone.  This would make the ABC/Disney lawyers look like a bunch of cats with diarrhea trying to cover shit in 50 locations.  What fun.

    MediaInc would love a brouhaha such as this.  The entertainment value would be immeasurable.

    Impeach. Convict. Imprison. End this REIGN OF MISERABLE FAILURE.

    by whl on Sat Sep 09, 2006 at 11:07:31 AM PDT

  •  Best. pt911. Thread. Yet. (0+ / 0-)

    I shoulda gone to law school. Thanks for an excellent Sat AM discussion.

    " ...we will treat the rest of the world with respect. WITH RESPECT!!" Ned Lamont 8/8/06

    by Calqueda on Sat Sep 09, 2006 at 11:08:44 AM PDT

  •  Make This A Winning Issue (2+ / 0-)
    Recommended by:
    Noisy Democrat, anotherdemocrat

    I suspect no matter what that ABC/Disney will air this show, and that no amount of crawls or announcements will offset the impression that what airs on TV must be the truth.

    We have been given a gift, but only if we accept it by making it an issue. So we must make lemonade out of some lemons:

    Another show, this one titled: The Swiftboating of America - A dramatic re-enactment of a plan by a bunch of radicals to steal an election with lies and propaganda.  A "fictional" account. Broadcast it the night before the elections.

    Please President Clinton take them to court and sue.  Keep it on the front page every day from now until November.

    Discuss it with everyone:  Wow, did you see all the lies?  Don't these people have any decency for the dead?

    President Bush plans to interrupt the last hour of the show to make a speech.  Will wonders never cease?  Can the DNC request time immediately after the speech for a response? I suggest Howard Dean, President Clinton, Al Gore, Senator Kerry, Madelaine Allbright, Sandy Berger, etc.

    This show is what it is - another in a long line of lies by President Bush/Republicans designed to keep him in power despite the enormous incompetence, mistakes, and outright lies.  The problem is that ignorance and lies don't protect us from very real terrorists (as we found out on 9/11), or help us fix the huge mess President Bush created in Iraq.  If all the President's men could actually concentrate on beating our all too real enemies rather then treating US citizens as enemies (or acting to make boatloads of MORE enemies in Iraq) we probably would have crushed Al Qaeda a long time ago.

    We only make good lemonade if we go head-on at this thing and keep it on the front page all the way to November.

    •  I doubt if there's time to make such a (0+ / 0-)

      dramatic reenactment before the Nov. '06 elections.  There's certainly time to do it before the '08 election.  Alternatively, a documentary could probably be made in time for the Nov. '06 elections.

      Katrina was America's Chernobyl.

      by lysias on Sat Sep 09, 2006 at 12:45:51 PM PDT

      [ Parent ]

  •  What if??? (0+ / 0-)

    What if ABC were to insert text scrolling across the screen during the defamtory scenes that reads:  THE EVENTS DEPICTED IN THIS SCENE ARE FICTION.  THEY NEVER HAPPENED AND NOTHING LIKE THEM EVER HAPPENED.

    They have to be thinking about it.  A cheap, quick fix????

    "Democracy must be something more than two wolves and a sheep voting on what to have for dinner." - James Bovard

    by Gasonfires on Sat Sep 09, 2006 at 11:18:41 AM PDT

  •  Clinton's lawyers have written to Bob Iger (0+ / 0-)

    asking him pull the plug.

  •  WOW! Great summary. (2+ / 0-)

    Thank you for the hard work.  I had been curious about the legal aspects of this disgusting endeavor.  It looks like they are more promising than I had suspected.  

    Recommended! And thank you, again.

  •  Does the prior distribution of copies of this (1+ / 0-)
    Recommended by:
    enough

    show to hundreds of people have any significance?

    How many witnesses to a libel/slander does it take to be able to SUE for libel/slander?

    Like I said, since this show in its 'unadulterated' form was already distributed to so MANY people, can a suit be brought just on this basis?

    •  Actionable libel or slander requires... (3+ / 0-)

      publication to a third party. Hence, one person is legally sufficient on the receiving end. "Publication" is the legal term for dissemination or distribution and need not refer to ink on paper. (In the case of slander, "publication" can mean whispering a lie into someone's ear.)

      To win a defamation suit, it is necessary to prove falsity, publication and (usually) damages. Since these elements can sometimes be proved by means other than direct witnesses, it is technically possible to win a libel case with no witnesses.

      So does it matter that something was shown (published) to hundreds instead of just one? To the extent that wider distribution causes greater damages, then yes, of course. It might conceivably go to proving malice as well.

