新闻传播教案合集（英文版）：大众媒体曲解的历史的法律和文化的重要性

PUBLIC LAW AND LEGAL THEORY RESEARCH PAPER NO. 67 SEPTEMBER 2002 MISDIRECTING MYTHS: THE LEGAL AND CULTURAL SIGNIFICANCE OF DISTORTED HISTORY IN POPULAR MEDIA Paul A. LeBel (Forthcoming, Wake Forest Law Review Vol. 37, No. 4 (December 2002)) This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract_id=331820 A complete index of FSU College of Law Working Papers is available at http://www.law.fsu.edu/faculty/publications/working_papers.php [To be published in Wake Forest Law Review Vol. 37, No. 4 (December 2002)] Revised September 2002 MISDIRECTING MYTHS: THE LEGAL AND CULTURAL SIGNIFICANCE OF DISTORTED HISTORY IN POPULAR MEDIA Paul A. LeBel * The central premise of this issue of the WAKE FOREST LAW REVIEW is that popular media 1 can influence behavior in ways that implicate the segments of the legal system that impose liability on those who cause harm to others. 2 This Article considers another type of influence that can be traced to popular media – an “incitement to citizenship,” if you will. More particularly, the focus is on the presentation of distorted versions of historical events in commercial cinema. The Article examines the cultural effects that such distortions can have on the formation of a national image, 3 and explores the * Professor of Law, Florida State University College of Law. 1 The term “popular media” is used in this Article as an umbrella category that includes film, television, and music. 2 These potentially include tort law, criminal law, and administrative law. This Article will consider only tort litigation, with its accompanying constitutional dimension of First Amendment constraints on the imposition of tort liability for the harm caused by speech. 3 In a recent book, journalist Robert Shogan considers the relationship between politics and culture. Shogan describes the “realm” of culture as “the social order, customs, manners, values and mores; how Americans feel about themselves and each other and how they behave in their personal lives,” distinguishing it from the political domain, which “is ruled by governance, the making and mending and enforcing of the MISDIRECTING MYTHS 2 relationship between law and culture that shapes the milieu within which those effects occur. That relationship is symbiotic, in the sense that the legal system provides considerable protection for popular media, while at the same time popular media play an important role in the construction of attitudes toward the legal system in general. Particularly striking is the media reinforcement of a perception of the legal system as the forum for resolving fundamental political and cultural conflicts. An understanding of who we think we are as a nation can thus be enriched by an examination of the interplay between these aspects of law and culture. 4 I. Introduction: An Intersection of Law and Culture. A. Tort Law and Fiction. Broadcast and published works of fiction 5 can be causally linked to harm in ways that conceivably generate interesting tort litigation along two somewhat related dimensions. One of those types of litigation involves claims based on fictional portrayals of actual events that are alleged to defame or invade the privacy of real persons, 6 while the other, which is the principal theme of many of the laws that order American society.” ROBERT SHOGAN, WAR WITHOUT END: CULTURAL CONFLICT AND THE STRUGGLE FOR AMERICA’S POLITICAL FUTURE 9 (2002). This Article narrows the focus from politics and culture to the legal system and culture. 4 Without doubt, the pluralism and diversity of American society preclude any single conception of a national identity. NEIL CAMPBELL & ALASDAIR KEAN, AMERICAN CULTURAL STUDIES: AN INTRODUCTION TO AMERICAN STUDIES 2-3 (1997). This Article examines influences on the formation of identity, rather than purporting to articulate what that identity actually is. 5 The term “fiction” is being used to exclude news reports and historical work, including documentary filmmaking, that purports to be straightforward reporting of past events. As such, the defining characteristic is the overtly creative nature of the story that is being related in the work. 6 See generally Symposium, Defamation in Fiction, 51 BROOKLYN L. REV. 223 (1985). MISDIRECTING MYTHS 3 contributors to this issue of the WAKE FOREST LAW REVIEW, 7 asserts that the commission of violent acts was incited by the media. 8 Each of those areas of potential tort litigation presents significant and distinct legal and pragmatic considerations. In claims based on the portrayal of the plaintiff in a work of fiction, the central allegation is that harm has been inflicted on the plaintiff by the appearance in the fictional work of a character who is identifiable as the plaintiff. The gravamen of the tort claim based on such a portrayal can be of various types, depending on the circumstances: damage to reputation, 9 publicizing of private facts, 10 portrayal to the public in a false light, 11 appropriation of name or likeness. 12 For cases within the 7 E.g., David A. Anderson, Incitement and Tort Law, 37 WAKE FOREST L. REV. ___ (2002); Susan M. Gilles, “Poisonous” Publications and other False Speech Physical Harm Cases, 37 WAKE FOREST L. REV. ___ (2002). 8 See generally Richard C. Ausness, The Application of Product Liability Principles to Publishers of Violent or Sexually Explicit Material, 52 FLA. L. REV. 603 (2000). Professor Ausness distinguishes between claims based on the information content and those based on the point of view or idea content. This Article employs a somewhat different taxonomy. The “incitement to violence” tort claims under consideration here rest on the proposition that the provocation to act arose out of exposure to the media. It is the act itself, therefore, and not the manner in which the act was performed, that is being causally linked to the media. This conception of the category thus excludes from consideration some of the situations that Professor Ausness includes under the “point of view or idea” label. An advertisement of the services of a “hit man” or an instruction manual for carrying out contract killing, which Professor Ausness classifies as types of “point of view” claims, id. at 613-615, would lie outside the scope of this Article. The reader of those publications, I would assert, has already formed the intent to act. The incitement to violence claims with which this Article is concerned are those that Professor Ausness labels “imitation cases” and “inspiration cases.” Id. at 615-618. 9 Reputational harm is the defining characteristic of the tort of defamation. RESTATEMENT (SECOND) OF TORTS § 558 (1977) (“communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him”). 10 See RESTATEMENT (SECOND) OF TORTS § 652D (1977) (liability for invasion of privacy by giving “publicity to a matter concerning the private life of another .. if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public”). 11 See RESTATEMENT (SECOND) OF TORTS § 652E (1977) (invasion of privacy by giving “publicity to a matter concerning another that places the other before the MISDIRECTING MYTHS 4 incitement to violence category, on the other hand, the harm is inflicted on the victim not so much by the publication 13 itself as by the effect that the publication has on a person who views or listens to the work. Claims of this sort are not necessarily conceptually difficult. They could plausibly fall within the conceptual core of traditional negligence doctrine: 14 the publisher or broadcaster fails to exercise reasonable care for the protection of others from harm when exposure to the publication induces behavior that causes foreseeable harm to the victim. 15 The distinction between those two general types of tort claim may seem at first to correspond to a causal difference between direct and indirect infliction of harm on the victims of the publication. Media works of the first sort would be thought to inflict harm directly on the public in a false light … if … the false light … would be highly offensive to a reasonable person”). 12 See RESTATEMENT (SECOND) OF TORTS § 652C (1977) (invasion of privacy if one “appropriates to his own use or benefit the name or likeness of another”). 13 The term “publication” will be used in this Article as it is in the law of defamation and privacy, that is, for communication to someone other than the subject of the piece. See RESTATEMENT (SECOND) OF TORTS § 577 (1977) (“Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed”). In a general sense, the term will designate work that has been presented to the public, thus including print and broadcast media within its scope. 14 This is not to suggest that courts have found the claims viable. See Part III infra for a discussion of judicial reluctance to find that the elements of traditional negligence claims have been satisfied in incitement to violence cases. The point being made in the text is that the analysis fits comfortably within the traditional negligence framework of duty and causation issues. 15 Characterization of the incitement to violence claims avoids the significant doctrinal and conceptual difficulties encountered in the attempt to locate the theory of liability within the general products liability category of strict liability in tort based on the sale of a defective product. See Ausness, supra note 2, for a comprehensive review of those difficulties. The categorization of media products as “products” for products liability claims was explicitly rejected in the most recent decision on the subject of incitement to violence. James v. Meow Media, Inc., 300 F.3d 683, at ___, No. 00-5922, 2002 WL 1836520, at *14-15 (6 th Cir. Aug. 13, 2002). MISDIRECTING MYTHS 5 victim, 16 while those of the second category cause a third person to injure the victim. 17 In fact, however, cases in which there are direct and indirect causal links between the publication and the victim can arise within each category. Reputational harm occurring from the portrayal of the person in a work of fiction, for example, is by definition the result of a publication causing members of the audience to think less of the victim, 18 and thus constitutes an instance of indirect harm. Furthermore, within the incitement to violence category, the tort claim may be based on the occurrence of self-inflicted harm, 19 in which case the causal connection between the publication and the harm could be said to be direct. A more instructive basis for distinguishing fictional portrayal cases from incitement to violence cases looks at a particular aspect of the content of the publication, rather than at the causal sequence that follows publication. From this non-causal perspective, the key to the distinction between these two types of tort scenarios becomes whether the victim can be identified in the fictional character. The critical factor in the fictional portrayal claim is the resemblance between the person claiming to have been harmed and the fictional person. 20 The incitement to violence claim, on the other hand, requires no such identity to be established between the victim and the fictional person. While it is true that, in a sense, the perpetrator of the violence makes an identification on some psychological level with the actions and motivations of a character in the fictional work, the incitement claim is indifferent to the actual identity of the person who is being portrayed in the work as a fictional character. 16 See, e.g., Pring v. Penthouse Int’l, Ltd., 695 F.2d 438 (10 th Cir. 1982), cert. denied, 462 U.S. 1132 (1983) (beauty contest participant portrayed in highly offensive manner in short story). 17 See, e.g., Olivia N. v. National Broadcasting Co., 178 Cal. Rptr. 888 (Ct. App. 1981), cert. denied, 458 U.S. 1108 (1982) (sexual assault on child allegedly copied broadcast of similar act on network television program). 18 See RESTATEMENT (SECOND) OF TORTS § 558, supra note 9. 19 See, e.g., Watters v. TSR, Inc., 904 F.2d 378 (6 th Cir. 1990) (suicide allegedly induced by “Dungeons and Dragons” game). 