By Dan Kennedy • The press, politics, technology, culture and other passions

The $85 million question

We live in a binary world. Michael Moore may have committed bad journalism by making injured veteran Peter Damon look like a critic of the war in Iraq. (Or maybe not.) Does it therefore follow that Damon deserves $85 million? There’s pristine journalism and there’s legally actionable journalism; then there’s the other 90 percent. That 90 percent is the zone in which Moore’s “Fahrenheit 9/11” falls. (Earlier items, with links, below.)

Yet folks who ought to know better are so consumed with contempt for Moore that they’re abandoning their common sense. This morning, for instance, I did a 15- or 20-minute stint with Scott Allen Miller on WRKO Radio (AM 680). Miller leapt to Damon’s defense, claiming it would be no different if he spliced in a humorous quip from Mayor Tom Menino after an item about crack cocaine. Well, of course it would be different. In the NBC News clip at issue, Damon was, in fact, talking about his injuries. Moore didn’t change that.

And, uh, Scotto: Could WRKO survive a legal precedent that playing unaltered, accurate news clips can cost you tens of millions of dollars if someone doesn’t like the context? For that matter, could any talk show or news organization?

Even more ludicrous, the Boston Herald today editorializes in Damon’s defense. The editorial ends with this:

Ordinarily we’re not huge fans of taking every dispute to court. But any lawsuit that attempts to show Moore for the pompous fraud he truly is surely deserves a hearing on the merits. And any man who would exploit and distort the words of a genuine American hero is beyond contempt.

Question: Does Herald publisher Pat Purcell support the idea that he could be hauled into court every time someone thinks a Herald reporter has quoted him accurately but out of context?

I don’t want to go too far out on a limb without having a chance to see “Fahrenheit 9/11” again. But based on what I’ve read, it doesn’t even sound like Damon himself was taken out of context — rather, he simply doesn’t like the context in which he appeared. He is seen in an NBC News clip talking about the pain he’s in following a terrible accident in which he lost both of his arms while repairing a Black Hawk helicopter.

Yes, the clip is surrounded by anti-war and anti-Bush material, but none of it is attributed to Damon. He was talking about a new painkiller he was trying; Moore was more interested in Damon’s injuries. Not to sound insensitive, but so what? Moore obviously has the right to tell the story he wishes to tell as long as he doesn’t distort Damon’s views. It doesn’t sound like he did. Damon’s a war hero, and his complaints deserve to be heard. But that doesn’t mean he deserves $85 million. Or, for that matter, the price of a movie ticket.

(An aside: Let’s get over the whole notion of whether Moore is a journalist. It doesn’t matter. “Fahrenheit 9/11” is a form of advocacy journalism, regardless of Moore’s status as a journalist, a filmmaker, an entertainer or whatever.)

Then there’s the whole matter of whether Damon is a latecomer to the pro-Bush brigades. Scotto, for one, seems to think Damon and his parents appeared at an anti-war speech by Sen. Ted Kennedy, at the liberal Center for American Progress, simply out of respect for the office that Kennedy holds.

It’s possible. I’ll withhold judgment until we hear from Damon. But it’s hard not to notice that the Kennedy revelation came shortly after noon yesterday, and Damon, as far as I can tell, has not yet been heard from.

The bottom line is this: If every act of journalistic malpractice (if that’s what this even was) were worth $85 million, the news media — and the First Amendment — would cease to exist. No doubt there are those who would be happy about that.


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38 Comments

  1. Anonymous

    It’s amazing how much vitriol Mr. Moore can still bring out. He’s almost a straw man–a Goldstein for the right to hate. It gives them some sort of equivalency, what with 99 percent of right-wing talk, thought, and commentary basically boiling down to hate speech.

  2. Anonymous

    “Could WRKO survive a legal precedent that playing unaltered, accurate news clips can cost you tens of millions of dollars if someone doesn’t like the context?” They have bigger problems. For the last month they, (and 96.9FM)have been running an SEIU attack ad on Kerry Healy that says “what’s bad for Mr.&Mrs. Jones is good for Dow Jones” (not “THE Dow Jones”).Wanna bet they never got the permission of Dow Jones, Inc., publisher of the Wall St. Journal, to use their name? How about altered, INACCURATE news? Geeks say “RTFM”. Reporters should go back to the source and ASK them rather than luxuriating in the ability to use 3rd and 4th-hand info.

  3. Anonymous

    9:22Right has talk radio, left has MSM, yeah, I guess that’s “some sort of equivalency.” So what? Talk radio usually admits where they are coming from. If you don’t like it, don’t listen. I don’t see Globe Editors giving any personal background when they expostulate on issues not supported by a majority of their readers, (e.g. civil unions vs. gay marriage). If media like the Globe had not created a void, Talk Radio would have not rushed in to fill it.That’s what pisses off the MSM so much; they did it to themselves.

