COMMENTARY : In a Perfect World, Audiences Could Sue : Libel: Recent court decision allowing artists to sue critics for negative reviews means Michael Bolton’s attorney and Court TV are going to be very busy.
When a U.S. Appeals Court decided on Feb. 18 that an artist can sue critics for libel if they can prove a negative review is factually incorrect, one person’s job no doubt suddenly and exponentially became more hectic.
Michael Bolton’s attorney.
(Let me quickly explain something to Mr. Bolton--you have received a lot of bad reviews. That is a fact. So you can’t sue me. In fact, if you hadn’t thought of suing every pop music critic from here to Nova Scotia before reading this, you should probably cut me in on the deal. Besides, I think your music is great! But then, I found the Northridge quake a bit subtle for my tastes.)
Here’s what happened: Judges in a Washington court, apparently feeling that there weren’t enough spurious lawsuits hopelessly strangling the U.S. legal system, ruled that a review in the New York Times describing a book’s “sloppy journalism” could, itself, be construed as sloppy criticism and detrimental to the author’s reputation. A lawsuit--hoping to objectively prove that the reporting was in fact not “sloppy"--was reinstated for $10 million, which is no doubt what the author would have earned if a glowing review had encouraged everyone to rush right out and buy his meticulously researched, brilliantly crafted tome (no way am I gonna get on that guy’s bad side.)
Judge Harry Edwards wrote, “For an author, a harsh review in the New York Times Book Review is at least as damaging as accusations of incompetence made against an attorney . . . in a legal . . . journal.” So if the review had run in People magazine, it would’ve been OK? If an artist doesn’t want his book or movie or album reviewed, why doesn’t he or she just not release the damn thing?
Obviously, this most recent turn in the world of legal squabbling portends doom for the legion of scribes who, without ever having to demonstrate any noticeable talent in the arts themselves, gleefully run roughshod over the efforts of others. Now, for nobly protecting the citizens of our nation from the extreme nausea induced by inferior entertainment products, these brave and honorable men and women must face persecution. Or they’ll have to go find a real job.
Observers fear this will result in namby-pamby criticism from reviewers cowed by the threat of a lawsuit into blandly recommending everything in sight, like those entertainment reporters on the TV news. Here’s a quick way to prove this theory: This weekend, did your local critic actually seem to enjoy “8 Seconds”? It’s happening. If critical reappraisals delving into the virtues of “Cabin Boy” start popping up, we’re all in trouble. (Not that “Cabin Boy” didn’t deliver the finest in cinematic experiences, mind you--please don’t sue--it’s just that it would be a shame to waste all that space when critics could be happily praising new works.)
Clearly, these judges are morons (this statement, too, is a fact, though it might take a Herculean effort to prove it in a court of law; still, they shouldn’t consider suing) who apparently napped through First Amendment 101 in law school. The lone dissenting voice of reason in the court, Abner Mikva (who has a funny name--this, too, is a fact ), wrote, “If a statement (regarding) a sloppy book is defamatory, so would be a statement . . . that Oliver Stone made a sloppy film.” (Who’d have thought that a jurist would’ve seen “The Doors”?)
What’ll be a real treat is when these libel cases start rolling through the courts. Just as with the Bobbitt and Menendez trials, where both prosecution and defense trotted in “experts” to discourse at tedious length on whether the defendant(s) were in a fuzzy state of mind when they committed their heinous crimes, both plaintiffs and defendants will be dragging in critics from around the country to debate the merits of a work of art:
Attorney: So, in your learned opinion, was my client issuing a factual statement when she wrote, “ ‘My Father, the Hero’ is cretinous drivel created by folks with IQs approaching double digits”?
Witness: My wealth of experience in the cinematic arts leads me to the conclusion that that is a factual statement.
Cross-examining attorney: Have you actually measured Mr. Depardieu’s intelligence quotient employing accepted laboratory techniques?
Court TV will become wall-to-wall “Siskel and Ebert.” Getting the best critics will be lawyers’ biggest challenge, though if I were an attorney, I’d be a little wary of so-called experts whose critical acumen is gauged by their thumbs.
Eventually, of course, critics will learn to tweak their prose so that their reviews will no longer be actionable in court. One sure-fire way is to ape the language of the average journalist who dances around unsubstantiated claims he wants to get into print, with a barrage of words like “allegedly,” “rumored to be,” “sources say,” “apparently” and “maybe.”
To wit: “Informed sources say ‘My Father, the Hero’ is rumored to be cretinous drivel created by folks with IQs maybe approaching double digits.”
Another possible variation is the legalese employed in advertising--the “Your mileage may vary” tack. A critic could write: “The individual print of ‘My Father, the Hero’ that I saw contained cretinous drivel created by folks with IQs approaching double digits. Of course, the print running in your local theater may evoke the mastery of Renoir and Kubrick.”
(Note to the makers of “My Father, the Hero”: These are hypothetical situations employed to explain the subtleties of this brave new world of litigation, and are not intended as comment on the quality of your no-doubt sublime masterpiece. So you can’t sue me--I haven’t even seen your movie. Critics warned me away from it.)
In a sense, this whole mess is somewhat ironic, because people who get reviewed in high-profile publications tend to make much, much, much more money than the miserable wretches who have to review them, so the average plaintiff ain’t gonna make jack. But maybe critics will get wise and write in their pieces, “I personally am such an idiot,” then sue the publication they work for for damages.
The most unfair aspect of this is it doesn’t work both ways. If critics can be sued for slamming something that the artist feels has value, why can’t they be sued for raving over something that audiences find atrocious? For every picky, hyper-sensitive critic, there are a dozen happy-talk shills who recommend everything in sight, no matter how lame, sending us to expensive evenings of punishment.
Which would you rather do--miss something of nominal worth because a critic slagged it, or sit through something god-awful because some “expert” gushed all over it?
Perhaps that’s the next area of litigation. Gary Franklin, you’ll be hearing from my attorney.