20 In Pring, supra note 16, for example, the fictional character was participating in the same beauty pageant, represented the same state, and had the same type of act in the talent segment of the contest as the plaintiff. MISDIRECTING MYTHS 6 Each of these types of tort claim arising out of the publication or broadcast of a work of fiction serves as an important part of the legal background against which to examine another effect that media works of fiction might produce, the shaping of a sense of citizenship, which is the focus of this Article. More specifically, the article examines the intersection of three strands of thought – portrayal of a real person in fiction, incitement to violence, and popular cultural influences on a sense of citizenship – to reveal the interplay of legal ideas in the construction and maintenance of a cultural phenomenon. To keep the enterprise within manageable bounds, the focus of the Article will be limited to one medium – commercial cinema – and one genre – historical recreation. Within that body of work, two quite different films – Oliver Stone’s JFK 21 and Steven Spielberg’s AMISTAD 22 – will serve as illustrative and instructive works. B. Stone and Spielberg: A Study in Contrast. The directorial oeuvres of Oliver Stone and Steven Spielberg include a number of the most significant contemporary films, 23 but it would be difficult to imagine any viewer attributing the work of these two extremely talented individuals to the other. Spielberg has directed such classics of entertainment as the Indiana Jones adventure series, 24 CLOSE ENCOUNTERS OF THE THIRD KIND, 25 E.T. THE EXTRA- 21 Warner Bros. (1991). 22 Dreamworks SKG (1997). 23 Between the two of them, Spielberg and Stone directed six of the American Film Institute’s list of 100 Best Films. They accounted for one-quarter of the twenty-four films on the list that were released since 1975. For the contents and a critical review of the list, see Kenneth Turan, AFI’s Top 100 List: The Ultimate Pitch, L.A. TIMES, Jun. 17, 1998, at F1, available at 1998 WL 2437728. 24 RAIDERS OF THE LOST ARK (Paramount Pictures 1981); INDIANA JONES AND THE TEMPLE OF DOOM (Paramount Pictures 1984); INDIANA JONES AND THE LAST CRUSADE (Paramount Pictures 1989). 25 Columbia Pictures (1977) MISDIRECTING MYTHS 7 TERRESTRIAL, 26 JAWS, 27 and the original and the second sequel of JURASSIC PARK. 28 Stone’s work includes the direction of a trilogy of films about the Vietnam War – PLATOON, 29 BORN ON THE FOURTH OF JULY, 30 and HEAVEN AND EARTH 31 – as well as the powerful cinematic critiques of domestic and foreign policy presented in SALVADOR, 32 WALL STREET 33 and NIXON. 34 Even when Spielberg’s films deal with historical themes, as in SCHINDLER’S LIST 35 and SAVING PRIVATE RYAN, 36 and when Stone turns to less overtly political themes, as in THE DOORS 37 and NATURAL BORN KILLERS, 38 the general tone of the directors’ work is dramatically different, uplifting in the case of Spielberg, pessimistic for Stone. 26 Universal Pictures (1982). 27 Universal Pictures (1975). 28 JURASSIC PARK (Universal Pictures 1993); LOST WORLD: THE JURASSIC PARK (Universal Pictures 1997). 29 Hemdale Film Corp. (1986). 30 Universal Pictures (1989). 31 Warner Bros. (1993). 32 Hemdale Film Corp. (1986). 33 Twentieth Century Fox (1987). 34 Hollywood Pictures (1995). 35 Universal Pictures (1993). 36 Dream Works SKG (1998). 37 Imagine Entertainment (1991). 38 Warner Bros. (1994). Stone’s film was the basis for a tort claim by the survivors of a shooting victim whose assailants viewed the film prior to a crime spree resembling that depicted in the film. The claim was found to be legally sufficient, in Byers v. Edmondson, 712 So. 2d 681 (La. Ct. App. 1998), but constitutionally barred, No. 2001 CA 1184, 2002 WL 1200768 (La. Ct. App. Jun. 5, 2002). The case is considered in Part III infra. MISDIRECTING MYTHS 8 That difference in the tenor of these directors’ work is reflected in a comparison between JFK and AMISTAD. Stone’s film is an account of the assassination of President John Kennedy told from the perspective of New Orleans District Attorney Jim Garrison, who prosecuted – or perhaps more accurately, as some would assert, persecuted 39 – local businessman Clay Shaw for what Garrison alleged was Shaw’s role as a conspirator in the assassination. 40 Stone presents Kennedy as the victim of the powerful resistance by high-placed figures in government and in industry to an anticipated presidential initiative of a withdrawal of the American military from Vietnam. With the President dead, according to the explanation provided in the film by a military special operations source played by Donald Sutherland, the plans for the expansion of the war were able to proceed without White House opposition, to the benefit of both segments of what President Kennedy’s predecessor Dwight Eisenhower had warned about as “the military-industrial complex.” The broad geopolitical motive for the Kennedy assassination hypothesized by Stone, interesting though it may be, offers little in the way of cinematic appeal. The undeniable captivation of the audience by Stone’s film lies in its visual depiction of the shadowy details of an imagined widespread conspiracy culminating in the events of November 1963 in Dallas. The film both displays to the viewer and provides an explanation of the reasons for the shooting in Dealey Plaza and the subsequent killing of accused assassin Lee Harvey Oswald by night club owner Jack Ruby two days after the assassination, while Oswald was in police custody in the Dallas jail. By the film’s end, the viewer has been transported to the darker regions of a political 39 After Shaw’s acquittal on the conspiracy charge, he successfully sued to enjoin Garrison’s subsequent prosecution of him for perjury. The opinion of the District Court sets out extensive support for the proposition that Garrison’s prosecution of Shaw was in bad faith and constituted harassment. Shaw v. Garrison, 328 F. Supp. 390 (E.D. La. 1971), aff’d, 467 F.2d 113 (5 th Cir.), cert. denied, 409 U.S. 1024 (1972). The mistreatment of Shaw is the subject of PATRICIA LAMBERT, FALSE WITNESS: THE REAL STORY OF JIM GARRISON’S INVESTIGATION AND OLIVER STONE’S FILM JFK (1998). 40 Garrison told his story in two books: JIM GARRISON, A HERITAGE OF STONE (1970); JIM GARRISON, ON THE TRAIL OF THE ASSASSINS: MY INVESTIGATION AND PROSECUTION OF THE MURDER OF PRESIDENT KENNEDY (1988). Credits for the film JFK state that it is based on the latter Garrison book, as well as on JIM MARRS, CROSSFIRE: THE PLOT THAT KILLED KENNEDY (1989). MISDIRECTING MYTHS 9 landscape: evil has triumphed over good, the prospect of a policy direction change for the better has been thwarted by a murder planned at the highest level and executed by an interwoven network of government and underworld operatives, and institutions of government at all levels have been complicitous in the creation of a false and sanitized version of the assassination in an effort to dupe the public into believing that it was the work of the now-iconic figure of the “lone gunman.” 41 Spielberg’s film reaches further back into history to tell the story of the 19 th Century fight for freedom of a group of Africans who had been illegally sold into slavery. Captured in west Africa, transported across the Atlantic Ocean under the horrific conditions of the “Middle Passage,” and sold in Cuba, a member of the Mende tribe known in the film as Cinque led an uprising that took control of the Amistad, a schooner in which he and others were being moved to another part of Cuba. Deceived by the course plotted by the slavers who were kept alive to sail the ship back to Africa, Cinque and the others who took control of the ship found themselves off the shore of Long Island, where they were arrested by United States authorities and imprisoned in New Haven, Connecticut, while their future was litigated through the federal courts all the way to the Supreme Court of the United States. That litigation resulted in a judicial declaration acknowledging that they were free, followed by the ultimate return of the surviving captives to Africa. In marked contrast to the gloomy tenor of Stone’s JFK, Spielberg’s AMISTAD presents the viewer with a resounding triumph of the human will for freedom, brought about by a perseverance in the use of the legal process to accomplish a positive end that evoked and affirmed the ideals on which the nation was founded. The difference in the fundamental attitudes of the filmmakers toward the legal process can be encapsulated in casting decisions that each of them made. Oliver Stone put prosecutor and critic of the report 41 This is only one of the terms that have entered American popular culture since the Kennedy assassination. The long-running television series The X Files used the term as the name of the group of conspiracy theorists who covertly assisted the show’s lead character. “Grassy knoll” is another term that can be attributed to the continuing popular fascination with the assassination. MISDIRECTING MYTHS 10 of the Warren Commission Jim Garrison 42 in the film role of Chief Justice Earl Warren, reflecting a cynicism that is breathtaking in its lack of respect for the legacy of a judicial figure who was so instrumental in the advance of civil rights and the constitutional protection of the criminal accused. 43 Steven Spielberg, on the other hand, had the character of Supreme Court Justice Joseph Story, who in the film reads from the bench the opinion that freed the Amistad captives, played by then retired Supreme Court Justice Harry Blackmun. The casting of these roles of members of the Supreme Court in ways that deal with their legacy so differently is a powerful demonstration of the bias of these films, treating that legacy with honor in the case of Spielberg, mocking that legacy in the case of Stone. While they do so in ways that deliver almost diametrically opposed messages about American institutions, each of these films presents an account of historical events that creatively distorts those events. The next section of this Article examines those distortions, and considers the effects of the films on the mythology of our national image. II. Cinematic Distortions of History and Their Effects on Models of Citizenship. A. Films and History. Cinematic presentations of historical events are, as the title of a Newsweek magazine review of Oliver Stone’s JFK put it, “twisted history.” 44 Even conceding that the telling of all history is necessarily 42 The character of Garrison in the film is played by Kevin Costner in a performance that, even for him, is particularly insipid. 43 See generally ED CRAY, CHIEF JUSTICE: A BIOGRAPHY OF EARL WARREN (1997); LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS (2000); G. EDWARD WHITE, EARL WARREN: A PUBLIC LIFE (1987). 44 Kenneth Auchincloss et al., Twisted History, Newsweek, Dec. 23, 1991, reprinted in OLIVER STONE & ZACHARY SKLAR, JFK: THE BOOK OF THE FILM 289 (1992). One commentator notes that “[f]ilms of historical recreation are different from both documentary and science fiction movies but it is not always easy to specify that MISDIRECTING MYTHS 11 selective 45 and that visual media communicate differently from printed words, 46 films about historical events are more consciously apt to compress and to conflate in order to create a compelling entertainment out of the historical facts. 47 Films are (at their best) art and (at the least) entertainment. Accordingly, one would expect that a filmmaker’s judgments about how to depict historical events are going to be responsive to critical factors of judgment other than those of the professional historian. 48 “That’s not what really happened” can be a less telling critique of a filmmaker whose work treats historical subjects than it is of a conventional historian. In an essay that is supportive of the artistic license to engage in the distortion of actual events in historical films, distinction in adequately concrete terms or reliable rules. ... JFK is not a documentary. Stone’s film ... is also, in important respects, similar to films ... located in the social science fiction subgenre.” Anthony Chase, Historical Reconstruction in Popular Legal and Political Culture, 24 SETON HALL L. REV. 1969, 2017 (1994). 45 JOYCE APPLEBY, LYNN HUNT & MARGARET JACOB, TELLING THE TRUTH ABOUT HISTORY (1994) (examining the absolutisms that underlie historical truth, and proposing a new understanding of historical objectivity). 46 DAVID A. BLACK, LAW IN FILM: RESONANCE AND REPRESENTATION 39 (1999) (the difference is “formal, material, graphic, even narrative. It is also a difference between the presence and absence of pleasure.”). The difference in effect between film and print is summarized well by Robert Rosenstone, who notes that “[o]n the screen, several things occur simultaneously – image, sound, language, even text – elements that support and work against one another to create a realm of meaning as different from written history as it was from oral history.” Robert A. Rosenstone, Oliver Stone as Historian, in OLIVER STONE’S USA: FILM, HISTORY, AND CONTROVERSY 26, 32 (Robert Brent Toplin ed., 2000). 