      Bringing a suit is easy. It's winning a suit that's harder. (See especially discussions in this thread about some of the hurdles when public figures are involved.)

      •  Good answer (0+ / 0-)

        The scope of publication goes to damages. I can't for the life of me understand why ...

        Hey, wait a minute -- is it possible George Mitchell is standing off to the sidelines because Slick Willie asked him to so he'd have his court battle and take back some long green he thinks the right owes him?

        Hmmm ...

        Quis custodiet ipsos custodes? (Who will watch the watchers?)

        by The Crusty Bunker on Sat Sep 09, 2006 at 02:50:25 PM PDT

        [ Parent ]

  •  Airing + law suit possibly better? (1+ / 0-)
    Recommended by:
    EricS

    In all this craziness that's going on, I'm actually starting to wonder if it may be more beneficial for the show to air, then have it litigated to hell and back so that.  Ugly thought, but it seems inevitable it's going to be aired anyway.  This is pure speculation, but here are my thoughts:

    First, the viewership of the show, up against opening weekend of the football season, seems likely to be much smaller than it would have been under some other circumstances.  So while the propaganda would, in fact, be aired, the audience won't necessarily be that big.

    Second, if it goes to court first thing on Monday, it's likely to be tremendous news.  Most likely, the right will immmediately attack this as an attempt at censorship and the left will need to be ready to break that frame immediately.  I'm far from an expert on this, but the fact that it is out-and-out propaganda would seem like a good angle from which to take it because, quite simply, it is.  Constant references to it as propaganda will definitely have an effect, especially if the tie-in with Scholastic is reinforced.  Americans of all political persuastions are terrified of their children being propagandized, too, and this frame already seems to be working.

    NB: if Bill Bennett considers this unfair propaganda, I think we're on pretty solid ground to terrify conservatives who are on the fence.  This could mark a tipping point in the consciousness of Americans who are still on the fence (as scary as that sounds) about where the Bush administration is coming from and what it's trying to accomplish.

    If the lawsuit does go through, it'll likely be a media circus on part with OJ and Nicole.  Imagine the headline "Bill Clinton v. Disney Corporation" on CNN and you'll start to get an idea of how big this would be.  As part of that process, the charges will be enumerated on all the news channels and in the papers, so the counter-charges to the film's allegations will most likely get a great deal more airtime than the charges themselves.

    If the Democrats can attack and capitalize on this, this could be as powerful a wake-up call to the power of corporate media as Hurricane Katrina was to Bush's negligence.  The overt attempt by one of the largest media corporations in the world to directly influence a major American election terrifies people all across the political spectrum and could become a rallying cry leading into the mid-terms in two months.

    If this can be framed for what it really is, propaganda by a major corporation to keep their political sugar-daddies in power, the backlash against both Republicans and media conglomerates could be tremendous, serving both as an incredibly powerful campaign rallying cry ("Don't let the corporations tell what your children what to think: Vote for your Democratic candidates."), and as momentum which could be carried into the legislative season and used to break up the media conglomerates and reinstate the Fairness Doctrine.

    The important thing to remember is that the Religious Right hates the media (the headquarters for Hollywood liberal Communist homosexuals, as it were) more than almost anything else.  This could allow for a tremendous backlash against the media by the very group it was aimed at with the right framing: "Support for [i]The Path to 9/11[/i] means support for the right of Hollywood of to tell your kids anything they want."  First it's Mickey Mouse, then Brittany Spears, then hardcore pornography and the anti-Christ right around the corner as far as they're concerned.

    Just some ideas from a brain that's had a little too much coffee today, but hopefully it made some sense and someone smarter than I can develop them farther.

  •  ABC has knowledge of the falsity of this crap (2+ / 0-)
    Recommended by:
    Sandy on Signal, varro

    Disney and ABC are guilty of libel if "Path to 9/11" ever airs.  And their affiliate stations are equally guilty, as are all the people involved in writing and producing "Path to 9/11".

    The lies have been repeatedly identified in the media this week.  ABC and Disney are on notice.

    If this garbage ever airs, these f---ers deserve to be sued and sued again until they are penniless.

  •  GREAT diary--thanks! (1+ / 0-)
    Recommended by:
    The Crusty Bunker

    And none of this, of course, addresses any likely congressional action should Dems retake congress. These could prove to be just as if not more severe to Disney and/or ABC.

