October 16, 2013 8:53am PT by Eriq Gardner
Errol Morris Convinces Appeals Court to Protect 'Tabloid' Journalism Film
Three years before Errol Morris experienced a victory at a California appeals court on Tuesday, the famed documentary filmmaker tweeted, "I prefer the truth with some varnish on it. (Where did that nonsensical phrase – the unvarnished truth – come from?)”
Morris could have hardly picked a better subject to illustrate the point than Joyce McKinney, who became famous in the 1970s after British tabloids presented her as the so-called "Manacled Mormon," a former American beauty queen who was alleged to have gone to England, abducting Kirk Anderson, a Mormon missionary, and then raping him. Years later, McKinney kicked off another press firestorm after she had her pit bull successfully cloned.
McKinney's story was told by Morris in Tabloid, a 2010 film aimed at showing how two British tabloids published wildly different accounts of the incidents for which McKinney had been arrested.
Afterwards, McKinney sued Morris and others responsible for the documentary. There were wild and bizarre allegations worthy of its own documentary. Among other things, McKinney said she was tricked into giving an interview for the film based on the representation that it would be a Showtime television series about the paparazzi that would help clear her name. She alleged that defendants wrongfully took control over some of her property, including photographs and home movies, and that co-defendant Mark Lipson, a Tabloid producer, broke into her home with a release form and said if she did not sign the paper, her dog would die. She even had a professor of psychology declare that Tabloid included subliminal messages that led its viewers to "the development of rogue beliefs."
A Los Angeles judge dismissed many of McKinney's allegations, including that the film had defamed her and violated her likeness and privacy, but allowed other causes of action including fraud and breach of contract to survive.
McKinney appealed the judge's narrowing of the lawsuit, contending that the judge had wrongfully applied First Amendment standards. As a result, a California appeals court had to make an almost metaphysic examination of what happens when the camera is turned on the paparazzi's appetite for salaciousness.
In her ruling on Tuesday, California appellate Judge Elizabeth Grimes is presented with a series of issues.
The first is whether the the subject of Tabloid is a matter of public interest. McKinney argued that the story of the "Manacled Mormon" may have been a matter of public concern 30 years ago, but not now, and not in America. She further argued that the film couldn't be found to concern the broader subject of tabloid journalism because it didn't provide any direct critical analysis of tabloid journalism.
The appeals judge rejects that contention, saying that Morris had creative license and that the overall theme of the documentary concerned tabloid journalism and not plaintiff's persona.
"We conclude defendants' film presents a view of how the tabloid media operates as seen through the lens of plaintiff's personal experiences in the maelstrom of the Manacled Mormon media circus," writes Judge Grimes. "The subjects of tabloid journalism and the oftentimes questionable tactics of tabloid reporters and paparazzi photographers are matters of widespread public interest. Along with the related issues of the overnight rise of 'celebrities' from tabloid coverage and reality television, the subject is so prevalent, it borders on a societal obsession. It is not mere coincidence Tabloid was released, as defendants note, at a time when the News of the World phone-hacking scandal was making international headlines."
Next, having established that Morris' film concerns conduct protected by the First Amendment and California's anti-SLAPP statute, the question turns to McKinney's likelihood of prevailing on her claims. A key factor here is whether McKinney is a "public figure." If so, she'd have to demonstrate malice on the part of filmmakers in presenting any untruths.
Judge Grimes concludes that "by expressly agreeing to participate in a taped interview to be used in a production for a broad public audience, plaintiff voluntarily and affirmatively injected herself into a public discussion about the tabloid media, their tactics and how they purportedly present or misrepresent the truth, and 'destroy' privacy."
McKinney argued that she was misled about the final format of the presentation, but the judge says she was nonetheless willing to give a taped interview, showing how she injected herself. McKinney also pointed to the fact that she had declined numerous offers in the past 35 years to tell her story, but the judge says that it only goes to demonstrate how the "public remained interested in her story."
In other words, she was damned by agreeing to do an interview. And she would be damned by refusing to give one too.
Still, the possibility remains that McKinney could show malice on Morris' part. But the judge curtails the ways that McKinney might do this. The method by which the defendants allegedly attained her consent to participate in the film "raises an inference of ill feelings or callousness toward plaintiff personally," says the judge, but isn't focused on the "truth or falsity of the material presented in the film." And statements made by Morris and Lipson in promoting the film don't indicate any "subjective belief" about the inaccuracy of the film nor demonstrate ill will toward McKinney.
And so, McKinney can't revive her claim of defamation, among others previously rejected.
That doesn't mean the dispute is over. The case now continues at a trial court where McKinney will continue to push her theory that Morris misrepresented his film to her and caused her emotional distress. The plaintiff still hopes for a trial showdown to show that Tabloid isn't what it was supposed to be, nor what it appears to be. Of course, truth is tricky. Even Morris seems to appreciate that.