47 As the Newsweek review of the film states it: “A movie or a television show that re- creates history inevitably distorts history. It has to compress things into a short span; it has to extract clarity out of the essential messiness of life; it has to abide by certain dramatic conventions: major scenes, major characters, major speeches.” Auchincloss, Twisted History, supra note 44, at 290. 48 See Marcus Raskin, JFK and the Culture of Violence, 97 AM. HISTORICAL REVIEW 487, 487 (1992) (“It does no good to pick apart the rendering of an event by an artist. His or her purpose is not the particular but the general. It is to take an event and see within it a series of truths, some felt, some unconsciously understood and hardly articulated, that make sense and meaning of an event, its cause, and its implications.”). MISDIRECTING MYTHS 12 historian Robert Rosenstone identified three creative techniques that might be employed by the filmmaker: “Compression (bringing together actual events that occurred in different times and places), Alteration (changing events slightly to highlight their underlying meanings), and Metaphor (using an invented image to stand for or sum up events too complex, lengthy, or difficult to depict).” 49 In spite of the recognition of the measure of creativity that is necessary in making movies of historical events, part of the controversy surrounding Oliver Stone’s historical films has raised the question of whether Stone is, or perceives himself to be, an historian, a question on which Stone has sometimes appeared to give conflicting answers. 50 Rosenstone has reframed the issue by offering a definition of history that is broad enough to take any sting out of the question of whether an enterprise such as Stone’s JFK is really history. History, according to Rosenstone, “is no more (and no less) than the attempt to recount, explain, and interpret the past, to give meaning to events, moments, movements, people, periods of time that have vanished.” 51 Stone himself has expressed a similarly broad definition of history as “inquiry.” 52 While a very loose conception of history may adequately deflect the objectionable quality of the mere fact that there are distortions of the historical record in a film such as JFK, a legitimate inquiry remains about the magnitude and the meaning of the distortions. Rosenstone 49 Rosenstone, Oliver Stone as Historian, supra note 46, at 32 (emphasis in original). 50 Compare Oliver Stone, Stone on Stone’s Image (As Presented by Some Historians), in OLIVER STONE’S USA (Toplin ed.), supra note 46, at 40 (“let me make this as plain as I possibly can: I do not consider myself as a cinematic historian now or ever and, to the best of my knowledge, have not made that claim”) (emphasis in original) with Michael J. Kurtz, Oliver Stone, JFK, and History, in OLIVER STONE’S USA (Toplin ed.), supra note 46, at 167 (“Not long before he began filming JFK, Oliver Stone told the Dallas Morning News that he was a ‘cinematic historian’ and that the movie would be a ‘history lesson’.”). 51 Rosenstone, Oliver Stone as Historian, supra note 46, at 28. 52 Oliver Stone, Oliver Stone Talks Back, PREMIERE, Jan. 1992, reprinted in STONE & SKLAR, JFK: THE BOOK OF THE FILM, supra note 44, at 349, 350 (“ ‘History,’ in its original Greek sense (historia), means ‘inquiry,’ and in that light, my film, any film, any work of art, has the right to reexplore an event”). MISDIRECTING MYTHS 13 has constructed a helpful standard by which to judge historical films, “not on the level of detail but at the level of argument, metaphor, symbol.” 53 Even so, the filmmaker is constrained to some extent. “A historical film,” Rosenberg writes, “does not indulge in capricious invention and does not ignore the findings and assertions of what we already know.” 54 Acting responsibly within that constraint, the filmmaker can exercise creativity and “make the past meaningful in three different ways … [to] Vision, Contest, and Revision history.” 55 To Vision history is to put flesh and blood on the past . . . to give us the experience of the past. . . . . . . To Contest history is to provide interpretations that run against traditional wisdom or generally accepted views. . . . . . . To Revision history is to show us the past in new and unexpected ways, to utilize an aesthetic that violates the traditional, realistic ways of telling the past, that does not follow a normal dramatic structure, or that mixes genres and modes. 56 All three of these ways of making the past meaningful are employed to great effect in Stone’s JFK. The dramatic impact of the message of Stone’s film is traceable largely to the often seamless blending of fact and fiction in creating an account of the Kennedy assassination that visions that historical event. The cinematographic virtuosity of JFK lies in the interweaving of the filmmaker’s own imagined scenes with the photographic record of the events, creating the impression of “watching an informative 53 Rosenstone, Oliver Stone as Historian, supra note 46, at 34. 54 Id. 55 Id. at 35 (emphasis in original). 56 Id. at 34-35 (emphasis in original). MISDIRECTING MYTHS 14 documentary on the assassination.” 57 In what has been described as a “manipulation of evidence,” JFK blends “enacted scenes in grainy black-and-white footage . . . [creating] the appearance of actual documentary information . . . with real imagery created in 1963.” 58 The resulting visual experience can be so compelling that one commentator believed that “viewers could not intelligently distinguish true evidence from staged evidence.” 59 Stone’s contesting of history in JFK is the central message of the film, which leads up to a long closing argument by District Attorney Garrison to the jury in the Clay Shaw conspiracy trial, 60 serving as the culmination of the film’s unmasking of the lies and cover-up in the official history of the assassination and its causes. The Garrison scenario presented in the film’s recounting of the trial testimony and the closing argument effectively points to all the holes in the “lone gunman” explanation of the Kennedy assassination reached by the Warren Commission, 61 but does little to establish the criminal liability of the alleged conspirator Clay Shaw, resulting, in the film as in the actual trial, in the jury’s quick return of a verdict of acquittal of Shaw. The revisioning of history that Stone constructs in JFK has both positive and negative dimensions. The film is in part an elegy for the lost hope of the Kennedy Presidency, which Stone endows with a panacean future. 62 That sense of loss, however, is accompanied by a 57 Robert Brent Toplin, Introduction, in OLIVER STONE’S USA (Toplin ed.), supra note 46, at 3, 10. 58 Id. at 13. 59 Id. 60 The screenplay of the closing argument is in STONE & SKLAR, JFK: THE BOOK OF THE FILM, supra note 44, at 176-179. The argument actually delivered by Garrison in the trial is also printed in the Stone & Sklar book, at 545-549. 61 Id. at 151-176. 62 ROBERT ALAN GOLDBERG, ENEMIES WITHIN: THE CULTURE OF CONSPIRACY IN MODERN AMERICA 125-126 (2001) (“Here was a vision of Camelot, prompted by the promise of change. If touched by romanticism, conspiracy thinking as counterhistory was a contest for authority with those who offered America less noble direction”). MISDIRECTING MYTHS 15 strong sense of anger in light of the grim implications of what Stone has the Jim Garrison character describe as America’s first coup d’etat. 63 If Stone’s JFK tells the story of a national nightmare we might hope isn’t true, Spielberg’s AMISTAD recounts a national past we may wish were ours. Spielberg’s film revisits and revisions historical events in a way that creates an image of our national commitment to principles of freedom that is considerably more positive than the actual record of the Amistad litigation and its time suggests. Iyunolu Osagie’s recent book about the cultural significance of the historical events surrounding the Amistad incident includes the treatment of those events in the Spielberg film. Osagie detects in AMISTAD the same sorts of distortions that were present in Stone’s film. 64 Just as was the case with the history that was presented by Stone in JFK, Osagie notes that “Spielberg … privileges dramatic and narrative cohesiveness over historical accuracy.” 65 Echoing the critical commentary about JFK, Osagie concludes that Spielberg’s film is simply one illustration of “Hollywood’s … conflation of imagination and reality [that] is often indistinguishable and misleading.” 66 Spielberg’s version of the Amistad story is an impassioned articulation and ringing endorsement of the inalienable right of human beings to freedom. The legal system is shown operating in the role of protector of the weak, the alien, and the oppressed. The successive stages of the legal process depicted in the film culminate in the character of Justice Story reading a passage from what purports to be the opinion of the Supreme Court, declaring the Amistad captives to be “free individuals with certain legal and moral rights, including the right to engage in insurrection against those who would deny them their freedom.” 67 While the opinion that the Court actually issued in the 63 STONE & SKLAR, JFK: THE BOOK OF THE FILM, supra note 44, at 177. 64 IYUNOLU FOLAYAN OSAGIE, THE AMISTAD REVOLT: MEMORY, SLAVERY, AND THE POLITICS OF IDENTITY IN THE UNITED STATES AND SIERRA LEONE (2000). 65 Id. at 21. 66 Id. at 130. 67 Quotations from the film AMISTAD have been transcribed by the author. MISDIRECTING MYTHS 16 Amistad case did make passing reference to “the eternal principles of justice” and concluded that the Amistad captives were “declared to be free,” 68 the Court did not articulate the right of insurrection that appeared in the film’s version of the opinion. That omission from the actual opinion is not surprising. In light of the fairly recent experience with slave insurrections in Southern states, 69 such a statement by the Court in 1841 would have been quite remarkable and provocative. The reality of the Amistad opinion shows the Court to have been considerably less committed to an understanding of those “eternal principles” that serve as a foundation of an inalienable right to freedom, and more concerned with an application of the legal notions prevailing at the time that upheld the status of slaves as property. 70 As one commentator on the Amistad case has characterized the decision, “the Court’s reasoning carefully avoids giving any higher law argument any apparent force in the outcome. . . . Story’s decision studiously avoids giving weight to the higher law arguments” made by the counsel for the Amistad captives. 71 The Amistad decision rests on the most legalistic of bases – the evidence adduced at the trial failed to support the claim that the captives had ever been slaves in Cuba under the Spanish law of that time, and accordingly, the legally supportable right of the putative 68 Those phrases were used in Justice Story’s opinion. U.S. v. Libellants & Claimants of the Schooner Amistad, 40 U.S. 518, 593 & 595 (1841). 69 Professor Osagie weaves the Amistad story into a pattern that identifies links between slave revolts in America and the early 19 th Century insurrection leading to the establishment of Haiti. OSAGIE, THE AMISTAD REVOLT, supra note 59, at 35-43. A masterful creative treatment of the Haiti insurrection is found in the first two of a projected trilogy of novels by Madison Smartt Bell, ALL SOULS’ RISING (1995) and MASTER OF THE CROSSROADS (2000). 70 In some respects, the Amistad opinion is a model of technical legal reasoning from morally illegitimate premises. Two recent articles explore the use of the case as a teaching tool for the law of property, among other topics. Brant T. Lee, Teaching the Amistad, 46 ST. LOUIS U. L.J. 775 (2002); Roger S. Clark, Steven Spielberg’s Amistad and Other Things I Have Thought About in the Past Forty Years: International (Criminal) Law, Conflict of Laws, Insurance and Slavery, 30 RUTGERS L.J. 371 (1999). 71 GREGG D. CRANE, RACE, CITIZENSHIP, AND LAW IN AMERICAN LITERATURE 35 (2002). MISDIRECTING MYTHS 17 owners of the slaves to recover their property was not applicable. 