Misdirecting Myths: The Legal and Cultural Significance of Distorted History in Popular Media

Abstract:     
An examination of an intersection of law and popular culture. More specifically, the focus is on the cultural effects of distorted versions of historical events in commercial cinema, and on two types of tort claims that can be asserted against the producers and distributors of media alleged to cause harm. Film can be a powerful medium in the construction of our national myths. The effects of film on our understanding of who we are as a nation, and the sense of citizenship that flows from that understanding, are particularly significant when the film is a presentation of significant events in the nation's history. The Article develops its themes around a consideration of two films, Oliver Stone's JFK and Steven Spielberg's AMISTAD. Each of the films distorts the history of the events it recounts, but in quite different ways. If Stone's JFK tells the story of a national nightmare that we might hope isn't true, Spielberg's AMISTAD recounts a national past we may wish were ours.

The cultural effects of the films are considered in light of tort claims asserting liability for harm allegedly caused by the media. Two types of tort claim offer useful lessons about legal and social responsibility. The treatment of an individual's claim for relief from the harmful effects of being identified with a character in fictional work supports the idea that the media operate with a broad but not unlimited protection from liability when they engage in the fictionalization of actual events. That understanding of the powerful protection enjoyed by the media is reinforced by the current approach to cases seeking to impose liability when exposure to media allegedly operates as an incitement to violence, but the insights gained from the incitement to violence cases extend beyond the potential legal responsibility of media producers. The unrealistically constrained notions of legal obligation and causal responsibility employed in the incitement to violence cases, appropriate though they may be in a liability context, can be combined with the consideration of the cultural effects of distortions of history in cinematic presentations of actual events to highlight the social need for a self-imposed sense of responsibility in the exercise of the freedom so vigorously protected by law.

Number of Pages in PDF File: 45

Accepted Paper Series