# How is stopping someone making a film about very famous public figure not a 1A violation? **URL:** \ **Category:** Great Debates\ **Created:** [March 21, 2022, 7:29pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445 "2022-03-21T19:29:37Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [March 22, 2022, 2:34pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/61 "2022-03-22T14:34:57Z")
> [@griffin1977](#): > > (and are now strongly restricted such that, for public figures, simply showing the defendant knew the facts were untrue is not enough, showing malice is required) Actual malice _ **is** _ present where the defendant knew the facts were untrue. The standard is “with knowledge that it was false or with reckless disregard of whether it was false or not.” What is insufficient is merely proving it is untrue or that the defendant was negligent about verifying. If you can prove (difficult) that the defendant _knew_ it was false, then you have established actual malice. ---
**Author:** ![iamthewalrus\_3](https://avatars.discourse-cdn.com/v4/letter/i/258eb7/32.png) [@iamthewalrus\_3](https://boards.straightdope.com/u/iamthewalrus_3)\ **Post date:** [March 22, 2022, 3:03pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/62 "2022-03-22T15:03:39Z")
Keep fighting the good fight, @griffin1977. This is not a hypothetical! There is lots and lots of legal writing by the Supreme Court that clearly and specifically says that civil actions over speech have first Amendment implications. There are specific areas and forms of speech that legislation or the courts have decided are a reasonable carveout against some kind of absolutist “no restrictions on speech” position, but that doesn’t mean that the 1st Amendment isn’t relevant, simply that it isn’t absolute. ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [March 22, 2022, 3:05pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/63 "2022-03-22T15:05:05Z")
> [@griffin1977](#): > > This is patently untrue. It says _the government_ can’t penalize you for protected speech, that includes civil judgements just as much criminal ones. You keep insisting this. Show us a cite of a court case or legislation that supports your assertion. You are entitled to your own opinion. You are not entitled to your own facts. ---
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [March 22, 2022, 3:06pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/64 "2022-03-22T15:06:29Z")
> [@Kent\_Clark](#): > > You keep insisting this. Show us a cite of a court case that supports your assertion. > > You are entitled to your own opinion. You are not entitled to your own facts. I showed several above. e.g.: > [@griffin1977](#): > > Its not like this is hypothetical, the libel and slander laws are exact this (purely civil laws that involve damages being taken from one private individual and given to another) and they have been found to have profound 1st amendment implications over the course of several [court cases](https://mtsu.edu/first-amendment/article/186/new-york-times-co-v-sullivan) (and are now strongly restricted such that, for public figures, simply showing the defendant knew the facts were untrue is not enough, showing malice is required) ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [March 22, 2022, 3:09pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/65 "2022-03-22T15:09:36Z")
> [@griffin1977](#): > > I showed several above. e.g.: And I pointed out you were mistaken. > [@Procrustus](#): > > > [@griffin1977](#): > > > > (and are now strongly restricted such that, for public figures, simply showing the defendant knew the facts were untrue is not enough, showing malice is required) > > Actual malice _ **is** _ present where the defendant knew the facts were untrue. The standard is “with knowledge that it was false or with reckless disregard of whether it was false or not.” ---
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [March 22, 2022, 3:15pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/66 "2022-03-22T15:15:30Z")
> [@Procrustus](#): > > And I pointed out you were mistaken. That’s irrelevant to the point I was making. Regardless of the exact definition of malice (IANAL I’m not going to argue with you as to the exact definition of malice defined by the case), that example clearly shows (for the umpteenth time) that purely civil law, that only ever results in one private party paying damages to another private party, is absolutely absolutely absolutely absolutely absolutely absolutely absolutely absolutely absolutely absolutely absolutely 100% completely covered by the 1st amendment. The NYT had been forced by the state to pay damages to Sullivan it _would_ have a been a violation of their 1st amendment right to free speech. ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [March 22, 2022, 3:16pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/67 "2022-03-22T15:16:39Z")
Your interpretation is incorrect. Knowing that the facts are untrue but publishing them as facts anyway fits the term “malice.” My cite is [New York Times Company v. Sullivan.](https://supreme.justia.com/cases/federal/us/376/254/) > Brennan used the term “actual malice” to summarize this standard, although he did not intend the usual meaning of a malicious purpose. “Malice” had a long-standing meaning within libel law that limited it to knowledge or gross recklessness rather than intent, since courts found it difficult to imagine that someone would knowingly disseminate false information without a bad intent. ---
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [March 22, 2022, 3:17pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/68 "2022-03-22T15:17:55Z")