72 Neither the status of slaves as property nor the legal right to recover such property are questioned in the opinion. Rather than drawing on the universality of inalienable rights, the Court used conventional legal reasoning to conclude that the case presented something in the nature of a category error – slaves are returnable to their owners or their agents, but the Amistad captives were not slaves. Had the evidence been different, or had the documents on which the enslaved status of the captives was based been entitled to more weight than being only “prima facie evidence of the facts which they purport to state,” 73 the Court indicated that it was fully prepared to enforce the property rights of the slaveholders in the captives: If these negroes were, at the time, lawfully held as slaves under the laws of Spain, and recognized under those laws as property capable of being lawfully bought and sold; we see no reason why they may not justly be deemed within the intent of the treaty, to be included under the denomination of merchandise, and, as such ought to be restored to the claimants. 74 Spielberg’s dramatic rendition of an eloquent argument before the Supreme Court highlights the role played by former President John Quincy Adams in the resolution of the Amistad dispute. 75 The film’s depiction of the Court’s reliance on a natural right to freedom is 72 40 U.S. at 593 (“It is plain beyond controversy, if we examine the evidence, that these negroes never were the lawful slaves of Ruiz or Montez, or of any other Spanish subjects. They … were kidnapped … and were unlawfully transported to Cuba, in violation of the laws and treaties of Spain, and the most solemn edicts and declarations of that government. By those laws, and treaties, and edicts, … the negroes thereby introduced into the dominions of Spain, are declared to be free.”) (emphasis added). 73 Id. at 594. 74 Id. at 593. 75 See OSAGIE, THE AMISTAD REVOLT, supra note 64, at 126 (“Instead of focusing on the many different contexts in which the Africans articulated their subjectivity, the movie plot seems to pivot on the centrality of Adams.”). MISDIRECTING MYTHS 18 presented as a result of the persuasive advocacy by Adams, the most famous of the captives’ attorneys. As is the case with the film’s treatment of the Court’s opinion, the film takes great liberty with the Adams argument. Three of the most important and moving segments of the argument delivered by Adams in the film are creative inventions. The film’s character of Adams transforms the argument before the Supreme Court from the abstract to the real, personalizing the situation of the Amistad captives by having Cinque, the leader of the revolt, stand in front of the Justices. Adams refers to Cinque as “the only true hero in this court,” and contrasts the acclaim that he would have received if the resemblance were widely recognized between his fight for freedom and the actions of the Revolutionary generation of Americans in seeking our national freedom. Adams then sets up a parallel between the traditional role of ancestors among Cinque’s Mende people and the most noted figures in the founding of the United States. In a scene between Adams and Cinque that occurs immediately before the Supreme Court argument, Cinque has explained the importance of his relationship to his ancestors: I will call into the past, far back to the beginning of time, and beg [my ancestors] to come and help me. I will reach back and draw them into me. And they must come. For at this moment, I am the whole reason they have existed at all. In his argument to the Supreme Court, Adams then recounts to the Court that conversation “with my friend Cinque” thus: When a member of the Mende . . . encounters a situation where there appears no hope at all, he invokes his ancestors. Tradition. If one can summon the spirits of his ancestors, then they have never left. And the wisdom and strength they fathered and inspired will come to his aid. Adams then surveys the busts situated on pedestals along the wall of the courtroom, invoking the spirits of the Revolutionary leaders – Madison, Hamilton, Franklin, Jefferson, Washington, and John Adams MISDIRECTING MYTHS 19 – for the same purpose as Cinque’s calling on his ancestors: “We understand now, we’ve been made to understand, and to embrace the understanding, that who we are is who we were.” Finally, recognizing that any Supreme Court decision that purports to rest on inalienable principles of justice threatens the unity of the nation in which the status of slavery is a such a pervasive source of political tension, the Adams character concludes his argument in the film with a call to face head on the consequences of embracing those principles: “Give us the courage to do what is right. If it means civil war, let it come. And when it does, may it be finally the last battle of the American Revolution.” As was the case with Spielberg’s treatment of the actual opinion by Justice Story, the argument that Adams actually delivered to the Supreme Court was considerably more mundane and less morally uplifting than the film’s presentation would suggest. 76 Adams did invoke the Declaration of Independence as a basis for resolving the case, 77 but that was a relatively minor part of the argument he delivered. A great deal of a two-day argument by Adams was devoted to two main themes: attacking what Adams characterized as the Van Buren administration’s capitulation to the demand of the Spanish government for the return of the Amistad captives, and distinguishing an unfavorable 1825 precedent 78 in the Supreme Court. Instead of 76 Because the manuscript was not received in time for publication, the written text of the argument delivered by Adams was not summarized by the Reporter. The irrelevance to the decision of much of the Adams argument was noted by the Reporter as making its omission from the report of the opinion less of a loss to readers. 40 U.S. at 566 (“As many of the points presented by Mr. Adams, in the discussion of the cause, were not considered by the court essential to its decision, and were not taken notice of in the opinion of the court, delivered by Mr. Justice Story, the necessary omission of the argument is submitted to with less regret”). The argument was published as a pamphlet in 1841. JOHN QUINCY ADAMS, ARGUMENT OF JOHN QUINCY ADAMS BEFORE THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF THE UNITED STATES, APPELLANTS, VS. CINQUE, AND OTHERS, AFRICANS, CAPTURED IN THE SCHOONER AMISTAD, BY LIEUT. GEDNEY, DELIVERED ON THE 24 TH OF FEBRUARY AND 1 ST OF MARCH 1841 (1841). An easily accessible text of the Adams argument can be found at http://www.multied.com/amistad/amistad.html. 77 A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR: RACE & THE AMERICAN LEGAL PROCESS: THE COLONIAL PERIOD 387 (1978). 78 The Antelope, 23 U.S. 66 (1825) (upholding the claim of foreign slaveholders to Africans being transported on a ship seized by American authorities). One of Chief MISDIRECTING MYTHS 20 drawing inspiration from a consideration of the busts of the nation’s founders, Adams’ nostalgic conclusion to his argument invoked the names of some of the Justices and court officials of his own earlier period of practice before the Court, urging the present Justices to honor the memory of their predecessors. 79 Rather than the peroration about accepting the prospect of war in defense of the principle of liberty that was delivered at the conclusion of the argument in the film, Adams actually concluded his argument by reminding the Court that “I have avoided, purposely avoided, and this Court will do justice to the motive for which I have avoided, a recurrence to those first principles of liberty which might well have been invoked in the argument of this cause.” 80 Howard Jones, in his history of the Amistad events, 81 contrasted the emphasis of the contemporaneous public perception of the opinion and the true thrust of the decision. The decision of the court was “along purely legal lines ... but the only impression the public” (and subsequently, one might add, the viewers of Spielberg’s film) “received …was that the Court had set the blacks unequivocally free.” 82 What was said by Jones to constitute the reaction among the anti-slavery community of the time could equally be applied to the film: “Many subtleties … disappeared in the excitement over the victory – that Story had reiterated the slaves’ status as property; that slaves had no rights as human beings; that Story had by implication affirmed that slave Justice John Marshall’s biographers, reacting to accusations that Marshall’s position on slavery was less than admirable, has said that his decision in the Antelope case “showed a man caught between the law which permitted immorality and his own conscience which told him the practices of slavery and of trading in slaves were morally wrong and should not be upheld by the law he had sworn to protect.” LEONARD BAKER, JOHN MARSHALL: A LIFE IN LAW 729 (1974). 79 ADAMS, ARGUMENT BEFORE THE SUPREME COURT, supra note 76 (“Where are they all? Gone! Gone! All gone! – Gone from the services which, in their day and generation, they faithfully rendered to their country. … In taking, then, my final leave of this … Honorable Court, I can only ejaculate a fervent petition to Heaven, that every member of it may go to his final account with as little of earthly frailty to answer for as those illustrious dead.”). 80 Id. 81 HOWARD JONES, MUTINY ON THE AMISTAD: THE SAGA OF A SLAVE REVOLT AND ITS IMPACT ON AMERICAN ABOLITION, LAW, AND DIPLOMACY (1987). 82 Id. at 193. MISDIRECTING MYTHS 21 property taken from one jurisdiction to another was subject to return upon appeal.” 83 What was left merely as an implication of the Amistad case was to be made explicit sixteen years later, in the Supreme Court’s Dred Scott decision, 84 which provided another of the sparks igniting the conflagration from which the Adams of Spielberg’s film urged the Court and the nation not to shrink. B. The Cultural Power of Historical Films. As the character John Quincy Adams tells the Supreme Court in Spielberg’s AMISTAD, “who we are is who we were.” What matters just as much as the historical facts in how we come to an understanding of our national identity is what story we tell ourselves of “who we were,” and cinema can play an important role in shaping that story. The power of cinema to affect popular opinion has been recognized by historian Robert Alan Goldberg: Film presents an opening to the past, for it reflects the attitudes, anxieties, and values of a people and their times. Its messages expose a society’s dreams and myths while nurturing identities. But motion pictures are more than mirrors. Disguised as entertainment, film plays an opinion-shaping role. It engages events and debates ideas. It praises and condemns, instructs us on what is right and wrong, and helps us distinguish friend from foe. When their images are as large as the silver screen, the power of filmmakers to reflect and mold perceptions cannot be underestimated. 85 The effects of film on our understanding of who we are as a nation, and the sense of citizenship that flows from that understanding, are 83 Id. at 194. 84 Scott v. Sandford, 60 U.S. 393 (1857). 85 GOLDBERG, ENEMIES WITHIN, supra note 62, at 32. Given the sense of the passage, one suspects that the concluding phrase in the quotation should read either “ought not to be underestimated” or “cannot be overestimated.” MISDIRECTING MYTHS 22 particularly important when the film is a presentation of significant events in the nation’s history. That proposition might be advanced in various strengths, from filmmakers being seen as “the twentieth century’s most influential historians” 86 or more modestly as “chroniclers of contemporary history.” 87 In either case, the distortion of history in film is thus a significant cultural phenomenon precisely because film is a powerful medium in the construction of our national myths. The mythologizing function of historical films has been particularly prominent in Stone’s work. 88 Robert Rosenstone has said of Stone’s work in general, “He is, in a sense, making history by making myths, making myths by wanting to tell truths, wanting the myths he recounts to have a truth value.” 89 Stone himself has embraced a myth-making dimension of JFK, describing his work as an “attempt[…] to film the true inner meaning of the Dallas labyrinth – the mythical and spiritual dimension of Kennedy’s murder – to help us understand why the shots in Dealey Plaza still continue to reverberate in our nightmares.” 