The Final Word on CBS and “The Reagans”

11-13-03 | jmstein7

[jmstein7]

The Supreme Court has explicitly held that, “[There is] no constitutional value in false statements of fact.”  Further, false statements “belong to that category of utterances which []are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

 

False statements, i.e. the core of defamation, are not protected by the First Amendment. 

 

There is no question that “The Reagans” is a defamatory piece.   The script is out there for all to see; the CBS mini-series is full of defamatory material.  The screenwriter, Elizabeth Egloff, admits that most of the script is made-up, a work of pure fiction – although CBS did not advertise the series as fiction or fantasy.  In fact, a reasonable view would assume that CBS was reporting historical events.  CBS knew that the words Ms. Egloff put in Mr. Reagan’s mouth are mostly fabricated and false.  CBS would not have been protected by the First Amendment. 

 

Hit pieces like “The Reagans” have no value, and they are not considered speech that is protected by the First Amendment.  As the Supreme Court held in Keeton v. Hustler Magazine, there is no constitutional value in false statements of fact.  Therefore, there is no argument that “The Reagans” is an expression protected by the first Amendment.  In fact, it is defamation and therefore unlawful under California Civil Code sections 44 and 45a.

 

The argument that speech is being chilled by CBS pulling the series is equally absurd.  In Grayned v. City of Rockford, the Supreme Court held that there is no impermissible “chilling” of speech if the law gives those of “ordinary intelligence a reasonable opportunity to know what [conduct] is prohibited.”  Here it is very clear what the law prohibits – defamation.  I’m sure that Les Moonves, and other decision makers at CBS, understand that the law prohibits defamation.  Therefore, since there is no confusion over what exactly the law prohibits – it is very clear – there is no impermissible chilling effect on speech.  Thus, the argument that pulling “The Reagans” chills speech is utter nonsense.

 

“The Reagans” defames both Ronald and Nancy Reagan by falsely misrepresenting their words and conduct.  Under in California, and every other state, defamation is unlawful.  Defamation is not speech that is protected by the First Amendment.  Further, as people of ordinary intelligence understand that defamation is unlawful and unprotected, proscribing or disavowing defamatory material does not and can not chill speech.  Therefore, “The Reagans” is not speech that is protected by the First Amendment, and canceling that series does not create an impermissible chilling effect.

 

There simply is no valid argument to the contrary.  Of course, we know what the left-wingers are really upset about – they have been denied the opportunity to smear Ronald Reagan on national television. 

[tomakaze]

CBS...

[jmstein7]

PING!

[jmstein7]

PING!

[LiteKeeper]

read later

[JoeSchem]

Elizabeth Egloff, admits that most of the script is made-up, a work of pure fiction – although CBS did not advertise the series as fiction or fantasy.

Writers are notoriously lazy and television writers are the laziest of all. This is especially true when it comes to doing research. I half wonder if this particular writer fantasized a Reagan hit piece less out of ideology and more because she was too lazy to do real research.

"What shall I do today? Stay home, or go to the library and check out some books on Reagan so that my script will be accurate? Well, if I go to the library, I won't be able to snort cocaine . . . . "

[jmstein7]

Yes, but don't forget.. intent doesn't matter.

It doesn't matter if the writer INTENDS the work to be defamatory; it only matters that the work IS defamatory.

That is an important distinction.

[jmstein7]

Con Law PING!

[jmstein7]

PING!

[Eric in the Ozarks]

Is the above your research ? If so, thank you and thanks for posting.

[cake_crumb]

Malice aforethought must be proven, and the contentions of the left with CBS' blessings that The Reagans is drama rather than documentary are simple legal maneuvering to get around defamation or libel suits.

[Alamo-Girl]

Great essay! Kudos to you! Thanks for the heads up!

[jmstein7]

Yup; its my own research.

[Ditter]

So, will it still appear on Showtime?

[jmstein7]

Malice is demonstrable here; read the other article I wrote on that very subject.

[Carry_Okie]

How does defamation substantively differ from slander?

[jmstein7]

Slander is a type of defamation; read the other article I wrote on that very subject.

[JayNorth]

If it's a drama you have a character named "President Keegan" who looks a lot like The Best President This Country Has Ever Had and you have pretty much free rein. If you are a lib you can make him as vile as you wish with no problems. People recognize that it isn't intended to be factual. When you call it a documentary and use real people's names there is a whole different standard. People expect it to be reasonably truthful.

I don't see how we really "won" on this one, however. It will still show on Showtime, and will then be on USA network or those other second or third tier channels over and over for the next many years. I know I'll hear some idiot at a party talking about how "Reagan said those AIDS guys deserved to die" because he saw it on TV.

[Carry_Okie]

Thank you. That clears it up for me considerably.

[MeekOneGOP]

CBS will not broadcast THE REAGANS
on November 16 and 18. This decision
is based solely on our reaction to
seeing the final film, not the controversy
that erupted around a draft of the script.