> [@Kent\_Clark](#): > > Your interpretation is incorrect. Knowing that the facts are untrue but publishing them as facts anyway fits the term “malice.” Which entirely irrelevant to the point I was making and a complete straw man. That case show that purely civil law, that only ever results in one private party paying damages to another private party, is absolutely absolutely absolutely absolutely absolutely absolutely absolutely absolutely absolutely absolutely absolutely 100% completely covered by the 1st amendment. Even if the case found that only libel written on Sunday and tatooed on the back of a goat is protected speech, it still clearly proves that point. ---
**Author:** ![bump](https://avatars.discourse-cdn.com/v4/letter/b/7c8e57/32.png) [@bump](https://boards.straightdope.com/u/bump)\ **Post date:** [March 22, 2022, 3:26pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/69 "2022-03-22T15:26:43Z")
That is absolutely NOT how that works. The 1st Amendment prohibits the government from passing laws that abridge the freedom of the press and freedom of speech. Enforcing a judgement against the defendant in a civil court case does not generally run afoul of that, unless the plaintiff turns out to be the government itself. Even then, it’s probably very case-dependent on whether or not free speech is being abridged or not. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [March 22, 2022, 3:35pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/70 "2022-03-22T15:35:29Z")
> [@bump](#): > > The 1st Amendment prohibits the government from passing laws that abridge the freedom of the press and freedom of speech. Well, our friend is correct on a minor point. The courts have held that defamation suits can have a chilling effect on speech and need to be limited by first amendment concerns, especially for public figures. It would be interesting to track how the courts came up with this view that the first amendment (“congress shall make no law”) has a role to play in private disputes, but there is no doubt that this is where we are. I’m still perplexed by what films he thinks can’t be made. ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [March 22, 2022, 3:39pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/71 "2022-03-22T15:39:07Z")
OP, your opinion has certainly evolved since you’ve posted this. > [@griffin1977](#): > > and as I pointed out that is 100% not the case. Whether or not, this particular thing is a 1st Amendment violation, its the government taking all your money with the threat of violence because you lost a civil court case is totally a government sanction that could potentially violate the 1st Amendment. Now you’ve agreed that under some circumstances a public figure can actually be libeled/slandered/defamed, and in those cases the courts can order the party at fault to pay damages, and that doing so is NOT “the government taking all your money with the threat of violence because you lost a civil court case is totally a government sanction that could potentially violate the 1st Amendment.” Perhaps we should turn the topic back your original point: Namely, whether an individual has some rights regarding the use of their identity in a commercial work is a violation of the First Amendment, or whether it’s a protected right of privacy. ---
**Author:** ![griffin1977](https://avatars.discourse-cdn.com/v4/letter/g/977dab/32.png) [@griffin1977](https://boards.straightdope.com/u/griffin1977)\ **Post date:** [March 22, 2022, 3:50pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/72 "2022-03-22T15:50:55Z")
> [@Kent\_Clark](#): > > OP, your opinion has certainly evolved since you’ve posted this. What!? I’ve just posted a case that proves _exactly_ that point. Again as apparently there is some confusion about how this stuff works. I said… > Whether or not, this particular thing is a 1st Amendment violation, its the government taking all your money with the threat of violence because you lost a civil court case is totally a government sanction that could potentially violate the 1st Amendment. The case I linked [New York Times Company v. Sullivan.](https://mtsu.edu/first-amendment/article/186/new-york-times-co-v-sullivan) shows _exactly_ that. The court found that if the government had used the power of the courts (and the threat of state violence inherent in that) to take money from the NYT and give it to Sulivan it would have been a government sanction that violated the 1st amendment rights of the New York Times to free speech. Even though it was a civil case involving two private parties. ---
**Author:** ![Kent\_Clark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kent_clark/32/105_2.png) [@Kent\_Clark](https://boards.straightdope.com/u/Kent_Clark)\ **Post date:** [March 22, 2022, 4:03pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/73 "2022-03-22T16:03:07Z")
And in [Burnett v. National Enquirer](https://casetext.com/case/burnett-v-national-enquirer-inc) the court ordered the Enquirer to pay damages to Carol Burnett, finding that the Enquirer had, in fact, libeled her. Interestingly, the Enquirer did not attempt to reverse that finding on First Amendment grounds. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 22, 2022, 4:27pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/74 "2022-03-22T16:27:12Z")
> [@Miller](#): > > What happens if I lose a civil case, and refuse to pay? IANAL, but I’m guessing it involves the government forcibly taking money from me and giving it to the other party, and maybe throwing me in prison for a bit on top of that. What happens if you refuse to pay any money you owe? The person you owe money to can get take you back to court. But this has nothing to do with free speech. This is debt collection. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 22, 2022, 4:34pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/75 "2022-03-22T16:34:10Z")
