THE WASHINGTON POST – Alan Dershowitz, who is a real lawyer, claims he has been defamed by Benjamin Dafoe, who is a fictional lawyer.
Hang on, your honour. Things are about to get complicated.
The Good Fight, which streams on CBS All Access, frequently revolves around ripped-from-the-headlines events.
On May 28, the legal drama aired an episode called The Gang Discovers Who Killed Jeffrey Epstein, about the wealthy offender who died in prison last year.
On the show, Benjamin Dafoe, Epstein’s (fictional) former attorney, said he formed a very bad opinion of Epstein after “he ditched me for Dershowitz”. Then he added, “At least I didn’t get a massage, like that shyster.”
In a letter sent to CBS and made public by Variety, Dershowitz’s lawyer claims that this episode is defamatory and constitutes “a direct attack on his professional reputation as an attorney and professor of law”. Dershowitz wants CBS to delete the offending dialogue and issue him a public apology.
A real-life lawyer for CBS responded with all the pluck and wit you would expect from a character on The Good Fight. “Benjamin Dafoe is not a real lawyer,” wrote attorney Jonathan Anschell. “In other words, as one might explain to a small child, the series, its characters and the things they say are all make-believe. People don’t watch the series for factual information about Professor Dershowitz or anyone else.”
Dershowitz’s objection to The Good Fight may sound like a variant of the strange legal battle that Representative Devin Nunes (R-California) launched last year against a parodic cow on Twitter.
But his complaint, if successful, could pose a challenge to the vibrancy of contemporary historical fiction and biographical fiction – indeed, to any creative work that includes interactions between fictional and real-life public figures.
Just this summer, for instance, several prominent writers have published novels that borrow, embellish and manipulate the details of well-known people’s lives.
Their stories freely mingle fiction and nonfiction, statements people have said and statements they have never said.
There are no footnotes in these novels to distinguish truth from fantasy, research from invention.
Last month, Christopher Buckley published a hilarious Washington satire called Make Russia Great Again. While some characters – like the hospitality expert who narrates the novel – are constructed from whole cloth, others are only thinly disguised, such as President Trump’s daughter ‘Ivunka’ and her husband ‘Jored’.
Almost everybody in these pages is accused of committing unethical and illegal acts.
The outlandish plot revolves around a videotape of Trump “grabbing” 18 beauty contestants.
In a less riotous but equally inventive vein, Curtis Sittenfeld’s new novel, Rodham, presents itself as a memoir by Hillary Clinton.
The novel’s early pages follow the generally known details of Hillary’s life. It’s often difficult to remember that you’re not actually reading the former first lady’s words.
But soon, Hillary and her magnetic boyfriend, Bill Clinton, break up. The rest of the novel takes place in an alt-reality where the two never married. A crisis erupts when a fictional character accuses Hillary of harassment. Whether this is defamatory depends on what your definition of is is.
Later this month, Darin Strauss will publish a novel called The Queen of Tuesday about the TV star Lucille Ball.
Much of the detail about Ball’s life and career is based on her biography, but the heart of the novel involves a fictional affair between Ball and Strauss’ grandfather. It’s too late for Ball to sue, of course, but does this illicit story line damage her legacy?
Consider how many novels, plays, TV shows and movies would have to be cancelled or dramatically clipped to protect famous people from being offended by such creative license.
Fiction should be like Vegas: What happens there, stays there. Fictional characters can no more defame a real-life person than they can murder one.
We like to imagine this is a modern issue, but our earliest stories arose millennia ago from a complex mingling of fact and fiction, tribal history and myth.
Could Penelope’s suitors have sued Homer for Odysseus’ comments about them? Okay, that’s a ridiculous question, because surely Athena would have defended him, but stay with me here.
The challenge of blending real and invented characters wasn’t so theoretical for William Shakespeare. Macbeth probably lacked standing to challenge him in court, but writing political history plays under the reign of a monarch was a dangerous endeavour for the man from Stratford-upon-Avon.
When Shakespeare worked on a play called Henry VIII, he was treading very close to the sensitivities of tyrannical power.
Since that time, we’ve continued to relish the portrayal – laudatory and malicious – of famous people in works of art, and courts have extended special protection to such amalgamations.
Just two years ago, an appellate court in California ruled against Olivia de Havilland when she sued FX Networks.
It was over the miniseries Feud: Bette and Joan. The legendary actress claimed that the TV show violated her privacy, misappropriated her identity and harmed her reputation.
But the court shot down those complaints, writing that “viewers are generally familiar with dramatised, fact-based movies and miniseries in which scenes, conversations, and even characters are fictionalised and imagined”.
The judges referred to an earlier decision from 2001, which concluded that “the right of publicity cannot, consistent with the First Amendment, be a right to control the celebrity’s image by censoring disagreeable portrayals”.
Writers are fortunate to have that First Amendment protection, but we readers and viewers benefit most. In a good work of historical or biographical fiction, there’s a magical synthesis between fact and creativity.
We’re drawn into an understanding that transcends the mere details of history and biography.
This is, admittedly, a sophisticated game that authors are playing with us – and the law.
In a brief Author’s Note, Buckley stated, “Any person finding any resemblance between themselves and persons depicted herein should probably be ashamed”.
Sittenfeld takes a more serious approach. She began her new novel by claiming, “While some characters have real-life counterparts, their characterisations and the incidents in which they are depicted are products of the author’s imagination and are used fictitiously. Rodham should be read as a work of fiction, not biography.”
But that’s not entirely true, and if it were, the novel wouldn’t be generating nearly so much attention. Yes, Sittenfeld’s characters and incidents have been creatively manipulated by the author, but part of their fascinating appeal remains their uncanny resemblance to actual people and events.
That, it seems to me, is the ambiguous realm we must continue to appreciate – and legally defend.
We come to understand something essential about our history, and about the figures who exercise such outsized influence over it, when we engage with stories that force us to imagine them in invented contexts.
When I asked Dershowitz if his complaint could possibly imperil contemporary historical fiction, he noted that his objection is focussed on just one issue.
“I am challenging the concept that a writer cannot, as a matter of law, defame a living person by putting malicious lies in the mouths of fictional characters,” he wrote via email. “I have no legal objection to the genre of using real names in fictional accounts – though I personally disapprove of it in the name of honesty.
“Nor do I have a problem with fictional characters being critical of real people, as long as the criticism is not maliciously defamatory.”
I’m not a lawyer – not even a fictional one – but I worry that such a legal limit would constrain artists either by suing them into silence or forcing them to censor their own imaginations to avoid the possibility of being dragged into court.
Judges have justly concluded that readers and viewers are smart enough to demarcate fact and fiction.
Dershowitz’s position could possibly jeopardise such creativity – and generate a host of lawsuits.
By way of example, he wrote, “If Walt Disney had Donald Duck falsely accuse a living person of being a murderer or bank robber, that person should be able to sue Disney or the writer. It’s worse when the writer puts defamatory accusations in the mouth of a realistic lawyer character.”
With all respect, counsellor, I’m with Donald Duck here.