  4. Anonymous

    Dan Kennedy “Swiftboating” Peter Damon…..oh the irony!

  5. Dan Kennedy

    Anon 10:21: Yes, I call him a “war hero.” That’s really pretty vicious, isn’t it?

  6. Anonymous

    Don’t even go there with the “swiftboating.” God forbid a veteran of a voluntary army that fights in an elective war be looked at as–gasp!–something less than Dwight Eisenhower after WWII. Being a disabled war veteran does not give you a free pass for the rest of your life on being an idiot.

  7. Anonymous

    Anon 9:22, or should I say, Jay Severin regurgitator robot, I certainly don’t listen to the hate-filled spew that comes out of talk radio. And saying talk radio balances out the mainstream media is just idiodically laughable. When the NYT is pre-attacking a not-yet-announced presidential candidate for–gasp!–not spending 37 days a month cuddling in bed with her husband, who happens to be a former president, was that the good ole’ liberal bias showing through? What about that Solomon AP guy’s relentless attempts at painting Harry Reid as on the same level as the overwhelmingly Republican crooks being investigated in D.C. right now? What about Judy Miller, who slavishly parroted Scooter, Cheney, and Chalabi propaganda to help us get to war? Yeah, we’re all just out to get you. You and Bernie Goldberg.

  8. metallicaMobes

    The fact that you (Anon 11:28) just admitted to not listening to Talk Radio, and in the same breath call it “hate-filled spew” is something that I would find humorous if this was an anomoly. People should not tar and feather organizations, people, media-outlets, ideas, etc. without having a direct knowledge and understanding of them- yet they routinely do! “Fox News is crap!” (a lot of it is, you know how I know? I WATCH it) “Talk Radio is hate speech” (funny, you know this, how?)And to suggest that the MSM is not liberally biased is almost beyond reason. Sure, cite a few instances of the Times poking at a few democrats and viola! it’s center-right! Nevermind the day in and day out leftist slant from the editorials and subliminal leading choice of words, topics, and focus in their news. (Oh, and you know how I came to this conclusion? I actually read the NYTimes)

  9. Anonymous

    I stand by my previous statement: right-wing talk radio is “hate-filled spew.” Occasionally the scan button on my radio will stop on it–it takes a couple seconds for the scan function to move on to the next station.Actually, the last time I listened to hate-filled spew on right-wing talk radio, Jay Severin was calling Mexicans “wetbacks” and saying all muslims should be nuked, or something to that effect. That’s nice. And I absolutely agree with you on one other point: Fox News is, indeed, crap. Although I’d take your excellent thesis a bit further and say that all of it is crap, not just “a lot” of it.

  10. Scott Allen Miller

    A few things, Dan-o meboy:1) Sgt Peter Damon is NOT a public figure. His reputation is more protected from defamation than yours or mine. If you’re judging whether this case is a legit lawsuit, that point can’t be overlooked. You didn’t address it on my show.2) On my show we’re vigilant about doing anything actionable. The courts have recognized that we have a large amount of leeway when it comes to satire and fair comment and criticism, but if we take someone’s comments about a subject and use them to further an argument another context, that could be actionable. We only do that in the most obviously satirical of contexts and even then we use the comments of public figures, not private citizens.3) The fact that Sgt Damon was present as a guest of Sen Ted Kennedy at his speech before the Center for American Progress is no more of an endorsement of Kennedy’s or the CAP’s views than Michael Moore’s presence at the 2004 Republican National Convention is an endorsement of President Bush or the GOP. He was an invited guest and graciously accepted the offer. If Damon knew what the CAP was about or what Kennedy’s comments were going to be, I’d be very surprised.4) On my show you made the point that Moore’s use of the footage may have been shoddy or bad journalism, it’s so commonplace that if someone’s reputation is harmed by those actions Moore should not be held to account. That makes no sense. Yes, mistakes happen in journalism, but when those mistakes cost private citizens (let alone war heroes) their reputation, the party responsible for the mistake should be held to account. As you know, free speech, like all rights, comes with responsibility. 5) The lawsuit didn’t come out of nowhere. Damon has been demanding since 2004 that Moore correct the record. Instead of doing that, Moore has been counting the $220 million gross from the film and blowing him off.6) My show is on from 6 to 9 in the morning weekdays on 680 WRKO. This gratuitous plug, uh, I mean, point can’t be emphasized enough.Moore has called the film “an op/ed piece” as opposed to a “fair and balanced work of journalism. Perhaps a little fairness and balance (not the Fox News Channel kind) in the portrayal and treatment of Sgt Damon could have staved off a public lawsuit.