As I already said, there is an important distinction here the OP is missing. Being free to say something is not the same as being free to say something without facing any consequences afterwards. If I say something and it harms another person, that person can sue me for the harm I caused them. That dispute will then be between that other person and me. The government is not acting against me even if our dispute is resolved in a court room. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [March 22, 2022, 4:52pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/76 "2022-03-22T16:52:58Z")
> [@bump](#): > > That is absolutely NOT how that works. The 1st Amendment prohibits the government from passing laws that abridge the freedom of the press and freedom of speech. And if you try to sue someone, you’re doing it under the auspices of laws passed by the government. If someone wrecks my car, I can sue them for the damage to my car, because there’s a law that says, “If someone breaks something you own, they have to pay for it, and if they don’t, the government will make sure they do.” If you decide to flay a Gadsen flag outside my house, and I don’t like Gadsen flags, I can’t sue you, because there’s no law that says “If someone flies a flag they don’t like, you can sue them.” And if someone tried to pass a law that said I could sue someone for flying a Gadsen flag, it would be struck down as violating the First Amendment. > [@Little\_Nemo](#): > > As I already said, there is an important distinction here the OP is missing. > > Being free to say something is not the same as being free to say something without facing any consequences afterwards. Once you involve the government, even if only as an adjudicator to a civil lawsuit, that saying completely ceases to be relevant. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [March 22, 2022, 4:54pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/77 "2022-03-22T16:54:40Z")
> [@Procrustus](#): > > I’m still perplexed by what films he thinks can’t be made. I think it’s fairly clear what he’s talking about, and I think he’s largely correct except he’s said a few things as absolutes when they’re not. The movies that he thinks can’t be made are the ones where the fear of a civil judgment, or of having to bear the cost of litigation in a civil matter, exists to such a degree that the movie doesn’t get made even though the expression should be protected by the First Amendment. He’s right that a Constitutional violation can occur in civil court, and he’s right that his misstatement of the actual malice standard is irrelevant to that. I’m not sure why a few people are treating this like a wild assertion. ---
**Author:** ![bump](https://avatars.discourse-cdn.com/v4/letter/b/7c8e57/32.png) [@bump](https://boards.straightdope.com/u/bump)\ **Post date:** [March 22, 2022, 4:56pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/78 "2022-03-22T16:56:29Z")
> [@Miller](#): > > If you decide to flay a Gadsen flag outside my house, and I don’t like Gadsen flags, I can’t sue you, because there’s no law that says “If someone flies a flag they don’t like, you can sue them.” Actually that’s not quite true. You can definitely sue me in civil court (as I understand it, laws don’t have to be broken to sue in civil court), but your lawyer would have to attempt to show some damages, and manage not to get it thrown out for being frivolous. But in a criminal court sense? I’m not breaking any laws, so the state has no cause to go after me. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [March 22, 2022, 5:00pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/79 "2022-03-22T17:00:45Z")
I’ve mentioned this case twice now, and it seems to have been ignored, but it seems pretty on point to me. In 1983, in Hustler Magazine, Larry Flynt, a private citizen, published a fake ad featuring Jerry Falwell, another private citizen, that included him talking about having sex with his mother. Falwell sued, and lost. Here’s the court’s decision: > [@](#): > > In order to protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with “actual malice,” i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. The State’s interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. Here, respondent is clearly a “public figure” for First Amendment purposes, and the lower courts’ finding that the ad parody was not reasonably believable must be accepted. “Outrageousness” Falwell lost the case because the court held that enforcing a judgement against Flynt would violate his First Amendment rights. ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [March 22, 2022, 5:02pm UTC](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445/80 "2022-03-22T17:02:41Z")
Texas has just taught us that the government can pass a law that says anyone can sue someone for doing X and get $10,000. If X happens to be speech related, instead of a medical procedure, that law may very well damage 1st A protections, despite being an entirely civil matter between two private parties. So, yes, freedom of speech isn’t freedom from consequences, but insofar at the government influences the consequences, they have to be mindful to not cross the line into the 1st Amendment. [Previous page](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445.md?page=3) [Next page](https://boards.straightdope.com/t/how-is-stopping-someone-making-a-film-about-very-famous-public-figure-not-a-1a-violation/961445.md?page=5)