    I see Disney being forced to sell off ABC--at huge discount--as just one possible consequence--George Soros, are you reading this, as it might be time to sell off those hedge fund shares?

    "Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it's the only thing that ever has." Margaret Mead

    by kovie on Sat Sep 09, 2006 at 01:35:01 PM PDT

  •  You guys have forgotten the important question.. (0+ / 0-)

    WHAT DOES HILLARY CLINTON THINK OF ALL THIS.. MUWAHAHA

    /end snark

    "Congrats, neo-con strategists, a nutcase in a remote Afghani cave managed to predict American foreign policy reactions nearly to the letter." --Hunter

    by RepugRepellant on Sat Sep 09, 2006 at 01:36:15 PM PDT

  •  ok (3+ / 0-)
    This is what I'll do.
    I do afternoon drive at a reasonably popular radio station.
    Some of you know what station and where.
    I will be on the air Monday afternoon, and would be willing to take and air calls from "listeners incensed about the lies they saw on TV last night."
    Yep. You got it. ON 9/11.
    Calls must proceed from the assumption that I'm...uh..less aware of the issue than I actually am.
    "Did you see the....did you know that....this is shameful! I am angry!"
    I will be on the air from 2-6pm EST Monday.
    If you would like the phone number, and other information necessary to play an irate listener, please email me at the addy in my profile.
    Callers with Southern accents will be particularly effective; I'm in Virginia.
    BURN UP MY PHONES.

    Be vewy vewy quiet. I'm hunting wepwicants. (-8.50/-7.13)

    by kestrel9000 on Sat Sep 09, 2006 at 01:41:35 PM PDT

  •  There won't be an injunction in this case. . . (0+ / 0-)

    The show starts airing tomorrow.  And I'm guessing that the defamatory portion -- regarding the Clinton Administration will be aired first.  Therefore, by the time the District Courts open, the damage will have been done.  Clinton may seek an injunction regarding the rest of the series, but a suit for damages would be more appropriate.

  •  Nicely done (0+ / 0-)

    Were, by any chance, my intro. to legal process professor?

  •  Barry Bonds and Steroids (0+ / 0-)

    Just talking to someone about the "fictionalized" aspect. Try this analogy on for size:

    If I did a "docudrama" of Barry Bonds, said some scenes were "dramatized" and "composites" and showed him injecting human growth hormone and steroids straight-up, even though I've never even seen Bonds except on TV do you think I'm going to get sued? Do you think I will lose?

    You shouldn't have to think long about either one.

    Quis custodiet ipsos custodes? (Who will watch the watchers?)

    by The Crusty Bunker on Sat Sep 09, 2006 at 02:48:20 PM PDT

  •  A hypothetical: Clinton WANTS it aired (0+ / 0-)

    If he sues and wins, he's looking at (a) a goldmine recovery (b) retribution © another book deal and (d) maybe his own movie.

    George Mitchell is the chairman of Disney. George Mitchell is a very influential man. George Mitchell could have called a halt to this. George Mitchell is a Democrat.

    Quis custodiet ipsos custodes? (Who will watch the watchers?)

    by The Crusty Bunker on Sat Sep 09, 2006 at 02:53:12 PM PDT

    •  I think so (2+ / 0-)
      Recommended by:
      April Follies, The Crusty Bunker

      If it were me, I'd figure this is defamatory, but in the long run a made-for-TV movie probably isn't a big threat to my legacy. Hell, he survived impeachment with huge public support. I'd also want to avoid being on the side of prior restraint - let everybody see the defamation, then take ABC et al down, and I don't look like a censor.

      Also, once the show airs, remedies become more interesting - retractions, disclaimers, broadcast apologies, equal time to rebut, in addition to loads of cash and reasons to ask for expedited relief instead of a long court battle.

      I think Clinton could win much bigger if this airs.

      In our time, political speech and writing are largely the defense of the indefensible. - George Orwell

      by badger on Sat Sep 09, 2006 at 04:47:26 PM PDT

      [ Parent ]

  •  After Monday - Naming our Remedy and our Price (1+ / 0-)
    Recommended by:
    PaintyKat

    From the comments above and elsewhere it seems to me that Disney/ABC are going to show this thing and that there is not going to be an injunction and maybe not even a law suit.  Accordingly, I would like to see us reach a consensus on how to penalise ABC/Disney out of court what remedy we would like. Here is my take.

    What we want after Monday:

    1. An on-air apology in person by the CEO's of both Disney and ABC.  A written apology by all board members of Disney.  The firing of those responsible.
    1. Five hours of free air time between now and November 2006 for Bill Clinton and others that were defamed and the Democratic party in general.