90 The intuitively likely supposition that a film as powerful as JFK actually has an effect on its viewers is not just a matter of conjecture. In 1992, soon after the public release of JFK, Lisa Butler and other researchers in psychology at Stanford University investigated the effect that Stone’s film had on filmgoers’ political attitudes and behavior, 91 86 Id. at 139. See also Rosenstone, Oliver Stone as Historian, supra note 46, at 38 (“Surely public history in the future is less likely to be propagated by scholarly monographs than by stories presented on the large and small screens.”). 87 MICHAEL KAMMEN, AMERICAN CULTURE, AMERICAN TASTES: SOCIAL CHANGE AND THE 20 TH CENTURY 69 (1999). 88 See Raskin, JFK and the Culture of Violence, supra note 48, at 487 (“JFK … is not a lie. It is a myth of heroic dramatic proportions”). 89 Rosenstone, Oliver Stone as Historian, supra note 46, at 38. 90 Oliver Stone, Oliver Stone Talks Back, PREMIERE (January 1992), in STONE & SKLAR, JFK: THE BOOK OF THE FILM, supra note 44, at 349, 356. 91 Lisa D. Butler, Cheryl Koopman & Philip G. Zimbardo, The Psychological Impact of Viewing the Film JFK: Emotions, Beliefs, and Political Behavior Intentions, 16 POLITICAL PSYCHOLOGY 237 (1995). MISDIRECTING MYTHS 23 in a study that was designed to identify “some of the psychological effects of viewing the film … on movie-going audiences in a field setting.” 92 Because of what they saw as the film’s “hypothesis that a broad-based conspiracy was behind the Kennedy assassination and its cover-up … [with] editing [that] strongly implied that those likely to have been involved in the assassination included weapons manufacturers, Pentagon and CIA officials, the Mafia, Cuban exiles, the Dallas police, and even Vice President Lyndon B. Johnson,” 93 the Stanford researchers considered that JFK, presenting “both a depiction of a historical event and a controversial interpretation of its possible causes, offer[ed] a unique window onto the psychological processes that come to bear on an issue so crowded with facts, speculation, and emotion.” 94 In contrast to other social science research about the effects of movies and television that they had reviewed, 95 Butler et al. set up their study “to assess the film’s power to modify more general political and personal beliefs, moods, and, most significantly, the intended future political behavior of those who saw the film.” 96 On multiple dimensions that were investigated in the study, the film was found to have had an impact on the audience that viewed it. ? Emotions – “people felt more angry, more fearful, more energized, and less hopeful.” 97 ? Beliefs about the assassination – “the evidence behind the film’s advocated position was accepted as fairly accurate by the majority of viewers … [and] greater likelihood of involvement 92 Id. at 238. 93 Id. 94 Id. at 239. 95 Id. at 239-240. 96 Id. at 241. 97 Id. at 244 (a doubling of anger was identified as the “major emotional effect of the film”). Anger was the only emotional effect that was statistically significant. Id. at 244-245. MISDIRECTING MYTHS 24 in Kennedy’s assassination [ascribed] to everyone listed except Oswald, the Mafia, and the Dallas police.” 98 ? Intended political behavior – the film “had a (surprising) negative impact on intentions to engage in several political activities,” including voting, donating money, and volunteering for political action. 99 The researchers concluded that the “key point of this analysis is that the JFK film exerted an effect that went beyond arousing emotions and influencing beliefs to modifying intended political actions in many of its viewers.” 100 Because the viewing of a single film is likely to underdetermine future behavior, the effect of the film on political actions by its viewers is necessarily tentative. Other influences are likely to intervene between the attendance at the film and the opportunity for engaging in a political action, and the strength of the effect of the film on behavior would be expected to diminish over time. What may be more significant as a cultural effect of the film is the perception that it creates of a conspiratorial power structure that individual citizens, even those such as Garrison who possessed prosecutorial authority, are incapable of controlling or effectively challenging. 101 As Rosenstone put it, “JFK leaves us with the feeling that we live in a dangerous national security state that is out of the people’s control, a state of hidden powers that control national and international events – including the assassination.” 102 In his study of 98 Id. at 245. 99 Id. at 248. An increased intention “to become more personally informed about political activities” was not statistically significant. 100 Id. at 248-249. 101 GOLDBERG, ENEMIES WITHIN, supra note 62, at 106 (“To the great majority of Americans, the idea of an assassination conspiracy, if not its consequences, was conventional wisdom. This questioning of authority, moreover, proved contagious and accelerated the loss of faith in core institutions.”). 102 Rosenstone, Oliver Stone as Historian, supra note 46, at 37. MISDIRECTING MYTHS 25 conspiracy theories in America, Robert Goldberg similarly noted that “[a]lready cynical and streetwise, audiences were receptive to a counterhistory pitted with deceits, betrayals, and lost opportunities.” 103 In Goldberg’s view, “[w]ith America’s sense of its past so weak and affording little protection, history was reborn as conspiracy.” 104 The film’s message of a powerful conspiracy behind the assassination especially resonated with younger viewers. Butler et al. reported that “viewers, born after Kennedy’s assassination, were significantly more confident in their assessments of involvement [of various alleged conspirators] than were older persons.” 105 That result of the psychological study reinforces a concern that was expressed in some of the critical commentary at the time of the film’s release. One critic of the film feared, for example, that “[a]n entire generation of filmgoers is hereafter going to look at these events through Stone’s prism.” 106 The Stanford researchers concluded the report of their study of the psychological effects of viewing JFK by expressing a “concern that the media, even the cinema where fiction and fact may be unabashedly indistinguishable, is a powerful tool for both education and for misinformation.” 107 The corrective force for the misinformation, they contended, is to be found in the audience: “Clearly, ... the responsibility for attaining perspective, balance, and verity has to lie not only with the media-maker but also with the media-consumer.” 108 Viewers who have no independent recollection of the assassination would necessarily be forced to draw on other historical sources for competing interpretations, which may be somewhat alarming given recent studies that suggest that schools in this country are doing a particularly poor job of teaching 103 GOLDBERG, ENEMIES WITHIN, supra note 62, at 141. 104 Id. 105 Butler et al., Viewing the Film JFK, supra note 91, at 246. 106 David Ansen, A Troublemaker for Our Times, NEWSWEEK (Dec. 23, 1991), reprinted in STONE & SKLAR, JFK: THE BOOK OF THE FILM, supra note 44, at 296. 107 Butler et al., Viewing the Film JFK, supra note 91, at 255. 108 Id. MISDIRECTING MYTHS 26 history. 109 If ignorance about history leaves the media-consumer as ill- equipped to distinguish fact from fiction as education critics have suggested, one might understandably be uneasy about the degree to which relying on the audience of historical films will mean that “perspective, balance, and verity” are attained. 110 The characterization of JFK as presenting a negative image of the nation’s power structure should not translate into a facile judgment that the film has only adverse effects on the sense of citizenship it engenders. Neil Longley York has recently written about differences in the treatments by a historian, a novelist, and a filmmaker of an event that actually occurred during the Civil War. 111 In making the point that “[m]ost of us . . . learn about our past from a mishmash of sources and without giving much thought to how the national memory is formed,” 112 York reminds us that “[p]atriotism, broadly construed, does not refer to just the beliefs of flag-waving traditionalists. Revisionism can be a form of patriotism, too, if the aim is to create a substitute image of what the nation should be or should have been all along.” 113 As noted above, 114 revisionism is an important dimension of the JFK story. In an essay published soon after the release of JFK, Robert Rosenstone concluded that Stone’s film was a success precisely because of the challenge it posed to the national image: If it is part of the burden of the historical work to make us rethink how we got to where we are, and to make us question values that we and our leaders and our 109 Diana J. Schemo, Students, Especially 12 th Graders, Do Poorly on History Tests, N.Y. TIMES (May 10, 2002), at A1. 110 See text supra at note 108. 111 NEIL LONGLEY YORK, FICTION AS FACT: THE HORSE SOLDIERS AND POPULAR MEMORY (2001). 112 Id. at xiii. 113 Id. at 141-142. 114 See supra text at notes 62-63. MISDIRECTING MYTHS 27 nation live by, then, whatever its flaws, JFK has to be among the most important works of American history ever to appear on the screen. 115 In this instance, the revisionism was not an idle exercise. One consequence of the reaction to the film was momentum generated for the federal legislation opening access to more of the historical record of the Kennedy assassination. 116 The enactment of that legislation within a year of the film’s release provides concrete evidence in support of the importance that Rosenstone anticipated for the film. Spielberg’s AMISTAD is similar to JFK in one significant aspect. Each of the films directs the focus to the litigation process as the curative force for the injustice that prevails. In keeping with the underlying tone of the two directors, 117 Spielberg’s film shows the success of that process while Stone’s film concludes with the defeated District Attorney Garrison walking out of the courthouse after the jury’s acquittal of Clay Shaw. For Stone to employ a state court criminal trial as the vehicle for unraveling the assassination conspiracy suggests that, in spite of his contempt for the Warren Commission, the director is at some level a product of the Warren era of judicial redress of social ills. Whatever the outcome of the particular litigation, the implicit message of both films is that courts are the places to seek corrections of the effects of politics and the raw exercise of force and violence. Spielberg offers a more positive – indeed, an ahistorically positive – view of the rule of law, in a way that calls to mind John Denvir’s description of his use of film in law teaching. Denvir’s experience has led him to the recognition that “movies reflect powerful 115 Robert A. Rosenstone, JFK: Historical Fact/Historical Film, 97 AM. HISTORICAL REV. 506, 511 (1992). 116 President John F. Kennedy Assassination Records Collection Act of 1992, Pub. L. No. 102-526 (Oct. 26, 1992). The Act was extended in 1994 and 1997. See 44 U.S.C.A. § 2107 Note. The relationship between the Stone film and the legislation is described in Kermit L. Hall, The Virulence of the National Appetite for Bogus Revelation, 56 MD. L. REV. 1, 14 (1997). 117 See supra Part I B. MISDIRECTING MYTHS 28 myths that influence our reactions to issues we meet in real life, including legal issues; perhaps the ‘rule of law’ is best viewed as one more myth competing for audience acceptance.” 118 Although Denvir’s book predates the release of AMISTAD, his speculation accurately describes the character of the mythologizing that takes place in AMISTAD. Spielberg’s film tells a story about American law and justice, with the Amistad captives depicted as its largely passive beneficiaries. The effect of the artistic license that was taken with the historical events in Spielberg’s film may be most apparent when AMISTAD is viewed through a cultural lens different from that of most of its viewers in the United States. For Professor Osagie, the choices that Spielberg made are evidence of a “regressive ideological positioning ... choices that belie his reliance on the colonial discourse of subjectivization and subjugation for the ideological construction of Africans in the movie.” 119 An alternative rendition of the story could place the Africans at the center, showing their refusal to accept the loss of their freedom and their transportation to foreign lands. 