The Divergence from Facts in the Movie About Richard Jewel--Defamation, Unethical, or Both?

The focus of the movie is on Jewel, a security guard who discovered a green backpack containing three fragmentation-laden pipe bombs underneath a bench outside of a concert held during the Olympic games. Jewel alerted the authorities and helped clear the area before the bombs exploded, with casualties limited to one dead and injuries in the low 100s. Initially hailed as a hero, Jewel was later vilified after an article by Kathy Scruggs and Ron Matz reported in the Atlanta Journal-Constitution that the FBI was investigating Jewel for planting the bombs in order to obtain celebrity. The agency had based their suspicions on a "lone bomber" criminal profile. It formally cleared Jewel 88 days later, and seven years after that Eric Rudolph was arrested and later convicted and sentenced to multiple terms of life imprisonment. But Jewel's reputation was ruined as a result of non-stop reporting and speculation in newspapers and on television. He sued the AJC, the New York Post, the television networks NBC and CNN, and his previous employer Piedmont College for defamation. The last four reached settlements with Jewel, but AJC did not, standing by its contention that its reporting was accurate--the FBI was investigating Jewel., and in 2011 the Georgia Supreme Court ruled in AJC's favor. Some media attorneys and advocates have argued that the AJC reporting was unethical and inappropriate because Jewel had not been formally charged.

My writing had stressed several conclusions concerning legal issues involving fictionalization in fact-based films. The only person who has "standing" to sue for defamation is the person whose reputation has been injured. The dead cannot sue for libel--because they are dead--and neither can their families because they have no standing. Filmmakers, consequently, often wait for those portrayed in their fact-based films to die so that there will be no defamation suits; This forces families to attempt to find other causes of action for litigation, usually without success. If the people portrayed are still alive, filmmakers may still go forward, but usually seek those individuals' cooperation. Finally, filmmakers will often "toy" with the facts to make them more dramatic. For example, in the 2012 film Argo, which was based on a CIA agent's plan to rescue six Americans hiding in the Canadian Embassy in Iran during the 1979 Iranian hostage crisis by pretending they were part of a movie company preparing to make a movie in Iran. In real life, the plan worked perfectly, and the hostages simply flew out of the country. This, evidently, wasn't dramatic enough, and the filmmakers showed the Iranian officials detecting the ruse at the last minute and sending troops firing at the plane as it takes off--none of which happened.

Richard Jewel follows the facts closely. But, rather than show Scruggs finding out that the FBI suspected Jewel of planting the bombs through dogged investigation, the filmmakers decided to portray Scruggs as having obtained this information by sleeping with FBI agent Donald Johnson. No reporting of the events of 1996 claim that this happened. But Scruggs died, apparently by suicide, in 2001, Johnson in 2003, and Jewel in 2007, which likely eliminates any defamation claims concerning the portrayals of them. The AJC has written Eastwood, screenwriter Billy Ray, and the film's distributor Warners that the portrayal of Scruggs is false and that the newspaper is falsely shown as pimping her out in order to get the story. The AJC demanded that the filmmakers publicly acknowledge and  "prominently" insert a disclaimer stating that some events in the film have been invented and that dramatic license has been taken.  

The film already has such a disclaimer, but it is placed at the end of the closing credits and in small type. Whether the AJC has grounds to sue would need to be firmly expressed and established in a legal complaint filed by the filmmakers. The AJC's refashioning the argument that was leveled against them in 1996--that falsely showing Scruggs to be a slut to make the story more interesting is unethical and inappropriate--is definitely justified. Scruggs, who appears to have been a very talented and troubled person and who died at from a drug overdose at just 42 years of age, deserves better.