    The price until the remedy:

    1. ABC programs (TV & Radio) boycotted
    1. ABC advertisers boycotted (national and local)
    1. All financial instruments that include the stock of Disney boycotted
    1. All products of Disney and its subsidiaries boycotted
    1. All products and services of any board member's company boycotted (e.g. Apple, unless Steve Jobs resigns)

    The pain has to be significant and last as long as it takes!

     

    •  Defamation arguments aside, (0+ / 0-)

      ABC's lying extreme rightwing revisionists will be tried in the court of public opinion, up or down.

      It's up to us to thoroughly expose and discredit ABCDisney, the propagandists and their financial backers.
      This can be done.
      Is being done.
      Even Bennett and O'Reilly think it's wrong.

      Clinton, Albright and Berger's decision to file a defamation lawsuit is theirs to make.

  •  Wait One Minute (0+ / 0-)

    Do you mean to imply that Fat Tony is not the impartial arbiter of justice that he swore he would be?  Gadzooks!
    The Republic is in danger.

  •  This would be amazing... (0+ / 0-)

    thanks for the legal background info!!

  •  Everyone on the Dem side will be damaged by this (0+ / 0-)

    ...myself included as far as I'm concerned.  Is a class-action lawsuit in the cards at all?

  •  Oh, dear--Clinton legal team is building its case (2+ / 0-)

    Clinton legal team sends SECOND Letter to ABC

    Building the case for malice. Making the record.

    Yikes, I think I might actually be RIGHT!!

    Quis custodiet ipsos custodes? (Who will watch the watchers?)

    by The Crusty Bunker on Sat Sep 09, 2006 at 05:25:04 PM PDT

  •  No event in recent history, (2+ / 0-)
    Recommended by:
    Sandy on Signal, cfk

    save the non-response to Katrina, has made me as angry as this travesty. Even if they can this thing I will never ever buy any product or view any media produced by ABC or Disney. I will also double my planned political contributions for this November.

    Some have said that Disney execs did not forsee the flak that might arise. I find it hard to believe that they are that stupid. There is either a deal here that has not been revealed or the intention is to take the focus off of Iraq and put it on a bullshit debate about the Clinton age so that many people conclude that both parties are somehow equally complicit in the mess we are now in.

  •  But public figures are not easily defamed. (0+ / 0-)

    I understand the above arguments but I doubt in court they could overcome the fact that the people whose names are blackened in the mockumentary are public figures, former elected officials to be precise.
    In American law you can drag politicians through an awful lot of mud before a court will hold you to account.
    Legally speaking, it's not defamation regardless of what the DNC says.

    Strategy is everything: use what works and throw out the rest.

    by syntacticus on Sat Sep 09, 2006 at 05:39:19 PM PDT

    •  Look to your motto (2+ / 0-)

      What constitutes "winning": A big cash award at the end or bringing the case to put forward the truth, keep the ugliness exposed into 2008 and tie down the oppostion with litigation that is far more expensive to defend than prosecute? Besides, my fear is, walk away from this one and next we get santized-for-our-protection history textbooks. Not Farenheit 911 but the REAL vision of Farenheit 451. And we're not talking choosing a global warming  platform or a stem cell policy, the plaintiffs are out there. THEY will make the decision.

      Quis custodiet ipsos custodes? (Who will watch the watchers?)

      by The Crusty Bunker on Sat Sep 09, 2006 at 05:58:08 PM PDT

      [ Parent ]

      •  You could be right, Crusty. (2+ / 0-)

        I was thinking about it only in narrow legal terms. Litigation, especially involving high profile litigants, is definitely a great way of keeping our concerns in the public eye.
        The problem is that when we get power again they're going to do it to us too. It's an endless cycle of often unproductive nastiness.
        But on the other hand, if it helps us win in November or in 2008 it might be worth the risk.
        I'm glad I'm not the one who has to decide. :)

        Strategy is everything: use what works and throw out the rest.

        by syntacticus on Sat Sep 09, 2006 at 06:10:56 PM PDT

        [ Parent ]

      •  Has this come up? (0+ / 0-)

        Forgive me , Crusty, but after 100+ comments (a great thread! btw) I got so tired that I skipped to the end here to ask a question.  I read earlier today that  America Airlines has the best case of all, because 1) (United?) was the actual airline that 2) Attu(sp?) took from Maine - where he 3)did not come up on the alert list and that contrary to the film, 4) all established security measures were followed.  I would think both airlines could lose a lot of revenue from thes fabrications.  Sorry to be so vague - spent the day in the sun manning the Dem table at a country fair...