  11. Dan Kennedy

    Scott –Thanks for checking in. I do need to correct you on two points. As I understand it, Damon is not claiming defamation — he’s claiming he was portrayed in a “false light,” a very nebulous legal concept that isn’t even recognized in some states. Also, his status as a private figure comes into play only if Moore’s depiction of him can be shown to be false. If it’s true, then the public/private thing is irrelevant. Then again, he would probably be considered a “limited-purpose public figure” if this were to go to trial, but that’s a whole other argument.

  12. Dan Kennedy

    P.S. — Now that I think of it, if Damon’s appearance in “FahrenHype 9/11” preceded his initiation of settlement talks with Moore, then he is absolutely, 100 percent a public figure. No doubt about it. The fact that no one actually saw “FahrenHype” would be legally irrelevant.

  13. Conservative Conspiracy Theorist

    metallicamobes:Keep up the “liberal media” theme, as if Fox News, Ann Coulter, Michelle Malkin, and conservative talk radio aren’t part of the MSM. Are you saying that they aren’t? It must be difficult to be in so much denial.I’m so tired of the conservative bias in MSM sources like the Wall Street Journal with their day in and day out rightist slant from the editorials and subliminal leading choice of words, topics, and focus in their news.Dan has it pretty much right: Mr. Damon has not been harmed at all. And I thought conservatives were for tort reform? Guess I heard wrong.

  14. Conservative Conspiracy Theorist

    I am puzzled by Scott Allen Miller’s comments. There is record for Moore to correct. He did not misquote Damon, he did not misidentify him, he did not attribute views to Damon that Damon does not hold. Should Damon be suing Teddy Kennedy as well for portraying him “in a false light”?

  15. Rick in Duxbury

    CCT,So talk radio didn’t address a lack of balance? It just spontaneously generated itself? Wow, Scott and Howie are a lot deeper than I thought.

  16. Jenna

    Marlena Dietrich only filmed with her personal lighting man, ergo no false lights.

  17. metallicaMobes

    to the con-con-theorist:It’s fun for us to bust out our laundry list of blatantly conservative/liberal papers, pundits and/or networks in the MSM, but do you really believe that the VAST majority of the MSM (and NO, talk radio is not part of it, neither is the blogosphere) is not left-leaning? I mean, the dominant players in the MSM are not FOX News (besides O’Reilly and to some degree Hannity) and Michelle Malkin; they are NYTimes, The Washington Post, the alphabet networks, and the WSJ(the only conservative source on the list)- Michael Savage, Jay “wetback” Severin, and Gremlin Van Susteren aren’t on most people’s radars. (And I think we all should agree that FOX News is garbage. Could there BE anymore Natalee Holloway coverage? Worst. Network. Ever.)

  18. Conservative Conspiracy Theorist

    Rick in Duxbury:So you’re saying conservative talk radio happened because conservatives didn’t see their own views being reflected in newspapers? I would have thought the demand for conservative media representation would have created conservative newspapers, unless you’re willing to admit that most conservatives in fact can’t read and that the free market really doesn’t work.

  19. Conservative Conspiracy Theorist

    metallicamobes:Fox isn’t a dominant player in the MSM? Conservative talk radio isn’t part of the MSM?We have nothing further to discuss.

  20. metallicaMobes

    Nope, I guess we don’t.

  21. Don

    I went a little overboard on my comment about M.M., “The Joseph Goebbels of the Left” (that wasn’t the offensive part that prompted me to delete it), but when I read things about Michael Moore and Teddy Kennedy in the SAME post, well, I can’t resist doing some bashing. Let’s just say they rank right up there with Oprah and Rosie O’Donnell as four of the most annoying people in the world.

  22. mike_b1

    It’s one thing to be annoying. It’s quite another to be deadly (see Bush, George; Rumsfeld, Donald; Cheney, Dick; etc.)

  23. metallicaMobes

    also see:Kennedy, Tedor does no one remember that?

  24. mike_b1

    Ted Kennedy? Never heard of him.

  25. Anonymous

    S.A.M’s point #1 is odd to say the least. Damon’s suit says nothing about defamation, why bring it up? And, because he was not a public figure,the notion he would have some kind of lower standard than say a judge, is silly. Libel or slander a.must be a lie,b.the defamer must know he’s lying,c.the defamer must be lying with intent to hurt the reputation or personal life of the plantiff.

  26. Rick in Duxbury

    CCT,In places where the free market doesn’t work, people like you are silenced. I suppose it’s a good thing it works, even for folks like you who trivialize it.

  27. neil

    If I didn’t know better, I’d say this discussion had broken down along partisan lines. But we’re above that sort of thing aren’t we. Just looking at the legal merit, Damon is suing because of…huh? Tort reform is like wind power. People agree with the highminded concept, until it comes time to put aside partisan concerns and follow through. If you’re against outlandish and frivolous lawsuits in principle, then you should be against this lawsuit. No exceptions for frivolous lawsuits that try to stick it to somebody you don’t like. Moore’s politics are irrelevant.

