“Any attempts to libel me will be met by force,’”Fahrenheit 9/11 director Michael Moore told the New York Times on Sunday (June 20, 2004). “The most important thing we have is truth on our side. If they persist in telling lies, knowingly telling a lie with malice, then I’ll take them to court.”
The Times also reported that Moore “has consulted with lawyers who can bring defamation suits against anyone who maligns the film or damages his reputation,” and that he’s established a “war room” to monitor attacks on the film. Lest anybody miss his threat, the filmmaker repeated it the same day on This Week With George Stephanopoulos and in the pages of the San Francisco Chronicle, and will probably whistle the same libel tune all week long in publicity interviews for the film, which opens Friday.
The first peculiar thing about Moore’s libel-mongering is that most American journalists disdain libel suits as a matter of principle. Even when they have good cause for a suit, most journalists refrain from filing, believing that libel threats keep topics of controversy from being aired. They’d rather contest hostile attacks on their work in the marketplace of ideas, not courtrooms. Why Moore, the former editor of the Michigan Voice and a regular purveyor of controversial journalism, has chosen to break with this tradition is anybody’s guess. (One irony too good to pass up: Stringent libel laws, the sort that Moore appears to be advocating this week, have essentially blocked the publication of journalist Craig Unger’s book House of Bush, House of Saud in the United Kingdom. Noteworthy only because Unger and his book are important Fahrenheit 9/11 sources.)
Be that as it may, if Moore wants to sue anyone who maligns his film, he certainly has a legal right to do so. But will he get very far?
Defamation (written libel) occurs when somebody publishes as fact something that is false, is “unprivileged,” and harms somebody’s reputation by making him the object of hatred or ridicule, causes him to be shunned, or injures him financially or professionally. So unless Moore’s critics call him a liar, a felon, a murderer, a chiseler, a Nazi, a child molester, tax evader or any other false statement that is objectively provable, they’ll likely not receive a court summons from his lawyers. (See this libel refresher on Findlaw.)
Likewise, no court would be inclined to find in Moore’s favor if a critic accused him of lying once or twice or 12 times in Fahrenheit 9/11, or accused him of bending facts to his convenience, or damned him for being disingenuous. This sort of subjective expression of opinion is protected under the law, and there’s nothing the blustering Moore can do to stop his critics from making them. Given the thousands of wildly hostile film, book, and restaurant reviews published each year, court dockets would be overflowing with libel suits if bringing one was as easy as Moore pretends to think it is.
I write “pretend” because Moore understands, from first-hand experience, the protections enjoyed by opinion journalists. On This Week, Moore described Fahrenheit 9/11 as “an op-ed piece. It’s my opinion about the last four years of the Bush administration. And that’s what I call it. I’m not trying to pretend that this is some sort of, you know, fair and balanced work of journalism. …” Later in the interview, he called the movie “a comedy, too.” In other words, he knows that nobody is likely to get very far by suing him for his opinions, as expressed in Fahrenheit 9/11. Since he clearly understands the law, it’s plain that if we take Moore at his word, he appears to believe in free speech only for himself.
On the outside chance that a court decided that a critic published as fact something that is false and caused people to despise Moore, he would still have to prove in a court of law that the statement injured him financially or professionally. Seeing as Fahrenheit 9/11 is sure to do better box office than every previous Moore film, increase his leverage in the movie and book industries, and secure for him the Insignia of Commander in the Order of Arts and Letters, how will he ever prove damages?
Of course, multimillionaire Moore can always punish his critics financially by filing silly lawsuits that require them to spend huge sums to be dismissed as frivolous. But Moore is not likely to want that sort of publicity and heartache—it’s as much a drag to sue as it is to be sued. And a man with his sort of assets isn’t likely to tempt a countersuit by the defendant when the case is tossed out. Moore isn’t likely to find a more severe appraisal of his film and his work than this Slate piece by Christopher Hitchens. Read it, Mr. Moore. We invite your suit.