120 But that is not the message that comes through most strongly from Spielberg’s AMISTAD. Instead, this is emphatically our story, with the circumstances of the Africans serving merely as occasions for an inward-looking reflection on the successful resort to principles of justice that are seen to be strongly, if not uniquely, Anglo-American. Legal processes are central to AMISTAD in more than just a thematic sense. The cinematic structure of the film itself places the courtroom action in a middle ground in a symbolic way. The opening and closing scenes of the film both depict the use of force – the violent revolt on the Amistad at the beginning of the film and the British Navy’s destruction of a slave trading fort on the coast of Africa at the end. A reliance on law as the source of freedom is presented at least as a necessary correlative of the exercise of force, if not as a sufficient alternative. Again, though, a more accurate depiction of the time might 118 JOHN DENVIR, LEGAL REELISM: MOVIES AS LEGAL TEXTS xi (1996). 119 OSAGIE, THE AMISTAD REVOLT, supra note 64, at 121. 120 See generally id. at 98-118, for a description of such alternative representations in creative works by African artists and scholars. MISDIRECTING MYTHS 29 have replicated the horrors of the Havana slave market with the perfectly legal sale of slaves in this country. Such a scene would have underscored the fact that, rather than providing the bulwark against the literal commodification of human beings, the law of the time in fact supported such a domestic trade. The vision of America created by the eloquent argument by John Quincy Adams to the Supreme Court in Spielberg’s film invokes the spirit of freedom on which the nation was founded. In the argument that was actually delivered to the Court, John Quincy Adams twice directed the Court’s attention to framed copies of the Declaration of Independence on the walls of the courtroom. 121 In one of those references, Adams called on the Justices to consider the principled demands of that document: “The moment you come to the Declaration of Independence, that every man has a right to life and liberty, an inalienable right, this case is decided. I ask nothing more in behalf of these unfortunate men, than this Declaration.” 122 The film’s version of the argument similarly has Adams pointing to the framed copy of the Declaration, asking rhetorically, “What are we to do with that embarrassing, annoying document, the Declaration of Independence? What of its conceits? All men created equal, inalienable rights, life, liberty and so on and so forth?” A sobering reminder of the reality of the limited scope of the rights articulated in the Declaration might be found in the words of Frederick Douglass delivered in an address eleven years after Adams made his Amistad argument: What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy 121 ADAMS, ARGUMENT, supra note 76. The appearance of those copies in this public building was likely to have been particularly meaningful for Adams, who, while serving as Secretary of State in 1823, had ordered the production of an exact facsimile of the Declaration that was widely distributed. PAULINE MAIER, AMERICAN SCRIPTURE: MAKING THE DECLARATION OF INDEPENDENCE 176 (1997). 122 HIGGINBOTHAM, IN THE MATTER OF COLOR, supra note 77, at 387. MISDIRECTING MYTHS 30 license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. 123 In both positive and negative directions, films based on creative accounts of historical events shape our understanding of the nation’s past and its principles. The next section of the Article examines the legal terrain in which the filmmaker is free to develop his or her own vision of that past. III. Lessons from the Fictional Portrayal and Incitement to Violence Cases. The tort law background to the cultural effect of historical films on the shaping of a sense of who we are as a nation operates in two different ways. The body of law recognizing an individual’s claims for relief from the harmful effects of being identified with a character in published fiction supports the idea that the fictionalization of actual events creates broad but not unlimited protection from liability for the publisher. In addition, the incitement to violence cases offer insights about notions of legal obligation and of causal responsibility that are usefully blended into a consideration of the cultural effects of distortions of history in cinematic presentations of actual events. The first type of tort claim might place some constraint on a filmmaker who treats actual events as cinematic subject matter, while the second type of claim serves as a reminder of the powerful protection of the freedom of speech and at the same time highlights the need for a self-imposed 123 FREDERICK DOUGLASS, What to the Slave is the Fourth of July? The text of the speech can be found at http://douglassarchives.org/doug_a10.htm. MISDIRECTING MYTHS 31 responsibility for the exercise of that speech. Although the Stanford psychological researchers concluded that the cinematic distortions of the historical record would have to be corrected by the audience, 124 the suggestion offered here is that the responsible exercise of the legal freedom of the filmmaker is an important obligation that comes with the power to shape a national image. A. The Constitutional Space for Cinematic Creativity. The most powerful lesson from the litigation about both fictional portrayal and incitement to violence is the impressive sweep of the First Amendment’s protection of speech, even when that speech admittedly causes harm. 125 Perhaps the most compelling feature of the legal landscape relevant to the distortion of history in films is the government’s role in creating a space in which alternative versions of history, both positive and negative, can be presented. Oliver Stone has described his effort in JFK as being “to open a stall in the marketplace of ideas and offer a version of what might have happened, as against the competing versions of what we know did not happen, and some other possible versions as well.” 126 The strong demand of the First Amendment is that government qua government has no business establishing constraints on the version of the past that the filmmaker invents, even when that version is overtly hostile to, even dangerous to the public support for, the government. 127 124 See supra text at note 108. 125 See generally Ausness, The Application of Product Liability Principles, supra note 8, at 637-660. 126 Oliver Stone, Speech to the National Press Club, Jan. 15, 1992, in STONE & SKLAR, JFK: THE BOOK OF THE FILM, supra note 44, at 403, 408. 127 See generally Rodney A. Smolla, Harlot’s Ghost and JFK: A Fictional Conversation with Norman Mailer, Oliver Stone, Earl Warren, and Hugo Black, 26 SUFFOLK U. L. REV. 587 (1992). The character of Professor Smolla in the fictional conversation attributes to his fictional Justice Black the following comments with which the real Justice Black and the real Professor Smolla would undoubtedly be sympathetic: “judges and juries are not literary and film critics. And more importantly, they are not the arbiters of history. . . . What terrifies me is not a filmmaker or a novelist offering a new version of history, but governmental institutions . . . presuming to declare that history ‘wrong.’ ” Id. at 601 (emphasis in original). MISDIRECTING MYTHS 32 The constitutional prohibition of government censorship of the viewpoint being expressed by the filmmaker does not relegate the government to the position of being a disinterested bystander in the marketplace for competing ideas. To the contrary, government is a powerful, if not the most powerful, proponent of a vision of the American past and present. Education is predominantly a governmental function in this country, 128 and as such, the version of history that is presented to young people in public schools has at least an implicit governmental imprimatur. Government also speaks through a variety of agents and agencies as a source of information and opinion about the past. One need only visit historic locations maintained by the National Park Service, 129 for example, to receive first-hand the “official” story of our national past. In addition to delivering its own message directly, government plays an influential role in providing subsidies to efforts in the arts and the humanities to portray a vision of American history. 130 All of these elements together assure that, while there may very well be a dominant version of our history, the public will be entitled to access to alternative tellings of the story. Nevertheless, while the freedom to speak one’s own vision of the past receives powerful protection in our constitutional system, a consideration of some of the byways of tort law will serve as a reminder that the freedom is not unconstrained, as well as an occasion to recall the civic responsibility that comes with the power to influence the public through commercial films. 128 More than 88% of elementary and secondary school students attended public schools in 1999, the last year for which data are available. National Center for Education Statistics, U.S. Dep’t of Education, DIGEST OF EDUCATIONAL STATISTICS (2001) (Table 3.—Enrollment in educational institutions, by level and control of institution). 129 The historic sites administered by the National Park Service can be located using its web page, at http://www.cr.nps.gov/history.htm. 130 The National Endowment for the Humanities has provided support to more than 150 broadcast programs in United States history. The list of projects can be found at the NEH website, at http://www.neh.gov/projects/medialog/med_idx.html#united. MISDIRECTING MYTHS 33 B. The Lessons about Potential Liability. Tort liability for harm from the resemblance of fictional characters to real persons has seldom been attempted, let alone imposed. 131 Defamation actions brought under such circumstances raise the paradoxical situation of predicating liability on the establishment of the falsity of the words and actions of a character that is admittedly a fictional construct. 132 Invasion of privacy claims, while somewhat less widely recognized in the first place, 133 have similar problems in linking the fictional character to the real person. A filmmaker who constructs an alternative version of an historical event, like the writer of a roman a clef, is thus broadly protected from tort liability for the substitution of a fictional character for an actual participant. Stone’s JFK offers an instance of fictional portrayal that illustrates the major legal issues that can arise in this type of tort claim. It is one thing to claim that powerful figures conspired to promote their own interests even when those interests were taken so far as the extreme measure of assassinating a president. What is distinctive about Stone’s film, as was the Garrison investigation on which it is based, is the identification of actual persons with little or no previous public profile as significant participants in the conspiracy. For purposes of this Article, the character who offers the greatest opportunity to test the limits of artistic license is Clay Shaw, who was the target of criminal prosecutions by Garrison in the late 1960s. 131 Paul A. LeBel, The Infliction of Harm Through the Publication of Fiction: Fashioning a Theory of Liability, 51 BROOKLYN L. REV. 281 (1985). See generally Symposium, Defamation in Fiction, 51 BROOKLYN L. REV. 223 (1985). 132 See Mitchell v. Globe Int’l Publishing, Inc., 773 F. Supp 1235 (W.D. Ark. 1991) (“Actions involving fictional works are atypical. In an action arising from a purportedly nonfactual publication concentration on the ‘falsity’ of the allegations is problematic.”). 133 See, e.g., Richie v. Paramount Pictures Corp., 544 N.W.2d 21, 28 (Minn. 1996) (court has not recognized invasion of privacy tort actions); Andrews v. Bruk, 610 N.Y.S.2d 752, 753 (N.Y. Sup. Ct. 1994), rev’d on other grounds, 631 N.Y.S.2d 771 (N.Y. App. Div. 1995) (New York has not adopted a common law right of privacy). MISDIRECTING MYTHS 34 The explicit identification of Oliver Stone’s “Clay Shaw” and the real person Clay Shaw presents none of the ambiguity that routinely complicates tort claims based on fictional characters. 