Don’t Accuse People of Being Murderers on TV

Ten years ago I was an associate producer on a Court TV show that was investigating wrongful conviction claims. Each episode would center on a man or woman serving life in prison for a murder they say they didn’t commit. During one particular episode, I felt we had really solid circumstantial evidence that the real killer had gotten away. I was so sure this other guy - I’ll call him “Dave” - was the real killer that I had written some voiceover accusing him of it. 

We sent the rough cut with my temp voiceover to our lawyer before passing it to the network for notes. A day later, the lawyer called me and told me to rewrite the voiceover. I didn’t understand. If we had the evidence why couldn’t we say we thought Dave was the guy? He told me that we could talk about the evidence, we could even discuss if other people thought Dave was the real killer, but we couldn’t directly accuse him since we didn’t want him to sue us for libel. I continued to push back and he very patiently told me that I was out of my fucking mind and hell would freeze over before he’d allow the voiceover as I'd written it to get sent to the network.

Of course now I totally get it. 

Last week, CBS aired a mini-series about the 1996 murder of JonBenet Ramsey. What’s shocking is that the investigators openly and brazenly stated their belief that the Ramsey’s son, Burke, 9-years old at the time, was responsible for the murder and that Burke’s parents staged a more elaborate crime scene to protect their son. According to one of the investigators:

“I think Burke was upset about circumstances or Christmas presents, he probably would have been upset about her trying to snag a piece of pineapple. Out of anger, he may have struck her with that flashlight. I think we all agree on that.”

What’s not so shocking is that Ramsey’s attorney, L. Lin Wood, is now threatening to sue CBS for its “lies, misrepresentations, distortions and omissions.” CBS’s response to the threat? “CBS stands by the broadcast and will do so in court.”

Why would CBS allow its on-camera talent to accuse someone of murder? I have a couple of theories.

1. CBS ended the broadcast with a disclaimer that the opinions of the investigators were just opinions on one of a number of possible theories. Maybe they thought the disclaimer was sufficient to protect them.

2. Maybe they felt the case was so well litigated in the public sphere that any accusations against Burke were old hat.

3. Maybe CBS felt that its reputation as a news gathering organization was enough to shield them from liability since the standards for news are different than those for documentaries.

4. Maybe CBS was tired of using hedging language (more on that below) and wanted to come up with something that gave closure to a 20-year old cold case.

5. Maybe they got some bad legal advice.

Whatever the reason, CBS is now staring down the barrel of a defamation lawsuit. In order for the Ramseys to win on a defamation claim, they would have to prove that 1) the statements made against them in the doc were false (i.e. since Burke was never charged, there’s no factual basis for accusing him), that 2) the statements were made with some level of negligence, and 3) the statements caused some actual harm to their character or reputation.

All told, I don’t think this would be hard to prove. But CBS may have an ace up its sleeve, which could account for its confident posturing against Wood. The Ramseys may be private citizens, but they are publicly known for this case; accusations having swirled around them for the last 20 years. CBS is likely to make the argument that they aren’t merely private figures, but instead “limited purpose public figures.” A limited purpose public figure is someone who has become well-known because of a particular issue. It’s not hard to envision a judge or jury buying that argument. Which means if they are indeed limited purpose public figures, the standard for proving defamation is much higher. In that case, they would have to show that CBS allowed false statements about them to be broadcast with actual malice, not negligence, which is typically reserved for private figures only. That is, an actual intent and desire to harm the Ramseys’ reputations further. It’s not an easy bar to meet and if this case goes forward, my money is on CBS A) winning, or B) settling with the Ramseys for a moderate sum.

I’m not sure if I find the initial accusation against Burke or CBS’s stoic attitude more shocking. Is it reckless? Who can say? CBS has been around long enough that I find it hard to believe they'd make a rookie mistake like this. My guess is they know what they’re doing (or at least think they do) and are betting on it working out in their favor. 

But it’s worth pointing out that many lawyers, myself included, prefer hedging language that either couches accusations behind known facts or is so squishy that an accusation can’t be reasonably implied. It’s why all criminal suspects, no matter how guilty they clearly are, are always referred to as “alleged.”  It’s why after a conviction, they are referred to as “convicted.” You’re not accusing anyone of murder by stating that they’re “accused of an alleged crime.” That’s just telling the audience the legal status of a suspect. That’s why saying “X says Y is the killer” is much less likely to get you sued than “I think Y is the killer.” You’re not asserting anything other than the fact that someone else thinks Y is the killer. Yeah it’s a little weasely, but, well, lawyers are sometimes weasely. That’s why I ended up rewriting all that voiceover ten years ago.

