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Category: Movies & Television

Defamation by PhotoShop?

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.

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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?

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Cross-Examining Film

Thanks for having me here at Concurring Opinions. I haven’t blogged for some time – reminding myself there is life outside of the Web – but for the next month I am excited to reengage my blogging-self and hopefully some readers of this blog.

One of my summer projects is to think about how to turn some of my more theoretical writing on law and film into a practical “how to” piece on lawyering in the courtroom with filmic evidence. To that end, I have been watching lots of police films (a subset of what I have called “evidence verite”). These films can be found without much effort on YouTube or VideoSpider. Anyone else out there know of good sites storing this kind of film footage, I would love to hear about it. I found one piece of footage that is the subject of a recent court case – Jones v. City of Cincinnati, 521 F.3d 555 (6th Cir. 2008) – which can be found here. This film, of the police using a tremendous amount of force to subdue Nathanial Jones (who subsequently died), is an excellent example of how the film frame (what is seen and what is not seen due to the limits of the camera’s size and angle) can affect the viewer’s response to the images. When watching this film, we must imagine the blows delivered and the pain received because both are off-camera. How we imagine them might depend on our experience with police brutality more generally. (We do hear the police and the criminal suspect protesting loudly.) Do we imagine Hollywood violence (which way does that cut for the defendant here)? Do we have any experience seeing this kind of violence first or second hand so that it is hard to imagine anything but the worst? The boundaries of imagination are hard to predict and therefore a formidable opponent in a court of law. Imagination is obviously not evidence in a court of law, although it likely wields mighty influence nonetheless. A former student suggested to me that not seeing the blows Nathanial Jones suffered makes us more callous to the pain he received. I tend to think that is the case.

The Sixth Circuit in Jones v. City of Cincinnati affirmed the district court’s refusal to dismiss the case on defendant’s 12(b)(6) motion and said this in relation to the film: “Where the evidence ‘captures only part of the incident and would provide a distorted view of the events at issue,’ as the district court concluded with respect to the videotape, we do not require a court to consider that evidence on a 12(b)(6) motion.” Id. at 561. To this, I would say “no kidding,” but we will have to wait and see what the trial court does on a Rule 56 motion. Given the Supreme Court’s decision in Scott v. Harris, I remain skeptical that a court can resist the myth of film’s obviousness and objectivity.

For those who need a refresher, Scott v. Harris was the 2007 Supreme Court case concerning a high speed police chase that resulted in the police ramming the suspect’s car causing him to become a quadriplegic. A police camera on the cruiser recorded the chase from the point of view of the police car, and the Supreme Court said that the trial court should have considered the facts in that case “in the light depicted by the videotape” despite contradictory testimony. For an excellent analysis of the flaws of that case, see Howard Wasserman’s short piece here . For an even shorter analysis, see my Op-Ed here . For a longer more empirical analysis of the video in the case, see Kahan et al. here.

How do courts and lawyers deal with filmic evidence in light of film’s inevitably partial nature? That is what my new piece is working through with some practical tips on cross-examining film in a courtroom. The piece should be up on-line soon. For those who want a preview, feel free to email me.

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Grand Theft Legal System

Last week’s release of Grand Theft Auto IV (actually somewhere between the sixth and ninth game in the series, depending on how you count) was big news in the gaming world (even if some observers questioned the suspiciously universal acclaim). Players cleared their calendars and in some cases emptied their wallets to play the latest installment in this series of open-ended games, which drop the player into a vast city of cars to steal, bystanders to gun down, insane stunt jumps to make, and real-life references to spot.

Among lawyers, the games may be best-known for the regular moral panics they induce over fears of copycat violence, and for attorney Jack Thompson’s increasingly bizarre crusade against them. We might also ask what kind of a legal world the GTA series envisions within its famously capacious in-game universe.

The series’s built-in attitude of rampant lawlessness—it’s named after a crime, after all—might suggest a kind of deliberate criminality. That’s certainly the interpretation that fuels the regular calls for the games to be banned. And yes, the plots typically chart the protagonist’s Scarface-style rise as he carries out errands both murderous and larcenous for an entertaining assortment mob bosses. This interactive representation of lawlessness—the player playing at the role of criminal—puts the Grand Theft Auto games squarely within the tradition of deliberate shockers like Postal.

But this may be an unduly harsh take, and not just because the claim that playing violent games leads to violence in meatspace rests on some dubitable social science. San Andreas may well show us the world as Holmes’s bad man would see it, but consider the lessons he’d learn from it. Crime doesn’t always pay. In fact, offhandedly casual offenses—driving on the sidewalk to circle around traffic, say, and in the process clipping a pedestrian—can put the police on your tail. And the aggresive things you do to try and shake them often wind up making matters worse. Before you know it, you have a six-star wanted rating, they’re sending in the black helicopters, you’re crouched in a doorframe, and there’s pretty much only one way this story can end. Exaggerated though the arc may be, it does illustrate some of the vicious circles trapping the poor, the desperate, and the criminal.

