The Virginia Defamation Law Blog
So you may have heard that environmental scientist Paul Brodeur is seeking $1 million in damages for libel, defamation, slander and false light against the movie studios behind 2013’s highly acclaimed film American Hustle. Why? Because according to him, the movie damaged his reputation by “attributing…a scientifically unsupportable statement” to him. Had this action been filed in Virginia rather than California, it would not likely go very far.
Here’s the scene: it’s the late 1970s or early 1980s, and the two characters played by Christian Bale and Jennifer Lawrence are arguing about the new microwave oven that just exploded in their kitchen:
Irving Rosenfeld: I told you not to put metal in the science oven! What did you do that for?
Rosalyn Rosenfeld: Don’t make such a big deal! Just get another one.
Irving Rosenfeld: I don’t want another one, want the one that Carmine gave me.
Rosalyn Rosenfeld: [mocking] Oh, Carmine! I want the one that Carmine gave me! Carmine! Carmine! [serious] Why don’t you just marry Carmine? Get a little gold microwave and put it on a chain around your neck! You wanna be more like Carmine? Why don’t you build something, like he does? Instead of all your empty deals; they’re just like your fuckin’ science oven. You know, I read that it takes all of the nutrition out of our food! It’s empty, just like your deals. Empty! Empty!
Irving Rosenfeld: Listen to this bullshit.
Rosalyn Rosenfeld: It’s not bullshit! I read it in an article. Look: By Paul Brodeur.
[hands Irving the article]
Rosalyn Rosenfeld: Bring something into this house that’s gonna take all the nutrition out of our food and then light our house on fire? Thank God for me.
Funny, isn’t it? And therein lies the defense.
Paul Brodeur is an investigative science writer who actually did author a piece entitled The Zapping of America in which he wrote of the dangerous of microwave radiation. In a 1978 interview with People Magazine, he explained, “For 25 years the military-electronics industry complex has suppressed, ignored or failed to pursue evidence that people were being injured by microwave radiation.” When asked during that same interview about whether there was “any danger” in eating food cooked by microwaves, he replied “none that is known.” His lawsuit claims he never, ever said that microwaves drain the nutrition from food.
But does the movie actually attribute those words to him in a manner intended to convey to the viewing audience that Mr. Brodeur is an incompetent scientist? First of all–and this is important–the movie begins by displaying the message, “Some of this actually happened.” That’s a far more honest introduction than the more common “based on a true story,” and tells the viewers right off that bat that most of what they are about to see is pure fiction. Sure, Paul Brodeur is a real person and the movie refers to him by his real name, but he will have a difficult time convincing a judge or jury that an inaccurate reference to his scientific findings was among the “stuff” that “actually happened,” particularly when his supposed article was being used to comedic effect in an argument over a mysterious “science oven.”
Language will not carry defamatory meaning when used in a context that shows it is not intended to be interpreted literally. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 16-17 (1990) (explaining constitutional prohibition against imposing defamation liability in cases where circumstances of speech indicate defendant’s statement not intended literally). This is as true in California as it is in Virginia. Therefore, if the court finds that the hypothetical reasonable viewer would not conclude from this particular bit of dialogue that Paul Brodeur actually wrote an article claiming that microwaves suck the nutrition out of food, the claim will likely fail for lack of defamatory meaning and/or lack of actual harm to reputation.