        Look Out ~ the meek are getting ready!

        by DvCM on Sat Sep 09, 2006 at 07:57:04 PM PDT

        [ Parent ]

  •  Will this suit be easier to bring in the UK? n/t (1+ / 0-)
    Recommended by:
    Sandy on Signal

    17. Ne5

    In chess you may hit a man when he's down -- Irving Chernev, on Przepiorka v. Prokes, Budapest, 1929

    by Spud1 on Sat Sep 09, 2006 at 07:24:54 PM PDT

  •  Will the right-wing blogs (0+ / 0-)

    that are now illegally posting these clips of the series be open to a lawsuit since they are knowingly spreading libelous content.

    Iraq was not about 9/11. And bin Laden is still free.

    by Naturegal on Sat Sep 09, 2006 at 09:54:42 PM PDT

  •  The point is to win this election. (0+ / 0-)

    Anything can be litigated virtually indefinitely.    

    "... Just so long as I'm the dictator." - GWB, 12/18/00

    by Bob Love on Sat Sep 09, 2006 at 10:06:15 PM PDT

  •  Let it run!! (0+ / 0-)

    The first amendment is not a selective thing.

    Look at it this way: they have an absolute right to drench themselves in gasoline and strike a match.

    Also, it has to air before any damages are suffered.

    The case for malice aforethought is very solid- particulary in the scenes involving Berger and Albright. The Albright scene is directly refuted by the report of the 9/11 commission, which they have irrevocably tied themselves to in their promotional materials.

  •  Informative, Exciting, You Name It... (1+ / 0-)
    Recommended by:
    The Crusty Bunker

    And it sure seemed to involve a lot of thinking and work (and at an early hour), and for that we're all grateful.

