Jonathan M. Stein
Tuesday, Oct. 28, 2003

“The Reagans” is nothing but a defamatory hatchet job sanctioned for the sole purpose of destroying a dying man’s legacy. The author of the screenplay, the producers and CBS all know that.

Therefore, CBS must be stopped from ever airing the program.

As the CBS miniseries is clearly defamatory, the real-life Reagans can go to court and stop CBS from airing it. To understand how this is possible, it is necessary to explain what defamation is and how potential victims of defamation can prevent injury altogether.

Defamation, in essence, deals with wrongful injury to an intangible asset – one’s reputation.

In order to sue for defamation, there needs to be the publication of an allegedly defamatory (reputation-damaging) statement that can be understood as referring to the plaintiff (the person suing) in a defamatory sense.

Further, the statement must actually cause damage to the plaintiff’s reputation. The key here, though, is that the statement must be false. If it is substantially true, then there is no defamation.

Defamation comes in two “flavors”: libel and slander. Libel covers written or printed publication whereas slander covers verbal communication (publication). Libel is easier to prove because, unlike slander, libel is right there in black and white.

Interestingly, courts generally consider defamation that occurs via television broadcast “libel” as opposed to “slander.” A New York intermediate appellate court explained, in Matherson v. Marchello, that defamation via television broadcast is considered libel because “[g]iven the vast and far-flung audiences reached by the broadcasting media today, it is self-evident that the potential harm to a defamed person is far greater than that involved in a single writing.”

Normally, in an action for defamation, the defendant (the one accused of defamation) has the burden of proving the truth of the allegedly defamatory statement – if the statement is true, then there is no defamation.

However, things are much trickier in the case of a public figure, i.e., when a public figure claims that he or she has been defamed. The most important case relating to the defamation of public figures is The New York Times Co. v. Sullivan, which was decided in 1964. In that case, the Supreme Court of the United States announced that a public figure may not “[recover] damages for a defamatory falsehood relating to [their] ... conduct unless [they prove] that the statement was made with 'actual malice.'”

So, that is now the general rule – a public figure must show “actual malice.”

Actual Malice

“Actual malice” does not actually mean what one might think. The Sullivan court defined “actual malice” as “knowledge that [the allegedly defamatory material] was false or ... reckless disregard of whether it was false or not.”

So, to prove “actual malice” a plaintiff needs to show that the defendant knew that the statements were false or that there was a substantial probability that they were false, but they ignored the risk and published them anyway. In 1974, the Court added that actual malice had to be demonstrated by “clear and convincing proof.”

If CBS broadcasts “The Reagans,” the real Reagans could take CBS to court and win.

From what we’ve seen and read so far, the CBS miniseries is full of defamatory material that wrongfully harms the reputations of Ronald and Nancy Reagan.

One of the most defamatory moments in the show is a scene in which the Ronald Reagan character, referring to AIDS patients, states “they that live in sin shall die in sin.”

Ronald Reagan never spoke those words.

Further, the screenwriter, Elizabeth Egloff, admits that she knows Ronald Reagan never spoke those words or any words like them. Thus, CBS knows that the words Ms. Egloff put in Mr. Reagan’s mouth are false; that is, CBS knows that Ronald Reagan never spoke those words.

That is exactly what the Sullivan Court meant by “actual malice.” So, if CBS airs “The Reagans” knowing that it contains false material that will wrongfully damage Mr. and Mrs. Reagan’s respective reputations, the Reagans can take CBS to court, prove “actual malice,” and win.

However, the real Reagans do not need to wait until the damage is done to sue.

If plaintiffs, like Ronald Reagan, can show that they are in imminent danger of “[suffering] irreparable injury” and that they would probably be able to sue and win if the harm that they are afraid of did indeed occur, then they can probably get an injunction to prevent harm.

In this case, it is clear that the Reagans are in danger of having their reputations harmed by the CBS television miniseries.

It is also likely that they could probably take CBS to court and win if CBS did air the miniseries.

Therefore, it is also likely that the Reagans could get a court order (injunction) preventing CBS from airing the miniseries at all, which would prevent the injury they would suffer if the series did air.

Although CBS would be harmed financially by such an injunction – it would lose the money it spent on making and advertising “The Reagans” – a court would probably still grant the injunction, because CBS should have thought twice before spending money on a television show that it knew contained defamatory material.

An injunction is in order here because CBS has engaged in bad behavior and deserves to be punished. If CBS is not punished for its bad behavior, it will continue to engage in bad behavior.

The real Reagans must get an injunction to avert this travesty and to punish CBS for its poor judgment in ever allowing such a libelous show to be produced.

If the Reagans do not seek to enjoin CBS, thus letting CBS get away with libel, then more of these horrible smear jobs are sure to follow. The Reagans have the standing to stop this trend in its tracks. They must act.

Jonathan M. Stein is a student at Hofstra University School of Law and a Member of Hofstra Law Review.

Read more on this subject in related Hot Topics:
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