Argo, Zero Dark Thirty, and Lincoln and Fictionalization in Fact-Based Films

by John Aquino on 01/24/13

This post was slighty amended and embellished Feb. 27, 2013.

I have written a book and three articles on the topic of legal issues involving fictionalization in fact-based films. A spate of recent films prompts me to revisit the topic.

Some points from what I've written before. When a living person feels that he or she has been defamed by a movie portrayal, they can file litigation, facing the fact that someone who has been portrayed in a movie is likely to be considered a public figure for defamation litigation purposes and have to prove that the false statements in the movie were made not just with negligence but with absolute malice, which means knowing the statements were false or being indifferent as to whether or not they were true. Courts have tended--although not always--to accept the filmmakers' argument that the fact that the statements were made in a film means there was no absolute malice.

To establish lack of intent to historical accuracy and an exact portrayal of real people, Hollywood filmmakers started in the early 1930s to use disclaimers at the beginning of the film stating, "The persons and events portrayed in his film are fictitious, and any resemblance to persons living or dead is purely coincidental," even if the film was based on historical characters and events like They Died with Their Boots On (1942) about General Custer. As film biographies became more realistic, the disclaimers for fact-based films changed to "some of the persons and events are fictitious..."

If the person portrayed is dead, defamation litigation is not an option since, the saying goes, "the dead cannot sue for libel." Defamation litigation is designed to restore an individual's reputation. The law is framed on the idea that once you are dead you, personally, are beyond the court's help. Family members have pursued other causes of action, with little success.

Whether or not litigation is possible, fictionalization in fact-based films also raises the question of the dilution or corruption of truth.

From the filmmakers' perspective, their job is to tell a good story, which may prompt them to streamline the facts, which they will likely need to do anyway to cram years of history in a two-hour film.

Argo, directed by Ben Affleck with a screenplay by Chris Terrio, tells the fact-based story of the rescue of six U.S. diplomats hiding in the Canadian embassy in Iran during the larger Iran hostage crisis of 1978-1981, in which 52 diplomats were seized from the U.S. Embassy. The movie's story is true: the Central Intelligence Agency did fabricate, with the help of Hollywood professionals, a movie and send agent Tony Mendez into Iran with the plan of having the six Canadian Embassy hostages leave the country as his film crew. The plan worked, the hostages were rescued, and the credit for the rescue was given to the Canadian government so as to not further stir up anti-U.S. sentiments.

For the first half of the film, it appears to stay pretty close to the facts, and it is an exciting premise and a tense situation as the hostages wait for the Iranians to learn that they are there and to break down the door. There are also humorous moments as Mendez works with Hollywood filmmakers to set up the fake movie.

But for the rescue itself, the filmmakers had a problem. According to Mendez, once they were out of the embassy, everything went "as smooth as silk." They went through passport control with their faked passports, they boarded the plane, and left. This was evidently deemed to be not very exciting, and what actually happened is now well known--they got out--so there was already no suspense. So the filmmakers dipped into the box of standard movie tricks and employed virtually all of them to create some measure of suspense.

SPOLER ALERT: The CIA pulls the plug on the operation, Mendez goes anyway, and so when he gets to the airport there are no tickets; meanwhile his boss scrambles to get the tickets reissued. The diplomats' passports are questioned, a soldier calls the fake Hollywood office and, because the CIA pulled the plug on the operation, there is no one to answer the phone, it rings and rings, until the very last moment when one of the "fake" Hollywood producers answers it. The hostages' departure is finally approved, they get on the plane, the Iranians find out they are Americans and pursue them, driving their jeeps alongside the SwissAir plane until it takes off (the pilot doesn't appear to notice).

The thing is, NONE OF THIS HAPPPENED. Everything went as smooth as silk.

As noted earlier, a filmmakers' job is to tell a good story. Affleck and Terrio did that. The film was untrue to some facts in addition to those noted in the preceding paragraph. It streamlined the story to the point that, as the actual Canadian ambassador said about the film, "it turned us into innkeepers" and omitted the active role he and the Canadian government played in the whole scheme. There were objections concerning this when the film was shown at the Toronto film festival, and Affleck added a text epilogue alluding to the Canadian involvement.

But it's an exciting film that is--acknowledging the divergence from the facts--true to the spirit of what happened.

The filmmakers also had to deal with the conflict between promoting that the film as "based on a true story" and acknowledging in a disclaimer that some characters and events were fictionalized. For example, the producer played by Alan Arkin is fictitious. The filmmakers' solution was not to have a disclaimer at the end of the credits as is now the custom but to bury in the middle of the credits the sentence that some characters and events were fictionalized for dramatic purposes.

Zero Dark Thirty is about the 10-year search for Osama Bin Laden, the mastermind of the Sept. 11, 2001 attack on the United States. Director Kathryn Bigelow and screenwriter Mark Boal needed a dramatic incident to move the story forward. Based on their research, they decided to show that a piece of information elicited during the form of torture known as waterboarding ultimately led to the raid on Bin Laden's hiding place.

After the movie was premiered, CIA officials and others disputed that this had happened. An official who was involved in the questionings acknowledged waterboarding but said it was strategically much more limited than shown. Bigelow and Boal stand by their story.

Both Zero Dark Thirty and Argo carry in the opening credits the phrase "based on a true story." Affleck said in a Sept. 12, 2012 interview in Macleans, "Because we say it's based on a true story, rather than this is a true story, we're allowed to take some dramatic license. There is a spirit of the truth."

In reaction to Zero Dark Thirty, lawmakers and the CIA called on Sony Pictures to put a disclaimer on the film that it is fictitious. Like Argo, which invented cars chasing planes and the like, the film appears to follow the spirit of the truth, employing traditional dramatic elements--the mumbled phrase, what does it mean?--to propel the story.

With Lincoln, since all portrayed are very long dead, there is no defamation worry but instead, the issue is, does it corrupt the truth?

The film carries no disclaimer and just cites that it was partly based on a book by the historian Doris Goodwin, A Team of Rivals. It appears to be fairly close to the book which was said to be close to the fact. Screenwriter Tony Kushner noted that newspaper reporting at the time sumnmarized but did not quote speeches and debate and so he was free to and had to invent them. Some of the liberties he took with facts were criticized. A Connecticut congressman noted that the movie has the Connecticut members of Congress vote against the 13th Amendment when they all voted for it. Kushner responded that he was trying to build up a particular flow of events, that he had changed the names of the congressmen in the movies from those who actually existed so they would not be blamed for what he had them too, and that, by the way, he hoped that no one would be shocked that he invented speeches too.

There was also criticism with the sets.  During the debate on the Thirteenth Amendment, the House floor is jammed, and there is not an empty seat. In 1865, there were actually 18 empty seats for the states that had left the Union. In the 1942 film Tennessee Johnson about Lincoln's second vice president Andrew Johnson, during his impeachment trial he alludes to the empty chairs. The filmmakers may have known about the empty chairs but opted instead for the dramatic effect of a jammed chamber.

Lincoln has an otherwise taut script by Tony Kushner and an exceptional performance as Lincoln by Daniel Day Lewis. The direction by Steven Spielberg tends to be "historical-drama paced" rather than propelled with some energy but he captures the period extremely well. And, years after anyone could sue, it appears to be closer to the truth than is usual.

Copyright 2013 by John T. Aquino