“Fahrenheit 911” Did Not Defame Iraq War Veteran
 
June 3, 2008
 
Damon M. Seligson- Boston

The U.S. First Circuit Court of Appeals recently ruled that filmmaker Michael Moore did not defame an Iraq war veteran by including a portion of a television interview in the 2004 documentary “Fahrenheit 9/11” without the veteran’s permission.

In Damon v. Moore, the appeals court affirmed the decision of the trial judge who dismissed the action on the basis that the veteran’s appearance in the film could not be construed as defamatory.

While on active National Guard duty in Iraq in 2003, Army Reserves Sgt. Peter J. Damon was injured and lost his right arm and part of his left arm. As he awaited surgery in a heavily sedated state at Walter Reed Army Medical Center in Washington, D.C., he was interviewed by Brian Williams of NBC about a new pain blocker he was receiving. While Damon consented to the NBC interview and subsequent broadcast, he neither consented to the use of the interview in another broadcast, nor was he ever advised that filmmaker Michael Moore was considering using his interview for anything other than the original broadcast. Nonetheless, NBC allowed Moore to place Damon in the documentary, which was highly critical of President George W. Bush and the Iraq war.

Damon’s 16-second clip, in which he described a pain in his hands, was included in the documentary during a segment that discusses the treatment of wounded veterans by President Bush’s administration. In introductory remarks, Moore accuses President Bush of failing to deliver on his public statements of support for the troops, citing, among other things, his administration’s proposals to cut combat pay and veteran benefit programs. Immediately following the introduction, Congressman Jim McDermott of (D-WA) appears on screen and states: “They say they’re not gonna leave any veteran behind, but they’re leaving all kinds of veterans behind.” Damon’s interview follows in which he talks exclusively about his pain and suffering, and the effectiveness of his pain treatment.

Damon filed suit against Moore, the documentary’s producer, claiming that the documentary attacked the integrity of the commander-in-chief and the war effort, and that the documentary falsely portrayed him as sharing, adopting and endorsing Moore’s viewpoint. According to Damon, Moore’s political views are contrary to his own and repugnant to the military veteran community.

Damon initially filed suit in Massachusetts state court asserting claims for: common law appropriation of name, portrait and picture; statutory right to privacy; defamation; intentional infliction of emotional distress; and loss of consortium. After removing the case to the U.S. District Court for the District of Massachusetts, the defendants won dismissal.

Typically, courts deciding libel suits must judge whether the statement in question could lead a reasonable viewer to conclude that it conveyed a defamatory meaning. On appeal, Damon argued that because he is a pro-war veteran active in the armed forces community, the definition of a “reasonable viewer” must be adapted to his personal surroundings. The First Circuit, however, disagreed and affirmed the dismissal.

Writing for the three-judge panel, Judge Aida Delgado-Colon wrote that while Damon’s anger and frustration were understandable, the clip could not reasonably be construed as defamatory under state law. In particular, she found that “[t]here is no reason to believe that a reasonable member of the military or veteran community would conclude that Damon’s appearance in the documentary conveyed a defamatory meaning, and therefore lowered his reputation or subjected him to scorn, hatred, ridicule or contempt in that community.” In short, the appeals court rejected Damon’s argument that a reasonable viewer could construe him as supporting Moore’s “agenda.” The court ruled further that his interview could not be construed as a statement promoting disloyalty or denouncing either the commander-in-chief or the medical treatment received by veterans.

For more information, email Damon M. Seligson at damon.seligson@hklaw.com or call toll free, 1.888.688.8500