134 That problem of identification may surface when a character is given some of the more significant attributes of a real participant in the events on which the film is based, as Stone’s film does with some of the characters, 135 but there is no doubt that the viewer of the film is supposed to conclude that the Shaw character in the film is based on the person of that name. The tort law issue then becomes whether the portrayal of Shaw in the film defames him or invades his privacy in an actionable manner. Consider first whether Stone’s JFK could have encountered legal problems if it had been released while Shaw, who died in 1974, 136 was still alive. The contention that a cause of action arises out of the film’s identification of Shaw as a conspirator in the assassination would almost certainly be insufficient to support tort liability. In that respect, Stone’s film is basically just following the lead of the Garrison trial, and as such, the film would undoubtedly enjoy a privilege to report and to comment on matters of legitimate public interest. 137 Even the invented details of meetings between Shaw and other assassination conspirators, including Oswald, are unlikely to strengthen any tort claims that could have been based on the film. Those meetings are 134 See, e.g., Bryson v. News America Publications, Inc., 672 N.E.2d 1207 (Ill. 1996) (plaintiff’s last name was used in magazine article labeled as fiction; court held that plaintiff could recover if she were able to prove such close resemblance between herself and fictional character that reasonable persons would understand that fictional character was intended to portray the plaintiff). 135 See Raskin, JFK and the Culture of Violence, supra note 48, at 497, identifying the character played by Donald Sutherland as “probably Colonel Fletcher Prouty,” which would have made his boss, who according to the film is deeply implicated in the conspiracy, General Edward Lansdale. That would not have been Lansdale’s first appearance as the basis for a fictional character. His role in Vietnam was portrayed in two novels, in a positive light in WILLIAM J. LEDERER & EUGENE BURDICK, THE UGLY AMERICAN (1958), and less positively in GRAHAM GREENE, THE QUIET AMERICAN (1955). 136 LAMBERT, FALSE WITNESS, supra note 39, at 178. 137 See generally DAVID A. ELDER, THE FAIR REPORT PRIVILEGE (1988). Such a claim, if it had been brought, might have raised an interesting issue about the scope of the privilege, given the subsequent federal court findings that the prosecution of Shaw was in bad faith. See supra note 39. MISDIRECTING MYTHS 35 fairly clearly presented to the viewer of the film as the speculation or alternative suppositions of Garrison, rather than as actual accounts of Shaw’s activity. One aspect of the Shaw character in Stone’s film, however, does raise interesting questions about tort liability, and that is his homosexuality. Although arguably a product of a more overtly homophobic era, there still are decisions that characterize an allegation of homosexuality as defamatory per se, 138 including one from Shaw’s home state of Louisiana. 139 Stone’s film goes well beyond assertions about Shaw’s sexual orientation, though. The caricatured effeminacy adopted by Tommy Lee Jones in his portrayal of Shaw and the sadomasochistic practices graphically depicted in the film present, in the words of one critic of the film, a “prancing, mincing Shaw in the movie” who was “so different from the real Shaw,” constituting instead “a gay stereotype.” 140 Such an exaggeration of the character in the film might support a claim for defamation or for placing Shaw before the public in a false and highly offensive light. 141 The consideration of the tort claims so far has focused on the liability that might be claimed to arise from negative portrayals on the screen. A different set of considerations arises when there is nothing overtly negative about the character in the film. Tort claims under such circumstances could be based on one or the other of two related 138 Nacinovich v. Tullet & Tokyo Forex, Inc., 685 N.Y.S.2d 17 (App. Div. 1999); Bohdan v. Alltool Mfg. Co., 411 N.W.2d 902 (Minn. App. 1987). Contra Donovan v. Fiumara, 442 S.E.2d 572 (N.C. App. 1994) (not defamatory per se); Hayes v. Smith, 832 P.2d 1022 (Colo. App. 1991) (same). See generally Randy M. Fogle, Is Calling Someone “Gay” Defamatory?: The Meaning of Reputation, Community Mores, Gay Rights, and Free Speech, 3 LAW & SEXUALITY 165 (1993). 139 Manale v. City of New Orleans, 673 F.2d 122 (5 th Cir. 1982) (applying Louisiana law). 140 Nicholas Lemann, Letter to the Editor, GQ (April 1992), in STONE & SKLAR, JFK: THE BOOK OF THE FILM, supra note 44, at 348. 141 See RESTATEMENT (SECOND) OF TORTS § 652E, supra note 11. MISDIRECTING MYTHS 36 personal interests, a right to keep one’s private life from public view, 142 and a right to control the commercial marketing of one’s story. 143 Assuming that the statements about Shaw were true, there is some plausibility to a claim that publicizing Shaw’s sexual orientation would have been an actionable publicity about private facts, 144 but that claim would probably run into the same sort of public interest barrier as a claim based on the mere fact of the conspiracy allegations. 145 In the film’s version of Garrison’s account of the New Orleans wing of the assassination conspiracy, the homosexuality of the lead figures is an important part of the link among them. 146 A release of JFK while Shaw was alive would have presented interesting opportunities to test the limits of the dramatic license to create a highly negative portrayal of actual people on the screen. Because defamation and invasion of privacy claims are considered personal, 147 however, publication after the death of the subject precludes any claim based on the interest of the subject. 148 142 See RESTATEMENT (SECOND) OF TORTS § 652D, supra note 10. 143 See RESTATEMENT (SECOND) OF TORTS § 652C, supra note 12. 144 See, e.g., Strutner v. Dispatch Printing Co., 442 N.E.2d 129, 134 (Ohio App. 1982) truth not a defense to unreasonable publicity of private facts claims); Baker v. Burlington Northern, Inc., 587 P.2d 829, 832 (Id. 1978) (“The action for public disclosure of private facts will lie even though the matter disclosed is true.”). 145 See Strutner v. Dispatch Printing Co., 442 N.E.2d 129, at 133 (recognizing newsworthiness and legitimate public interest as limitations on liability for invasion of privacy). 146 See Michael Rogin, JFK: The Movie, 97 AM. HISTORICAL REV. 500, 503 (1992) (“JFK’s political content and filmic method come to mirror the conspiracy the movie is supposedly exposing … idealization of the beautiful ‘dying king’ on the one hand, demonization of a homosexual band on the other”). 147 See, e.g., Tyne v. Time Warner Entertainment Co., 204 F.Supp.2d 1338, 1342 (M.D.Fla. 2002) (surviving relatives lack standing to assert claim for invasion of decedent’s privacy). 148 See generally DAVID A. ELDER, DEFAMATION: A LAWYER’S GUIDE § 1:8 (1993); DAVID A. ELDER, THE LAW OF PRIVACY § 1:3 (1991). A proposal for recognizing such a claim is set out in Raymond Iryami, Give the Dead Their Day in Court: Implying a Private Cause of Action for Defamation of the Dead from Criminal Libel Statutes, 9 FORDHAM INTEL. PROP. MEDIA & ENT. L.J 1083 (1999). MISDIRECTING MYTHS 37 The most plausible exception to the ante mortem requirement for the actionability of what might sometimes be seen as privacy tort claims is the commercial use of names and images, often labeled a right of publicity rather than a right of privacy. 149 Shaw’s executor or administrator might have attempted to assert a claim that the estate should control the portrayal of Shaw after his death, or at least be compensated for the nonconsensual use of his identity. Even in those exceptional cases in which this type of claim is allowed to proceed after the death of the person whose identity is being used, however, the claim would probably require that some commercial value in the name or likeness must have been exploited while the person was alive. 150 C. The Lessons about Social Responsibility. The lessons from the aspects of tort law that are relevant to the topic of this Article go beyond issues of liability for harm associated with the release of a film. The incitement to violence cases serve a further purpose of raising ideas that can help to inform our understanding of the social responsibility of one who makes a film that is likely to have some effect on the public. While the prevailing view is that media incitement to violence may serve as a basis of a tort claim only under the most unusual circumstances, 151 those cases are being employed here not as a basis of liability per se but rather as a source of ideas about constraints that would be self-imposed as a part of responsible filmmaking. As acts of violence by young people have seemed to become an ever more prominent feature of American life, so has the incidence of 149 See, e.g., Montgomery v. Montgomery, 60 S.W.3d 524, 526 (Ky. 2001) (distinguishing right of privacy and right of publicity). See also Tyne v. Time Warner Entertainment Co., 204 F.Supp.2d 1338, 1341 (M.D.Fla. 2002) (state statute on commercial use of name or likeness not violated by film; not commercial use when identity not marketing tool). 150 See Groucho Marx Productions, Inc. v. Day and Night Co., Inc., 689 F.2d 317 (2d Cir. 1982) (discussion of different scenarios in which a right of publicity might be asserted). 151 See supra note 7. MISDIRECTING MYTHS 38 tort litigation seeking damages from publishers of media that depict violent images. One can examine the list of recent highly publicized school shootings and find litigation arising out of those incidents. 152 The litigation of incitement to violence claims to date reinforces the idea that the First Amendment is a substantial, if not insurmountable, barrier to imposing liability on those who produce commercial entertainment. 153 Courts litigating such claims have held that motion pictures are as fully protected by the First Amendment as other forms of speech, 154 that the constitutional requirements of the likelihood and the imminence of violence must be applied to entertainment just as strictly as they are to more overtly political speech, 155 and that attempts to locate the work in question in one of the categories of speech that are outside the scope of the First Amendment are to be viewed with suspicion. 156 The First Amendment admittedly gives enormous freedom to filmmakers to present an alternative version of historical events. Even more than is the case with violent material, films that take a stance about the meaning of our past are to be countered by more speech, not by governmental suppression. 157 The point that may be too easily 152 Columbine High School: Sanders v. Acclaim Entertainment, Inc., 188 F.Supp.2d 1264 (D. Colo. 2002); Paducah, Kentucky: James v. Meow Media, Inc., 300 F.3d 683 (6 th Cir. 2002), aff’g 90 F.Supp.2d 798 (W.D. Ky. 2000). 153 See supra Part III A. 154 Byers v. Edmondson, No. 2001 CA 1184, 2002 WL 1200768, at *2 (La. Ct. App. Jun. 5, 2002). 155 Sanders, 188 F.Supp.2d at 1279-1281. 156 Davidson v. Time Warner, Inc., No. Civ.A. V-94-006, 1997 WL 405907, at *16- 19 (S.D. Tex. Mar. 31, 1997) (e.g., obscenity, fighting words). 157 See Watters v. TSR, Inc., 715 F.Supp. 819, 822 & 823 (W.D. Ky. 1989) (“The first amendment safeguards the freedom of individuals to express themselves in their own way and leaves to the individual receiving their message the decision whether to accept or reject, emulate or ignore.” “Generally the first amendment requires that dangerous ideas be exposed for what they are through the give and take of public discussion or by the listener’s intuition. The negative impact such ideas may have on society are remedied through ‘more’ speech, not by censorship.”), aff’d, 904 F.2d 378 (6 th Cir. 1990) (basing decision on state tort law rather than federal constitutional grounds). MISDIRECTING MYTHS 39 neglected, however, is that a responsible exercise of that freedom would be sensitive to the power that is being exercised. Oliver Stone, who treated the character of Clay Shaw with such disdain in JFK, has described himself as a strong proponent of respecting the integrity of a person, at least when he is the person demanding respect. Commenting on the way that he has been treated by journalists, Stone has written that, “If the First Amendment is so precious – and it is – so is the right to be ‘expressed’ or represented correctly, which may require a little more thought before we write or speak.” 