  28. Judge Lowi Fan

    Defendant Moore’s Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted. ALLOWED.

  29. Steve

    Wait a minute. Is this the same Scott Alan Miller who asked some guy how does it feels to be “al Qaeda’s representative in Brookline?” (or words to that effect)? He can throw around his rhetoric using any bizarre off-the-cuff accusations, but Moore is out of bounds?Scott, what if that guy decided to sue you over some “defamatory” comments you made on that show? He’d have as much of a case as Peter Damon. Absolutely none.I really dislike the cheap-shot demagoguery schtick that so popular nowadays, but it sells. Suing to stop it is worse. If I encounter Miller on the radio, I’ll change the channel. I don’t buy Moore’s movies or books. And the courts stay unclogged by nonsense.

  30. Scott Allen Miller

    Steve:Wasn’t me. That was John DePetro. Next time you listen, use your ears.

  31. Anonymous

    Thanks Scott, for reminding us that *all* talk radio personalities are hired for one thing – their ability to be polarize. Talk Radio isn’t an alternative to MSM. It’s not right or left. It’s infortainment for angry white guys.

  32. Conservative Conspiracy Theorist

    Rick in Duxbury:What do you mean by “places where the free market doesn’t work”? Can you name some of these places?The “free market” is a myth. There is no such thing, except in the fevered minds of libertarians who pine for a return to a time when markets were free and unfettered. Unfortunately American history shows such a time never existed.

  33. metallicaMobes

    I prefer the term “indignant caucasian males”- and talk radio does more than just polarize- it covers topics that the MSM breezes over routinely. Yes, it certainly is a lot of preaching to the choir- but there’s evidently a huge demand for it. Just like there is for Michael Moore’s films. And just to point out, this debate isn’t falling on PURELY partisan lines- I’m a “right wing extremist” but I don’t think Moore should have to pay $85 million given the claims, evidence and particular circumstances. I would love to see him come crashing down in a flabby mass of destruction one day…

  34. Anonymous

    Kennedy at 12:09: “The fact that no one actually saw “FahrenHype” would be legally irrelevant. That’s a misunderstanding of what the concept of public figure is about. The fact that no one saw Fahrenhype would be hugely relevant to a court trying to decide if he was a public figure, if even a limited one. At the least, to be a public figure, he would need to have access to a public forum. The closer the forum is to the original forum, the more he is likely to be considered a public figure. So if he appears in a film no one sees, a court would be very unlikely to find him a public figure. So it is not legally irrelevant at all.

  35. Steve

    Sorry, Scott, thought it was your show. (In retrospect, I don’t know *why* I thought it was your show – it was 680 AM in the morning and I thought it was your slot.) Obviously, I didn’t listen long enough to find out who the host was, or even who he was talking to, but I didn’t think it worth any more of my time listening to that slop.Thanks for setting me straight.

  36. Steve

    Anon 10:01 – there’s a lot of drivel out there on the AM dial. I don’t like demogogues and I don’t like relentless self-promoters, but I have found some talk radio I like. I like hosts who try to find knowledgeable guests regardless of their idiology.Brudnoy was the best, as long as he stayed away from the Clintons, which brought out an uncharacteristic unreasonability. Gene Burns was great when he was here. I’ve heard that he’s changed a bit since he went west.On balance, I like Lydon. Even though he often doesn’t know when to shut up and let his guests talk.I can take some demogoguery if it’s done with humor. I find I really like Rachel Maddow. And sometimes Franken, though his comedy often just doesn’t work on the radio, and when that happens it’s uncomfortably bad. But he’s usually got interesting intelligent guests. Even the conservative ones. (His interview with Bob Barr was especially good.)Randi Rhodes is intelligent, but she’s tough to take even on her best days. Stephanie Miller is completely unlistenable. Ditto Seder and Garafalo.Springer is boring. Paul Sullivan is boring.I found Severin interesting at times, but his “you’re intelligent if and only if you agree with me” attitude eventually turned my stomach.

  37. Anonymous

    “On balance, I like Lydon. Even though he often doesn’t know when to shut up”cue the lightning bolt!

  38. metallicaMobes

    Don’t forget most of Public Radio- Left, Right and Center is good, Jim Lehrer News Hour- the non-partisan talk radio is actually pretty good, I’ve found. While it does have a subtle left-center stance, it’s intelligent and it’s nowhere near the Bob Schieffer or Dan “Memogate” Blather realm. All in all, NPR is a very good source that I think most of us ignore too often. Afterall, we pay for it, might as well listen to it.

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