Or consider the in-game depictions of the legal system itself. Get arrested by the police, and you’re back on the streets within seconds—minus some bribe money. Call it an indictment of revolving-door-prison liberalism, or call it an indictment of police more interested in protecting their turf than in doing justice or confronting Liberty City’s very real problems. The lawyers don’t come across much better: Ken Rosenberg is a paranoid cokehead who asks our hero to fix a case by intimidating jurors.

One last thought. Given the games’ increasingly humongous alternate reality, how about building in a penal code? Grand Theft Auto’s legal geekery index would soar if every unlawful act were accompanied by a statement of exactly what crime the player had just committed. “Arson in the second degree!” “Involuntary manslaughter!” “Grand theft garbage truck!” For added fun, the crimes could be correlated with a set of sentencing guidelines, so that the in-game statistics screen would tally up precisely the number of years of imprisonment the protagonist deserved.

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Battlestar Galactica Interview Transcript (Part I)

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BSG-starbuck.jpgWe are very pleased to be able to present a transcript of our interview with Ron Moore and David Eick, the creators, producers, and writers of the TV show Battlestar Galactica. Joe Beaudoin, Jr., the project leader of the Battlestar Wiki, transcribed the interview for us. We edited the transcript, but the bulk of the work was done by Joe. The transcript is also posted at the Battlestar Wiki, which has a ton of great information for fans of the show. In editing the transcript, we took the liberty of cleaning up grammatical errors and eliminating “ums” and other distractions in order to make it more readable.

In this interview, we explore the legal, political, economic, and social ideas raised by the show. If you prefer to hear to the interview, click here to listen to the audio files.

Below is the introduction to the interview and the transcript for Part I, which explores the legal system, morality, and torture. I couldn’t fit the entire transcript into one post, so Parts II and III are contained in another post. Part II examines politics and commerce. Part III explores the cylons.

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Battlestar Galactica Interview Transcript (Parts II and III)

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BSG-cylon5.jpgThis post contains Parts II and III of the transcript of our interview with Ron Moore and David Eick, the creators, producers, and writers of the TV show Battlestar Galactica. Joe Beaudoin, Jr., the project leader of the Battlestar Wiki, transcribed the interview for us. We edited the transcript, but the bulk of the work was done by Joe. The transcript is also posted at the Battlestar Wiki, which has a ton of great information for fans of the show. In editing the transcript, we took the liberty of cleaning up grammatical errors and eliminating “ums” and other distractions in order to make it more readable.

Our interview explores the legal, political, and economic dimensions of the show. Part II (see below) examines politics and commerce. Part III (see below) examines the cylons. Daniel Solove, Dave Hoffman, and Deven Desai pose the questions to Ron Moore and David Eick.

Click here to read Part I of the interview transcript, which examines the legal system, morality, and torture.

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Battlestar Galactica Interview Part III

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Dave Hoffman, Deven Desai, and I are pleased to present Part III of our interview with Ron Moore and David Eick, the creators, producers, and writers of the hit television show, Battlestar Galactica.

Part I of our interview explored the role of law in the show, exploring topics such as the legal system, lawyers, trials and tribunals, torture, necessity vs. moral principles, and deference to the military.

Part II of our interview examined the political system and economic issues.

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In Part III of our interview (the final part in this series), we discuss the cylons. How do the humans view the cylons? As mere machines? As quasi-human? Are the humans heading toward a recognition of more humane treatment of the cylons? Why did the cylons choose to try to annihilate the humans? How do the cylons govern themselves? What role does the cylons’ religion play in all this? We explore these questions and more, including what political and philosophical books most influenced Ron and David in their creation of the show. We learn why Adama changes his views about Boomer and accepts her as a person. And we try to coax out spoilers for the upcoming season.

Part III of the interview is 16 minutes, 15 seconds long. You can access it, along with Parts I and II, here.

UPDATE: The interview has now been transcribed. You can read Part I here, and Parts II and III here.