158 The prevailing approaches to liability for incitement to violence understate the nature and the extent of the power of the filmmaker. More specifically, an examination of those approaches reveals two dimensions on which Stone’s requirement of a “little more thought” might legitimately be pursued. Even beyond the constitutional lesson from the media incitement to violence cases, the treatment of the tort claims asserted by victims of such violence indicates a considerable reluctance to recognize an undifferentiated duty to protect the public at large from adverse effects of exposure to media violence. Facing claims of legal responsibility for harm, manufacturers and distributors of popular media have adopted a stance that they owe no duty to the victims of violence committed by someone who has been exposed to the media. Courts agreeing with that position have emphasized the lack of foreseeability of the violent conduct of the person who acts in that way. The foreseeability of causing harm as a consequence of exposure to the media has been rejected under different analytical standards of legal duty: when the foreseeability factor was virtually all that the court considered, 159 when it was one of a number of factors, 160 and when it was included within a general risk-utility test for the existence of a 158 Oliver Stone, Stone on Stone’s Image (As Presented by Some Historians), supra note 50, at 51. 159 James, 90 F.Supp.2d at 802-806. In affirming the district court’s dismissal of the plaintiff’s negligence claims, the Court of Appeals performed a more extensive analysis of the public policy implications of the foreseeability question. James, 300 F.3d at ___, 2002 WL 1836520 at *7-9. 160 Sanders, 188 F.Supp.2d at 1271 (considering the factors of foreseeability, social utility of defendant’s conduct, magnitude of burden of preventing harm, and consequence of placing burden on defendant). MISDIRECTING MYTHS 40 common law duty to exercise care. 161 Courts have tended, however, to articulate the foreseeability issue in a fashion that is very context- specific: was it foreseeable that this person exposed in this way to this work would react in this manner to cause harm to this person. 162 Phrasing the issue this narrowly diverts attention from the realization that it is highly foreseeable that the published material will have some effect on its viewers and listeners. An admitted unpredictability of the victim and of the precise sequence of events in which that victim is harmed should not hide the fact that media works can have a foreseeable and purposeful consequence of changing the society in which they are distributed. The reliance on an overbroad assertion of the unforeseeability of consequences may be an unfortunate lesson to draw at the social responsibility level that this portion of the Article is examining. A highly particularized approach to duty may be fine as far as it goes, that is, as a limitation of the scope of liability for incitement to violence. For that purpose, I’m perfectly happy to defer, at least for now, to my friends and colleagues who elsewhere in this issue have so ably pursued the legal implications of incitement to violence. But when the focus shifts, as it does in this Article, to the citizenship implications of distorted history in media, public trust would be more confidently placed in the hands of people who recognize that along with the power to speak to the public comes a meaningful responsibility to speak in ways that are faithful to an honest vision of the national past. That does not in any way suggest that there is a responsibility to parrot the conventional or orthodox version of the past. In fact, fidelity to an honest vision may demand just the opposite. It means instead that the 161 Davidson, 1997 WL 405907, at *9. 162 The highly contextual approach to foreseeability is illustrated in the James case arising out of the Paducah, Kentucky, high school shooting, where the District Court inquired whether it was foreseeable that “a fourteen-year-old boy who played their video games, watched their violent movie, and viewed their provocative website materials would go to a friend’s house, steal guns, take the guns to school the next day, and gun down his classmates during a prayer session.” James, 90 F. Supp.2d at 803. The Court of Appeals reached the same conclusion as the District Court, (“Carneal’s reaction to the games and movies at issue here, assuming that his violent actions were such a reaction, was simply too idiosyncratic to expect the defendants to have anticipated it”), but acknowledged that “[a]t first glance, our conclusion also appears to be little more than an assertion.” James, 300 F.3d at ___, 2002 WL 1836520 at *7. MISDIRECTING MYTHS 41 commercial product ought to reflect a genuine and artistic vision of the creator of the work. In that respect, Oliver Stone serves as a quite positive model, given the depth of his commitment to the story that he tells in his films, and his professed intent to change the way we look at ourselves as a nation. 163 Stone’s work displays integrity 164 in part because of the way it celebrates the power to unsettle accepted views, rather than denying the foreseeability of such consequences. The second legal implication of the incitement to violence tort litigation that has relevance to the appreciation of the power of the filmmaker to influence a national image is the stance that courts have taken toward the causal link between the encounter with the media and the behavior of the person who subsequently inflicts harm through violent acts. Under the prevailing view, causal connections have been very difficult to establish, with courts demanding considerably more than mere exposure, even when nearly contemporaneous with the violent acts, to identify the media work as a legal cause of the harm. Indeed, one could conceive of the tort plaintiff being in an impossible situation – a single exposure to the work is an insufficient basis for incitement to act, but repeated exposure indicates that the act of violence is not an immediate result of the work. 165 Superseding causation is the most significant causal doctrine applied by courts to incitement to violence cases. The prevailing view is that the intervening act of violence by the person who harms the 163 GOLDBERG, ENEMIES WITHIN, supra note 62, at 135-136 (“Stone welcomed the opportunity not only to confront the authorities but to rescript the history of recent America. Coming to terms with the Kennedy assassination would be his quest; the personal became political”). 164 “Integrity” here has a Dworkinian connotation as the political virtue of “acting in important matters with integrity, that is, according to convictions that inform and shape their lives as a whole, rather than capriciously or whimsically.” RONALD DWORKIN, LAW’S EMPIRE 166 (1986). 165 There is at least some indication of this in the District Court’s opinion in the Watters case, in which the plaintiff’s son committed suicide after extended engagement in the “Dungeons & Dragons” role-playing game. See Watters, 715 F.Supp. at 823 (played for five years, so not immediate incitement for purposes of determining whether First Amendment protection was applicable, but also citing to cases in which other courts had held that evidence of incitement was insufficient when a television program or movie was watched). MISDIRECTING MYTHS 42 victim is a causal factor that does not merely concur with, but in fact overwhelms, any responsibility that the media defendant might have for the harm. Courts have relied on such factors as the independence of the person who responds to the media material, 166 but by far the most important foundation on which the superseding cause doctrine has been grounded is the finding that the act of violence was not reasonably foreseeable at the time that the media work was made available to the public. 167 One of the more important developments in modern tort theory has been a call for an expansion in the conception of causation that will support liability. Largely because of a recognition that traditional sine qua non or “but for” causal doctrines operate unsatisfactorily in situations where multiple causal agents play a role in producing an injury, a number of torts scholars would relax the requirement that a particular cause be necessary to the outcome, in favor of a standard that attributed legal responsibility to “multiple incremental insufficient causes.” 168 Such a relaxation would be appropriate when considering the social responsibility of filmmakers for the sense of citizenship fostered by their films. Some of the most sophisticated analysis of causation in tort law today is found in the work of Richard W. Wright. In a recent work, Professor Wright proposed that a causal contribution could support tort liability even if it amounted to no more than “a causally relevant part, no matter how minimal, of an actually completed (non-preempted) story of how the injury came about.” 169 However that might fare as a standard for the imposition of tort liability, Professor Wright’s proposal 166 James, 90 F.Supp.2d at 808. 167 Sanders, 188 F.Supp.2d at 1276; James, 300 F.3d at ___, 2002 WL 1836520 at *13-14. 168 The quoted phrase is used by the Reporters to the RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM (BASIC PRINCIPLES) § 27 (Reporters’ Note to Comment f) (Tentative Draft No. 2, 2002). Comment f of § 27 of this tentative draft is labeled “Incremental causes insufficient by themselves.” 169 Richard W. Wright, Once More into the Bramble Bush: Duty, Causal Contribution, and the Extent of Legal Responsibility, 53 VAND. L. REV. 1071, 1108 (2001). MISDIRECTING MYTHS 43 is precisely the appropriate way to understand the causal relationship between films and the attitudes and behaviors of their viewers. In relation to the films, those attitudes and behaviors are undoubtedly affected by significant factors other than exposure to the media. Indeed, even in the case of violence allegedly induced by exposure to media, one would suspect that the media would have to be operating on an abnormal psychological state. 170 The virtue of the Wright approach in the specific context of responsible exercise of the power to shape a vision of our society is that leaves room for a recognition that films do have a real, even if unquantifiable, impact on the national image that is formed from a consideration of our past. An appreciation of the causal impetus of the film would thus reinforce the sense of social responsibility that accompanies an acknowledgement of a broad duty to the public. IV. Conclusion. Films about important events in our nation’s past are a powerful influence on the development of our national consciousness. For perfectly legitimate creative reasons, those films are likely to present a distorted view of the events with which they deal, as an examination of JFK and AMISTAD has revealed. Each film develops its own image of our past by departing from the historical record. Indeed, the distortions themselves can be the most significant cultural influence. In both instances as well, the films posit a relationship between the legal system and broader social and political themes that overstates the impact of the legal system, and thus may contribute to unrealistic attitudes and expectations about reliance on the legal system as a barometer of social health and a cure for social ills. 170 See James, 300 F.3d at ___, 2002 WL 1836520 at *7 (“We need not stretch to imagine some mixture of impressionability and emotional instability that might unnaturally react with the violent content” of the movie and video game at issue in that case. “Of course, Carneal’s reaction was not a normal reaction. Indeed, Carneal is not a normal person”). MISDIRECTING MYTHS 44 This Article has examined one point of intersection between the legal system and historical films. Looking at such films in light of the tort actions for fictional portrayal and incitement to violence produces three interrelated conclusions. The first is that our legal system preserves considerable freedom for a filmmaker to offer a personal vision of our past. Second, on a narrow legal point, the filmmaker needs to have at least some awareness of the potential liability when the film portrays living people as recognizable characters in the film. But third, and most importantly, the tort system that protects media defendants from owing a legal duty or being a legal cause of harm to particular victims creates a risk that notions of responsibility that are appropriately narrow when used as determinants of liability will understate the social responsibility of filmmakers who have the capacity to exercise such influence. As in other aspects of law and society, the legal system can demarcate a terrain in which freedom is preserved, but the exercise of that freedom involves a social responsibility that can be masked by the legal concepts that are employed in the construction of that protection.