Defamation by PhotoShop?
posted by Frank Pasquale
At 25, you have the face heredity gave you; at 50, you have the face you deserve; and at Fox News, your features depend on whether you’re a friend or enemy of the network. Or at least that’s how Jacques Steinberg and Edward Reddicliffe must feel after Fox aired doctored photos of them on its news show.
Note that the normal photo was not shown on Fox News; the distorted image was presented as the face of Steinberg. (I’ve embedded the full clip below the fold.)
Can such a distorted depiction give rise to a defamation action? Obviously if the picture were a cartoon, and/or the program a satire or non-news program, creative license lets just about anything go (though some particularly egregious images have sparked resistance). But does a news program have a special obligation to “objectively” present images? And, returning to defamation, is it possible to argue a) that the distorted image is a “lie” about the person it depicts and b) that ugliness (that which distortion seeks to convey) is actionable as something damaging to the person whose image is distorted?
a) As for the idea of “lie” here, consider these arguments about the infamous “darkened OJ Simpson” image on the cover of Time Magazine:
The image on Time was digitally manipulated, making OJ darker and heavily shadowed (in juxtaposition to Newsweek['s image]). . . . Although Time claimed it was a “photo illustration” that served to “show the tragic downfall of an American football hero,” other folks disagreed. Time was charged with: (1) perpetuating the stereotype of “violent” black men; (2) suggesting OJ was guilty; (3) applying digital manipulations to a “news” photo–apparently a real no-no in journalism . . . [But Cara A.] Finnegan . . . challenges those who think the image serves as a “visual argument,” which she defines as a “set of premises, identifiable in the image, leading to a conclusion which is itself present in the image” (236).
Compare the idea that “OJ is guilty” to “Steinberg is ugly.” What does the puff-chinned, big-eared, grotesque-nosed Steinberg image “argue” here? Glenn Greenwald might assimilate it to what he calls “the dominant media theme for the last two decades in our political discourse:”
What matters is that Democrats and liberals are weak, effete, elitist, nerdy, military-hating, gender-confused losers . . .and who merit sneering mockery and derision. Republican right-wing male leaders are salt-of-the-earth, wholesome, likable tough guys — courageous warriors and normal family men who merit personal admiration and affection. . . . [In our] press corps, fantasy easily trumps reality. And our media stars thus . . . cackle in derision at the Democratic weaklings and losers.
Greenwald’s analysis, backed up at length in his latest book, articulates a possible “message” in the Fox News photoshopping. But is it really communication, or manipulation? And if the latter, does it not fit more under the rubric of “subliminal advertising” than defamation?
b) Another challenge to a defamation suit might be whether the image is genuinely harmful to the person’s reputation. The closer one looks at it, the more obvious it becomes that the proportions of the face are impossible. But note that the clip was shown very briefly in its original context, leaving no time to scrutinize it.
What about “ugliness” is “damaging”? Enlightened individuals judge others on the basis of the content of their character, not their looks; but in this respect America may be becoming less enlightened every day. Here some perplexities raised in recent cases about allegations of homosexuality may be relevant. The question is whether, in an increasingly tolerant society, being alleged to be homosexual is still libelous. Two recent cases come out in diametric opposition:
Klepetko v. Reisman, 41 A.D.3d 551 (N.Y. App. Div. 2007) (“The false imputation of homosexuality is “reasonably susceptible of a defamatory connotation” )
Greenly v. Sara Lee Corp., 2008 WL 1925230 (E.D. Cal. 2008) (“[c]ontinuing to characterize the identification of someone as a homosexual [to be] defamation per se [demeans the lives of homosexual persons]“.)
To continue the analogy: just as sodomy laws were only repealed gradually, only in the early 1970s were certain “ugly laws” repealed. One such law ordered that “‘No person who is diseased, maimed, mutilated or in any way deformed so as to be an unsightly or disgusting object or improper person [is] to be allowed in or on the public ways or other public places in this city . . . under a penalty of not less than one dollar nor more than fifty dollars for each offense.”
In conclusion; I imagine that a defamation case would be a tough one for either Reddicliffe or Steinberg, but admittedly I have not researched “defamation by distorted image.” Edward Tufte has documented the damage that “fudged photos” can do to science, but it’s not clear that much can be done about them in the political public sphere.
So what’s to stop the unflattering depiction, already a mainstay of negative political ads, to gradually morph into the photoshopped truthiness Fox has pioneered? Perhaps the only answer is to fight fire with fire; Olbermann might air the work, say, of Kenneth Tin-Kin Hung . . . :
(Hung, still from Because Washington is Hollywood for Ugly People)
PS: Here is the clip in context:
And here is Reddicliffe’s transmogrification: