The legal standards that Clinton's lawyers have met for a lawsuit:

[Lex]

www.expertlaw.com/library/personal_injury/defamation.html

Public Figures

Under the First Amendment of the United States Constitution, as set forth by the U.S. Supreme Court in the 1964 Case, New York Times v Sullivan where a public figure attempts to bring an action for defamation, the public figure must prove an additional element: That the statement was made with "actual malice". In translation, that means that the person making the statement knew the statement to be false, or issued the statement with reckless disregard as to its truth.

This is why Clinton's lawyers and Albright's lawyers sent ABC/Disney letters specifying which scenes in the movie were completely fabricated and never happened.

They were laying the groundwork for a successful lawsuit, imho, and showing that ABC/Disney proceeded with "actual malice" -- that they did know that those scenes were lies.

[Cronus Protagonist]

1. On the flip side, it's nice to see fighting Democrats once more

It's been a long time since a major leader in the Democratic party fought the right wing propaganada machine square on. I like to see it, but wish it weren't needed.

[Virginia Dare]

3. Shades of the vast right wing conspiracy comment..

that Hillary made. The Clintons are clearly some of the few Democrats out there with balls enough to fight these people.

[Virginia Dare]

2. Yes, this has turned into a legal wrangle now...

ABC has an army of lawyers working on it as we speak. I would imagine they are getting fairly nervous at this point. My guess it will be pulled outright or delayed, hopefully until after the elections, which is probably what the Clinton camp is banking on.

They fucked with the wrong dude this time.

[SDDEM06]

4. A fitting quote:

"I'm gonna rip the eyes out of your head and piss in your dead skull! You fucked with the wrong marine!"

I can see Bubba playing the part of Col. Jessup :)

[City Lights]

27. Nice post, but I cringe when someone calls the Big Dawg "Bubba." eom

[Lone_Star_Dem]

5. I don't think that ABC expected the legal fight

The reaction from people like us, that they expected. In fact they were banking on us to spread the word and provide free advertising.

They may even have expected President Clinton to make a statement about the "inaccuracies" in their production. I don't think they honestly expected a legal battle thrown their direction by some of the most powerful people in our nation.

[Lex]

6. Exactly. And when I read the text of Clinton's letter

sent through his lawyers, all I could think of was the Times v. Sullivan case and how the lawyers were making sure they had covered the bases for the "actual malice" needed for a public figure's case.

This isn't posturing by Clinton or his lawyers, imho.

[Lone_Star_Dem]

10. I agree, it appears that Clinton's lawyers plan on going all the way

ABC may have over played their hand, IMO.

Edit: Clarity

[LeftCoast]

7. This would seem very hard to prove, even in this case

Still, I hope you're right and it causes ABC to further question the 'logic' of airing this RW propaganda schlock.

:hi:

[Lex]

9. Seems there are numerous people who were there

who are already on the record saying certain things appearing in the film never happened.

Clinton's letter outlined that as well as Albright's. Witnesses would've been around.

It'll be interesting to see what happens.


:hi: right back!

[leftchick]

8. ABC: "The message of the Clinton Admin failures remains fully intact."

the clinton folks need to get ahold of this...

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x2070072

ABC won’t give President Clinton, Madeleine Albright or Sandy Berger a copy of its 9/11 docudrama, “The Path to 9/11.” But there is virtually nothing about the film ABC won’t share with the right-wing blogosphere.

For example, an ABC insider sent this missive to right-wing blogger Hugh Hewitt about potential edits to the film:

The Disney execs met all through the weekend - unheard of in this business - debating what changes would be made and what concessions should be given. Here is what looks to be the conclusion:

- There will be a handful of tweaks made to a few scenes.
- They are minor, and nuance in most cases - a line lift here, a tweak to the edit there.
- There are 900 screeners out there. When this airs this weekend, there will be a number of people who will spend their free evenings looking for these changes and will be hard pressed to identify them. They are that minor.
- The average viewer would not be able to tell the difference between the two versions.
- The message of the Clinton Admin failures remains fully intact.

[catmandu57]

11. Sue the fuck outa them

and use the proceeds to further democratic causes, sic em big dawg.

[Jacobin]

12. The standard is greater than "knowing its untrue"

To win win you do have to prove "actual malice'...in other words that those defaming you wanted to injure you for personal malicious reasons.

That can be proven, but it is extremely difficult, as it should be.

[Lex]

14. The definition of "actual malice" is in the OP

and it means "that the person making the statement knew the statement to be false, or issued the statement with reckless disregard as to its truth."

It does not mean "personal malicious reasons."

It means proceeding with publication after you have reason to believe that the statements you are making are false.

[glitch]

22. I would also argue broadcasting within a certain time before an election

could bring out additional relevance to "malice", ramifications which would be interesting to explore.

[Jacobin]

25. If you read the Sullivan case

You can see that it is WAAAY more than having reason to believe the utterance is false. It must be knowing, in regard to a 'public figure' which Clinton surely is.

I have no use for ABC abusing the protections of the First Amendment. I think they are despicable for lying about Clinton's efforts at anti-terrorism and completely ignoring the fact that Bush in effect dismantled anti-terrorism task forces and basically allowed 9/11 to happen. They are part of the RW propaganda that is trying to keep congress in the junta's hands.

That being said, we have to deal with the reality of what the law is on libel.

If you read cases decided after Sullivan, you will see what it takes to have the courts uphold a verdict of libel against a public figure and exactly what 'actual malice' means. As a policy matter, its good law, to keep free and open debate free and open. But it can be used to for no good, as we have it here.

Remember Falwell v. Flynt? Where Falwell sued Flynt over depicting him as screwing his mother in an outhouse? Supreme Court overturned a libel verdict against him saying that its important to be able to lampoon bloviating idiots in the most outrageous ways. That case was distinguishable based on the fact that he was lampooned, but it does show how far the courts will go (properly, I think) to allow free and unfettered debates.

ABC is a RW attack dog, no better than Swiftboaters. But I think the libel route is not going to be effective.

Peace

[Lex]

26. The Falwell case isn't really on point with this one

because the jury found the Falwell ad to be so outrageous that "was not reasonably believable." It was commentary in the form of satire/parody.

The case in this docu-drama, or whatever they are calling it now, is that the what they are presenting is false (and it can at this point probably be proven that they *know* it is false based on the letters from counsel of Clinton and of Albright) and it could certainly be believed to be true. That alone distinguishes it from the Falwell case.

[Jacobin]

28. I hope you are right

I hope a court SLAMS ABC. But looking at the appellate decisions on libel of public figures, I haven't found one yet where the plaintiff prevailed. Including, of course, Sullivan

[FlaGranny]

16. If I were on a jury I'd be perfectly clear

about it being done out of malice. What other reason could there be? In my opinion "trying to save your own ass by telling lies about another" qualifies as malace and intent.

[plcdude]

13. tie it up in the

courts until after the election. You can bet that is what is going to happen after the Democrats take the House in November. Bush will stonewall through the courts as long as possible.

[sgxnk]

17. that will make no difference

assuming they can win the lawsuit, and i doubt they can (see: the post about what ACTUAL MALICE ***means***) tying it up in the courts will NOT result in prior restraint (iow, preventing the video from being aired prior to the decision)

iow, the dramatization will be aired

period.

prior restraint is odious and is not going to be allowed in this case. mark my words.

[Justice Is Comin]

15. And ABC could not claim malicious prosecution

because the only defense to electronic libel is that what they broadcasted was the truth.

ABC has been notified repeatedly that this is totally and absolute fabrication, maliciously defames Clinton and they don't have a leg to stand on.

What makes it worse, is how they have cozied up to the republican contingent and actually giggling about the success of their projected conspiracy.

[dpbrown]

18. This is definitely a personal attack on our last elected President

This movie is a sham.

[ginnyinWI]

19. Big Dog's on the case!

And he's got both the motivation and the deep pockets to take this on. :woohoo:

[AZBlue]

20. Won't their disclaimer save them?

ABC is calling it a dramatization - by definition, it doesn't have to be true then, right?

[Justice Is Comin]

21. No,

I believe a court would find that disclaimer was cosmetic in purpose only. When their real intent is to defame Clinton and defraud the viewers. They cannot claim good faith error because they are up to their neck in people pointing out the lies.

It would be like I said I'm not going to hit you with this bat, and then I smacked you with it.

Which would carry more weight, my statement or my action?

Courts hate subliminal obfuscation.

[aikoaiko]

23. I doubt a suit would be successful.

People are allowed to imagine -- even scumbag anti-Clinton media types who are trying to rehab Bushes image.

To be perfectly honest, I think the 1st covers this pretty well.

Their disclaimer is clear -- fiction partially based on other people's findings.

[verse18]

24. thanks for the info, Lex.nt

[ms liberty]

29. Question:

I've read all the posts prior to mine, and this hasn't been brought up yet.

They partnered with Scholastic Books to promote the use of this movie as a learning tool to students.
They knew this movie to be factually inaccurate.
Doesn't that bolster the case for actual malice? Doesn't it undercut any defense that this was simply "entertainment?"

[Lex]

30. It certainly shows that they were peddaling it as "factual"

and a kind of historical record, and not a fabricated story. I agree with you on that.

Excellent point, imho.

[rinsd]

31. The letter specfiy scenes that they haven't even reviewed!

I don't see how the lawyers can make the case that they substantiated the falseness of the scenes prior to them being shown when the lawyers haven't reviewed the scenes themselves. That is why they ask for a copy.

[Lex]

32. I thought that the lawyers explained that

they had been told of the scenes by persons who actually had seen the film?


From Clinton's lawyer:

"Indeed, while we have not been given the courtesy of a viewing, based upon reports from people who have seen the drama you plan to air, we understand that there are at least three significant factual errors:"