Cogito, Greg Greene, Deep Dark, Kimberley, Mary, VA6thDem, claude, Grassroots Mom, Alumbrados, tsackton, JWC, canso, gxschier, Alfred E Newman, Donna Z, DeminNewJ, dwellscho, SteveLCo, Carl Nyberg, coral, fergusrules, From the choir, RF, Aeolus, pb, Kascade Kat, Chango, ROGNM, Fast Pete, Ray Radlein, vtdem, tankej, Radiowalla, thinkdouble, matt n nyc, SMucci, debcoop, Fran for Dean, wystler, Friar, hyperbolic pants explosion, alyosha, sheba, teacherken, ks, DawnG, nanorich, Hell Upside Down, GOTV, Windowdog, bob in ny, moon in the house of moe, tikkun, katerina, abarefootboy, Kimberly Stone, espresso, Gooserock, Pandora, gaspare, TrueBlueMajority, Unstable Isotope, stumpy, Reino, PeterHug, RunawayRose, Winger, Bob Love, ArkansasJoseph, Tom Ball, odum, Robespierrette, Emerson, cici414, dengre, Shockwave, Fishgrease, donna in evanston, Wintermute, SanJoseLady, meg, lysias, Doofus, LEP, Vico, waytac, Lufah, philinmaine, John Campanelli, LeftCoastTimm, polecat, Karl the Idiot, acuppajo, Voodoo, swamp possum, frisco, mpearl, BenGoshi, bumblebums, zeroooo, mataliandy, exNYinTX, expatjourno, MikeRayinBerkeley, fyzixphrog, GreekGirl, redtravelmaster, LIsoundview, Vitarai, mldostert, Heart of the Rockies, Plan9, ajwseven, sardonyx, mjshep, Eternal Hope, Polarmaker, Thistime, bara, km4, Disgusted in St Louis, Italtransit, Boston Boomer, thalio, Xeno of Elia, PaintyKat, Justina, bronte17, Babsnc, conchita, EricS, mentaldebris, Karen Wehrstein, Wee Mama, wonkydonkey, daisy democrat, petercjack, elveta, annrose, SecondComing, Ti Jean, Prairie Logic, Loquatrix, SusanHu, demokath, KMc, stevetat, lunacat, Glic, sukeyna, boilerman10, buckhorn okie, mrblifil, vmibran, marchmoon, high5, SherAn, herenow, roses, chechecule, JuliaAnn, peraspera, FLPeach, tmc, MJB, Swordsmith, itskevin, jsm6022, Boxers, Glinda, semiot, petewsh61, bewert, DoctorScience, arkdem, antirove, Alna Dem, HeyThereItsEric, slackjawedlackey, Mauimom, A Chicagoan in Naples, asterlil, Ludi, webweaver, mayan, jhwygirl, caseynm, annan, emmasnacker, milton333, crkrjx, Kentucky DeanDemocrat, gmb, Boppy, ssundstoel, TXsharon, HeedTheMessenger, yet another liberal, katchen, grayslady, desmoinesdem, churchylafemme, niteskolar, arb, xanthe, EuroDem, Penny Century, dwahzon, 42, nika7k, snakelass, dnn, btyarbro, STOP George, raster44, maye, Mrcia, rlharry, sommervr, lcrp, strengthof10kmen, 313to212, Democratic Hawk, crumb, inclusiveheart, walkshills, outragedinSF, Bluefish, Noisy Democrat, smartgo, Elwood Dowd, KayCeSF, jen, mtzjack, sfluke, Marianne Benz, Black Max, HK, patginsd, rebirtha, mdsiamese, zannie, rickeagle, kd texan, The Gryffin, rolet, Josiah Bartlett, bibble, Shapeshifter, macmcd, My Philosophy, sawgrass727, Gowrie Gal, tea in the harbor, weelzup, averageyoungman, gradinski chai, MichDeb, ukexpat, Recovering Southern Baptist, lavaughn, lcs, tovan, Bluesee, 3goldens, ManOnTheBench, deBOraaah, Owl of Minerva, j sundman, captbobalou, jrooth, champlain, i love san fran, denise b, bellevie, Tami B, liberal atheist, jfdunphy, Elise, enough, Brian Patton, coloradobl, LarisaW, hholli1, Silence Do Good, bokchoy, northernsoul, Alice Marshall, PBen, corvo, Jashugan, Militarytracy, ecoast, ZappoDave, station wagon, zbctj52, juliesie, KiaRioGrl79, Nastja Polisci, suskind, ocooper, cfk, Penman, LNK, eyama, freemark, truebeliever, JoieDe, chicagovigilante, John DE, ladybug53, Zhivago08, sheddhead, annefrank, The Bond Company Stooge, wgard, libbie, Natalie, illyia, bmaples, sunbro, bjedward, twalling, PinHole, rb608, LieparDestin, sfflyman, michele2, Habanero, Cannabis, Zergle, neroden, wiscmass, CarterDulka, Circle, deepsouthdoug, deacon, Red Bean, sleep deprived, bartman, bookwoman, Lindy, doe, Ekaterin, proudprogressiveCA, empathy, flem snopes, roubs, cloverdale, JanF, grapes, kkjohnson, Pacific NW Mark, Asinus Asinum Fricat, Eloi Scientist, fhcec, CJnyc, jiml, NoSpamHere, lcork, SSMir, berko, Strawberrybitch, WuChier, martini, Karyn, Coherent Viewpoint, kovie, Showman, JosephAZ, snazzzybird, danmac, The Man of the Crowd, Thundergod, Uncle Bug, Robert M, Do Tell, bee tzu, cas2, vigilant meerkat, awakenow, njr, BlueInARedState, frogmarchbush, GreenGirl, RAZE, G Red, rl en france, Yellow Canary, cookseytalbott, rcald, mooshter, Pope Bandar bin Turtle, Sagittarius, irishamerican, Gasonfires, goodasgold, StrayCat, Tanya, A Siegel, Lashe, philipmerrill, Dissentinator, N0MAN1968, taraka das, paul2port, condoleaser, Data Pimp, Everest42, NewAmericanLeft, betsyross, mhw, bunk, STEVEinMI, Unitary Moonbat, Metalmaven, llbear, IL clb, Whitney S, ilyana, TeddySanFran, FloridaVoter, Clive all hat no horse Rodeo, va dare, WarrenS, MarketTrustee, BoojumSte, betterdeadthanred, FrankieB, Public Servant, bstotts, Snarcalita, kidneystones, Lurtz, Temmoku, Aaa T Tudeattack, docciavelli, ccyd, old wobbly, beaukitty, smaugg, pmoyle70, grayday101, Serpents Choice, Balam, anotherdemocrat, EclecticFloridian, Cronesense, Wanda517, Cat Whisperer, oscarsmom, dmh44, PhantomFly, whl, Castine, zinfandelfan, gloriana, BruceMcF, EdSF, John Boy, DrWolfy, Patrick Kennedy, Fist of the North Star, voter for sale, Ninepatch, java4every1, klondike, ERyd, lizpolaris, mcc777c2

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site