Does The First Amendment Allow Journalists To Lie To Their Subjects? U.S. Senator Accuses Documentary Film Makers Of Fraud


On April 1, 2014, West Virginia Senator Joe Manchin issued a press release accusing Adroit Films of fraud. Manchin had agreed to be interviewed by the media company for a documentary about the Upper Big Branch mine disaster, which caused the death of 29 miners in 2010. However, Manchin reports that when the documentary was released on March 31, 2014, he was horrified to find that it was nothing more than a propagandistic defense of Don Blankenship, the CEO of Massey Energy, who is under investigation for his role in the disaster.

Senator Manchin claims that he was deceived by the filmmakers in two ways. First, they failed to tell him that they were affiliated with Blankenship (had he known that, he would have declined to be interviewed). Second, the filmmakers told him that the film would be mostly about “mine safety,” but that was not really the case. Manchin has demanded that distribution of the film cease, and announced that he will “pursue every legal recourse.”

Possible Claims Against Lying Filmmakers

So what options are available to a documentary subject who has been lied to? It might be helpful to divide the universe of potential claims into two categories. In the first category are claims based on the content of the film itself, i.e., did the film defame the subject, or violate his privacy, or misappropriate his name or likeness? These claims would be subject to strong First Amendment defenses, especially where (as here) the plaintiff is a public official or public figure.

In the second category are potential claims based not on the content of the film, but on the way in which the film was made. Depending on the circumstances, one can imagine that some filmmakers in the process of making a documentary might trespass, or steal or — as alleged by Manchin – make a fraudulent misrepresentation. Is this second category of torts, when allegedly committed by the media, also subject to First Amendment defenses? The First Circuit considered this issue in somewhat similar circumstances in Veilleux v. NBC.

Parents Against Tired Truckers: Veilleux v. NBC

PATTIn 1993, an overtired long-distance trucker employed by Raymond Veilleux caused a fatal highway accident in Maine. After the accident, journalists working for Dateline NBC contacted Veilleux and allegedly made two important representations. First, the journalists claimed that they were making a documentary that was going to cast the long-distance trucking industry in a “positive light.” Second, Veilleux told the filmmakers that he did not want to appear in the same program as Parents Against Tired Truckers (“PATT”), an advocacy group founded by the families of the accident victims. The journalists assured Veilleux that they “had no intention of including PATT in the program.” In fact, this was false: they had already interviewed PATT for the program. Based on these representations, Veilleux granted the journalists access to one of his drivers, and the results were disastrous. The final program not only included PATT, but also included evidence of the driver’s drug use and other illegal acts. Veilleux subsequently lost customers and contracts.

Veilleux sued NBC for defamation based on the content of the program, and also for fraudulent misrepresentation based on the alleged assurances from the journalists. The jury awarded Veilleux $100,000 in connection with his defamation claim and $150,000 in pecuniary business losses stemming from the misrepresentation. On appeal, the First Circuit reversed the defamation claim on various First Amendment grounds, including because the plaintiffs had not shown that any statements in the program were materially false.

Misrepresentation Claim Not Barred by First Amendment

But the Court refused to afford the same First Amendment protections with respect to the misrepresentation claim. The Court opined that, even though the press does enjoy certain First Amendment protections when it is reporting truthful information, it does not enjoy general immunity from tort liability for the way in which (even truthful) information is acquired. Citing the Supreme Court in Cohen v. Cowels Media Co., the First Circuit held that “the First Amendment is not offended by the operation of a generally applicable law that, when enforced against the press, has merely an incidental effect on its ability to gather and report the news.” Moreover, the plaintiff here was seeking only pecuniary — not reputational — damages from the misrepresentation, so this was not a case where defamation was being disguised as something else in order to avoid First Amendment strictures.

Therefore, Veilleux’s misrepresentation claim could stand, as long as the alleged promises on which it was based were specific enough to satisfy the elements of the tort. The Court first addressed the alleged misrepresentation that the film would portray the trucking industry in a “positive light.” This promise was not specific enough to give rise to a claim of misrepresentation. However, the alleged promise to exclude PATT from the program was clear and specific, and the court held that it could support a misrepresentation claim.

But there were still additional hurdles for Veilleux to overcome. The jury had not been asked to decide if the harm to Veilleux’s business was caused “specifically and directly” by the misrepresentation about PATT. Veilleux could not “recover generally for all harm flowing from the entire broadcast,” but only the pecuniary damages arising from the fact that PATT was included in it. The Court, while acknowledging that such causation would be very difficult to prove, remanded the matter for further proceedings on the issue. Veilleux chose to settle rather than take his chances in a new trial.

Senator Manchin’s Potential Claims

So, where does this leave Senator Manchin? We assume that any case brought by the Senator would include several counts based on the content of the film: defamation, invasion of privacy, right of publicity, etc. But as to a misrepresentation claim, Senator Manchin would have to show that he participated in the film because he relied on a specific material misrepresentation made by the filmmakers. Promises about the overall content of the show may not be specific enough – after all, how much “mine safety” content is required before a film is about mine safety? But perhaps the Senator will be able to show that Adroit’s failure to disclose its affiliation with Blankenship was an omission equivalent to a specific misrepresentation. The Senator will also have to prove that he suffered non-reputational harm that was “specifically and directly” caused by this misrepresentation.

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