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What I Like About the New Battlestar Galactica

In honor of the BSG interviews that Dan, Dave, and Deven have posted below (which I hope to listen to soon), I thought I’d chime in with what I like about the show. I’m a big fan; BSG is one of only 3 “must-see” shows for me currently on television (the other 2 are Lost and the PBS NewsHour). My enthusiasm has waned a bit since “New Caprica,” but here’s what struck me as particularly interesting about at least the first couple of seasons:

1. The villains continually have the upper hand. That may not initially seem like a plus. But think of the number of shows where the heroes sail through life, barely needing to worry, while the villains face setback after setback that repeatedly results in defeat. E.g., Perry Mason, CSI, Star Trek (any generation), or the first Battlestar Galactica, where being trained by the Cylon defense force seemed to be a guarantee of utter incompetence in combat. Heroes that appear to face more realistic challenges that do not carry with them a guarantee of success are, at least, a refreshing change, and are more dramatically interesting for avoiding repetition and cliche.

Warning: Mild spoilers follow

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Battlestar Galactica Interview Part II

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BSG-scene4a.jpgDave Hoffman, Deven Desai, and I are pleased to present Part II of our interview with Ron Moore and David Eick, the creators, producers, and writers of the hit television show, Battlestar Galactica.

Part I of our interview explored the role of law in the show, exploring topics such as the legal system, lawyers, trials and tribunals, torture, necessity vs. moral principles, and deference to the military.

BSG-scene3a.jpgIn Part II of our interview, Dave Hoffman interviews Ron and David about politics and the economy. How did the political system of the Twelve Colonies work prior to the cylon attack? After the destruction of the colonies, how does the economy work aboard the fleet? Why do people still continue to do their jobs without compensation? How does commerce work? Why do people still use money? Dave examines these fascinating questions and more.

Part II of the interview is 13 minutes, 57 seconds long. You can also access it, along with Part I, here.

Check back Tuesday morning, when we plan to post Part III of our interview — the final part — which addresses issues involving the cylons.

UPDATE: The interview has now been transcribed. You can read Part I here, and Parts II and III here.

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Battlestar Galactica Interview

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We are thrilled to offer readers of Concurring Opinions an interview with Ron Moore and David Eick, creators of the hit television show Battlestar Galactica. Daniel Solove, Deven Desai, and David Hoffman ask the questions. We would like to thank Professor John Ip for suggesting some of the torture questions. Our interview lasts a little over an hour, and we’ll be providing it to you in several parts over the next few days.

Our goal was to explore some of the themes of the show in a deeper manner than many traditional interviews. Ron and David graciously agreed to give us an hour of their time, and we had a fascinating conversation with them.

BSG-trial1a.jpgOur interview is structured in three parts. Part I, available in two files (see the end of this post to download), focuses on the issues of legal systems and morality. It examines the lawyers and trials in the show. It also examines how torture is depicted, as well as how the humans must balance civil liberties and security.

Part II examines politics and commerce. It explores how the cylon attack affected the humans’ political system, and it examines how commerce works in the fleet.

Part III examines issues related to cylons, such as the humans’ treatment of cylons, how robots should be treated by the law, how the cylons govern themselves politically. Additionally, Part III will explore the religious issues involved in the show.

The new Battlestar Galactica, which premiered initially as a miniseries in 2003 on the SciFi Network, is only loosely based on the earlier show by the same name during 1978 and 1980. The new Battlestar Galactica is breathtaking science fiction, and it has widespread appeal beyond science fiction fans. Numerous critics have hailed it as one of the best shows on television. Time Magazine, for example, listed it as one of the top television shows and described it as “a ripping sci-fi allegory of the war on terror, complete with religious fundamentalists (here, genocidal robots called Cylons), sleeper cells, civil-liberties crackdowns and even a prisoner-torture scandal.”

BSG-scene1a.jpgThe show chronicles the struggle for survival of a small band of humans who escaped a devastating genocidal attack by intelligent robots called cylons. The humans created the cylons for use as slaves. The cylons rebelled and a war erupted between the humans and cylons. But a truce was reached, and the cylons disappeared. But forty years later, the cylons launched a massive surprise attack, destroying the human society (called the Twelve Colonies) with nuclear missiles. Only a small group of humans aboard spaceships survived.

The show depicts the humans’ difficult fight for survival and the tough choices they must make along the way. The cylons have developed technology to allow them to take human form, and some of the humans within the group of survivors are really cylons. More information about the show is here.

BSG-pic1.jpgThe show is heavily influenced by modern events, especially terrorism, war, and torture. In a time of emergency, how should we balance security and liberty? How do we deal with enemies who may be burrowed in among us? How does a society decimated in a war reconstitute its political, economic, and legal systems?

Battlestar Galactica was honored with a prestigious Peabody Award and twice as an official selection of the American Film Institute top television programs for 2005 and 2006.

Because the show explores so many interesting issues so deftly, it has attracted a large group of fans in the legal academy. We know of many law professors who count Battlestar Galactica as one of their favorite shows, and this is why we thought it would be fascinating to speak with the creators and writers of the show — Ron Moore and David Eick.

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