I can tell you that I certainly wouldn’t have counseled the producers to end with such a bold proclamation of assumed guilt. I can also tell you that if you produced a true-crime doc and came to me for legal advice, you would have a hell of a time convincing me to allow you to let the show go to air. But CBS has a lot of lawyers. Maybe they know something I don’t. Or maybe they made a stupid mistake. Time will tell. Regardless of how this works out for CBS, my advice to you is pretty simple: even if you have the evidence to prove it, don’t accuse people of being murderers on TV. Leave that to the courts.

Supreme Court Deathmatch: Aereo vs. The Entire Broadcast Network Industry

For the last six months, a friend of mine has relentlessly tried to get me to ditch my Xfinity hookup and replace it with Aereo, an online TV subscription service. To hear him tell it, it’s the greatest thing ever invented - immediate and live access to broadcast news, sports, and TV shows from the big 10 networks such as NBC, CBS, ABC, FOX, PBS (no cable channels though), all for a measly $8 a month. I think I’ll wait though. I’m happy with my yesteryear technology and I derive a certain amount of comfort from mindlessly flipping through hundreds of channels I’ll never watch. More importantly, Aereo may not even exist in six months. That’s because tomorrow the Supreme Court will hear oral arguments in the case of American Broadcasting Companies, Inc. v. Aereo, Inc. And if Aereo loses, according to its own CEO, the company is kaput.

For those who don’t know, Aereo is a startup that takes television broadcasts from networks and retransmits them to you live via the internet. You can also store these broadcasts in a cloud-based DVR, all for the cost of two cups of coffee. As it turns out, even though you’re paying Aereo, Aereo is not paying the networks; it's just ripping these broadcast signals out of the air and streaming them to you. That didn’t make the networks too happy, so they banded together and sued Aereo for copyright infringement.

This isn’t an easy case and I don’t envy the justices the amount of work they'll have to even understand the technology at play (read this article if you want to know how behind-the-times the SCOTUS really is). Ultimately, this case turns on whether Aereo’s retransmission of broadcast television constitutes a “public or private performance” of copyrighted works. Private performance is perfectly legal, like when you buy a DVD and show it in your home. Even if you invite 100 friends over to watch, you’re safe. But let’s say you rent a theater and charge for admission - that would make the performance public, and that becomes copyright infringement.

In this case, the networks argue that Aereo’s actions constitute public performance because:

1. Aereo streams “live TV” to a wide variety of subscribers;
2. Aereo charges fees for its services;
3. Unlike other retransmitters, Aereo doesn’t pay licensing fees to the networks for permission to broadcast their content.

In opposition, Aereo argues that it does not transmit “to the public.” It transmits only to its paying user base. Furthermore, the choice about what gets retransmitted at any given time is made by the subscriber, not Aereo. Some lower courts have already sided with Aereo, but if I’m being totally honest, I empathize with the networks, even though siding with a corporate copyright holder gives me the willies. Creating and broadcasting content is back-breakingly hard and terrifically expensive. Even some of those low-budget reality shows for third-rate cable channels that look like they were shot on iPhones… oftentimes they have budgets in the tens of thousands of dollars per  episode. And there are lots of working-class content creators behind those shows. Remember, most people in the entertainment industry aren’t millionaires; they’re regular people working paycheck to paycheck, relying on a steady stream of work from networks and studios to pay their bills. It’s easy to think of the producers and directors and say “who cares?” But the people who get hurt first and hardest are the below-the-line talent: the grips, boom operators, location managers, scouts, production assistants, etc. What will happen to those jobs if the networks believe that pouring money into original content is no longer a profitable business model? And if you’re one of the networks, do you want to continue operating in an industry where it’s permissible for competitors to poach your signal and rebroadcast your content without owing you a fee for your trouble?

I don't know what's going to happen, but in a corporate-friendly court like this one, I can see the Supreme Court buying an argument that Aereo’s continued existence will irreparably harm the bottom lines of not just the networks, but the big telecoms like Comcast and Time Warner (soon to be a single world-killing behemoth). I don’t want to see Aereo go down because the use of technology to better peoples' lives is an intrinsic part of the American ethos. But I also don’t want to see a wholesale dismantling of the entire entertainment industry (alarmist I know, but still possible).

I’ll update this post with some thoughts after Tuesday’s oral arguments. In the meantime, I’m going to stick with my cable hook up, and I’ll tell my friend to  start budgeting for cable again if Aereo goes down the poop chute.