The Disney organization's production "The Path To 9/11" has prompted Senate Democrats to threaten to revoke ABC's broadcasting license unless the mini-series is revamped to conform to their specifications.
We have at last a genuine example of a threat of censorship: the use of State power to punish an organization for something it has said. Indeed, this goes further than that, in that those Democratic Senators are exercising their threat prior to the "statement" represented by the mini-series. That makes it a case of politically powered extortion, which would surely be adjudged a felony if any private party were to try it.
But wait! There is an exception to the First Amendment's protection of freedom of speech: the laws against slander and libel. Smith has slandered Jones if he has made defamatory oral statements about Jones that Smith cannot substantiate. Smith has libeled Jones if he has allowed such statements to be printed or broadcast.
Note the qualifying clause: " that Smith cannot substantiate." A defendant in a slander or libel action can escape unscathed by asserting and demonstrating the truth of his statements. So if ABC could produce evidence to support the statements made in "The Path To 9/11" to which those Senate Democrats object, the objectors would lose their case.
Does ABC have such evidence? Unclear, especially given the statement by the series's executive producer:
Executive Producer Marc Platt acknowledged that "there is dramatic license taken" in the docudrama to "render the program effective and accessible for viewers."
"But we do try within the boundaries of what is fair and reasonable to communicate the essence of what occurred (and) the intentions of those individuals involved," he told Reuters in a telephone interview from London. "We have no intention or desire to be political, to intentionally distort."
Since the series is being billed as a "docu-drama," the implication of dramatic license, to heighten the entertainment value of the series at some expense to its provability, should have gone without saying. But that opens a larger question: is it morally defensible to write fiction about the actions of persons who have occupied high office in the real past?
The BBC production "The Death Of A President," which chronicles events in the aftermath of the assassination of President George W. Bush, should be included in this sheaf of conundra, don't you think? And what about the many statements by Democratic partisans imputing felonious behavior to Vice-President Dick Cheney, to presidential advisor Karl Rove, and to others for political advantage -- imputations for which there was never any substantive backing, and all of which are now provably false?
Shouldn't all of these defamations be weighed for addressability under the slander and libel laws? Shouldn't those who made them have to rise to the same standard, at the minimum, that the Senate Democrats are demanding of ABC and Disney? After we've settled all that, perhaps we can make a group appointment to have our teeth filed down to points.